United States v. Michael Backlund

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 10-30264
v.  D.C. No.
3:09-cr-00477-
MICHAEL BACKLUND, MO-1
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 10-30289
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-00479-
DAVID D. EVERIST, MO-1
Defendant-Appellant. ORDER
 AMENDING
OPINION AND
DENYING
PETITION FOR
PANEL
REHEARING AND
AMENDED
 OPINION
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
Filed April 26, 2012
Amended July 31, 2012
8565
8566 UNITED STATES v. BACKLUND
Before: Raymond C. Fisher, Richard A. Paez and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Fisher
8568 UNITED STATES v. BACKLUND
COUNSEL
James L. Buchal, Murphy & Buchal LLP, Portland, Oregon,
for appellant Michael Backlund.
UNITED STATES v. BACKLUND 8569
Steven J. Sherlag, Portland, Oregon, for appellant David
Everist.
Dwight C. Holton, United States Attorney; Neil J. Evans
(argued), Assistant U.S. Attorney, Portland, Oregon; Ignacia
S. Moreno, Assistant Attorney General; Allen M. Brabender,
Washington, DC, for the appellee.
ORDER
The opinion filed April 26, 2012 and appearing at 677 F.3d
930 (9th Cir. 2012), is AMENDED as follows:
1. At page 4441 of the slip opinion (677 F.3d at 944), the
following sentence is deleted:
The government, however, can mitigate this
potential for delay by promptly initiating
enforcement actions and defending the
agency decision in those proceedings.
and replaced with:
The government, however, can mitigate this
potential for delay by promptly initiating
judicial proceedings and defending the
agency decision in those proceedings.
2. At page 4441 of the slip opinion (677 F.3d at 944), the
following footnote is inserted as footnote 15 following
the sentence that reads, “Accordingly, we conclude that
the district court erred by barring Backlund from present-
ing his APA challenge as a defense to the alleged viola-
tion of 36 C.F.R. § 261.10(b).”:
To be clear, we do not hold that proving the
correctness or even the existence of the
8570 UNITED STATES v. BACKLUND
agency action was an element of the gov-
ernment’s criminal case against Backlund.
Backlund does not argue that it was. The
lawfulness of the agency action was, how-
ever, relevant to Backlund’s affirmative
defense that his residency was authorized.
3. At page 4441 of the slip opinion (677 F.3d at 944), the
following footnote is inserted as footnote 16 following
the sentence that reads, “The government did not argue
that the district court’s error was harmless.”:
In a petition for panel rehearing, the gov-
ernment argues for the first time that any
error was harmless because even if Back-
lund had succeeded in convincing the dis-
trict court that the Forest Service decision
was arbitrary and capricious, the district
court’s decision would not legitimize Back-
lund’s residency, which would remain
unauthorized — and therefore unlawful —
until the Forest Service approved Back-
lund’s proposed plan of operations. The
government’s argument largely misses the
point. Backlund’s theory is that withhold-
ing authorization for year round residency
on the Climax claims amounts to a “mate-
rial interfer[ence] with . . . mining[,]” 30
U.S.C. § 612(b), because the prohibition
makes it financially impossible for him to
mine his claims. Backlund argued that the
Forest Service’s decision “so unreasonably
circumscribed” his mining operation “as to
amount to a prohibition,” and therefore vio-
lated the mining laws. United States v.
Weiss, 642 F.2d 296, 299 (9th Cir. 1981).
We express no opinion on the merits of
UNITED STATES v. BACKLUND 8571
Backlund’s claim and leave it to the district
court to evaluate in the first instance.
With these amendments, the petition for panel rehearing,
filed June 11, 2012 in Case No. 10-30264, is DENIED.
An amended opinion is filed concurrently with this order.
No further petitions for rehearing will be accepted.
OPINION
FISHER, Circuit Judge:
Federal law permits mining operations and uses reasonably
incident thereto on National Forest System lands. Individuals
mining in the national forests must comply with regulations
promulgated by the United States Department of Agriculture.
Under those rules, mining operations that are likely to cause
significant surface disturbance require a plan of operations
approved by the United States Forest Service. In addition,
long-term residency on a claim site requires Forest Service
authorization, either in the form of an approved plan of opera-
tions (for residency incident to mining), or a special use
authorization.
The defendants in these two cases, Michael Backlund and
David Everist, contend that they were engaged in bona fide
mining activities on National Forest System lands, which jus-
tified full-time residency on their respective claim sites.1 In
separate administrative proceedings, however, the Forest Ser-
vice determined that Backlund’s and Everist’s residences
1
For purposes of oral argument only, we consolidated these two appeals
and three other cases involving similar issues. See United States v. Nee-
dles, No. 10-30300; United States v. Ames, No. 10-30283; United States
v. Fournier, No. 10-30285. We address Needles, Ames and Fournier in
concurrently filed memorandum dispositions.
8572 UNITED STATES v. BACKLUND
were not reasonably incident to qualifying mining operations,
and therefore were not authorized by the mining laws. Nor did
either of them possess a special use authorization. The Forest
Service informed Backlund and Everist of its determinations
and instructed them to cease residing on National Forest Sys-
tem lands. When they failed to depart, the government prose-
cuted them under 36 C.F.R. § 261.10(b), which prohibits
“[c]onstruction, reconstructing, improving, maintaining, occu-
pying or using a residence on National Forest System lands
unless authorized by special-use authorization or approved
operating plan when such authorization is required.” They
appeal their respective convictions on three grounds: (1) that
the Forest Service exceeded its authority by regulating resi-
dency on mining claims; (2) that 36 C.F.R. § 261.10(b) is
unconstitutionally vague; and (3) that the district court denied
them due process by precluding them from challenging the
Forest Service’s administrative determinations that their resi-
dences were not reasonably incident to mining.
We hold that the United States Forest Service may regulate
residential occupancy of bona fide mining claims within the
national forests, and that § 261.10(b) is consistent with the
mining laws and not unconstitutionally vague. We further
hold that in a criminal proceeding predicated on the Forest
Service’s administrative determination, a defendant may
obtain judicial review of the agency action under the Admin-
istrative Procedure Act (APA), so long as the defendant com-
plied with the procedural requirements for direct review and
the APA’s statute of limitations has not expired. Thus, Everist
was not entitled to judicial review of the Forest Service’s
determination that his residency was not reasonably incident
to mining, because he did not exhaust his administrative rem-
edies as required by the APA. Backlund, on the other hand,
did administratively exhaust his claim that the Forest Ser-
vice’s denial of his proposed plan of operations was not in
accordance with law. He was, therefore, entitled to judicial
review of the agency decision in the context of his criminal
UNITED STATES v. BACKLUND 8573
prosecution. Accordingly, we affirm Everist’s conviction, and
reverse Backlund’s conviction.
STATUTORY AND REGULATORY BACKGROUND
This case involves the interplay between federal statutes
relating to mining on public lands and management of the
national forests. Under the Mining Law of 1872, an individual
who discovers a valuable mineral deposit on federal land may
locate a mining claim.2 The statute provides that so long as the
claimant complies with federal, state and local law, he shall
have “exclusive right of possession and enjoyment of all the
surface included within the lines of [his] locations.” 30 U.S.C.
§ 26. This right is subject to certain limitations.
First, under the Multiple Use Act of 1955 “[a]ny [unpa-
tented] mining claim hereafter located . . . shall not be used
. . . for any purposes other than prospecting, mining or pro-
cessing operations and uses reasonably incident thereto.” 30
U.S.C. § 612(a). “An ‘unpatented’ claim is a possessory inter-
est in a particular area solely for the purpose of mining; it may
be contested by the government or a private party.” Clouser
v. Espy, 42 F.3d 1522, 1525 n.2 (9th Cir. 1994).3 The act also
“reserve[s] to the United States the right to manage and dis-
pose of surface resources on unpatented mining claims,”
United States v. Doremus, 888 F.2d 630, 632 (9th Cir. 1989),
with the caveat that the government’s use shall not “endanger
or materially interfere with prospecting, mining or processing
operations or uses reasonably incident thereto,” 30 U.S.C.
§ 612(b). Thus, under the mining laws, use of an unpatented
2
Location “involve[s] staking the corners of the claim, posting a notice
of location thereon and complying with the state laws concerning the fil-
ing or recording of the claim in the appropriate office.” United States v.
Curtis-Nev. Mines, Inc., 611 F.2d 1277, 1281 (9th Cir. 1980).
3
“By contrast, if a claim is patented, the claimant gets a fee simple inter-
est from the United States and no contest can be brought against the
claim.” Clouser, 42 F.3d at 1525 n.2. The claims at issue here are unpa-
tented.
8574 UNITED STATES v. BACKLUND
mining claim on public land is limited to activities that are
reasonably incident to prospecting, mining and processing
operations, and subject to the right of the United States to
manage surface resources. See United States v. Curtis-Nev.
Mines, Inc., 611 F.2d 1277, 1281, 1283 (9th Cir. 1980).
Second, under the Organic Administration Act of 1897,
mining operations on National Forest System lands are sub-
ject to rules and regulations promulgated by the Secretary of
Agriculture for the protection and preservation of the national
forests. See 16 U.S.C. § 551.4 The act recognizes “prospect-
ing, locating, and developing the mineral resources” of the
national forests as “proper and lawful” uses of National Forest
System lands, but individuals engaged in those activities,
“must comply with the rules and regulations covering [the]
national forests.” 16 U.S.C. § 478. See United States v. Weiss,
642 F.2d 296, 298 (9th Cir. 1981). Under these rules, depend-
ing on the type and scope of the activity at issue, different
requirements apply.
4
16 U.S.C. § 551 provides,
The Secretary of Agriculture shall make provisions for the pro-
tection against destruction by fire and depredations upon the pub-
lic forests and national forests which may have been set aside or
which may be hereafter set aside under the provisions of section
471 of this title, and which may be continued; and he may make
such rules and regulations and establish such service as will
insure the objects of such reservations, namely, to regulate their
occupancy and use and to preserve the forests thereon from
destruction; and any violation of the provisions of this section,
sections 473 to 478 and 479 to 482 of this title or such rules and
regulations shall be punished by a fine of not more than $500 or
imprisonment for not more than six months, or both. Any person
charged with the violation of such rules and regulations may be
tried and sentenced by any United States magistrate judge spe-
cially designated for that purpose by the court by which he was
appointed, in the same manner and subject to the same conditions
as provided for in section 3401 (b) to (e) of title 18.
UNITED STATES v. BACKLUND 8575
The rules set forth at 36 C.F.R. part 228, subpart A, cover
mining operations and uses reasonably incident thereto on
National Forest System lands. Under these rules, mining oper-
ations that will likely cause, or are causing, significant surface
disturbance must be covered by an approved operating plan
issued by the Forest Service.5 See 36 C.F.R. § 228.4(a)(4).6
Mining operations that are not likely to cause significant sur-
face disturbance do not require an approved operating plan.
See id. § 228.4(a)(1), (3); 73 Fed. Reg. 65,984, 65,988 (Nov.
6, 2008). Most uses of National Forest System lands not
related to mining are “special uses,” which require special use
authorization under § 251.50(a).7
5
The United States Forest Service is an agency of the Department of
Agriculture with primary responsibility for managing the national forests.
6
36 C.F.R. § 228.4(a)(4) provides,
If the District Ranger determines that any operation is causing or
will likely cause significant disturbance of surface resources, the
District Ranger shall notify the operator that the operator must
submit a proposed plan of operations for approval and that the
operations can not be conducted until a plan of operations is
approved.
7
36 C.F.R. § 251.50(a) provides,
All uses of National Forest System lands, improvements, and
resources, except those authorized by the regulations governing
sharing use of roads (§ 212.9); grazing and livestock use (part
222); the sale and disposal of timber and special forest products,
such as greens, mushrooms, and medicinal plants (part 223); and
minerals (part 228) are designated “special uses.” Before con-
ducting a special use, individuals or entities must submit a pro-
posal to the authorized officer and must obtain a special use
authorization from the authorized officer, unless that requirement
is waived by paragraphs (c) through (e)(3) of this section.
The parties do not contend that any of the waivers listed in paragraphs (c)
through (e)(3) apply here.
8576 UNITED STATES v. BACKLUND
FACTUAL AND PROCEDURAL BACKGROUND
I. Michael Backlund
Michael and Linda Backlund own the Climax mining
claims in Oregon’s Umpqua National Forest. In 2001, the
Backlunds’ partner submitted to the Forest Service a proposed
plan of operations for the claims. As part of the Forest Ser-
vice’s review of the proposal, two Forest Service examiners
prepared a Surface Use Determination (SUD) Report, which
evaluated “whether or not the ongoing use of the structures
[on the Climax claims] was reasonably incident and necessary
for mining related activities.” In their December 2004 report,
the examiners concluded that “year round occupation of the
permanent camp trailer with the added room, roof, porch and
fire wood storage area, is excessive even during the mining
season,” and that “such use is not reasonable or necessary.”
They recommended that the Forest Service “[d]eny the
request for ongoing and exclusive year-round use of the exist-
ing permanent camper trailer structure for sleeping and cook-
ing by the operators and require the removal of the structure
from National Forest System lands.” They further recom-
mended that the Forest Service approve “temporary travel
trailers to accommodate overnight sleeping needs during the
period of active mining operations and require their removal
during the non-mining season.”
Rather than continue to negotiate the 2001 proposed plan
of operations, the Backlunds in 2005 informed the Forest Ser-
vice that they believed their mining activities did not require
a plan of operations because their operation was not causing
a significant surface disturbance. The Forest Service dis-
agreed, and in January 2006 District Ranger Deborah Schmidt
issued a notice of noncompliance, informing the Backlunds
that their ongoing occupancy of national forest land without
an approved plan of operations violated Forest Service regula-
tions. She noted that she had informed the Backlunds on four
separate occasions in 2005 that their mining activities
UNITED STATES v. BACKLUND 8577
required an approved plan of operations, and that they had not
submitted a proposed plan. Schmidt cited two reasons for
requiring a plan of operations: that the Backlunds were main-
taining “[m]ining equipment and structures . . . on the claim-
site [amounting to] a significant disturbance of surface
resources,” and that they intended to reside on the claims in
a travel trailer. She explained that the Backlunds needed to
submit a plan of operations to “determine whether or not
[their] occupancy [was] reasonably incident to [their] mining
operation and to determine proper mitigation.” She instructed
the Backlunds to remove all structures, equipment and facili-
ties by May 1, 2006.
The Backlunds appealed the notice of noncompliance. In
April 2006, the Acting Forest Supervisor affirmed Schmidt’s
finding of noncompliance. In the decision, he explained that
the Backlunds had 15 days to appeal to the Regional Forester
under 36 C.F.R. § 251.87. The Backlunds did not appeal.
The Backlunds submitted a proposed plan of operations in
April 2006 and again around May 2007. Several field inspec-
tions and meetings with the Backlunds revealed that their
mining operation had not changed appreciably since the 2004
SUD Report. In June 2007, Schmidt concluded that year-
round residency on the Climax claims was not reasonably
necessary. She agreed to approve a plan of operations that
would allow for “temporary seasonal residential occupancy”
only.
The Backlunds appealed the decision, arguing that their
residence was reasonably incident to their mining operation
because they mined year round and needed to reside on site
to protect their claim. They also argued that the Forest Service
lacked authority to regulate residency on mining claims. The
Forest Supervisor denied their first level appeal, and they filed
a second level appeal. In December 2007, the Deputy
Regional Forester agreed that year-round residential occu-
pancy was not reasonable or necessary to the Backlunds’ min-
8578 UNITED STATES v. BACKLUND
ing operation and denied the Backlunds’ appeal. She noted
that her decision constituted the agency’s final administrative
decision and was not subject to further administrative review.
The Backlunds did not seek judicial review of the decision.
The Forest Service notified the Backlunds by letter in
March and May 2008 that their continued “maintenance and
full time residential occupancy of the structures and improve-
ments on the Climax claims remain[ed] in non-compliance”
with Forest Service regulations. Nevertheless, the Backlunds
continued to reside on the claims. In December 2009, the gov-
ernment filed a misdemeanor information in the United States
District Court for the District of Oregon, charging the Back-
lunds with unlawfully maintaining, occupying and using a
residence on National Forest System lands, in violation of 16
U.S.C. § 551 and 36 C.F.R. § 261.10(b).
In a motion to dismiss, the Backlunds argued that (1) 36
C.F.R. part 261 did not apply to mining operations; (2) 36
C.F.R. § 261.10(b), as applied to the Backlunds, was uncon-
stitutionally vague; and (3) they were entitled to contest the
Forest Service’s refusal to authorize year-round residency on
their mining claims. At a pretrial conference, the district court
rejected these arguments. The court also precluded the Back-
lunds from challenging the merits of the administrative deci-
sion as an affirmative defense at trial, concluding that such a
challenge would be an impermissible collateral attack on the
agency decision.
Mr. Backlund pled guilty to violating 36 C.F.R.
§ 261.10(b), pursuant to a plea agreement. Backlund admitted
that he maintained a residence on National Forest System land
without Forest Service authorization. Under the plea agree-
ment, he agreed to remove all structures and personal property
from the Climax mining claims within 30 days, and the gov-
ernment dropped the criminal charges against Mrs. Backlund.
The plea agreement preserved Backlund’s right to appeal the
district court’s pretrial rulings. The court sentenced him to
UNITED STATES v. BACKLUND 8579
one year of bench probation and payment of a $700 fine.
Backlund timely appealed.
II. David Everist
David Everist owns the Twin Cedars mining claim in Ore-
gon’s Siskiyou-Rouge National Forest. Everist filed a notice
of location for this claim in 2006. In May 2009, District
Ranger Linda Duffy asked Kevin Johnson, a Forest Service
minerals examiner, to investigate Everist’s mining activities.
At trial, Johnson testified that Duffy knew Everist had been
living on National Forest System land for some time, and
wanted to know whether his residency was reasonably inci-
dent to a mining operation. Johnson’s investigation revealed
that Everist had never submitted a notice of intent to operate
or a proposed plan of operations. See 36 C.F.R. § 228.4(a).
Johnson visited Everist’s camp site and saw a trailer with
some attachments, two burn barrels and some personal items
but no mining equipment or other evidence of a mining opera-
tion.
In June 2009, District Ranger Duffy sent a letter notifying
Everist that his “occupancy of National Forest System land
[was] not authorized by the United States Mining Laws or
Regulation” and that he “[did] not have a Special Use Autho-
rization for long term camping.” She explained that the “1955
Multiple Use Mining Act (30 U.S.C. 612) requires that occu-
pancy and other non-mining activities be necessary and rea-
sonably incidental to ongoing and active mining.” Johnson’s
May 2009 investigation had concluded that Everist’s “occu-
pancy [was] not reasonably incidental to qualifying mining
activities” and the “level of mining [Everist] demonstrated
[could] be reasonably accomplished without residential occu-
pancy.” Accordingly, Duffy directed Everist to “[p]lease
remove all of [his] camping equipment and facilities from
National Forest System lands and cease and desist all unau-
thorized residential occupancy of those lands immediately.”
8580 UNITED STATES v. BACKLUND
She informed him that “[f]ailure to do so will result in legal
remedy under 36 CFR 261.10(b).”
Everist did not appeal Duffy’s decision. Rather, he sent a
one-paragraph response letter, in which he asserted that the
Forest Service did not have “subject matter jurisdiction” and
that § 261.10 did not apply to mining operations. He contin-
ued to reside on National Forest System land.
In November 2009, Johnson visited Everist again. Everist
had moved his trailer to a new location about two miles from
the previous site and had posted what was essentially a “keep
out” sign.8 At trial, Johnson testified that, other than “some
tubs” that may have been mining-related, he saw no mining
equipment or other evidence of a mining operation at Ever-
ist’s site.
In December 2009, the United States filed a misdemeanor
information in the United States District Court for the District
of Oregon, charging Everist with unlawfully maintaining,
occupying and using a residence on National Forest System
lands in violation of 16 U.S.C. § 551 and 36 C.F.R.
§ 261.10(b). Everist joined the Backlunds’ motion to dismiss,
which the district court denied. After a bench trial, the district
court found Everist guilty of violating § 261.10(b). Everist
timely appealed.
STANDARD OF REVIEW
We review de novo the district court’s “construction of fed-
eral law and its application to essentially undisputed facts.”
Doremus, 888 F.2d at 631. We also review de novo the dis-
trict court’s decision to preclude an affirmative defense. See
United States v. Gurolla, 333 F.3d 944, 952 n.8 (9th Cir.
2003).
8
The sign said “STOP HERE” and that persons could not proceed onto
his claim without a permit because his “Property [was] Removed From
Public Lands by Legislative Grant of July 26, 1866.”
UNITED STATES v. BACKLUND 8581
DISCUSSION
I.
[1] Backlund and Everist were convicted of violating 36
C.F.R. § 261.10(b), which prohibits “[c]onstruction, recon-
structing, improving, maintaining, occupying or using a resi-
dence on National Forest System lands unless authorized by
special-use authorization or approved operating plan when
such authorization is required.” They argue that the Forest
Service may not regulate residency on bona fide mining
claims and that § 261.10(b) does not apply to them. We con-
clude that the Forest Service acted within its authority. Mere
ownership of an unpatented mining claim does not automati-
cally entitle the owner to reside permanently on National For-
est System lands.
[2] The mining laws permit residency on a mining claim
only to the extent reasonably necessary to mining operations.
See 30 U.S.C. § 612(a) (providing that an unpatented mining
claim “shall not be used . . . for any purposes other than pros-
pecting, mining or processing operations and uses reasonably
incident thereto”); United States v. Nogueira, 403 F.2d 816,
825 (9th Cir. 1968) (“[P]ermanent residence . . . not reason-
ably related to prospecting, mining or processing operations
is not within the [permitted] uses.”). See also United States v.
Richardson, 599 F.2d 290, 295 (9th Cir. 1979) (explaining
that the Forest Service may prohibit conduct not reasonably
necessary to mining). In addition, the Forest Service has con-
cluded that because long-term residential occupancy is likely
to cause significant surface disturbance, mining operations
involving residential use typically require an approved plan of
operations. See 69 Fed. Reg. 41,428, 41,428-41,429 (July 9,
2004) (interim rule treating “residential occupancy and use”
as among the types of mineral operations that may require a
plan of operations because they are likely to cause significant
surface disturbance); 73 Fed. Reg. at 65,988, 65,993 (recog-
nizing that residence involving permanent structures “invari-
8582 UNITED STATES v. BACKLUND
ably requires a plan of operations,” although temporary
camping may not). See also United States v. Brunskill, 792
F.2d 938, 941 (9th Cir. 1986) (holding that residential struc-
tures on a mining claim were “significant surface disturbances
within the scope of 36 C.F.R. Part 228” such that the mining
operation required an approved plan of operations).
[3] Here, the Forest Service determined that Backlund’s
activities, including the presence of permanent structures and
a travel trailer, were causing a significant surface disturbance.
Accordingly, even assuming that Backlund had a right to
reside on his claim, he “may not exercise that right without
first obtaining approval of [his] operation in the manner speci-
fied in 36 C.F.R. Part 228.” Doremus, 888 F.2d at 633; see
also Brunskill, 792 F.2d at 941. This prior approval require-
ment does not “endanger or materially interfere with” Back-
lund’s mining operations and is therefore permissible under
the statutory scheme. Doremus, 888 F.2d at 633 (quoting 30
U.S.C. § 612(b)) (internal quotation marks omitted).
[4] The Forest Service also found that full-time residency
was not reasonably necessary to Backlund’s and Everist’s
mining operations. Thus, residential use of their claims was
not authorized by the mining laws and regulations. See
Nogueira, 403 F.2d at 825 (explaining that permanent resi-
dence not reasonably related to mining is not authorized by
§ 612); Richardson, 599 F.2d at 295 (providing that the Forest
Service may prohibit uses not reasonably necessary to min-
ing). Rather, under these circumstances, their residencies con-
stituted 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 rea-
sonably 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 spe-
cial use”).
In effect, Backlund and Everist contend that a mining
claimant’s residency on his claim is always reasonably inci-
UNITED STATES v. BACKLUND 8583
dent to mining, so long as the claim is valid. They suggest that
we adopted this rule in United States v. Shumway, 199 F.3d
1093 (9th Cir. 1999). We did not. In Shumway, we simply
recognized that residence on a bona fide mining claim may be
reasonably incident to mining operations and concluded that
the defendants in that case had established a genuine issue of
fact as to whether their travel trailer qualified as such. See id.
at 1106. We did not hold that residential occupancy of a valid
mining claim was always authorized under the mining laws.
Indeed, neither the mining laws nor our precedent supports
such a rule. See Nogueira, 403 F.2d at 825; Brunskill, 792
F.2d at 940-41.
[5] We agree with the district court that 36 C.F.R.
§ 261.10(b) is consistent with the mining laws. Requiring
“prior approval” of residential occupancy “is a reasonable
method of administering the statutory balance between ‘the
important interests involved here’ ” — the interest of miners
in reasonable use and enjoyment of their claims, and the inter-
est of the government in improving and protecting the surface
resources of the national forests. Doremus, 888 F.2d at 632(quoting Weiss, 642 F.2d at 299).9
9
We do not suggest that the Forest Service’s exercise of its authority to
regulate uses of National Forest System lands will never run afoul of Con-
gress’ prohibition on regulations that “endanger or materially interfere
with” mining operations. In certain circumstances, long-term use of an on-
site, permanent residence may be reasonably necessary to mining opera-
tions, see, e.g., 73 Fed. Reg. at 65,994 (“The Department should not be
understood to suggest that actions involving a permanent structure can
never be reasonably incident to bona fide locatable mineral operations.”),
and prohibiting residency in that context may “impermissibly encroach
upon the right to the use and enjoyment of placer claims for mining pur-
poses,” Weiss, 642 F.2d at 299. Whether the Forest Service’s application
of its rules is reasonable in a particular case depends on the facts of the
case, and review of the agency’s decision is available as provided by For-
est Service regulations and the APA. See infra Part III.
8584 UNITED STATES v. BACKLUND
II.
[6] Backlund and Everist argue that § 261.10(b) is unen-
forceably vague under the Due Process Clause of the Fifth
Amendment. “It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not
clearly defined.” United States v. Kim, 449 F.3d 933, 941 (9th
Cir. 2006) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972)) (internal quotation marks omitted). The void
for vagueness doctrine is concerned both with providing
notice to individuals and with establishing minimal guidelines
for law enforcement. See Kolender v. Lawson, 461 U.S. 352,
357-58 (1983). “[V]agueness challenges to statutes that do not
involve First Amendment violations must be examined as
applied to the defendant.” Kim, 449 F.3d at 942 (citing Vill.
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 495 n.7 (1982)); see also Doremus, 888 F.2d at
634-35 (rejecting a due process challenge to 8 C.F.R.
§ 261.10(k)).
[7] Section 261.10(b) provides “appropriate notice of what
[is] condemned by law.” United States v. Other Medicine, 596
F.3d 677, 682 (9th Cir. 2010) (quoting United States v. Burn-
side, 831 F.2d 868, 870 (9th Cir. 1987)) (internal quotation
marks omitted). It prohibits residency on National Forest Sys-
tem lands “unless authorized by a special-use authorization or
approved operating plan” when either a special use authoriza-
tion or an approved operating plan is required under the law.
36 C.F.R. § 261.10(b). Part 251, in turn, states that all uses of
National Forest System lands, except certain expressly enu-
merated activities such as mining, require special use authori-
zation. See id. § 251.50(a). Under part 228, a mining
operation requires an approved operating plan if it is likely to
cause a significant surface disturbance. See id. § 228.4(a)(4).
Section 261.10(b) therefore is not unconstitutionally vague.
[8] In addition, Backlund and Everist had actual notice that
their use of National Forest System lands violated Forest Ser-
UNITED STATES v. BACKLUND 8585
vice regulations. See United States v. Pfeifer, 371 F.3d 430,
437 (8th Cir. 2004) (concluding that the defendant suffered no
due process violation because, among other things, the evi-
dence showed that he had actual notice that the charged con-
duct was prohibited). Backlund knew that he was required to
obtain a plan of operations. Indeed, he sought an approved
plan on more than one occasion and admits that he did not
have one. As for Everist, the Forest Service explicitly
informed him that his residency was not authorized by the
mining laws and regulations because it was not “reasonably
incidental to ongoing and active mining,” and that he did not
have special use authorization for non-mining-related occu-
pancy. Accordingly, there is no due process problem here.
Backlund and Everist also argue that the Forest Service
rules confer unfettered discretion on district rangers to arbi-
trarily “deem any particular residence criminal or noncrimi-
nal.” They overlook the comprehensive statutory and
regulatory regime that governs the agency’s actions in this
context. The Department of Agriculture promulgated detailed
rules to guide the Forest Service’s evaluation and regulation
of mining operations. In the implementation of these rules, the
agency’s authority is cabined by Congress’ instruction that
regulation not “endanger or materially interfere with prospect-
ing, mining or processing operations or uses reasonably inci-
dent thereto.” 30 U.S.C. § 612(b). Furthermore, the rules
provide for meaningful administrative review of Forest Ser-
vice decisions relating to use and occupancy of National For-
est System lands, see 36 C.F.R. part 251, subpart C, and
judicial review is available under the APA. This is not unfet-
tered discretion. See Doremus, 888 F.2d at 635 n.4 (rejecting
vagueness challenge to mining regulations in part because
rules provide for administrative and judicial review of agency
decisions).
Nor is the rule of lenity applicable here. The rule of lenity
is motivated by the principle of “fair warning” and requires
that ambiguous criminal statutes be construed in favor of the
8586 UNITED STATES v. BACKLUND
accused. See McBoyle v. United States, 283 U.S. 25, 27
(1931). The threshold for employing the rule is high, as the
“rule of lenity only applies if, after considering text, structure,
history, and purpose, there remains a grievous ambiguity or
uncertainty in the statute such that the Court must simply
guess as to what Congress intended.” Barber v. Thomas, 130
S. Ct. 2499, 2508-09 (2010) (internal quotation marks and
citation omitted). Section 261.10(b) is not ambiguous. It is
clear that Congress intended the Department of Agriculture to
regulate use and occupancy of the national forests, and that
the Department requires individuals wishing to reside on
National Forest System lands to obtain authorization for their
activities.
III.
Finally, Backlund and Everist argue that the district court
erred by precluding them from challenging — on the merits
— the Forest Service’s decisions declining to authorize resi-
dency on their mining claims.10 They both sought to introduce
evidence showing that the agency’s determination that resi-
dency was not reasonably necessary to their mining opera-
tions was irrational and erroneous. Backlund also contested
the Forest Service’s finding that his mining operation was
likely to cause significant surface disturbance and, therefore,
required a plan of operations. Backlund and Everist argue that
the district court denied them due process by foreclosing these
affirmative defenses.
[9] Backlund and Everist cite United States v. Mendoza-
Lopez, 481 U.S. 828 (1987), an immigration case in which the
Supreme Court stated that “where a determination made in an
administrative proceeding is to play a critical role in the sub-
sequent imposition of a criminal sanction,” the criminal
defendant has a Fifth Amendment right to “some meaningful
10
With respect to Backlund, the Forest Service agreed to approve sea-
sonal residency but denied his request for year-round residency.
UNITED STATES v. BACKLUND 8587
review of the administrative proceeding.” Id. at 837-38. The
Court allowed the defendants, two Mexican nationals charged
with re-entry after deportation in violation of 8 U.S.C. § 1326,
to introduce evidence of procedural due process violations in
their prior deportation hearing because of defects that had
“foreclose[d] judicial review of that proceeding.” Id. at 838.
[10] Here, Forest Service regulations and the APA provide
for meaningful administrative and judicial review of Forest
Service decisions. Written decisions by a district ranger, such
as those at issue here, are subject to two levels of administra-
tive appeal. See 36 C.F.R. § 251.87(c). Section 251.99 out-
lines the procedures a reviewing officer must follow in
making the appeal decision. In addition, an appellant may
seek a stay of a decision while his appeal is pending if “harm-
ful effects . . . would occur during pendency of the appeal.”
Id. § 251.91(b). The regulations make clear that the reviewing
officer’s disposition constitutes final agency action. See id.
§ 251.99(f).11 Once the petitioner has exhausted administra-
tive remedies, federal court review of final agency action is
available under the APA. See 5 U.S.C. §§ 702, 704; Clouser
v. Espy, 42 F.3d 1522, 1531-32 (9th Cir. 1994) (explaining
that APA exhaustion requirement applies to appeals of Forest
Service decisions); Doremus, 888 F.2d at 632-33 (requiring
administrative exhaustion before judicial review under the
APA of a Forest Service decision on a plan of operations).
[11] With respect to Everist, the Forest Service found that
his mining activity was so minimal that it did not justify on-
site residency. Everist did not appeal this determination.
11
The regulations governing “appealable decisions” do not explicitly
cover the notice that Everist received. See 36 C.F.R. § 251.82. However,
by their terms, the rules apply broadly to “the full range of actions and
decisions a forest officer takes to issue written instruments, or to manage
authorized uses of National Forest System lands.” Id. § 251.81; see also
id. § 251.80. In addition, the notice Everist received is of a similar ilk to
those expressly listed in § 251.82; and, in briefing and at oral argument,
the government appears to have conceded that the notice was appealable.
8588 UNITED STATES v. BACKLUND
Therefore, he did not exhaust his administrative remedies and
waived his right to judicial review. See Doremus, 888 F.2d at
633. Everist’s resort to Mendoza-Lopez is unavailing, for he
had — but chose to forgo — the very opportunity for judicial
review that the defendants in Mendoza-Lopez were wrong-
fully denied.12 He may not now circumvent the APA’s
exhaustion requirement by collaterally attacking the agency
decision as a defense in this criminal proceeding. See Dore-
mus, 888 F.2d at 633; cf. United States v. Lowry, 512 F.3d
1194, 1202-03 (9th Cir. 2008) (precluding a collateral attack
on an agency decision outside the six-year statute of limita-
tions for direct review).
[12] As for Backlund, he also did not appeal the Forest
Service’s finding that his mining operation was likely to cause
a significant surface disturbance and therefore required an
approved operating plan. Accordingly, he did not exhaust this
claim and was not entitled to raise it before the district court.
See Clouser, 42 F.3d at 1532; Doremus, 888 F.2d at 633. He
did, however, exhaust his claim that the Forest Service’s pro-
hibition on year-round residential occupancy of the Climax
claims was not in accordance with law. Thus, under the APA,
he may seek direct judicial review of this determination. The
question here is whether he may obtain that review in this
criminal proceeding, rather than through a more traditional
direct appeal.
12
We note that 36 C.F.R. § 251.84(a) requires that “[a] Deciding Offi-
cer shall promptly give written notice of decisions subject to appeal under
this subpart . . . The notice shall . . . specify the name of the officer to
whom an appeal of the decision may be filed, the address, and the deadline
for filing an appeal.” Duffy’s letter to Everist failed to apprise him of his
right to seek review in this manner, but Everist did not raise this issue
before the district court, or on appeal in this court, so we decline to con-
sider it. See Fed. R. App. P. 28(a)(9); United States v. Williamson, 439
F.3d 1125, 1138 (9th Cir. 2006) (“With no argument presented, we decline
to address the claim. . . . We will not manufacture arguments for an appel-
lant who has failed to present . . . specific, cogent argument[s] for [the
court’s] consideration, especially where a host of other issues are pre-
sented for review.” (citation and internal quotation marks omitted)).
UNITED STATES v. BACKLUND 8589
In Coleman v. United States, 363 F.2d 190, 196 (9th Cir.
1966), rev’d on other grounds, 390 U.S. 599 (1968), a civil
ejectment suit initiated by the government, we permitted a
defendant to challenge, under the APA’s arbitrary and capri-
cious standard, the underlying administrative determination
that his mining claims were invalid. The United States
brought the civil ejectment action against Coleman a year and
a half after the agency issued its final administrative decision.
Coleman counterclaimed, seeking APA review of the agency
decision invalidating his claims. See id. at 193. On appeal, we
rejected the government’s argument that because Coleman did
not seek direct judicial review of the administrative decision,
review in the ejectment suit was “under a more restrictive
standard.” Id. at 196. We reasoned that there was no statute
of limitations on APA claims and concluded that we could not
“discern any reason for a difference respecting the scope and
character of review of agency action which would depend
upon who commenced the action.” Id.13 On the merits, we
held that the agency misapplied the statute and applicable
case law, and that the decision invalidating Coleman’s mining
claims was therefore not in accordance with law. See id. at
203-04. We ordered the district court to deny the govern-
ment’s claim for ejectment, grant Coleman’s APA counter-
claim and remand to the agency for further proceedings. See
id. at 204.
In contrast, in United States v. Lowry, 512 F.3d 1194 (9th
Cir. 2008), we held that collateral review of agency action
was not available. The United States prosecuted Lowry for
residing on national forest land “without a special-use authori-
zation, or as otherwise authorized by Federal law or regula-
tion.” Id. at 1195-96. As an affirmative defense at trial, Lowry
tried to introduce evidence showing that, over 10 years ear-
13
We later held that the general six-year statute of limitations for civil
actions against the United States applies to APA claims. See 28 U.S.C.
§ 2401(a); Wind River Mining Corp. v. United States, 946 F.2d 710, 712-
14 (9th Cir. 1991).
8590 UNITED STATES v. BACKLUND
lier, the Forest Service had improperly denied her Indian land
allotment application, which, if granted, would have autho-
rized her residency on national forest land. The district court
excluded the evidence. Id. at 1196-97. On appeal, we con-
cluded that because Lowry declined to exercise her right to
seek direct judicial review of the agency decision within the
time allowed, she could not collaterally attack it in a subse-
quent criminal proceeding. See id. at 1203. We reasoned that
“allowing Lowry to collaterally attack the administrative pro-
ceedings would effectively circumvent the six-year statute of
limitations we have held governs review of such actions.” Id.14
Precluding the challenge did not violate due process because
Lowry was not deprived of judicial review; she chose to forgo
it. See id. at 1202-03.
Our decision in Lowry reflects the eminently reasonable
principle that parties may not use a collateral proceeding to
end-run the procedural requirements governing appeals of
administrative decisions. It is akin to Doremus, in which we
precluded a criminal defendant from challenging the adminis-
trative decision on which his prosecution was predicated
because he failed to exhaust his administrative remedies. See
888 F.2d at 633. See also Americopters, LLC v. Fed. Aviation
Admin., 441 F.3d 726, 736 (9th Cir. 2006) (noting that collat-
eral attack doctrine prevents parties from evading administra-
tive procedures); Vinieratos v. United States, Dept. of Air
Force, 939 F.2d 762, 772 (9th Cir. 1991) (“[A]n administra-
tive exhaustion rule is meaningless if claimants may impede
and abandon the administrative process and yet still be heard
in the federal courts.”). Backlund, however, is within the
APA’s six-year statute of limitations and has satisfied the
APA’s administrative exhaustion requirement with respect to
his claim that the Forest Service improperly found that year-
14
Lowry sought review of the agency decision under the Forest Allot-
ment Act, which like the APA has a six-year limitations period. We noted
in Lowry that the APA may have provided an additional avenue for judi-
cial review. See Lowry, 512 F.3d at 1203 n.9.
UNITED STATES v. BACKLUND 8591
round residency was not reasonably necessary to his mining
operation, which resulted in denial of his proposed plan of
operations. The APA provides that “[e]xcept to the extent that
prior, adequate, and exclusive opportunity for judicial review
is provided by law, agency action is subject to judicial review
in civil or criminal proceedings for judicial enforcement.” 5
U.S.C. § 703. Backlund did have a prior and adequate oppor-
tunity for judicial review: he could have initiated an APA suit
as soon as the agency finally ruled against him. Nonetheless,
the government has identified nothing in the Forest Service
regulations, the agency organic act or the APA that prescribes
direct appeal as the exclusive route to federal court, or fixes
a time limit different from the APA’s six-year statute of limi-
tations.
[13] We therefore hold that the APA affords a person in
Backlund’s position at least two options for obtaining judicial
review of the disputed agency action. He may file suit in fed-
eral district court under the APA, or he may challenge the
agency’s decision in a subsequent criminal proceeding. In
either case, he must act within the six-year time limit. See
Coleman, 363 F.2d at 196. We recognize this means individu-
als aggrieved by agency decisions may choose to delay judi-
cial review of adverse agency action until the government acts
to enforce the decision. See United States v. Menendez, 48
F.3d 1401, 1410-14 (5th Cir. 1995) (permitting an APA chal-
lenge to the predicate agency decision in a civil suit to collect
a penalty assessed in an administrative adjudication). The
government, however, can mitigate this potential for delay by
promptly initiating judicial proceedings and defending the
agency decision in those proceedings.
[14] Accordingly, we conclude that the district court erred
by barring Backlund from presenting his APA challenge as a
defense to the alleged violation of 36 C.F.R. § 261.10(b).15 “A
15
To be clear, we do not hold that proving the correctness or even the
existence of the agency action was an element of the government’s crimi-
nal case against Backlund. Backlund does not argue that it was. The law-
fulness of the agency action was, however, relevant to Backlund’s
affirmative defense that his residency was authorized.
8592 UNITED STATES v. BACKLUND
violation of the right to present a defense requires reversal of
a guilty verdict unless the Government convinces us that the
error was harmless beyond a reasonable doubt.” United States
v. Stever, 603 F.3d 747, 757 (9th Cir. 2010); see also United
States v. Pineda-Doval, 614 F.3d 1019, 1032-34 (9th Cir.
2010) (same). The government did not argue that the district
court’s error was harmless.16
IV.
[15] For the reasons stated, we affirm Everist’s conviction.
Because the district court erroneously precluded Backlund
from challenging the Forest Service’s decision denying his
plan of operations, we reverse Backlund’s conviction and
remand to the district court for further proceedings.
The parties shall bear their own costs on appeal.
JUDGMENT IN NO. 10-30264 VACATED AND CASE
REMANDED; JUDGMENT IN NO. 10-30289
AFFIRMED.
16
In a petition for panel rehearing, the government argues for the first
time that any error was harmless because even if Backlund had succeeded
in convincing the district court that the Forest Service decision was arbi-
trary and capricious, the district court’s decision would not legitimize
Backlund’s residency, which would remain unauthorized — and therefore
unlawful — until the Forest Service approved Backlund’s proposed plan
of operations. The government’s argument largely misses the point. Back-
lund’s theory is that withholding authorization for year round residency on
the Climax claims amounts to a “material interfer[ence] with . . . min-
ing[,]” 30 U.S.C. § 612(b), because the prohibition makes it financially
impossible for him to mine his claims. Backlund argued that the Forest
Service’s decision “so unreasonably circumscribed” his mining operation
“as to amount to a prohibition,” and therefore violated the mining laws.
United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981). We express no
opinion on the merits of Backlund’s claim and leave it to the district court
to evaluate in the first instance.