                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 19 2014

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



                            FOR THE NINTH CIRCUIT


NATALIE M. SWANSON,                               No. 12-55987

              Plaintiff - Appellant,              D.C. No. 3:10-cv-02363-IEG-NLS

  v.
                                                  MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Southern District of California
                 Irma E. Gonzalez, Senior District Judge, Presiding

                      Argued and Submitted February 7, 2014
                               Pasadena, California

Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.

       This lawsuit arises out of the Forest Service’s destruction of stone structures

on Natalie Swanson’s mining claims. The government concedes that Swanson still

owns the mining claims, can still use the mining claims, and can sell the mining

claims. Thus, this disposition only addresses the stone structures on Swanson’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-
mining claims, not the claims themselves. Natalie Swanson appeals from the

district court’s grant of the United States’ motion to dismiss. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      First, the district court was correct that Swanson was collaterally estopped

from seeking a declaratory judgment that the Surface Resources Act of 1955 (30

U.S.C. § 612) did not apply to her unpatented mining claims. This exact same

issue was directly addressed on the merits and rejected in her previous 2006

litigation, and Swanson never appealed that decision. Thus, issue preclusion bars

her from relitigating it here. See Offshore Sportswear, Inc. v. Vuarnet Intern., B.V.,

114 F.3d 848, 851 (9th Cir. 1997) (issue preclusion bars plaintiff from relitigating

claims where “the issue that led to dismissal was adjudicated on its merits and was

conclusively determined when the time passed for appeal”).

      Second, the district court was correct that Swanson was not entitled to a

declaratory judgment that she had a property right to use the stone structures in the

area around her mining claims. An unpatented mining claim gives the claimholder

the right to use the claim for mining and “uses reasonably incident thereto.” See 30

U.S.C. § 612(a)-(b); United States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012).

In United States v. Shumway, we established that a miner’s residence may be

incidental to mining. 199 F.3d 1093, 1106 (9th Cir. 1999). Here, however, the
                                          -3-
Forest Service concluded that the structures at issue were not reasonably incident

to Swanson’s mining operation. In the ten years since that determination was

made, Swanson never once challenged it in any of her lawsuits. Nor has she

alleged in this case that she used the structures in a way that would be incident to

her mining operation at the time the Forest Service removed the structures. Thus,

since the structures were not being used for mining purposes, Swanson had no

property right to use them.

      Finally, the district court was correct to dismiss Swanson’s claims for

trespass to chattels, conversion, and negligence. First, to the extent these claims

were based on Swanson’s purported property right to use the structures, they fail

because Swanson had no such right. Second, to the extent these claims were based

on the destruction of personal property within the stone structures, the district court

correctly concluded that it lacked subject matter jurisdiction to address them.

Swanson’s administrative Federal Torts Claim Act claim only cited her purported

property right to use the structures and never mentioned any personal property; any

claims related to her personal property were thus never administratively exhausted

and the district court therefore lacked jurisdiction to address them. See 28 U.S.C. §

2675(a); Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1140 (9th Cir. 2013).

      AFFIRMED.
