                                                                            FILED
                           NOT FOR PUBLICATION                               OCT 26 2015

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

                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 14-30104

             Plaintiff - Appellee,              D.C. No. 2:13-CR-00463-BR


 v.                                             MEMORANDUM*
JOHN M. WASSON,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                           Submitted October 14, 2015**
                                Portland, Oregon


Before: FERNANDEZ, GILMAN,*** and BEA, 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 that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
         The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      John Wasson occupied land in the National Forest System from April 2012

until March 2013. Some of his time was spent working on a small, unpatented mining

claim, but he also set up a permanent campsite and began continuously residing on the

land. Wasson did not obtain authorization for this residency from the Forest Service,

and he stored human feces in a bucket located on his campsite. The government

charged Wasson with violating 36 C.F.R. § 261.10(b) (unauthorized residency on

Forest System lands) and 36 C.F.R. § 261.11(d) (improper removal or disposal of

sewage). A magistrate judge conducted a trial for these misdemeanor offenses, found

Wasson guilty of violating both regulations, and fined him $400. Wasson appealed

that decision to the district court, which affirmed the magistrate judge’s ruling. He

now appeals the district court’s judgment.

      Wasson presents two arguments. First, he contends that the Forest Service

lacks authority to interfere with his occupancy vis-à-vis his mining claim. Second, he

contends that the evidence at trial was insufficient to establish that he improperly

disposed of or failed to remove sewage from his campsite.

      Wasson’s first argument is based on the General Mining Law of 1872, which

provides that an individual who discovers mineral deposits on federal land “shall have

‘exclusive right of possession and enjoyment of all the surface included within the

lines’” of his claim. United States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012)



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(quoting 30 U.S.C. § 26). The law also states that, “[e]xcept as otherwise provided,

all valuable mineral deposits in lands belonging to the United States . . . shall be free

and open to exploration.” 30 U.S.C. § 22. Wasson apparently reads the law’s

references to “exclusive . . . possession and enjoyment” and “free and open”

exploration as foreclosing Forest Service interference with his mining claim.

      This court in Backlund addressed a similar argument. It noted that, even if the

General Mining Law speaks of “exclusive . . . possession and enjoyment,” other

statutes—such as the Multiple Use Act of 1955—nonetheless limit a miner’s

activities. 689 F.3d at 991. Hence, “use of an unpatented mining claim on public land

is limited to activities that are reasonably incident to prospecting, mining and

processing operations,” and such uses are “subject to the right of the United States to

manage surface resources.” Id. The court then concluded that the same regulation at

issue in this case—36 C.F.R. § 261.10(b)—is a valid exercise of the government’s

resource-management rights. Id. at 990, 996.

      Based on Backlund, the Forest Service was entitled to regulate Wasson’s

occupancy with regard to his mining claim. Further, Wasson’s persistent and

continual residency on his claim was not “reasonably incident” to the limited scope

of his mining activities. Wasson therefore needed to obtain authorization for his

residency from the Forest Service. See 36 C.F.R. § 251.50 (requiring authorization



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for most uses of Forest System lands); id. § 261.10(b) (specifically prohibiting

residency on Forest System lands without the required authorization). But Wasson

failed to do so. The district court therefore did not err in holding that Wasson had

violated 36 C.F.R. § 261.10(b).

      Wasson’s second argument is that the district court lacked sufficient evidence

to conclude that he had violated 36 C.F.R. § 261.11(d). That regulation prohibits the

following conduct: “Failing to dispose of all garbage, including any paper, can,

bottle, sewage, waste water or material, or rubbish either by removal from the site or

area, or by depositing it into receptacles or at places provided for such purposes.”

The regulation thus requires a person to dispose of waste by either (1) removing it

from “the site or area,” or (2) depositing it “into receptacles or at places provided for

such purposes.”

      In the present case, Wasson stored waste (human feces) in a bucket. The bucket

and feces were still present on his campsite when the Forest Service eventually

removed Wasson’s property, so Wasson himself did not remove the waste from “the

site or area.” That leaves Wasson with the argument that the bucket qualifies as a

“receptacle[] or . . . place[] provided for such purposes.” 36 C.F.R. § 261.11(d).

Wasson argues that the phrase “provided for such purposes” modifies only the word

“places,” rather than modifying both “receptacles” and “places.” He therefore

contends that a person can comply with § 261.11(d) by depositing waste into any sort
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of “receptacle,” regardless of whether it was provided for the purpose of waste

disposal.

         Wasson’s argument rests on the “rule of the last antecedent,” see, e.g., Jama

v. Immigration & Customs Enforcement, 543 U.S. 335, 343 (2005) (“[T]he

grammatical rule of the last antecedent [states that a] limiting clause or phrase should

ordinarily be read as modifying only the noun or phrase that it immediately follows.”

(internal quotation marks and ellipsis omitted)), but this rule is “not an absolute and

can assuredly be overcome by other indicia of meaning,” Barnhart v. Thomas, 540

U.S. 20, 26 (2003). In the current case, “other indicia of meaning” demonstrate that

36 C.F.R. § 261.11 is intended to prevent the release of potentially hazardous or

unsanitary material. See, e.g., 36 C.F.R. § 261.11(b) (prohibiting the possession of

“refuse, debris, or litter in an exposed or unsanitary condition”); id. § 261.11(c)

(prohibiting the release of “any substance” that might cause pollution in a stream or

lake).

         Contrary to this regulatory purpose, Wasson’s reading of 36 C.F.R. § 261.11

would allow a person to place waste of any kind in any type of receptacle, regardless

of whether the waste is hazardous or if the receptacle is designed to prevent the release

of such waste. For example, a person could comply with Wasson’s reading of

36 C.F.R. § 261.11(d) by depositing waste such as the human feces at issue in this

case in anything from a used coffee cup to an empty soda can to a plastic garbage bag.
                                           -5-
See Merriam Webster’s Collegiate Dictionary 975 (10th ed. 1997) (defining

“receptacle” as anything that “receives and contains something”). Such haphazard

disposal of dangerous waste would undercut the Forest Service’s goal of maintaining

the forest in a sanitary condition, so we do not read subsection (d) of the regulation

as broadly as Wasson would like. Instead, we read the regulation to require the

disposal of waste in a receptacle specifically provided for the purpose of waste

disposal.

      The question then becomes whether the district court had sufficient evidence

to conclude that Wasson’s bucket was not such a receptacle. Relevant to this issue is

the fact that Wasson’s “Notice of Intent” had informed the Forest Service that any

human waste would be “collected in a port-a-potty” at his campsite. The Forest

Service approved this arrangement. But Wasson conceded during trial that he

collected his feces in a bucket, not in a port-a-potty. This concession demonstrates

that Wasson placed his waste in a receptacle that had not been provided for the

purpose of human waste disposal, so the district court did not err in concluding that

there was sufficient evidence that Wasson violated 36 C.F.R. § 261.11(d).

      For all of the above reasons, WE AFFIRM.




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