United States v. Shumway

No. 96-16480 (199 F.3d 1093) (9th Cir. December 28, 1999)

The court reverses a district court summary judgment decision that ordered the owners of unpatented mill site claims in the Tonto National Forest in Arizona to remove themselves and all their things from the sites and to restore the sites to their natural condition. The government sought to evict the owners because they failed to submit an approved operating plan for their mills. The plan was unapproved because the owners could not afford the government's increased bond requirement for the sites. The court first holds that so long as the owners complied with mining laws and U.S. Forest Service regulations, they were entitled to a right to possess the mill sites and could not be evicted. The owners received the First Half of the Final Certificate toward their patent, thus, there is a rebuttable presumption that they are entitled to a patent. Therefore, even if the owner's right to a patent has not vested, they may still defeat a motion for summary judgment if they demonstrate that the Forest Service raised the bond requirement arbitrarily and unreasonably circumscribed their milling operations. The court next holds that the district court erred in disregarding affidavits submitted by the owners and by the head of an environmental cleanup and testing firm. The affidavits are material as to whether the Forest Service had the authority to order the removal of on-site equipment and as to the amount of a reasonable bond. The owners, therefore, successfully raised a sufficient factual dispute to defeat summary judgment.

The court also holds that the record establishes a genuine issue of fact as to whether the Forest Service exceeded its authority by unreasonably circumscribing the owner's milling operations and raising the bond requirements arbitrarily. The owners presented evidence contradicting the Forest Service's assertion that the mill site operations had changed substantially and that their equipment and materials were junk. If that is true, the bond amount should not have drastically changed. Last, the court holds that the record provides no basis for evicting the owners because there is uncontradicted evidence that they own the mill sites.

The full text of this opinion is available from ELR (16 pp., ELR Order No. L-156).

Counsel for Plaintiff
Lisa Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Arthur E. Lloyd
Lloyd, Rorinson & Slovek
600 E. State Hwy. 260, Payson AZ 85541
(520) 474-6727

[30 ELR 20279]

[NO TEXT IN ORIGINAL]