       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  GUY E. MICHAEL,
                  Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2013-5107
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 12-CV-0083, Senior Judge Robert J. Yock.
                 ______________________

              Decided: November 8, 2013
               ______________________

   GUY E. MICHAEL, Baker City, Oregon, pro se.

    NINA C. ROBERTSON, Attorney, Appellate Section, En-
vironment & Natural Resources Division, United States
Department of Justice, of Washington, DC, for defendant-
appellee. With her on the brief was ROBERT G. DREHER,
Acting Assistant Attorney General.
                 ______________________

    Before WALLACH, LINN, and TARANTO, Circuit Judges.
2                                              MICHAEL   v. US



PER CURIAM.
    Guy Michael appeals from the United States Court of
Federal Claims’ decision denying his takings claim and
dismissing his remaining state law and federal claims for
lack of jurisdiction. This court affirms.
                       BACKGROUND
    Mr. Michael is an Oregon miner who, on July 9, 2003,
acquired co-ownership of four unpatented mining claims:
Round Butte 1, Round Butte 2, Black Butte, and Burnt
River Queen. 1 Mr. Michael had previously leased these
claims from John Burlew starting in 1991.
    An owner of an unpatented mining claim “shall have
the exclusive right of possession and enjoyment” of the
mining claim, see 30 U.S.C. § 26 (2006), but does not
possess fee title to the land upon which the claim is
located. Best v. Humboldt Placer Mining Co., 371 U.S.
334, 336–37 (1963) (citing Cameron v. United States, 252
U.S. 450, 459–60 (1920)). “Title to the underlying fee
simple estate in the land remains in the United States.”
Kunkes v. United States, 78 F.3d 1549, 1551 (Fed. Cir.
1996). Ownership of an unpatented mining claim is
subject to numerous conditions and restrictions. The
claimant is restricted to using the land for uses reasona-
bly incident to mining. See 30 U.S.C. § 612(a) (2006). A
claimant may occupy the land only to the extent the
occupancy is reasonably incident to mining operations.
When authorized occupancy ends, the claimant has ninety


    1   Round Butte 1 and 2 are “placer” claims, whereas
Black Butte and Burnt River Queen are “lode” claims. See
30 U.S.C. § 35 (2006) (a placer claim includes “all forms of
deposit, excepting veins of quartz, or other rock in place”);
30 U.S.C. §§ 23, 35 (providing that lode claims shall not
exceed 1,500 feet in length along the vein or lode, whereas
placer claims may not exceed 20 acres per claim).
MICHAEL   v. US                                         3



days to remove all unauthorized property from the prem-
ises, including permanent and temporary structures,
material, and equipment. 43 C.F.R. §§ 3715.5, 3715.5-1
(2008). Property that is not removed within ninety days
“becomes property of the United States and is subject to
removal and disposition at [the Bureau of Land Manage-
ment’s (“BLM”)] discretion.” Id. § 3715.5-2.
    To maintain ownership of a mining claim, each claim
owner must either pay an annual maintenance fee or
perform at least $100 worth of labor on the claim. 30
U.S.C. § 28; 43 C.F.R. §§ 3836.11, 3834.11(a)(2), 3830.21.
A claim owner who opts to perform the labor requirement
must file an affidavit showing he satisfied the annual
work requirement. 43 C.F.R. §§ 1744(a)(1), 3835.31,
3835.91. Failure to meet the labor requirement can result
in BLM declaring the claim forfeited. Id. § 3836.15.
    In August 2000, Mr. Michael was living in a trailer
parked on Round Butte 2, where he also kept personal
items and mining equipment. BLM initiated an investi-
gation to determine whether Mr. Michael’s occupancy was
“reasonably incident” to his mining operations. Id.
§ 3715.5. BLM officials visited the site at least twenty
times over seven years. Each time, the officials noted
whether Mr. Michael or others were present and whether
there was evidence of mining activity. Mr. Michael was
present during only three of the inspections, and only two
inspections revealed evidence of mining work. In fourteen
of the twenty investigations, BLM found there was no-
body present at the site.
    On July 25, 2008, BLM issued an order stating Mr.
Michael could no longer reside or store his equipment at
Round Butte 2. It found these activities were not reason-
ably incident to mining activities, and that his work had
not been substantially regular. See 43 C.F.R. § 3715.2.
BLM ordered Mr. Michael to cease his occupancy within
4                                           MICHAEL   v. US



ninety days, and remove any personal property that was
not permitted by his notice of mining operations.
    Mr. Michael appealed to the Interior Board of Land
Appeals (“IBLA”), which affirmed BLM’s decision on
March 3, 2009. The IBLA stated that “[t]he overwhelm-
ing evidence in this case supports BLM’s action” and
“does not support [Mr.] Michael’s assertions that his
residency and storage of equipment and materials is
reasonably incident to authorized mining activities.” 2
Appellee’s App’x 76. Mr. Michael failed to remove his
property within the ninety-day period. From June 2
through June 5, 2009, BLM personnel removed Mr. Mi-
chael’s property and trailer from Round Butte 2, and
transferred the large equipment to an off-site BLM facili-
ty.
    In a separate action on February 8, 2010, BLM noti-
fied Mr. Michael that he had not met the labor require-
ments for maintaining three of his four mining claims.
BLM explained that Mr. Michael had done $180 worth of
improvements, which was enough for only one of his four
claims. Mr. Michael notified BLM that he had performed
the $180 worth of labor at Round Butte 2. The BLM
therefore renewed Mr. Michael’s claim to Round Butte 2,
but declared the remaining three claims abandoned and
void.
    In 2011, Mr. Michael filed suit against three BLM
employees in the Circuit Court of the State of Oregon for
the County of Baker, challenging the removal of his
property from Round Butte 2, and the termination of his
claims to Round Butte 1, Black Butte, and Burnt River
Queen. The government removed the case to the United



    2
        Following the IBLA’s decision, BLM altered the
ninety-day compliance period to run from the date of the
IBLA’s decision.
MICHAEL   v. US                                          5



States District Court for the District of Oregon. The
district court granted Mr. Michael’s motion to transfer his
Fifth Amendment takings claim to the Court of Federal
Claims, and dismissed his state claims without prejudice.
     Mr. Michael filed an amended complaint in the Court
of Federal Claims, alleging “unlawful confiscation” of his
mining equipment and residence, and the “taking of [his]
livelihood.” Appellee’s App’x 9–10.       The government
moved to dismiss under the Rules of the Court of Federal
Claims 12(b)(6) (for failure to state a claim) and 12(b)(1)
(for lack of jurisdiction). Mr. Michael moved for summary
judgment, arguing there were no factual disputes requir-
ing trial.
    With respect to Mr. Michael’s Fifth Amendment tak-
ings claim, the Court of Federal Claims converted the
government’s motion to dismiss into a motion for sum-
mary judgment and granted judgment in favor of the
government. The court held that BLM’s seizure of Mr.
Michael’s trailer and equipment was not a Fifth Amend-
ment taking, but rather a proper exercise of the govern-
ment’s police power over federally-owned land. Appellee’s
App’x 56–57 (citing 43 C.F.R. § 3715.5-2).
    The Court of Federal Claims also held BLM’s deci-
sions voiding three of Mr. Michael’s mining claims were
not Fifth Amendment takings. It reasoned that “enforce-
ment of regulations requiring positive action on behalf of
claim owners to retain their claims does not constitute a
Fifth Amendment taking.” Appellee’s App’x 60 (citing
United States v. Locke, 471 U.S. 84, 107 (1985); Kunkes v.
United States, 78 F.3d 1549, 1553 (Fed. Cir. 1996)).
    Finally, the Court of Federal Claims dismissed for
lack of jurisdiction the remaining claims based on due
process and state law torts. Mr. Michael filed this timely
appeal. This court has jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
6                                             MICHAEL   v. US



                       DISCUSSION
    The Court of Federal Claims will grant summary
judgment when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” R. U.S. Ct. Fed. Cl. 56(a). “We review the
grant of summary judgment by the Court of Federal
Claims de novo, drawing justifiable factual inferences in
favor of the party opposing summary judgment.” First
Commerce Corp. v. United States, 335 F.3d 1373, 1379
(Fed. Cir. 2003). This court also reviews de novo the
Court of Federal Claims’ holding that it lacks subject
matter jurisdiction over a claim. Hanlin v. United States,
214 F.3d 1319, 1321 (Fed. Cir. 2000).
    The Court of Federal Claims did not err in denying
Mr. Michael’s takings claims. The government “main-
tains broad powers over the terms and conditions upon
which the public lands can be used, leased, and acquired.”
Locke, 471 U.S. at 104. Unpatented mining claimants
“must take their mineral interests with the knowledge
that the government retains substantial regulatory power
over those interests.” Id. “Regulation of property rights
does not ‘take’ private property when an individual’s
reasonable, investment-backed expectations can continue
to be realized as long as he complies with reasonable
regulatory restrictions the legislature has imposed.” Id. at
107.
    Mr. Michael’s mining claims and occupancy on Round
Butte 2 were subject to multiple “reasonable regulatory
restrictions.” 3 Id. Mr. Michael was permitted to occupy




    3  Mr. Michael contends the Court of Federal Claims
mistakenly stated that he leased, rather than owned, the
mining claims at issue. Appellant’s Br. 4. However, the
Court of Federal Claims simply recounted that Mr. Mi-
MICHAEL   v. US                                          7



the surface land on his mining claims only to the extent
such occupancy was “reasonably incident” to his mining
operations. 30 U.S.C. § 612(a). His ownership of the
mining claims was subject to the requirement that he
perform at least $100 worth of improvements or pay a
$140 fee for each claim. 30 U.S.C. § 28; 43 C.F.R.
§§ 3836.11, 3830.21. BLM found that Mr. Michael failed
to meet these requirements. BLM’s consequent removal
of Mr. Michael’s property and its invalidation of Mr.
Michael’s mining claims at Round Butte 1, Black Butte,
and Burnt River Queen were not Fifth Amendment tak-
ings requiring just compensation. Rather, those decisions
were permissible “[r]egulation of property rights” pursu-
ant to mining laws and regulations. Locke, 471 U.S. at
107. Moreover, to the extent Mr. Michael challenges the
merits of BLM’s decisions, he “must challenge that de-
termination in district court under the APA and may not
do so through a Tucker Act takings action in the Court of
Federal Claims.” 4 Del-Rio Drilling Programs, Inc., v.
United States, 146 F.3d 1358, 1365 (Fed. Cir. 1998) (citing
Aulston v. United States, 823 F.2d 510 (Fed. Cir. 1987)).
   Mr. Michael argues that BLM’s regulations governing
mining claims, including the requirement to file an annu-



chael had initially leased his four claims, until later
acquiring a coownership interest in 2003.
   4    Mr. Michael argues he could have satisfied the
$100 labor requirement for all his mining claims had the
government not seized his mining equipment from Round
Butte 2. Appellant’s Br. ¶¶ 7–9 at 6–7. Mr. Michael,
however, was not entitled to store equipment on his
mining claim when such occupancy was not “reasonably
incident” to mining. He could have recovered the equip-
ment from Round Butte 2, as instructed by BLM, and
continued using it to meet the annual labor requirements.
8                                             MICHAEL   v. US



al labor affidavit, are contrary to the governing statutes.
Informal Br. of Appellant, Form 12, 1 (citing 30 U.S.C.
§ 612). He states: “In 30 U.S.C. [§] 612(a) it requires the
use to be ‘reasonably incident’ to mining; there are no
instructions or allowances in the statute for the agency to
require greater work requirement than what is already in
the statute, specifically 30 U.S.C. [§] 28.” Appellant’s Br.
¶ 9 at 7. The relevant work requirements are set forth in
statute. Title 30 U.S.C. § 28 requires that “not less than
$100 worth of labor shall be performed or improvements
made during each year” on mining claims located after
May 10, 1872. The implementing regulation requiring the
same $100 “in labor or improvements,” 43 C.F.R. §
3836.11, is therefore consistent with the statute, 30
U.S.C. §§ 22, 28.
    Finally, to the extent Mr. Michael argues that BLM
improperly denied him a hearing prior to revoking his
mining claims, he alleges a due process claim over which
the Court of Federal Claims lacks jurisdiction. Crocker v.
United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (hold-
ing there is no Tucker Act jurisdiction over a Fifth
Amendment due process claim). The Court of Federal
Claims was also correct to dismiss Mr. Michael’s state law
claims for “unjust enrichment,” because the Tucker Act
limits Court of Federal Claims jurisdiction to “cases not
sounding in tort.” 28 U.S.C. §1491(a); Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008).
    We have considered Mr. Michael’s remaining argu-
ments and find them unpersuasive. Accordingly, this
court affirms the decision of the Court of Federal Claims
denying Mr. Michael’s taking claims and dismissing his
remaining claims for lack of jurisdiction.
                       AFFIRMED
    No costs.
