N OTE : This disposition is nonprecedential.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

______________________

G UY E. M ICHAEL , Baker City, Oregon, pro se.

N INA C. R OBERTSON , Attorney, Appellate Section, E nvironment & Natural Resources Division, United States Department of Justice, of Washington, DC, for defendant

appellee. With her on the brief was R OBERT G. D REHER

, Acting Assistant Attorney General.

______________________

Before W ALLACH

, L INN

, and T ARANTO

, Circuit Judges.MICHAEL v. US 2

P ER C URIAM

. 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

.
B ACKGROUND

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 a n unpatented mining claim “ shall have the exclusive right of possession and enjoyment ” of the mining claim, s ee 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. T he
claimant is restricted to using the land for uses reason ably incident to min ing

. S ee 30 U.S.C. § 612(a) (2006) . A claimant may occupy the land only to the extent the

occupancy is reasonably incident t o mining operations

. When authorized occupancy ends, the claimant has ninety

1 Round Butte 1 and 2 are “placer” claims, whereas
Black Butte and Burnt Ri ver 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 , where as placer claim s may not exceed 20 acres per claim).MICHAEL v. US 3

days to remove all unauthorized property from the pre mises , including permanent and temporary structures, material, and equip ment

. 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 Manag ement’s (“BLM”)] discretion.” Id. § 3715.5

- 2.

To maintain ownership of a mining claim, each c laim

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 c laim owner who opt s to perform the labor requirement
must fi le a n affidavit showing he satisfied the annual work requirement. 43 C.F.R. §§ 1744(a)(1 ), 3835.31

, 3835.91. Failure to meet the labor require ment can result
in BLM declaring the claim forfeited. Id. § 3836.15.

In August 2000, Mr. Michael was living in a trailer parked on Rou nd Butte 2 , where he also kept personal items and mining equipment

. BLM initiated an invest igation 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 w as evidence of mining activity. Mr. Michael was present during only three of the inspectio ns, and only two inspections revealed evidence of mining work. In fourteen of the twenty investigations, BLM found there was n obody present at the site.

On July 25, 2008, BLM issued an order stating Mr. Michael could no longer reside or store his equipm ent at Round Butte 2. It found these activities were not reaso nably 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 withinMICHAEL v. US 4

ninety days, and remov e 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 overwhel ming evidence in th is 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. M ichael’s property and trailer from Round Butte 2, and transferred the large equipment to an off

- site BLM facil ity.

In a separate action o n February 8, 2010, BLM not ified Mr. Michael that he had not met the labor requir ements 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 per formed
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 aban doned and
void.

In 2011, Mr. Michael f iled suit against three BLM employees in the Circuit Court of the State of Oregon for the County of Baker

, c hallenging 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 Co urt 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 wi thout 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. T he government moved to dismiss un der 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 requi ring trial.

With respect to Mr. Michael’s Fifth Amendment ta kings claim, t he Court of Federal Claims con verted the

g overnment’s motion to dismiss into a motion for su mmary judgment and gr anted judgment in favor of the
government

. The court held that BLM’s seizure of Mr. Michael’s trailer and equi pment was not a Fifth Amen dment taking, but rather a proper exercise of the gover nment’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 dec isions 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 (citin g United States v. Locke , 471 U.S. 84, 107 (1985); Kunkes v.
United States , 78 F.3d 1549, 1553 (Fed. Cir. 1996))

. Finally, t he 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).MICHAEL v. US 6

D ISCUSSION

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. 20 03). This court also reviews de no vo 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 Fed eral Claims did not err in denying Mr. Michael’s takings claims. The government “mai ntains 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 c laimants

“ mus t take their mineral interests with the knowledge that the g overnment retains substantial regulatory power
over those interests.” Id. “Regulation of property rights does not ‘take’ private property when an individual’s reasonable, investment

- backed expect ations 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
restric tions.” 3 Id. Mr. Michael was permitted to occupy

3 Mr. Michael contends the Court of Federal Claims
mist akenly 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. M i-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). H is ownership of the mining claims was subject to the req uirement 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 ta kings requiring just compensa tion. Rather, those decisions were permissible “[r]egulation of property rights” purs uant to m ining 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 d etermination 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 , in cluding the requirement to file an annuchael had initially leased his four claims, until later acquiring a coownership interest in 2 003.

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 equi pment from Round Butte 2, as instructed by BLM, and continued using it to meet the annual labor requirements.MICHAEL v. US 8

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 i mplemen ting 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 h is 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) ( hol ding there is no Tucker Act jurisdiction over a Fif th Amendment due process claim ) . The Court of Federal
Claims was also correct to dismiss Mr. Michael’s state law claims for “unjust enrichment,” b ecause 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 arg uments 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 c osts.