United States v. Lennie Ames

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NOT FOR PUBLICATION APR 26 2012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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