       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

      GENE CHITTENDEN, ALLEN D. HALL,
              Plaintiffs-Appellants

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2016-2148
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:14-CV-00632, Judge Elaine Kaplan.
                 ______________________

               Decided: October 27, 2016
                ______________________

   GENE CHITTENDEN, Auburn, CA, pro se.

   ALLEN D. HALL, North San Juan, CA, pro se.

    ERIKA KRANZ, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by JOHN
C. CRUDEN.
                  ______________________
2                                         CHITTENDEN   v. US



      Before PROST, Chief Judge, TARANTO and HUGHES,
                     Circuit Judges.
PER CURIAM.
     Gene Chittenden and Allen Hall hold mining claims
on two lode mines located in the Tahoe National Forest in
California. After the United States Forest Service in-
stalled bat gates on the shaft and portal of the two mines,
Mr. Chittenden and Mr. Hall sought damages for, among
other things, an uncompensated taking in violation of the
Fifth Amendment. The Court of Federal Claims granted
summary judgment in favor of the government after
determining that the installation of the bat gates did not
deprive claimants of the ability to develop their mining
claims and therefore no taking occurred. Because we find
that there is no genuine issue of material fact, the Court
of Federal Claims did not err in ruling that the govern-
ment was entitled to summary judgment and thus we
affirm.
                             I
    Mr. Chittenden and Mr. Hall (claimants) hold mining
claims on two lode mines—the Roye Sum lode mine and
the Dolliegeek lode mine—located in the Tahoe National
Forest in California. In November 2009, the Forest
Service received a report that the Roye Sum mine con-
tained a bat colony. Dave Brown, an Assistant Minerals
Officer for the Forest Service, asked Mr. Hall if he would
be willing to allow a bat biologist access to the mine to
conduct an assessment. Mr. Hall denied the request.
Nevertheless, the District Biologist and the Regional Bat
Coordinator visited the Roye Sum mine on July 6, 2010,
and recommended that the Forest Service install bat-
friendly gates on the mine portal and the mine shaft.
    Based on this recommendation, the Forest Service in-
stalled two bat gates in the Roye Sum mine on October
12, 2010. The bat gate covering the mine shaft was made
CHITTENDEN   v. US                                       3



of five 36-inch steel bars. Beneath the gate, the Forest
Service also installed a short length of 36-inch diameter
pipe (or “culvert”) inside the mine shaft. The gate across
the mine portal was made of four vertical steel bars
anchored into a concrete base and seven removable hori-
zontal steel bars. In November 2010, Mr. Brown provided
Mr. Hall with a key to remove the horizontal bars so that
he could access the mine.
    On July 21, 2014, claimants filed suit against the
United States in the Court of Federal Claims seeking
$50,000,000 in damages alleging, among other things,
that the installation of the bat gates resulted in an un-
compensated taking under the Fifth Amendment. The
Court of Federal Claims granted summary judgment in
favor of the government after determining that no taking
occurred.
   Claimants appeal. 1    We have jurisdiction under 28
U.S.C. § 1295(a).
                            II
     This Court reviews the Court of Federal Claims’
grant of summary judgment de novo. M & J Coal Co. v.
United States, 47 F.3d 1148, 1152 (Fed. Cir. 1995). Spe-
cifically, we review the record de novo to determine
whether any genuine issue of material fact exists, and if
not, whether the movant is entitled to judgment as a
matter of law. Id.
     “To encourage private development of mineral depos-
its, federal law permits private parties to discover, ex-
plore, and reclaim mineral deposits in federally-owned
lands.” Kunkes v. United States, 78 F.3d 1549, 1550 (Fed.



   1    The Court of Federal Claims dismissed claimants’
due process and tort claims for lack of jurisdiction. These
claims have not been appealed.
4                                          CHITTENDEN   v. US



Cir. 1996). Therefore, pursuant to the Mining Act of
1872, claimants “have the exclusive right of possession
and enjoyment of all the surface included within the lines
of their locations, and of all veins, lodes, and ledges
throughout their entire depth . . . .” 30 U.S.C. § 26.
    Acquiring an interest in federal land for mining pur-
poses is known as an “unpatented mining claim,” which is
“an interest in only the minerals in the land and not in
the land’s surface; the government retains fee title to the
land.” Ford v. United States, 101 Fed. Cl. 234, 238 n.6
(2011). Therefore, “[a]lthough unpatented mining claims
are fully recognized possessory interests, they partake
more of the character of use rights.” Kunkes, 78 F.3d at
1554 (internal citation and quotation marks omitted).
    The Fifth Amendment to the United States Constitu-
tion provides that private property shall not “be taken for
public use without just compensation.” U.S. Const.
amend. V, cl. 4. To evaluate whether a governmental
action constitutes a taking of private property without
just compensation, we must first determine “whether the
claimant has established a ‘property interest’ for purposes
of the Fifth Amendment.” Maritrans Inc. v. United
States, 342 F.3d 1344, 1351 (Fed. Cir. 2003); see also M &
J Coal Co., 47 F.3d at 1153–54. If a valid property inter-
est exists, we then determine if a taking occurred. Id.
    Claimants assert that they possess a cognizable prop-
erty interest in their unpatented mining claims. Alt-
hough unpatented mining claims are protected by the
Fifth Amendment against uncompensated takings, see
Kunkes, 78 F.3d at 1551, they are only “valid against the
United States if there has been a discovery of mineral
within the limits of the claim, if the lands are still miner-
al, and if other statutory requirements have been met.”
Best v. Humboldt Placer Min. Co., 371 U.S. 334, 336
(1963). “The [Bureau of Land Management] has primary
jurisdiction to determine the validity of mining claims[.]”
CHITTENDEN   v. US                                        5



Freeman v. United States, 83 Fed. Cl. 530, 533 (2008).
Here, the Bureau of Land Management has not conducted
a validity determination, but for purposes of this analysis,
we assume that claimants’ mining claims are valid.
Therefore, we must determine if a taking has occurred.
    Claimants allege that an uncompensated taking has
occurred because the installation of the two bat gates
constitutes a “permanent physical occupation” and denies
them “meaningful access.” 2 Pet. Br. 8–9. Generally, a
permanent physical occupation of an owner’s property,
authorized by the government, is a taking for which just



   2     Claimants also allege that the Forest Service did
not have authority to install the bat gates because the
Forest Service may not conduct activities that endanger
or materially interfere with mining, or related operations
or activities on the mining claim. Pet. Br. 13–18. Howev-
er, a “claimant must concede the validity of the govern-
ment action which is the basis of the taking claim to bring
suit under the Tucker Act[.]” Tabb Lakes, Ltd. v. United
States, 10 F.3d 796, 802 (Fed. Cir. 1993). This is because
“an uncompensated taking and an unlawful government
action constitute two separate wrongs that give rise to
two separate causes of action,” and therefore, “a property
owner is free either to sue in district court for asserted
improprieties committed in the course of the challenged
action or to sue for an uncompensated taking in the Court
of Federal Claims.” Rith Energy, Inc. v. United States,
247 F.3d 1355, 1365 (Fed. Cir. 2001) (internal quotation
marks and citation omitted). By alleging that an improp-
er taking occurred, claimants must litigate their takings
claim on the assumption that the Forest Service had the
proper authority to install the bat gates, and therefore,
any arguments related to the Forest Service’s authority to
install the bat gates are irrelevant in determining wheth-
er or not a taking occurred.
6                                           CHITTENDEN   v. US



compensation is due under the Fifth Amendment. See
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 426 (1982). Here, however, the United States retains
fee title in the property and claimants have a possessory
interest in the mining claims. Neither Loretto nor other
authority cited by claimants supports treating the place-
ment of the bat gates as a permanent physical occupation
sufficient for compensation under the Fifth Amendment.
    Additionally, a physical taking may occur if the gov-
ernment denies meaningful access to claimants’ mining
claims. See Washoe Cty., Nev. v. United States, 319 F.3d
1320, 1326 (Fed. Cir. 2003). However, the United States,
“as owner of the underlying fee title to the public domain,
maintains broad powers over the terms and conditions
upon which the public lands can be used, leased, and
acquired.” United States v. Locke, 471 U.S. 84, 104
(1985). “Claimants thus must take their mineral inter-
ests with the knowledge that the Government retains
substantial regulatory power over those interests.” Id. at
105.
    Therefore, claimants’ property interest is limited by
the regulations issued by the United States Forest Ser-
vice. See 30 U.S.C. § 612(b) (mining claims “shall be
subject, prior to issuance of patent therefor, to the right of
the United States to manage and dispose of the vegetative
surface resources thereof and to manage other surface
resources thereof (except mineral deposits subject to
location under the mining laws of the United States)”).
Under 36 C.F.R. § 228.4(a), claimants must submit “a
notice of intent to operate” for “operations which might
cause significant disturbance of surface resources.”
However, claimants have not submitted a notice of intent,
and therefore their operations are limited to those that
will not cause significant surface disturbance, which
includes “prospecting and sampling . . . [that] will not
involve removal of more than a reasonable amount of
mineral deposit for analysis and study,” 36 C.F.R.
CHITTENDEN   v. US                                       7



§ 228.4(a)(1)(ii), and “[o]perations which will not involve
the use of mechanized earthmoving equipment, such as
bulldozers or backhoes, or the cutting of trees,” id.
§ 228.4(a)(1)(vi).
    Here, claimants assert that the bat gates have denied
them meaningful access to their mining claims because
they cannot conduct “ordinary mining activities” or use
“modern mining machinery,” Pet. Br. at 9, 21, and have
thus been “deprived of all economic use of the mines,” id.
at 9. However, claimants, at this time, may not conduct
“ordinary mining activities,” or use “modern mining
machinery” because they are limited to those activities
permissible before submission of the notice of intent.
Moreover, the undisputed declaration of Mr. Brown, the
Assistant Minerals Officer for the Forest Service, stated
that the bat gates installed at the Roye Sum mine “do not
prevent Mr. Chittenden and Mr. Hall from performing
underground operations that will not cause a significant
surface resource disturbance.” Appx. 83.
    Because there is no genuine issue of material fact re-
garding whether the bat gates constitute a permanent
physical occupation or deny claimants meaningful access
to the mines for the purposes of conducting the limited,
permissible activities, the Court of Federal Claims did not
err in ruling that the government was entitled to sum-
mary judgment.
                      AFFIRMED
   No costs.
