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United States v. Curtis-Nevada Mines, Inc.

ELR Citation: 10 ELR 20191
Nos. No. 76-3093, 611 F.2d 1277/(9th Cir., 01/17/1980) Rev'd

The Ninth Circuit Court of Appeals reverses a district court ruling, 6 ELR 20715, that the owner of unpatented mining claims on federal lands has the right to exclude members of the general public from recreational use of the land which does not interfere with mining activities unless they have obtained a specific governmental license for such use. The court concludes that the "other surface resources" of unpatented mining claims which the United States may manage for multiple use purposes under §4(b) of the Surface Resources and Multiple Use Act of 1955 includes recreational uses which do not interfere materially with prospecting or mining operations. It also rules that because the general public has long been viewed as having an implied license to use lands within the public domain, the "permittees and licensees" entitled to use these surface resources under the Act include members of the public who do not hold formal permits or licenses. The court points out that the claim owner could apply for a patent to obtain title to the land or bring suit to enjoin public access if the activity can be shown to interfere materially with prospecting or mining.

Counsel for Plaintiff-Appellant
Betty Wolfe, Ass't U.S. Attorney
3002 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2552

Counsel for Defendant-Appellees
Leslie M. Fry
Fry & Fry
105 N. Sierra St., Suite 201, Reno NV 89505
(702) 329-8646

Before TRASK and HUG, Circuit Judges, and ORRICK,* District Judge.