                                                                            FILED
                            NOT FOR PUBLICATION                              APR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30283

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00478-MO-1

       v.
                                                 MEMORANDUM *
LENNIE AMES,

              Defendant - Appellant.


 UNITED STATES OF AMERICA,                       No. 10-30285

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00478-MO-2

       v.

 JARED FOURNIER,

              Defendant - Appellant.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                     Argued and Submitted November 15, 2011
                                Portland, Oregon

Before: FISHER, PAEZ and CLIFTON, Circuit Judges.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lennie Ames and Jared Fournier appeal their convictions, following a bench

trial, for unlawfully maintaining, occupying and using a residence on National

Forest System lands in violation of 36 C.F.R. § 261.10(b). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      1. For the reasons discussed in a concurrently filed opinion in United States

v. Backlund, No. 10-30264, and United States v. Everist, No. 10-30289, the United

States Forest Service may regulate residential occupancy of bona fide mining

claims within the national forests. Mere ownership of an unpatented mining claim

does not automatically entitle the owner to reside permanently on National Forest

System lands. Section 261.10(b) is consistent with the mining laws and not

unconstitutionally vague. Nor is the rule of lenity applicable here.

      2. The district court’s grant of the government’s motion in limine, which

precluded Ames and Fournier from challenging the Forest Service’s determination

that their residences were not reasonably incident to a mining operation, did not

violate their due process rights. Like the defendant in Everist, Ames and Fournier

were not entitled to judicial review of the Forest Service decision because they did

not exhaust their administrative remedies as required by the Administrative

Procedure Act. See United States v. Doremus, 888 F.2d 630, 633 (9th Cir. 1989).



                                          2
United States v. Mendoza-Lopez, 481 U.S. 828 (1987), on which Ames and

Fournier rely, is inapposite because they had, but did not pursue, the very

opportunity for judicial review that the defendants in Mendoza-Lopez were

wrongfully denied.

      3. The evidence was sufficient to convict Ames and Fournier of violating 36

C.F.R. § 261.10(b). The Forest Service determined that Ames’ and Fournier’s

residences were not reasonably incident to a mining operation. Thus, residential

use of their claim was not authorized by the mining laws and regulations. See

United States v. Nogueira, 403 F.2d 816, 825 (9th Cir. 1968) (explaining that

permanent residence not reasonably related to mining is not authorized under the

mining statute); United States v. Richardson, 599 F.2d 290, 295 (9th Cir. 1979)

(providing that the Forest Service may prohibit uses not reasonably necessary to

mining). Rather, under these circumstances, their residencies constituted a special

use under § 251.50(a), requiring special use authorization, which neither had. See

36 C.F.R. § 251.50(a); 73 Fed. Reg. at 65,994 (noting that residency that is not

reasonably necessary to mining operations “is not an operation for purposes of 36

CFR 228.3 which is authorized by the United States mining laws . . . [but rather]

constitutes a special use”).

      AFFIRMED.


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