ELR Citation: ELR 20360
No(s). 93-35051 (9th Cir. Dec 7, 1994)

The court holds that §5(b) of the Wilderness Act authorizes the U.S. Forest Service to regulate access to mining claims located in national forest wilderness areas, and that the Forest Service's Organic Administration Act, 16 U.S.C. §§478 and 551, authorizes the Forest Service to regulate access to mining claims located in non-wilderness national forest lands. Holders of unpatented mining claims located on federal land within national forests challenged rulings by the Forest Service that, among other things, refused them access to their claims by motor vehicles. Two of the claims, the Robert E. and Thunderbolt claims, are located in regions designated as wilderness under the Wilderness Act. The third claim, the Wilson claim, is located in national forest land that is part of the wild and scenic rivers system.

The court first holds that §5(b) of the Wilderness Act expressly grants the Forest Service the authority to regulate means of access to mining claims in wilderness areas. Section 5(b)'s unambiguous instruction to the U.S. Department of Agriculture (DOA) to allow ingress and egress to such areas "by means which have been or are being customarily enjoyed with respect to other such areas similarly situated" implies an authority and duty to determine what means are being, or have been, "customarily enjoyed" in like areas. Although Forest Service decisions regarding access may affect a claim's validity that in no way alters §5(b)'s unequivocal delegation of authority to DOA.

The court holds that §§551 and 478 of the Organic Administration Act authorize DOA to regulate activities related to mining in nonwilderness areas in order to preserve national forests. Those sections clarify that miners' activities on national forest lands are subject to regulation under the statute and case law. The court rejects claimants' argument that because allowing motor vehicle access may affect a claim's validity, the access issue is different from other matters that the Forest Service may regulate. Case law makes clear that the Forest Service may regulate such matters, and claimants offered no compelling reason for distinguishing "means of access issues" from other such forms of regulation. The court also rejects the claimants' argument that the doctrine of primary jurisdiction requires that the court find that the Forest Service's actions are unauthorized. Even assuming that the doctrine applies to federal agencies, the doctrine is not applicable to the claimants' actions.

The court holds that the Wilson claimants failed to exhaust their administrative remedies with respect to that claim. The claimants failed to appeal the District Ranger's refusal to act on their 1988 and 1989 plans of operation, which is Forest Service policy until DOI ascertains a mining claim's validity. The court holds that the futility exception to the exhaustion requirement is not applicable. The court rejects the Wilson claimants' argument that it would have been futile for them to pursue an administrative appeal challenging the Forest Service's policy since the Forest Service had already expressed the above position by denying the Robert E. claimants' appeal. The Robert E. claim is located in a wilderness area, while the Wilson claim is not. Thus, the rule and reasoning on which the Forest Service relied in its ruling on the Robert E. claims do not apply to the Wilson claims, and the futility exception to the exhaustion requirement is not available to the Wilson claimants.

The court holds that the Forest Service did not unlawfully withhold or unreasonably delay agency action in violation of the Administrative Procedure Act (APA) §706(1) by prohibiting motorized access to the Robert E. claim while DOI determines the validity of the claim. The Forest Service interprets "validity" in §5(b) of the Wilderness Act and in 26 C.F.R. §228.15 to mean that the agency will grant motorized access only after DOI determines that the claim is valid. DOI's regulation that establishes procedures for administrative proceedings requires the Forest Service to delay treating any claim as invalid unless and until DOI's ruling of invalidity has been affirmed after administrative appeal. Even if the regulation did purport to do so, the Robert E. claimants cited no authority for the proposition that one agency may promulgate regulations that bind another agency in that way. The court holds that the Forest Service policy requiring timely processing of plans of operations is not inconsistent with these procedural provisions. The record in the Robert E. case demonstrates that the Forest Service did rule in a timely fashion on claimants' proposed plan of operation. The Forest Service approved the plan subject to a modification that permitted only nonmotorized access while validity was pending. The court finds that the challenged policy is not inconsistent with these procedural provisions. The court holds that the Forest Service policy of refusing to approve motorized access to claims located in national forest wilderness lands, unless and until the holder establishes the claims validity, is consistent with the governing statutes and agency regulations and thus is valid and enforceable.

Addressing the Thunderbolt claim, the court holds that the challenged agency ruling holding that motorized access to the claim is not required is not arbitrary and capricious in violation of APA §706(2)(A). There is not evidence showing that motorized access is "essential" to the claimants' operation of their claim or customarily used with respect to other such claims. The court also holds that the Forest Service's determination that the roads claimant sought to use to access their claims did not qualify as public highways, a decision that prevents them from using motorized vehicles on those roads, was not in excess of the Forest Service's statutory jurisdiction, authority, or limitations in violation of APA §706(2)(C). Although DOI is vested with the authority to make such a determination, 16 U.S.C. §551 confers on DOA authority to regulate roads within national forest areas.

The court also holds that the Mining Claims Act, 30 U.S.C. §612, does not limit Forest Service regulation of activities on national forest lands outside the boundaries of the mining claim. The Forest Service's actions regulating access to claims located in national forest lands need not comply with the "materially interfere" standard of §612. Section 612 only addresses use of the surface of any mining claim. Moreover, Congress enacted §5(b) of the Wilderness Act to address the regulation of national forest lands outside of the mining claim's boundaries.

The court holds that claimants may not maintain a suit for equitable relief, but rather are limited to the exclusive remedy of a suit for money damages under the Tucker Act. Neither Wilderness Act §5(b) nor other statutes under which the Forest Service has acted evince congressional intent to preclude a Tucker Act remedy. The Tucker Act, 28 U.S.C. §1346(a)(2), exclusively limits a takings action to a monetary remedy. Even if the claimants had sought leave to amend to add a prayer for monetary damages, the Court of Claims, and not the district court, would have exclusive jurisdiction over the action.

Finally, the court holds that the Forest Service did not violate claimants' procedural due process rights by failing to give them a hearing before issuing its rulings refusing to approve motorized access to their claims. Section 612 does not vest claim holders with a property right to any particular type of access to their claims across national forest wilderness lands surrounding their claims. Further, even if §5(b) conferred a property right to motorized access, the Forest Service's procedural protections satisfy constitutional requirements. Also, the claimants cited no authority showing that the Forest Service's detailed administrative procedures do not conform with procedural due process requirements.

Counsel for Plaintiffs
Roger F. Dierking
13513 NE Beech St., Portland OR 97222
(503) 257-7056

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tang, Wiggins, and Henderson,^* JJ.