- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Administrative Law
- Date Filed: 04-26-2012
- Case #: 10-30264; 10-30289
- Judge(s)/Court Below: Circuit Judge Fisher for the Court; Circuit Judges Paez and Clifton
- Full Text Opinion
Michael Backlund and David Everist (collectively, “defendants”) were convicted of violating 36 C.F.R. § 261.10(b) for their occupancy of National Forest System lands without prior approval. Defendants contended they were engaged in bona fide mining operations, justifying full-time residency on their mining claim sites. The Forest Service determined that neither residencies were reasonably incident to the mining operations, and that neither defendant possessed an approved plan of operations or special-use authorization. Defendants appealed on three grounds: the Forest Service lacks authority to regulate residency on mining claims; § 261.10(b) is unconstitutionally vague; and the district court denied them due process when it precluded a challenge to the administrative decision that their residences were not reasonably incident to mining. The Court determined that residential occupancy on a valid mining claim is not automatically reasonably incident to mining; thus, the Forest Service acted within its authority. Next, the Court found that § 261.10(b) is not unconstitutionally vague, because Congress intended that the Department of Agriculture regulate the use and occupancy of national forest lands. Lastly, because Everist did not appeal the Forest Service’s decision, he did not exhaust his administrative remedies and thus waived his right to judicial review. Backlund, however, did exhaust his administrative remedies, and, since he is within the Administrative Procedure Act’s (“APA”) six-year statute of limitations, he is entitled to seek direct judicial review. The Court determined that a person can obtain judicial review of a final agency action by either filing suit in a federal district court under the APA, or challenging the decision in a subsequent criminal proceeding. Judgment in No. 10-30264 VACATED and case REMANDED. Judgment in No. 10-30289 AFFIRMED.