United States v. Ed Needles ( 2012 )

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NOT FOR PUBLICATION APR 26 2012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. 10-30300
Plaintiff - Appellee, D.C. No. 3:09-cr-00476-MO-1
v.
MEMORANDUM *
ED NEEDLES,
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.
Ed Needles appeals his conviction, after 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Needles argues that his residence was authorized under his predecessor,
Carlon McBroom’s, plan of operations for the Orion mine, which the United States
Forest Service approved in 2003. Because Needles did not raise this argument
before the district court, our review is for plain error. See United States v.
Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011); United States v.
Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000).
Assuming Carlon McBroom’s 2003 plan of operations remained in effect
after his death in January 2004, there was no evidence at trial showing that it
applied to Needles, who was not identified as an operator under the plan.
Likewise, assuming McBroom could legally have transferred the 2003 plan to
Needles, there was no evidence that he did so. The evidence established only that
Needles (along with McBroom’s son) took over as owner and operator of the Orion
mine after McBroom’s death and applied for a plan of operations for the site. The
Forest Service did not approve his plan. Despite repeated warnings from the Forest
Service that he needed but did not have an approved operating plan, Needles
continued to maintain a residence at the Orion mine site. It was not plain error for
the district court to find that Needles maintained a residence on National Forest
System lands without an approved operating plan, in violation of 36 C.F.R. §
261.10(b).
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2. Needles’ conviction under § 261.10(b) did not violate his due process
rights due to lack of notice that his residence was unauthorized. Needles’
contention that he was deprived of adequate notice because the Forest Service
never terminated Carlon McBroom’s 2003 plan of operations fails for the reasons
discussed above: there was no evidence that McBroom’s plan applied to Needles’
operation. Needles’ contention that § 261.10(b) is unconstitutionally vague fails
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.
3. Needles’ conviction does not run afoul of the “antiretroactivity
principle.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). Section
261.10(b) was not applied to punish conduct predating its enactment. Nor did it
impair Needles’ vested rights or impose new duties with respect to past
transactions. See id. at 269. Needles’ operations at the Orion mine were not
derived from Carlon McBroom’s 2003 plan of operations. The requirement that
mine operators causing significant surface disturbance obtain an approved
operating plan predated Needles’ acquisition of the Orion claims, as did the
government’s authority to prosecute operators who failed to comply with the rules.
See Organic Administration Act, 30 Stat. 35 (1897), codified as amended at 16
U.S.C. § 551 (authorizing the promulgation of rules covering use of the national
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forests and providing for criminal sanctions for violation of those rules); 36 C.F.R.
§§ 228.1-228.15 (2003) (regulating mining operations in the national forests); 36
C.F.R. §§ 261.1b, 261.10 (2003) (providing criminal penalties for violation of
rules governing occupancy and use of National Forest System lands).
4. Needles’ opening brief incorporated by reference appellant’s arguments
in United States v. Backlund, No. 10-30264. We reject these arguments for the
reasons discussed in United States v. Backlund, No. 10-30264, and United States v.
Everist, No. 10-30289. The 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.1
5. We do not consider Needles’ arguments in his pro se Notice of Objection
and Motion to Correct the Record filed in the district court because they were not
properly presented to this court. See Circuit Rule 28-1 (“Parties must not . . .
incorporate by reference briefs submitted to the district court . . . or refer this Court
to such briefs for the arguments on the merits of the appeal.”); Fed. R. App. P.
1
Because these arguments fail on the merits, we do not decide whether
Needles forfeited the arguments by failing to properly present them. See In re
National Sec. Agency Telecomm. Records Litig., 669 F.3d 928, 931 (2011).
Needles’ motion requesting that we take judicial notice of Backlund’s arguments is
denied as moot.
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28(a)(9)(A) (providing that appellant’s brief must contain, among other things,
“appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies”); see also Sandgathe v.
Maass, 314 F.3d 371, 380 n.8 (9th Cir. 2002) (“This mode of presentation is an
entirely improper way of presenting argument to this court.”).
AFFIRMED.
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