Adverse mining claim decision from the Ninth Circuit

September 24, 2013 | By JAMES BURLING

We received this adverse opinion today from the Ninth Circuit in McMaster v. United States

Ken and Debbie McMaster had worked a small gold mining claim in the Trinity Alps Wilderness Area for many summers, supplying nugget gold for their Gold Rush Jewelry shop in Graeagle, California (right).  After their claim was swallowed up by the Wilderness Area in 1984, they began to run into bureucratic permitting hassles from the Forest Service — which quite frankly didn’t want any mining operations anywhere in the Wilderness Area.  This was despite the fact that these claims had first been located in 1890s and most recently staked in 1953.  In particular, the Forest Service didn’t like the mining shed and cabin (see lower right) that the McMasters used for mining and for storing their equipment during the winter — a necessity for a remote claim like the McMaster’s.

The McMasters thought they could solve their problems by seeking a patent — which would give them a fee simple ownership of the claim, thereby reducing some of the bureucratic hassles from the Forest Service (but still leaving the mining subject to the full panoply of applicable environmental regulations.)  They applied for a patent application in 1992.  After demonstrating in two mineral examinations that their claims were valid (meaning they contained enough gold to justify the mining operation), and after much prodding, the Bureau of Land Management finally issued a permit, sort of, in 2008 — a mere sixteen years later for a process that should normally take no more than two or three years!  But it was only a half-permit: the McMasters were given title to the minerals but not to the cabin and shed — which the Forest Service immediately demanded be torn down.  With Pacific Legal Foundation acting as local counsel, and with our friends at Mountain States Legal Foundation carrying the laboring oar, the McMasters sued. 

Despite the fact that the BLM’s internal procedures would have allowed for the full patent to be issued, and despite a contrary understanding by Congress when the Wilderness Act was adopted, the BLM argued that a memorandum written by an anti-mining zealot in the Clinton Adminstration was controlling.  The McMaster’s opening brief, we thought, did a nice job of refuting these arguments.  Unfortunately, in today’s decision the court ruled for the government on all the important issues.  While the McMaster’s still own their claim, they will be under the thumb of the Forest Service and convincing the Forest Service to allow the historic structures to remain will not be easy.  With the ongoing moratoria and lawsuits to stop all placer gold mining in California, this decision will only add to the woes of the small miners.

The next steps in the litigation are under consideration.