NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GUY E. MICHAEL,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2013-5107

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 12-CV-0083, Senior Judge Robert J. Yock.

______________________ 

Decided: November 8, 2013

______________________ 

GUY E. MICHAEL, Baker City, Oregon, pro se. 

NINA C. ROBERTSON, Attorney, Appellate Section, Environment & Natural Resources Division, United States 

Department of Justice, of Washington, DC, for defendantappellee. With her on the brief was ROBERT G. DREHER, 

Acting Assistant Attorney General.

______________________ 

Before WALLACH, LINN, and TARANTO, Circuit Judges.
2 MICHAEL v. US

PER CURIAM. 

Guy Michael appeals from the United States Court of 

Federal Claims’ decision denying his takings claim and 

dismissing his remaining state law and federal claims for 

lack of jurisdiction. This court affirms. 

BACKGROUND

Mr. Michael is an Oregon miner who, on July 9, 2003, 

acquired co-ownership of four unpatented mining claims: 

Round Butte 1, Round Butte 2, Black Butte, and Burnt 

River Queen.1 Mr. Michael had previously leased these 

claims from John Burlew starting in 1991. 

An owner of an unpatented mining claim “shall have 

the exclusive right of possession and enjoyment” of the

mining claim, see 30 U.S.C. § 26 (2006), but does not 

possess fee title to the land upon which the claim is 

located. Best v. Humboldt Placer Mining Co., 371 U.S. 

334, 336–37 (1963) (citing Cameron v. United States, 252 

U.S. 450, 459–60 (1920)). “Title to the underlying fee 

simple estate in the land remains in the United States.” 

Kunkes v. United States, 78 F.3d 1549, 1551 (Fed. Cir. 

1996). Ownership of an unpatented mining claim is

subject to numerous conditions and restrictions. The 

claimant is restricted to using the land for uses reasonably incident to mining. See 30 U.S.C. § 612(a) (2006). A 

claimant may occupy the land only to the extent the 

occupancy is reasonably incident to mining operations. 

When authorized occupancy ends, the claimant has ninety 

1 Round Butte 1 and 2 are “placer” claims, whereas 

Black Butte and Burnt River Queen are “lode” claims. See

30 U.S.C. § 35 (2006) (a placer claim includes “all forms of 

deposit, excepting veins of quartz, or other rock in place”); 

30 U.S.C. §§ 23, 35 (providing that lode claims shall not 

exceed 1,500 feet in length along the vein or lode, whereas 

placer claims may not exceed 20 acres per claim). 

 
MICHAEL v. US 3

days to remove all unauthorized property from the premises, including permanent and temporary structures, 

material, and equipment. 43 C.F.R. §§ 3715.5, 3715.5-1 

(2008). Property that is not removed within ninety days 

“becomes property of the United States and is subject to 

removal and disposition at [the Bureau of Land Management’s (“BLM”)] discretion.” Id. § 3715.5-2. 

To maintain ownership of a mining claim, each claim 

owner must either pay an annual maintenance fee or 

perform at least $100 worth of labor on the claim. 30 

U.S.C. § 28; 43 C.F.R. §§ 3836.11, 3834.11(a)(2), 3830.21. 

A claim owner who opts to perform the labor requirement 

must file an affidavit showing he satisfied the annual 

work requirement. 43 C.F.R. §§ 1744(a)(1), 3835.31, 

3835.91. Failure to meet the labor requirement can result 

in BLM declaring the claim forfeited. Id. § 3836.15. 

In August 2000, Mr. Michael was living in a trailer 

parked on Round Butte 2, where he also kept personal 

items and mining equipment. BLM initiated an investigation to determine whether Mr. Michael’s occupancy was 

“reasonably incident” to his mining operations. Id.

§ 3715.5. BLM officials visited the site at least twenty 

times over seven years. Each time, the officials noted 

whether Mr. Michael or others were present and whether 

there was evidence of mining activity. Mr. Michael was 

present during only three of the inspections, and only two 

inspections revealed evidence of mining work. In fourteen

of the twenty investigations, BLM found there was nobody present at the site. 

On July 25, 2008, BLM issued an order stating Mr. 

Michael could no longer reside or store his equipment at 

Round Butte 2. It found these activities were not reasonably incident to mining activities, and that his work had 

not been substantially regular. See 43 C.F.R. § 3715.2. 

BLM ordered Mr. Michael to cease his occupancy within 
4 MICHAEL v. US

ninety days, and remove any personal property that was 

not permitted by his notice of mining operations.

Mr. Michael appealed to the Interior Board of Land 

Appeals (“IBLA”), which affirmed BLM’s decision on 

March 3, 2009. The IBLA stated that “[t]he overwhelming evidence in this case supports BLM’s action” and 

“does not support [Mr.] Michael’s assertions that his 

residency and storage of equipment and materials is 

reasonably incident to authorized mining activities.”2

Appellee’s App’x 76. Mr. Michael failed to remove his 

property within the ninety-day period. From June 2 

through June 5, 2009, BLM personnel removed Mr. Michael’s property and trailer from Round Butte 2, and 

transferred the large equipment to an off-site BLM facility. 

In a separate action on February 8, 2010, BLM notified Mr. Michael that he had not met the labor requirements for maintaining three of his four mining claims. 

BLM explained that Mr. Michael had done $180 worth of 

improvements, which was enough for only one of his four 

claims. Mr. Michael notified BLM that he had performed 

the $180 worth of labor at Round Butte 2. The BLM 

therefore renewed Mr. Michael’s claim to Round Butte 2, 

but declared the remaining three claims abandoned and 

void.

In 2011, Mr. Michael filed suit against three BLM 

employees in the Circuit Court of the State of Oregon for 

the County of Baker, challenging the removal of his 

property from Round Butte 2, and the termination of his 

claims to Round Butte 1, Black Butte, and Burnt River 

Queen. The government removed the case to the United 

2

 Following the IBLA’s decision, BLM altered the 

ninety-day compliance period to run from the date of the 

IBLA’s decision. 

 
MICHAEL v. US 5

States District Court for the District of Oregon. The 

district court granted Mr. Michael’s motion to transfer his 

Fifth Amendment takings claim to the Court of Federal 

Claims, and dismissed his state claims without prejudice.

Mr. Michael filed an amended complaint in the Court 

of Federal Claims, alleging “unlawful confiscation” of his 

mining equipment and residence, and the “taking of [his] 

livelihood.” Appellee’s App’x 9–10. The government 

moved to dismiss under the Rules of the Court of Federal 

Claims 12(b)(6) (for failure to state a claim) and 12(b)(1) 

(for lack of jurisdiction). Mr. Michael moved for summary 

judgment, arguing there were no factual disputes requiring trial. 

With respect to Mr. Michael’s Fifth Amendment takings claim, the Court of Federal Claims converted the 

government’s motion to dismiss into a motion for summary judgment and granted judgment in favor of the 

government. The court held that BLM’s seizure of Mr. 

Michael’s trailer and equipment was not a Fifth Amendment taking, but rather a proper exercise of the government’s police power over federally-owned land. Appellee’s

App’x 56–57 (citing 43 C.F.R. § 3715.5-2). 

The Court of Federal Claims also held BLM’s decisions voiding three of Mr. Michael’s mining claims were 

not Fifth Amendment takings. It reasoned that “enforcement of regulations requiring positive action on behalf of 

claim owners to retain their claims does not constitute a 

Fifth Amendment taking.” Appellee’s App’x 60 (citing 

United States v. Locke, 471 U.S. 84, 107 (1985); Kunkes v. 

United States, 78 F.3d 1549, 1553 (Fed. Cir. 1996)). 

Finally, the Court of Federal Claims dismissed for 

lack of jurisdiction the remaining claims based on due 

process and state law torts. Mr. Michael filed this timely 

appeal. This court has jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(3).
6 MICHAEL v. US

DISCUSSION

The Court of Federal Claims will grant summary 

judgment when “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.” R. U.S. Ct. Fed. Cl. 56(a). “We review the 

grant of summary judgment by the Court of Federal 

Claims de novo, drawing justifiable factual inferences in 

favor of the party opposing summary judgment.” First 

Commerce Corp. v. United States, 335 F.3d 1373, 1379 

(Fed. Cir. 2003). This court also reviews de novo the 

Court of Federal Claims’ holding that it lacks subject 

matter jurisdiction over a claim. Hanlin v. United States, 

214 F.3d 1319, 1321 (Fed. Cir. 2000).

The Court of Federal Claims did not err in denying 

Mr. Michael’s takings claims. The government “maintains broad powers over the terms and conditions upon 

which the public lands can be used, leased, and acquired.” 

Locke, 471 U.S. at 104. Unpatented mining claimants 

“must take their mineral interests with the knowledge 

that the government retains substantial regulatory power 

over those interests.” Id. “Regulation of property rights 

does not ‘take’ private property when an individual’s 

reasonable, investment-backed expectations can continue 

to be realized as long as he complies with reasonable 

regulatory restrictions the legislature has imposed.” Id. at 

107. 

Mr. Michael’s mining claims and occupancy on Round 

Butte 2 were subject to multiple “reasonable regulatory 

restrictions.”3 Id. Mr. Michael was permitted to occupy 

3 Mr. Michael contends the Court of Federal Claims 

mistakenly stated that he leased, rather than owned, the 

mining claims at issue. Appellant’s Br. 4. However, the 

Court of Federal Claims simply recounted that Mr. Mi-

 
MICHAEL v. US 7

the surface land on his mining claims only to the extent 

such occupancy was “reasonably incident” to his mining 

operations. 30 U.S.C. § 612(a). His ownership of the 

mining claims was subject to the requirement that he 

perform at least $100 worth of improvements or pay a 

$140 fee for each claim. 30 U.S.C. § 28; 43 C.F.R. 

§§ 3836.11, 3830.21. BLM found that Mr. Michael failed 

to meet these requirements. BLM’s consequent removal 

of Mr. Michael’s property and its invalidation of Mr. 

Michael’s mining claims at Round Butte 1, Black Butte, 

and Burnt River Queen were not Fifth Amendment takings requiring just compensation. Rather, those decisions 

were permissible “[r]egulation of property rights” pursuant to mining laws and regulations. Locke, 471 U.S. at 

107. Moreover, to the extent Mr. Michael challenges the 

merits of BLM’s decisions, he “must challenge that determination in district court under the APA and may not 

do so through a Tucker Act takings action in the Court of 

Federal Claims.”4 Del-Rio Drilling Programs, Inc., v. 

United States, 146 F.3d 1358, 1365 (Fed. Cir. 1998) (citing 

Aulston v. United States, 823 F.2d 510 (Fed. Cir. 1987)).

Mr. Michael argues that BLM’s regulations governing 

mining claims, including the requirement to file an annuchael had initially leased his four claims, until later 

acquiring a coownership interest in 2003. 

4 Mr. Michael argues he could have satisfied the 

$100 labor requirement for all his mining claims had the 

government not seized his mining equipment from Round 

Butte 2. Appellant’s Br. ¶¶ 7–9 at 6–7. Mr. Michael, 

however, was not entitled to store equipment on his 

mining claim when such occupancy was not “reasonably 

incident” to mining. He could have recovered the equipment from Round Butte 2, as instructed by BLM, and 

continued using it to meet the annual labor requirements. 

 
8 MICHAEL v. US

al labor affidavit, are contrary to the governing statutes. 

Informal Br. of Appellant, Form 12, 1 (citing 30 U.S.C. 

§ 612). He states: “In 30 U.S.C. [§] 612(a) it requires the 

use to be ‘reasonably incident’ to mining; there are no 

instructions or allowances in the statute for the agency to 

require greater work requirement than what is already in 

the statute, specifically 30 U.S.C. [§] 28.” Appellant’s Br.

¶ 9 at 7. The relevant work requirements are set forth in 

statute. Title 30 U.S.C. § 28 requires that “not less than 

$100 worth of labor shall be performed or improvements 

made during each year” on mining claims located after 

May 10, 1872. The implementing regulation requiring the 

same $100 “in labor or improvements,” 43 C.F.R. § 

3836.11, is therefore consistent with the statute, 30 

U.S.C. §§ 22, 28. 

Finally, to the extent Mr. Michael argues that BLM 

improperly denied him a hearing prior to revoking his 

mining claims, he alleges a due process claim over which 

the Court of Federal Claims lacks jurisdiction. Crocker v. 

United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (holding there is no Tucker Act jurisdiction over a Fifth 

Amendment due process claim). The Court of Federal 

Claims was also correct to dismiss Mr. Michael’s state law 

claims for “unjust enrichment,” because the Tucker Act 

limits Court of Federal Claims jurisdiction to “cases not 

sounding in tort.” 28 U.S.C. §1491(a); Rick’s Mushroom 

Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 

2008).

We have considered Mr. Michael’s remaining arguments and find them unpersuasive. Accordingly, this 

court affirms the decision of the Court of Federal Claims

denying Mr. Michael’s taking claims and dismissing his

remaining claims for lack of jurisdiction. 

AFFIRMED

No costs.