                                                                            FILED
                            NOT FOR PUBLICATION                                APR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30300

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00476-MO-1

       v.
                                                 MEMORANDUM *
ED NEEDLES,

              Defendant - Appellant.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                     Argued and Submitted November 15, 2011
                                Portland, Oregon

Before: FISHER, PAEZ and CLIFTON, Circuit Judges.

      Ed Needles appeals his conviction, after a bench trial, for unlawfully

maintaining, occupying and using a residence on National Forest System lands in

violation of 36 C.F.R. § 261.10(b). We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Needles argues that his residence was authorized under his predecessor,

Carlon McBroom’s, plan of operations for the Orion mine, which the United States

Forest Service approved in 2003. Because Needles did not raise this argument

before the district court, our review is for plain error. See United States v.

Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011); United States v.

Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000).

      Assuming Carlon McBroom’s 2003 plan of operations remained in effect

after his death in January 2004, there was no evidence at trial showing that it

applied to Needles, who was not identified as an operator under the plan.

Likewise, assuming McBroom could legally have transferred the 2003 plan to

Needles, there was no evidence that he did so. The evidence established only that

Needles (along with McBroom’s son) took over as owner and operator of the Orion

mine after McBroom’s death and applied for a plan of operations for the site. The

Forest Service did not approve his plan. Despite repeated warnings from the Forest

Service that he needed but did not have an approved operating plan, Needles

continued to maintain a residence at the Orion mine site. It was not plain error for

the district court to find that Needles maintained a residence on National Forest

System lands without an approved operating plan, in violation of 36 C.F.R. §

261.10(b).


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      2. Needles’ conviction under § 261.10(b) did not violate his due process

rights due to lack of notice that his residence was unauthorized. Needles’

contention that he was deprived of adequate notice because the Forest Service

never terminated Carlon McBroom’s 2003 plan of operations fails for the reasons

discussed above: there was no evidence that McBroom’s plan applied to Needles’

operation. Needles’ contention that § 261.10(b) is unconstitutionally vague fails

for the reasons discussed in a concurrently filed opinion in United States v.

Backlund, No. 10-30264, and United States v. Everist, No. 10-30289.

      3. Needles’ conviction does not run afoul of the “antiretroactivity

principle.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). Section

261.10(b) was not applied to punish conduct predating its enactment. Nor did it

impair Needles’ vested rights or impose new duties with respect to past

transactions. See id. at 269. Needles’ operations at the Orion mine were not

derived from Carlon McBroom’s 2003 plan of operations. The requirement that

mine operators causing significant surface disturbance obtain an approved

operating plan predated Needles’ acquisition of the Orion claims, as did the

government’s authority to prosecute operators who failed to comply with the rules.

See Organic Administration Act, 30 Stat. 35 (1897), codified as amended at 16

U.S.C. § 551 (authorizing the promulgation of rules covering use of the national


                                          3
forests and providing for criminal sanctions for violation of those rules); 36 C.F.R.

§§ 228.1-228.15 (2003) (regulating mining operations in the national forests); 36

C.F.R. §§ 261.1b, 261.10 (2003) (providing criminal penalties for violation of

rules governing occupancy and use of National Forest System lands).

      4. Needles’ opening brief incorporated by reference appellant’s arguments

in United States v. Backlund, No. 10-30264. We reject these arguments for the

reasons discussed in United States v. Backlund, No. 10-30264, and United States v.

Everist, No. 10-30289. The Forest Service may regulate residential occupancy of

bona fide mining claims within the national forests. Mere ownership of an

unpatented mining claim does not automatically entitle the owner to reside

permanently on National Forest System lands.1

      5. We do not consider Needles’ arguments in his pro se Notice of Objection

and Motion to Correct the Record filed in the district court because they were not

properly presented to this court. See Circuit Rule 28-1 (“Parties must not . . .

incorporate by reference briefs submitted to the district court . . . or refer this Court

to such briefs for the arguments on the merits of the appeal.”); Fed. R. App. P.


      1
        Because these arguments fail on the merits, we do not decide whether
Needles forfeited the arguments by failing to properly present them. See In re
National Sec. Agency Telecomm. Records Litig., 669 F.3d 928, 931 (2011).
Needles’ motion requesting that we take judicial notice of Backlund’s arguments is
denied as moot.

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28(a)(9)(A) (providing that appellant’s brief must contain, among other things,

“appellant’s contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies”); see also Sandgathe v.

Maass, 314 F.3d 371, 380 n.8 (9th Cir. 2002) (“This mode of presentation is an

entirely improper way of presenting argument to this court.”).

      AFFIRMED.




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