The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
PROPOSED MEMORANDUM OF OPINION AND JUDGMENT
This case came on regularly for trial on July 20, 2010, at the United States District Court in Redding, California, the Honorable Craig M. Kellison, United States Magistrate Judge, presiding; the United States appeared by and through Matthew C. Stegman, Assistant United States Attorney; Joseph Cook, Certified Law Clerk, and Robert D. Sweetin, Certified Law Clerk; and the defendants, Brian Ganoe, Donald McKay and Mac McFarlin, appeared by and through retained counsel, David Young.
By way of an Information filed on August 3, 2009, the defendants are charged with violating § 261.9(a)*fn1 in Count I, "damaging any natural feature or other property of the United States;" § 261.12(c)*fn2 in Count II, "damaging and leaving in a damaged condition any such road, trail, or segment thereof;" § 261.12(d) in Count III, "blocking, restricting, or otherwise interfering with the use of a road, trail, or gate;" § 261.6(a)*fn3 in Count IV, "cutting or otherwise damaging any timber, tree, or other forest product. . .;" § 261.10(a)*fn4 in Counts V through VIII, "constructing, placing, or maintaining any kind of road . . . or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required," relating to the construction of water pipelines (Count V), access road (Count VI), settling pond (Count VII) and the installation of a gate (Count VII).
Each of these offenses is punishable by a fine of not more than $5,000, imprisonment for not more than six months, or both.*fn5
The charges stem from property damage and the unauthorized construction of improvements on National Forest System lands during 2007 and 2008 allegedly done by the defendants during the course of their mining activities in Siskiyou County, California, within the boundaries of the Klamath National Forest. Much of the focus at trial related to a landslide that occurred on a portion of a Forest Service road lying directly above the defendants' mine site. The terms, landslide, slide, slump, slumping and failure were used interchangeably during trial to describe the condition of the damaged forest road. The court shall simply refer to the event as the "slide."
On July 10, 2008, Defendant Donald McKay [McKay] wrote a letter (Gov. Ex. 3) to the District Ranger of the Klamath National Forest informing him that a portion of Forest Service Road 48N08 [N08] had "slumped" and was rendered "unstable and not safe." McKay authored said letter apparently on behalf of himself, Defendant Brian W. Ganoe [Ganoe] and Defendant Mac McFarlin [McFarlin] collectively as owners of the Pay Streak Mine [Paystreak] which lies downhill and adjacent to the slide. The District Ranger, Kenneth Harris [Harris], did not act or respond to the letter immediately because of extreme forest fire activity on other portions of the Klamath National Forest. Harris, along with Forest Service representatives, John Hendricks, Jim Main, Curt Hughes, Jim Davis and Ed Rose visited the site on September 8, 2008. Harris recalls meeting with Ganoe and viewing the slide and adjacent areas including the Paystreak. Harris recalls Ganoe telling him that "they had done some mining there" and had constructed a pond for "wildlife enhancement." Harris observed that the slide had rendered the N08 unusable, and that a number of trees between the slide and the Paystreak were down, damaged and scarred.
Curtis Hughes [Hughes], the Land and Minerals Officer for the Klamath National Forest testified that he had accompanied Harris and others to the site on September 8th. Hughes recalled inspecting the slide, also noting the downed and damaged trees. He testified that there was considerable new surface disturbance to the area. Hughes had last been in the area in 2005. Hughes testified that he believed an access road [New Road] had recently been constructed leading from the N08 downhill to the base of the Paystreak. Upon closer inspection, Hughes observed that several trees had been pushed out of the way to build the New Road. Hughes further testified that he had conversed earlier in the summer with McKay who volunteered that "they were prospecting with a mini excavator." During the site inspection on the 8th, Hughes testified that he also observed that a gate had been constructed along another access road leading to the mine. Hughes also recalls meeting Ganoe during the site meeting on the 8th wherein Ganoe had introduced himself as a "retired geologists with the Department of Agriculture." Hughes testified that Ganoe informed him that they had not done anything wrong because the site had been previously mined in past years and was a disturbed area. Hughes testified that he reminded Ganoe that he was familiar with the site and that it had been reclaimed prior to the new ownership.
Hughes testified that he had visited the area of the Paystreak on at least five occasions between the early 1990's and his inspection on September 8, 2008. He was aware that the mine had been operated in the past by other individuals, but does not recall any mining activity on the site between 1993 and 2007.
Law Enforcement Officer Edward Hendricks [Hendricks] also visited the site on September 8, 2008. Hendricks testified that Ganoe had informed him that "they" had brought in heavy equipment two months earlier "looking for ore." Ganoe also volunteered that they had constructed the pond for "wildlife." When questioned about the existing gate, Ganoe told Hendricks that "they" had installed it and had it locked. Hendricks testified that McKay admitted to cutting into the hill to release water.
James Davis [Davis], an engineer with the Forest Service, testified that he also was present during the on site inspection on September 8th. Davis recalls conversing with Ganoe regarding the repair necessary to rebuild the damaged road. Davis informed Ganoe that any repair would require an environmental assessment and be subject to Environmental Impact Statement requirements.
Two days following the on- site meeting at the slide and Paystreak, McKay sent three separate letters to the Forest Service. [Exs. 4 and 5]. Exhibit 5 is a cover letter enclosing a proposed Plan of Operations [POO] which was backdated to July 29, 2008. This July 2008 POO was submitted on behalf of McKay and Ganoe as owners of the Paystreak Mine. The POO described the construction of a settling pond for "wildlife enhancement," collection of water through pipes from the hillside and the "infrequent use of a 450 Cat dozer and a small Takahici mini excavator." A third letter apologizes for the late filing of the parties' Notice of Intent [NOI] to mine indicating that the defendants "did not know it was needed." Since McKay also requested that the POO be considered retroactively, it is also assumed that much of the work contemplated in the POO had already been commenced, i.e. construction of the settling pond, use of mechanical equipment, etc.
On September 30, 2008, Forest Service representatives Ken Stagg, Jim Davis, Ed Rose, Angie Bell and Juan de la Fuente again visited the site to assess the slide. [Ex. D p. 164]
On December 11, 2008, McKay and Ganoe submitted a revised POO with an amended date of November 11, 2008. [Ex. 6]. In this revised POO, McKay and Ganoe indicate that they "[i]nstalled a gate on lower entrance for safety and security." Again the revised POO describes collecting water through a pipe and "a small pond (approximately 8 feet across) that we built for any possible erosion and wildlife enhancement." The use of a "450 John Deere dozer" and "a small Takehici mini excavator" are also indicated.
In a letter to the Forest Service dated January 16, 2009 (Ex. 7) Ganoe, again describing himself as a certified professional geologist, opines that "[d]ewatering and pulling the toe material from the base at the mine entrance may have contributed to the stability problem."*fn6
Although Ganoe does not describe who initiated the excavation work in the "late summer and the fall of 2007," and to what extent, McKay concedes that the discovery date of the Paystreak as it related to the defendants, herein, was June 29, 2007. [Ex. 5]. In this regard, Exhibit 7 proves more helpful. In a letter dated January 16, 2009 from Ganoe to Harris, he admits that he began excavating in late summer of 2007.
On February 19, 2009, Ganoe and McKay again met with Forest Service personnel. When discussing the cause and origin of the slide, Ganoe and McKay apparently conceded that the slide was probably caused by their earth moving activities under the road. Ganoe and McKay acknowledged that they had released water that had been backed up which when released weakened the upper road. [Ex. D, p 167]. During this meeting Ganoe represented himself as a retired geologist.
Juan de la Fuente [de la Fuente],*fn7 a forest service geologist for the Klamath National Forest, visited the site and observed the slide on September 30, 2008. At trial, de la Fuente opined that the landslide was caused by the removal of material at the base and toe of the slope lying below the roadway. During cross examination, de la Fuente conceded that his opinion was based on the analysis performed by fellow employee Ed Rose.
Edward K. Rose [Rose],*fn8 is currently the regional geotechnical and dams engineer for the northern region of the forest service encompassing the national forests in Montana and northern Idaho. At the time of the slide and subsequent investigation into its cause, Rose was the geotechnical engineer for the northern California province which includes the Klamath National Forest. Rose testified that he visited the site on four occasions. Rose opined that the removal of material at the base or toe of the slope was the cause of the slide.
The defendants called Donald Olsen [Olsen],*fn9 as their expert who opined that the slide was most likely caused by high water content in the soil which accumulated during the winter of 2007-2008. Olsen surmises that as a result of the wet winter, the ground above and supporting the N08 became saturated ultimately resulting in the collapse. [Ex. G].*fn10
The defendants did not testify.
It is clear from the evidence that defendants Ganoe and McKay were involved in mining operations at the Paystreak Mine prior to the slide. As set forth above, Ganoe admitted to mining, dewatering, use of heavy equipment, construction of the pond, and installation of the gate. McKay admitted to prospecting, dewatering, use of a mini excavator and the installation of the lower gate. Olsen testified that the defendants told him that they had recently graded the access road. The defendants failed to submit a NOI (§ 228.4(a)), or obtain a POO (§ 228.4(c)), relating to their work or mining operations at the Paystreak prior to the failure of the N08, despite the fact that these activities clearly envisioned the use of heavy equipment (§§ 228.4 (a)(vi) and 228.12),*fn11 and involved operations likely to cause "significant disturbance of surface resources." § 228.4(a).
An act or omission listed in Part 261 not authorized by a permit issued under § 261.1a, or otherwise authorized, is punishable as provided in 16 U.S.C. § 551. Permits are generally in the form of special use permits issued under Part 251. Section 251.50(a) provides that "[a]ll use of National Forest System land, . . . except those provided for in the regulations governing . . . minerals and mineral materials (Part 252), . . . are 'special uses' and must be authorized. . . ." A system other than use permits has been established for minerals and mineral materials. That system of regulation is found in Part 252. When the statute and the regulations give miners a statutory right to go upon and use the open public domain for purposes of mineral exploration and development, forest service officials may not unreasonably restrict that right by applying general forest service regulations and a permit system.
The forest service may properly regulate the surface use of forest lands. While the regulation of mining per se is not within forest service jurisdiction, where mining activity disturbs National Forest System lands, forest service regulation is proper. United States v. Weiss, 642 F.2d 296, 298 (9th Cir. 1981) (Secretary of Agriculture has "power to adopt reasonable rules and regulations regarding mining operations within the national forests"); United States v. Richardson, 599 F.2d 290 (9th Cir.1979), cert. denied, 444 U.S. 1014 (1980) (recognizing the conflict between mining and forest land policies and holding that the district court may properly enjoin unreasonable destruction of surface resources). United States v. Goldfield Deep Mines Co., 644 F.2d 1307, 1309 (9th Cir. 1981), cert. denied, 455 U.S. 907 (1982); United States v. Doremus, 888 F.2d 630, 632 (9th Cir.1989), cert. denied, 498 U.S. 1046 (1991). In reaffirming the Forest Service's authority to regulate mining, the court in Doremus, supra at 632, rejected a miner's contention that conduct "reasonably incident[al]" to mining could not be so regulated, and left no doubt that the Department of Agriculture possesses statutory authority to regulate activities related to mining in order to preserve the national forests.
16 U.S.C. § 551. Doremus clearly supports the use of § 261 prohibitions against miners so long as the mining operations are not "unreasonably circumscribed as to amount to a prohibition." See also, United States v. Weiss, supra at 299. The court in Doremus also found that the § 261 prohibitions do not conflict with 30 U.S.C. § 612 because the regulatory right of the Forest Service does not "endanger or materially interfere with mining operations." Id. at 632.
Mining operations are defined in part by 30 U.S.C. § 612(a) and more specifically in § 228.3. The regulation defines "operations" as follows:
All functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.
The national forests are to be open for entry "for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof." 16 U.S.C. § 478. However, "(s)uch persons must comply with the rules and regulations covering such national forests." Id. Thus it is clear that persons entering the national forests to prospect, locate, and develop mineral resources therein are subject to and must comply with the rules and regulations covering the national forests.
When the potential for "significant disturbance" of Forest Service lands arises, the mining operator is required to submit a NOI to the District Ranger who will assess the operator's proposed mining operations. § 228.4(a). If the Forest Service determines that the proposed operations "will likely cause a significant disturbance of surface resources," the operator is required to submit a proposed POO to address the impact upon Forest Service lands. §228.4(a)(2) and (3). Not surprisingly, once a POO is required, the operator's costs rise exponentially. An "environmental assessment" may then become necessary (§§ 228.4(f) and 228.8), and possibly the need to post a reclamation bond. §§ 228.8(g) and 228.13.
Section § 551, of Title 16 also grants authority to the Secretary to make "rules and regulations and (to) 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 . . ." The section specifically states that the Secretary shall make provision for the protection of the national forests against destruction by fire and depredation. Thus, the Secretary has been given the authority to promulgate reasonable rules and regulations which will protect the national forests and which will help to carry out the purposes for which the national forests were created. The regulations in question, Part 252, were designed to minimize adverse environmental impacts on the surface resources of the national forests.
Much of the trial was devoted to expert opinion regarding the slide's causation. From the outset, it must be stressed that the evidence amply supports the finding that defendants McKay and Ganoe were involved in mining operations at the Paystreak and particularly at the base of the N08 at periodic times preceding its failure. This involved the removal of material at the base or "toe" of the slide, dewatering, the use of mechanical equipment and the construction of various improvements. The defendants' mining activities at the Paystreak were done or performed without a POO or special use authorization. The opinion testimony of de la Fuente and Rose, coupled with the admissions of Ganoe and McKay support the finding that defendants' mining activities, which included dewatering and material removal from the base of the slope, were the cause of the slide. Ganoe opined that "dewatering and pulling the toe material from the base at the mine entrance may have contributed to the stability problem," (Ex.7) and McKay concedes the slide probably occurred because of defendants' earthmoving activities under the road. [Ex. D].
The court is also guided by common sense. The evidence that the defendants excavated and removed material and water at the base or "toe" of the slope below the N08 during a period of time prior to its failure cannot be ignored or glossed over by unsupported conjecture. The court does not arrive at this finding based simply on preconceived notions of gravity and simple physics. Both de la Fuente and Rose testified that the type of rock and material found in the slope when disturbed increases the chance of slope failure. Ganoe was also concerned and aware of the inferior quality of rock and soil lying below the N08. [Ex. 7]. De la Fuente testified that these concerns should have been addressed in a POO. Other witnesses for the forest service testified that a POO would never have been approved given the concerns with the soil make-up and the danger of its potential removal. In a detailed analysis, the forest service concluded that the "[r]emoval of material at the toe of the slope (below the road at the raw rock face) where mining and excavation has occurred is the most probable cause for the failure of this entire slope from above the road cut to the existing excavation below the road." [Exs. 33 and 36].
The court also received expert testimony outlined in detailed reports from both Rose and Olsen concerning slope stability which measures the possibility of slope failure or non failure, and also the degree of failure or non-failure. Simply stated, if the forces available to resist movement are greater than the forces driving movement, the slope is considered stable. Both experts used the "Safety Factor" [SF] as an established numerical value in slope stability analysis which measures the possibility of failure or non-failure. The SF has a value greater than "1" when the resisting forces are greater than the driving force, and a SF value less than "1" when the driving forces overcome the resisting forces. Adding to the complexity of these tests were the assumptions employed by both experts including the material properties of the soil, cohesion of materials, saturation of the soil and the angle of friction. [Exs. G and 36].
In Olsen's slope stability analysis, he opines that the failure was predicated on a high water table or complete saturation of the road prism. Olsen speculates "that percolation of rain water collected in the old existing prospect pit during the entire winter rainy season saturated the soil and rock material underlying the slope [and] [t]he significant decrease in shear strength of these soil and rock materials triggered the slope failure." [Ex. G. p.8]. In Olsen's report he claims that the prospect pit above the road was full of water at the time of his visit on July 17, 2009, yet photograph # 3 to his report which (apparently taken on June 30, 2009) would appear to belie this claim. At trial, Olsen testified that this prospect pit "could have filled with water," which contradicts the observations in his report that it was filled with water during the time of his initial visit.
At the end of the day, however, the court is still left with the fact that the slide took place within a short period of time following defendants removal of material and water from the base of the N08. Ganoe best describes this cause and effect sequence in his letter of January 16, 2009 to Harris. [Ex. 7].*fn12
Olsen opined that the slide was the result of saturated soil resulting from the wet winter of 2007-2008. Olsen testified that the heavy spring rains in 2008 more than likely caused or increased the soil saturation. On cross examination, however, Olsen conceded that he merely assumed that the area was subjected to a wet winter and rainy spring, admitting that he had not done any background investigation or research to support such a conclusion. Olsen testified that he did not live near the area of the Paystreak, and had not visited the area during the winter of 2007-2008. Olsen did not rely on any documented weather history of the area relating to the periods in question. When pressed further on this issue, Olsen conceded that he simply ...