                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 27 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-36128

              Plaintiff - Appellee,              D.C. No. 1:09-cv-03078-PA

  v.
                                                 MEMORANDUM*
CLIFFORD R. TRACY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Owen M. Panner, District Judge, Presiding

                      Argued and Submitted October 8, 2010
                               Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Defendant Clifford Tracy appeals the judgment and injunction entered by

the district court in favor of the United States on the Government’s civil complaint

alleging that Tracy trespassed on National Forest land. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Tracy’s due process argument in this case is identical to the one raised in his

appeal of his criminal conviction, No. 09-30408. We reject Tracy’s due process

argument here as we did there. Tracy failed to avail himself of the due process

available to him and as such cannot now seek its protection after taking matters

into his own hands. See Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O’Connor,

J. concurring); United States v. Lowry, 512 F.3d 1194, 1203 (9th Cir. 2008).

      We also reject Tracy’s argument that he cannot be a trespasser because he

had a right of possession in the land as the holder of an unpatented mining claim.

The Mining Law of 1872 makes clear that the possessory right of the holder of an

unpatented mining claim is conditional on “comply[ing] with the laws of the

United States, and with State, territorial, and local regulations not in conflict with

the laws of the United States governing [his] possessory title.” 30 U.S.C. § 26.

Subsequent statutes further demonstrate that Tracy’s right to possession is subject

to his compliance with Forest Service regulations. The Organic Act provides that

any person entering the a national forest “must comply with the rules and

regulations covering such National Forest.” 16 U.S.C. § 478. The Surface

Resources Act of 1955 amended the Mining Law to make any unpatented mining

claim discovered after 1955 “subject . . . to the right of the United States to manage

and dispose of the vegetative surface resources thereof and to manage other surface


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resources thereof.” 30 U.S.C. § 612(b). Tracy failed to comply with Forest

Service regulations governing his mining claim. He therefore had no right to

possess the land and was a trespasser.

      We have previously held conduct similar to Tracy’s to constitute trespass.

See, e.g., United States v. Brunskill, 792 F.2d 938 (9th Cir. 1986) (affirming

district court’s injunction requiring removal of structures on claim where

defendants did not have approved plan of operation); United States v. Goldfield

Deep Mines Co. of Nev., 644 F.2d 1307, 1310 (9th Cir. 1981).

       We reject the argument that an individual can only be a trespasser if his

mining claim is held invalid. As we stated in Goldfield, “the right to protect Forest

Service lands from waste is separate from and in addition to the right to challenge

mining claims.” Id. at 1309. Similarly we find unpersuasive Tracy’s attempt to

distinguish the above cases on the ground that the defendants in those cases were

also found to have invalid mining claims. In Brunskill we explicitly stated that

“[w]e affirm the district court order, but on the limited grounds that the Brunskills

do not have an approved plan of operation . . . . We do not pass on whether . . . the

mining claims at issue are valid.” Brunskill, 792 F.2d at 938.

      AFFIRMED.



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