                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          FEB 2 2015

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-16779

               Plaintiff - Appellee,             D.C. No. 2:10-cv-01198-KJD-
                                                 VCF
  v.

JOHN B. NELSON,                                  MEMORANDUM*

               Defendant - Appellant,

  and

ROBERT DAVID KAHRE; RICHARD
W. WELLMAN,

               Defendants.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      John B. Nelson appeals pro se from the district court’s summary judgment in

the government’s action for trespass seeking to eject Nelson and others from a mill

site on federal land and to require them to complete reclamation or pay the cost of

reclamation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s summary judgment, United States v. Milner, 583 F.3d 1174,

1182 (9th Cir. 2009), and its dismissal of defendants’ counterclaims for lack of

subject matter jurisdiction, Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th

Cir. 2006). We affirm.

      The district court properly granted summary judgment on the government’s

trespass claim because Nelson failed to raise a genuine dispute of material fact as

to whether he continued to occupy the mill site after the expiration of the notice of

operations, and whether the United States was the owner of the property. See 43

U.S.C. § 1733(g) (“The use, occupancy, or development of any portion of the

public lands contrary to any regulation of the Secretary or other responsible

authority, or contrary to any order issued pursuant to any such regulation, is

unlawful and prohibited.”); 43 C.F.R. § 2808.10(a) (defining trespass). Contrary to

Nelson’s contentions, the district court properly enjoined further use of the

property and ordered defendants to complete reclamation or pay the cost of such

reclamation. See 43 C.F.R. §§ 2808.11(a)(3), 3809.335 (discussing liability for


                                          2                                      12-16779
trespass and post-expiration notice obligations, including reclamation).

       The district court properly determined that it lacked subject matter

jurisdiction over Nelson’s “restraint of trade” and “fraud” counterclaims because

Nelson did not exhaust administrative remedies. See Cadwalder v. United States,

45 F.3d 297, 300-01 (9th Cir. 1995) (explaining exhaustion requirements for tort

claims against the United States).

       The district court properly dismissed Nelson’s counterclaim alleging a

taking in violation of the Fifth Amendment because Nelson sought over $10,000 in

damages and did not show that any statute waived sovereign immunity with respect

to the claim. See McGuire v. United States, 550 F.3d 903, 910-11 (9th Cir. 2008)

(Court of Federal Claims has exclusive jurisdiction over takings claims seeking

over $10,000 in damages absent an independent waiver of sovereign immunity and

grant of federal district court jurisdiction).

       The district court did not abuse its discretion in denying Nelson’s recusal

motion because Nelson failed to show that the district judge’s impartiality might

reasonably be questioned. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902

F.2d 703, 714 (9th Cir. 1990) (standard of review and grounds for recusal).

       We reject Nelson’s contentions that the government admitted the allegations

of the counterclaims, that the counterclaims should be construed as alleged against


                                             3                                  12-16779
foreign entities, and that the district court failed to permit adequate discovery or

violated due process in its consideration of defendants’ affirmative defenses.

      We do not consider matters raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




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