Steven Albert Maher and Rebecca Maher, Husband and Wife v. United States

Opinion by Judge SNEED; Dissent by Judge NORRIS.

SNEED, Circuit Judge:

This appeal presents a single question of law: Is a plaintiff who enters federal land to work a mining claim an invitee or a licensee under Arizona tort law? The district court held that the plaintiff in this case was a licensee. We affirm.

I.

In August 1989, Steven Maher was injured on federal land in the Black Hills Rockhound Area when an access road gave way underneath the backhoe he was driving, causing the vehicle to roll down an embankment. The road was among several thousand miles of dirt roads running through federal lands in the area. These roads are not maintained by the federal Bureau of Land Management (BLM), which has jurisdiction over the area. Maher was using the road to reach a mining site, one of several to which his family had laid claim pursuant to federal law. He was in the process of performing maintenance work on the sites in order to preserve the claims, as required by federal regulations.

Maher filed suit against the BLM under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), which permits judgments against the United States if “a private person! ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” After a bench trial, the district court held that, under Arizona tort law, the BLM owed Maher the duty owed to a licensee — that is, the duty “to refrain from knowingly letting [the licensee] run upon a hidden peril or wantonly or wilfully causing him harm.” Shannon v. Butler Homes, Inc., 102 Ariz. 312, 316, 428 P.2d 990, 994 (1967) (en banc). On appeal, Maher concedes that the BLM did not violate this duty of care, but he contends that the district court erred in not holding that he was an invitee owed a duty of reasonable care. We review the district court’s finding of law de novo. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). This court has jurisdiction under 28 U.S.C. § 1291.

II.

Arizona follows the common law regarding a landowner’s duty to entrants, as recited in the Restatement (Second) of the Law of Torts. See Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142-43, 639 P.2d 330, 332-33 (1982); Hicks v. Superstition Mountain Post No. 9399, 123 Ariz. 518, 520, 601 P.2d 281, 283 (1979). At common law, an invitee is either a “public invitee” or a “business visitor.” Restatement (Second) of Torts § 332(1) (1965). Maher maintains that he was an invitee under both definitions of the term. However, we agree with the district court that Maher was a licensee.

Maher first argues that the BLM expressly invited the public to enter the area to search for rocks, particularly “fire agates.” See id. § 332(2). Even were this true, state statutory law relieves property owners of any duty to keep the premises safe for recreational users. Ariz.Rev.Stat. Ann. § 33-1551.¹ Maher therefore cannot take advantage of any general invitation to the public to “rockhound” as the source of his invitee status.

Maher’s more substantial argument is that the United States “invited” him onto government land for the nonrecreational purpose of discovering and maintaining mining claims. The BLM counters that federal mining laws only “grant permission” to miners to enter public land and do not extend an “invitation.” As the Restatement makes clear:

It is not enough, to hold land open to the public, that the public at large, or any considerable number of persons, are permitted to enter at will upon the land for their own purposes. As in other instances of invitation, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come.

Restatement (Second) of Torts § 332 cmt. d. The question, then, is whether the United States acted in a way that induced or encouraged the public, including Maher, to enter the Black Hills Rockhound Area to establish and maintain mining claims.

The federal mining laws under which Maher’s family established its claims are “based on the notion that the mineral wealth of the public lands should be available to those who seek and find it and that the public lands should be free and open for such exploration and development.” Rocky Mountain Mineral Law Foundation, American Law of Mining § 4.10 (2d ed. 1994). Congress has reiterated these goals, which date back to the General Mining Law of 1872 and even earlier, by stating that “it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in ... the orderly and economic development of domestic mineral resources.... ” Mining and Minerals Policy Act of 1970 § 2, 30 U.S.C. § 21a (emphasis added). Pursuant to this policy, Congress has provided that “all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase .... ” General Mining Law of 1872 § 1, 30 U.S.C. § 22. Any person who discovers a mineral claim and complies with certain procedural requirements gains the exclusive right to possess the land and extract minerals from it. Baker v. United States, 613 F.2d 224, 225 (9th Cir.), cert. denied, 449 U.S. 932, 101 S.Ct. 332, 66 L.Ed.2d 157 (1980). It is therefore true, as Maher argues, that Congress sought to create incentives for individuals to explore and develop the resources of the vast public domain. “Under the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits.... The obvious intent was to reward and encourage the discovery of minerals.... ” United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 1330, 20 L.Ed.2d 170 (1968) (footnote omitted) (emphasis added).

We nevertheless find that the generalized intent of Congress to encourage mining on public lands was not sufficient to constitute an invitation in this case. Such an invitation must be made with sufficient geographic specificity to define its scope. See Restatement (Second) of Torts § 332 cmt. 1. The “lands belonging to the United States” to which the mining statutes refer consist of roughly 725 million acres — an area the size of India.² The public domain comprises nearly one-third of all land in the United States.³ “[0]ne need but to raise [one’s] eyes, when traveling through the West, to see the innumerable roads and trails that lead off, and on, through the public domain, into the wilderness where some prospector has found a stake (or broke [sic] his heart)....” United States v. 9,94,7.71 Acres of Land, 220 F.Supp. 328, 331 (D.Nev.1963). The entire public domain simply is not the discrete piece of property contemplated by the Restatement’s rules defining the duties owed by a landowner.⁴

The difficulty with Maher’s argument is that it confuses a national policy to encourage the development of the nation’s mineral deposits with an intent to encourage, for example, a visit to a particular national park or the Capitol in Washington, D.C. The former is a general policy applicable to no specific site, while the latter is narrowly specific. Of course, after a mining claim is established, the government, by appropriate action, could convert the status of its holder to that of an invitee. There is in this case no showing that this has occurred. In any event, more must be shown than merely a reference to the general policy of mineral development and the establishment and maintenance of a claim.

The mining statutes do not constitute “an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for [the public’s] reception.” Restatement (Second) of Torts § 332 cmt. a. These statutes, as applied to land in Arizona, only permit prospectors to go upon public lands of the United States to search for minerals and only obligate the United States to reveal hidden perils and to refrain from willfully causing the prospectors harm. Shannon, 428 P.2d at 994.

Maher also argues that he was an invitee because the road he was using was held out to be a public way.⁵ For this proposition he cites Harris v. Buckeye Irrigation Co., 131 Ariz. 540, 642 P.2d 885 (Ct.App.1982). In that ease, the company that owned an irrigation ditch running through the town of Buckeye had built a bridge across the ditch. The bridge had for many years been heavily used by local residents, particularly schoolchildren, to cross the ditch. The parents of a boy who fell off the bridge and drowned brought a wrongful death suit against the irrigation company. The Harris court approved the trial judge’s instruction to the jury to find that the company owed a duty to the boy as an invitee if it “has permitted people to use or establish a way across [its] property under such circumstances as to ere-ate a belief that it is public in character.” Id. 642 P.2d at 887.

Harris is distinguishable. First, unidentified people, not the government, built many roads across the public domain. Harris does not create governmental liability to Maher as an invitee based only on the fact that he was traveling on such a road. Under such an expansive application of Harris, Maher would have been an invitee had he been traveling on any road, anywhere within the entire public domain. By such reasoning, only a chainlink fence around the entire public domain adorned with warning signs would be sufficient to withdraw the invitation to enter. We must not extend Harris so far.

Second, though we assume arguendo that the government could be held liable to Maher as an invitee if the road had been built or maintained by the United States,⁶ no evidence in the record supports this contention. To the contrary, the evidence shows that the BLM neither built nor maintained that road; though the road’s origin is unknown, it was likely constructed by local ranchers at the turn of the century. See R.T., vol. I, at 51, 52, 57, 58-59, 64, 66, 71, 87; R.T., vol. II, at 34, 41, 46-49.

We therefore agree with the district court. Maher was a licensee. Accordingly, the district court’s judgment is AFFIRMED.

1 .The version of the statute in force at the time of the accident provides:

An owner ... of premises does not:

1. Owe any duly to a recreational user to keep the premises safe for such use.

2. Extend any assurance to a recreational user ... that the premises are safe for such entry or use.

3.Incur liability for any injury to persons or property caused by any act of a recreational user.

Ariz.Rev.Stat.Ann. § 33-1551(A) (1990) (amended 1993). The statute specifically provides that "premises" includes mining and forest lands. Id. at § 33 — 1551(B)(1). It applies to state and federal lands as well as private property. Ward v. State, 178 Ariz. 164, 168, 871 P.2d 711, 715 (Ct.App.1993).

2 . Michael Braunstein, Natural Environments and Natural Resources: An Economic Analysis and New Interpretation of the General Mining Law, 32 UCLA L.Rev. 1133, 1133 (1985).

3 . Carl J. Mayer, Comment, The 1872 Mining Law: Historical Origins of the Discovery Rule, 53 U.Chi.L.Rev. 624, 625 n. 4 (1986). This enormous public domain is concentrated in twelve Western states: Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. Braunstein, supra, at 1133 n. 1. More than 50% of federal lands are located in Alaska; over 45% are located in the other eleven states. Id. Within these lands lie the country's richest deposits of natural resources. Id.

4 .The Arizona Supreme Court’s decision in Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 706 P.2d 364 (1985) (en banc) (superseded by recreational user statute, Ariz.Rev.Stat.Ann. § 33-1551), is not to the contrary. In Markowitz, the court assumed that a visitor to a public wilderness area was an invitee. Unlike this case, Mar-kowitz involved a specific site, the 13,000-acre Lake Havasu Recreational Area. In this case, there was no conduct on the part of the United States with respect to the Black Hills Rockhound Area in particular that would make Maher an invitee. Furthermore, as noted above, Markowitz was effectively overruled by the Arizona legislature when it enacted the recreational user statute, Ariz.Rev.Stat.Ann. § 33-1551. See Wringer v. United States, 790 F.Supp. 210, 213 (1992).

5 . We assume for the sake of argument that the road was in public use; however, we note that the evidence in the record suggests it was not used by tourists or rockhounds, and seldom by anyone, including Maher. See Reporter’s Transcript (R.T.), vol. I, at 55-56, 130; R.T., vol. II, at 17, 35, 46.

6 . Cf. Seyler v. United States, 832 F.2d 120 (9th Cir.1987) (holding that Idaho’s recreational user statute did not bar suit against the federal government for injury caused by motorcycle accident on an ordinary public highway).