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United States v. Mostad

United States District Court, E.D. California

November 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DEAN ROBERT MOSTAD, Defendant-Appellant.

          MEMORANDUM AND ORDER RE: APPEAL OF MAGISTRATE JUDGE'S DECISION

          WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

         Defendant Dean Robert Mostad (“Mostad”) was convicted on seven counts related to his mining operation on National Forest System (“NFS”) land following a trial before Magistrate Judge Edmund F. Brennan. (Docket No. 98.) Presently before the court is defendant's appeal from his conviction.

         I. Factual and Procedural Background

          Defendant began mining activities at the Freedom Moon Mining Claim (“Freedom Moon”), an unpatented mining claim[1] located on NFS land in Sierra County, California, in June of 2008. (Docket No. 106 at 15:24-16:12.) Because the Freedom Moon is unpatented, the United States Forest Service (“USFS”) retains jurisdiction to manage the non-mineral surface resources on the land. On August 13, 2008, the USFS approved an interim Plan of Operations that allowed defendant to conduct limited geologic sampling without use of water until October 31, 2008. (Pl.'s Ex. 5 at 1-2.) On March 24, 2009, the District Ranger approved a second interim Plan of Operations that allowed defendant to conduct geologic sampling activities while he obtained “required permits for a larger scale operation.” (Pl.'s Ex. 9.)

         Defendant's permitted activities were limited to running samples through a portable dry wash vibratory separator with no use or discharge of water, and his authorization was set to expire on October 31, 2009. (Docket No. 107 at 246-262.) Pursuant to 36 C.F.R. § 228.8, USFS's authorization was contingent upon defendant's compliance with all the federal, state, and local permits required by other agencies. (Id.)

         On June 16, 2009, defendant requested to amend his interim Plan of Operations to include wet processing. (Docket No. 107 at 270:10-272:6.) On June 25, 2009, the District Ranger denied the request. Defendant subsequently made a verbal request on July 14, 2009, to amend his Plan, and in response USFS approved another amended interim Plan of Operations. This plan (a) allowed wet processing by use of an existing wash plant and water from existing settling ponds in order to process samples taken in 2009, as long as no water would be discharged; (b) was contingent upon defendant's operations being in compliance with all applicable federal, state, and local requirements; and (c) amended the expiration date of the amended interim plan to October 15, 2009. (Pl.'s Ex. 14; Docket No. 106 at 46:13-48:8.)[2]

         Forest service officers inspected defendant's mining site on October 21, 2009, and observed that the Downie River, a major tributary to North Yuba River, was turbid and that defendant was conducting a large scale surface mining operation that had not been previously authorized. (Docket No. 108 at 477.) On October 30, 2009, USFS conducted another inspection and, based on what had been observed on October 21, delivered a Notice of Violation and Cease and Desist order to defendant. (Pl.'s Ex. 16; Docket No. 105 at 50.)

         On July 26, 2010, the United States filed an Information. (Docket No. 1.) On February 3, 2012, defendant filed a motion to dismiss. (Docket No. 28.) The magistrate judge denied that motion. On April 17, 2013, the United States filed a Superseding Information charging defendant with seven counts of violations under Title 36 of the Code of Federal Regulations. (Docket No. 42.) On May 20, 2013, defendant filed another motion to dismiss. (Docket No. 47.) In it he argued that because he was operating under an approved Plan of Operations and the USFS never gave him notice that it viewed his activities as exceeding that Plan, it was a violation of his due process rights for the government to charge him criminally. He also contended that mining on NFS lands was largely regulated by 36 C.F.R. § 228, not 36 C.F.R. § 261, which contains the regulations under which he was charged. The magistrate judge denied this motion as well (Docket No. 50), explaining that he stood by his “earlier ruling that the defendant will be entitled to present as an affirmative defense all of the arguments that he would have made” in a challenge to the forest service decisions, thereby solving any due process issues. (Docket No. 105.)

         A bench trial took place from September 23, 2013, to October 2, 2013. At the close of the case, defendant moved for a judgment of acquittal as to all counts under Federal Rule of Criminal Procedure 29, arguing that the evidence was insufficient to sustain convictions for each of the counts. (ER II at 42; Docket No. 110 at 5-775.) The magistrate judge denied the motion. (ER II at 43; Docket No. 110 at 5- 803.) On December 9, 2013, the magistrate judge found defendant guilty on all counts. (Docket No. 61.) On February 22, 2016, the magistrate judge sentenced defendant to a term of twelve months probation. (Docket No. 98.)

         II. Legal Standard

          Jurisdiction to review the judgment of a magistrate judge is conferred by 18 U.S.C. § 3402. On appeal, questions of statutory construction and interpretation are reviewed de novo. United States v. Montes-Ruiz, 745 F.3d 1286, 1289 (9th Cir. 2014). “The factual findings of the magistrate will not be overturned unless they are clearly erroneous.” United States v. Doremus, 888 F.2d 630, 631 (9th Cir. 1989)

         Because defendant timely moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, this court's review of the denial of that motion is de novo. United States v. French, 748 F.3d 922, 935 (9th Cir. 2014). When assessing a sufficiency of evidence challenge, the court must consider the evidence presented at trial in the light most favorable to the prosecution. (Id.) It must then ask “whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

         III. Statutory and Regulatory Framework

          The United States Mining Laws Act of 1872 reserved to “locators of all mining locations” the “exclusive right of possession and enjoyment of all the surface included within the lines of their locations, ” so long as they complied with federal, state, and local laws. 30 U.S.C. § 26. This “exclusive right” was modified and “limited by the Surface Resources and Multiple Use Act of 1955, which reserved to the United States the right to manage and dispose of surface resources on unpatented mining claims.” United States v. Doremus, 888 F.2d 630, 632 (9th Cir. 1989). However, regulations passed pursuant to the Act may not “endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto.” 30 U.S.C. § 612(b).

         The Secretary of Agriculture has created regulations governing the surface use of NFS lands in connection with mining operations. 36 C.F.R. §§ 228.1-228.15 (“the Surface Use Regulations”). The Surface Use Regulations set forth administrative processes aimed at minimizing the environmental impacts of authorized mining operations on NFS surface resources. 36 C.F.R. § 228.1. In addition, the Secretary of Agriculture has also created regulations prohibiting and assigning criminal liability to specific acts on NFS lands. 36 C.F.R. §§ 261.1- 261.23 (“the Prohibition Regulations”). Pursuant to the Prohibition Regulations, “[a]ny violation of the ...


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