                        UNITED STATES COURT OF APPEALS
Filed 1/10/97
                                    TENTH CIRCUIT



 STATE OF NEW MEXICO,

           Plaintiff,

 v.

 TOM DWYER and LIZ MATTHEWS,
                                                        No. 95-2221
                                                  (D.C. No. CR-95-58 JC)
           Defendants-Appellees,
                                                         (D. N.M.)
 --------------------------------------------

 RICHARD C. MANNING,

           Claimant-Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **


       Complainant Richard C. Manning brought a pro se criminal action in the

Magistrate Court for the District of Catron County, New Mexico, charging United

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
States Forest Service agents Tom Dwyer and Liz Matthews with misdemeanor

trespass in violation of N.M. Stat. Ann. § 30-14-1 (Michie 1994). 1 Dwyer and

Matthews removed the action to federal court pursuant to 28 U.S.C. § 1442(a)(1)

(1994). A federal magistrate judge granted Dwyer’s and Matthews’s Motion to

Dismiss On The Basis of Federal Immunity. New Mexico v. Dwyer, No. CR-95-

58/LCS (June 9, 1995) (unpublished order). The magistrate’s Order was affirmed

by the district court. New Mexico v. Dwyer, No. CR 95-058 JC/LCS (Sept. 14,

1995) (unpublished mem.). New Mexico, through Manning, appeals. We affirm.



                                 Pending Motions

      Manning initially moved to style the case New Mexico ex rel. Manning v.

Dwyer & Matthews, “to more properly reflect the true nature of this case.”

(Appellant’s Mot. to Modify Case Name). This motion has been withdrawn.

      Dwyer and Matthews moved to dismiss Manning’s appeal as time-barred,

on the ground that Fed. R. App. P. 4(b) gives a criminal defendant only ten days

to appeal a conviction. Dwyer and Matthews correctly noted that Manning, on

behalf of New Mexico, filed a notice of appeal 27 days after the district court

entered its Memorandum Opinion and Order. Under both Fed. R. App. P. 4(b)



      1
        Such pro se “private” prosecutions of state misdemeanor charges are
permitted by N.M. Mag. Ct. R. Crim. P. § 6-108(A).

                                        -2-
and N.M. Stat. Ann. § 39-3-3(B)(1) (Michie 1991), however, the government has

30 days to appeal the dismissal of criminal charges. In the present case, Manning

is not a criminal defendant, but rather a representative of the New Mexico

government. Therefore, this motion is denied.

      Dwyer and Matthews have also moved under N.M. Stat. Ann. § 36-1-19(A)

(Michie 1991) to disqualify Manning from retaining private counsel on New

Mexico’s behalf. Because New Mexico’s briefs in this appeal have been prepared

by counsel retained by Manning, and because, without oral argument, we reach

the merits of the case, this motion is denied as moot. 2



                                     Jurisdiction

      New Mexico, through Manning, has appealed the district court’s Order

granting Dwyer’s and Matthews’s Motion to Dismiss on the Grounds of Federal

Immunity. We follow state law when we decide cases removed pursuant to 28

U.S.C. § 1442(a)(1) (1994). Arizona v. Manypenny, 451 U.S. 232, 242-43


      2
         One New Mexico court has interpreted N.M. Stat. Ann. § 36-1-19
(Michie 1991) to require the permission of both the trial judge and the district
attorney for a criminal complainant to prosecute a criminal case, through private
counsel, in the State’s name. State v. Baca, 688 P.2d 34, 35-36 (N.M. Ct. App.
1984). The Baca court, however, did not discuss N.M. Mag. Ct. R. Crim. P. §
6-108(A). In any event, both parties agree that no New Mexico statute or case
addresses whether private complainants may bring appeals on behalf of the state
through private counsel. We decline to reach this unsettled question of New
Mexico law.

                                         -3-
(1981). Under New Mexico law, the State may appeal the dismissal of a criminal

conviction. N.M. Stat. Ann. § 39-3-3(B)(1) (Michie 1991). Thus, we have

jurisdiction over this appeal. Manypenny, 451 U.S. at 241-42; 28 U.S.C. § 1291

(1994).



                                 Standard of Review

      When the dismissal of a criminal prosecution is appealed, we review the

district court’s legal conclusions de novo. United States v. Harris, 997 F.2d 812,

815 (10th Cir. 1993). We will set aside its findings of fact only if clearly

erroneous. United States v. Guerro, 983 F.2d 1001, 1003 (10th Cir. 1993). 3



                                     Discussion

      New Mexico, through Manning, claims that the district court erred in

finding that Dwyer and Matthews were authorized by federal law to enter the site

in order to conduct a Forest Service inspection, and were thus immune from state

prosecution for doing so. New Mexico’s claim is premised upon the notion that

Manning’s interest in the site--which is located on property owned by the United

States and located in the Gila National Forest--rose to the level of a private


      3
         In the present case, all findings of fact were made by the magistrate
judge. However, because the magistrate judge’s findings of fact were adopted by
the district court, we treat them as though they were made by the district court.

                                         -4-
property interest, against which Dwyer and Matthews intentionally and without

valid federal authority transgressed. We consider these arguments in turn.

      Manning’s alleged “property interest” in the site began on July 7, 1978,

when Manning’s “operating plan” for the mining facility was approved by the

United States Forest Service. In an agreement he signed personally, Manning

agreed that the Forest Service’s “approval of [his] operating plan does not

constitute recognition or certification of ownership by any person named as owner

herein.” (Operating Plan Agreement, Appellant’s Appendix at 14). Pursuant to

36 C.F.R. § 261.53(e) (1978) (still in effect), the agreement authorized Manning

to fence and lock the mining site. (Id. at 13 ¶ 4; Special Restriction Order,

Appellant’s Appendix at 10). However, Manning expressly agreed to maintain a

Forest Service lock on the gate. (Id. at 13 ¶ 4). The requirement that a Forest

Service lock be used was imposed pursuant to 36 C.F.R. § 261.50(e)(2) (1978)

(currently codified at 36 C.F.R. § 261.50(e)(4) (1995)), which exempts “any

Federal, State, or local officer, or member of an organized rescue or fire fighting

force in the performance of an official duty” from the operating plan’s restrictions

on public access to the site. By October 5, 1993, when Dwyer and Matthews

inspected the site, Manning’s “operations plan” and reclamation bond had both

expired. New Mexico v. Dwyer, No. CR-95-58/LCS, at 1 ¶ 4 (June 9, 1995)

(unpublished order).


                                         -5-
      Based on these facts, it appears likely that, on October 5, 1993, Manning’s

“property interest” in the site did not include any legal interest in excluding

agents of the United States Forest Service from conducting an official inspection.

(See Order, Special Restriction ¶ 2, Appellant’s Appendix at 10). New Mexico,

through Manning, cites a number of cases purporting to demonstrate that an

unpatented mining claim on federal land “is private property in the fullest sense.”

(Appellant’s Br. at 19). However, none of these cases even remotely suggests

that the government cannot exercise rights reserved to itself by the very contract

granting the mining claim. See generally United States v. Ruckman, 806 F.2d

1471, 1473 (10th Cir. 1986) (holding that the Government Property Clause of the

Constitution vests Congress with authority to prescribe conditions upon which

others may obtain rights to use federally-owned property). In addition, the

district court found that the operating plan was no longer current and the

reclamation bond had expired, further casting doubt upon whether Manning

retained any property interest in the site sufficient to exclude federal agents. The

district court’s factual findings of the expired or lapsed operating plan and

reclamation bond are not clearly erroneous.

      In any event, we need not resolve the current status of Manning’s property

interest in this site because even if, arguendo, Manning had possessed a property

interest in the site, the district court was correct in finding that Dwyer and


                                         -6-
Matthews--federal agents acting within the scope of their federal authority--were

immune from prosecution for criminal trespass when such conduct was authorized

and required for them to fulfill their federal inspection duties on federal property.

      The doctrine of federal immunity is well-established. See In re Neagle, 135

U.S. 1, 75 (1890) (a federal agent held “to answer for an act which he was

authorized to do by the law of the United States . . . [who] did no more than what

was necessary and proper for him to do. . . cannot be guilty of a crime under the

law of the State. . . .”) (emphasis in original). Courts have interpreted Neagle to

require a two-part test: (1) whether the federal agent was performing an act

which he was authorized to do by federal law; and (2) in performing such an

authorized act, whether the federal agent did no more than what was necessary

and proper. See e.g. Kentucky v. Long, 837 F.2d 727, 744 (6th Cir. 1988).

      Here, the district court correctly applied this two-part test. It noted that

only the second prong was at issue, because “it is undisputed that [Dwyer and

Matthews], at the time of the incident, were federal agents performing an act

which they were authorized to do--the inspection of the mill.” (Slip op. at 3); see

also 36 C.F.R. § 228.7(a) (1995) (expressly authorizing the Forest Service to

inspect mining claims); 36 C.F.R. § 228.3(d) (1995) (defining “mining claim” as

“any unpatented mining claim or unpatented millsite. . . .”).




                                         -7-
      The court then conducted the “necessary and proper” inquiry. This inquiry

has two components: (1) whether the agent subjectively believed that his actions

were authorized; and (2) whether this belief was objectively reasonable. Long,

837 F.2d at 745. The agent’s honest belief need only be reasonable for immunity

to obtain; it need not be correct. Id.

      The first Long inquiry is factual. The magistrate judge found that Dwyer

and Matthews “honestly and reasonably believed that their action was justified in

carrying out their official duty to reassess reclamation bond requirements at the

mill site.” (6/9/95 Order ¶ 9). This finding is not clearly erroneous.

      The second Long inquiry is legal, and we therefore review it de novo. We

agree with the district court and the magistrate judge that it was objectively

reasonable for U.S. Forest Service agents to believe that they had authority to

inspect, without prior notification but during normal business hours, a site located

in a National Forest, owned by the United States, administered by the U.S. Forest

Service, and operated privately pursuant to an operating plan guaranteeing access

to federal agents. This is so even where the site operator normally received

notification prior to inspections. We reach this judgment for the same reasons

stated in the Magistrate’s Order. (6/9/95 Order ¶ 6).

                                   CONCLUSION




                                         -8-
      The judgment of the district court dismissing all state charges against the

Defendant-Appellees is hereby affirmed.

                                      ENTERED FOR THE COURT


                                      David M. Ebel
                                      Circuit Judge




                                        -9-
