Jones v. United States
Citation: 28 ELR 20112
No. 96-16457, 121 F.3d 1327/(9th Cir., 08/11/1997)
The court holds that an 11-month period between the publication of a new statutory fee for unpatented mining claims and the compliance deadline afforded a claim holder a reasonable opportunity to comply with the deadline, and, thus, did not violate his procedural due process rights. Pursuant to the new statute, failure to pay the $ 100 fee or file for a small miner's exemption constitutes an abandonment of the mining claim. The court first holds that the claim holder is presumed to have acquired knowledge of the new requirements sometime in October or November 1992, because the statute was enacted in the beginning of October 1992. The claim holder is also charged with knowledge of the statute's requirements by virtue of the notice published in the Federal Register on November 16, 1992. Next, the court holds that under Texaco, Inc. v. Short, 454 U.S. 516 (1982), the 11-month period satisfies procedural due process. Although the statute in Texaco provided claim holders with a two-year period to become familiar with the new law, the claim holder's position in this case is actually weaker. The Texaco claimants never had been subjected to any regulation, while the claim holder here had actual knowledge of existing prior regulations applicable to his unpatented mining claims. Therefore, the claim holder here has more reason than the Texaco plaintiffs to be alert to possible regulatory changes. Under the principles established by Texaco, and in light of the simplicity of the new requirement and the minimal burden it imposes on mining claim holders, the court concludes that the period of 9 to 11 months between publication of the law and its deadline affords more than a reasonable opportunity for claim holders to comply with the statute. The court also declines to hear the claim holder's argument that his equal protection rights were violated when the government sent individual notice of the new statutory requirements to all holders of mining claims in California, but failed to notify him. The claim holder failed to raise this contention in the district court, and did not advance any reason why the court should deviate from the general rule of not addressing legal theories raised for the first time on appeal.
Counsel for Plaintiffs
William J. Kopeny
Kopeny & Powell
8001 Irvine Center Dr., Ste. 1170, Irvine CA 92618
Counsel for Defendants
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Before Farris and Stagg,* JJ.