Smith v. United States

MEMORANDUM *

Sherman “Red” Smith appeals the district court’s summary judgment in favor of defendants in Smith’s action against the Forest Service and related parties, challenging the denial of his proposed plan of operations to develop an unpatented mining claim in the Chugach National Forest. The district court held that the Forest Service properly denied Smith’s plan because the travertine Smith seeks to mine is a common variety mineral under 36 C.F.R. § 228.41 , and rejected Smith’s contention that § 228.41 is invalid. The district court also declined to modify a 1992 injunction prohibiting Smith from engaging in mining activities on the same mineral deposit of travertine. We affirm.

The government correctly acknowledges that this case is not rendered moot by Smith’s abandonment of his prior mining claim underlying the plan of operations at issue, because Smith has located and *584 registered a new mining claim on the same site. See West v. Secretary of the Dept. of Transportation, 206 F.3d 920 , 924-25 (9th Cir.2000).

At oral argument, Smith urged that 30 U.S.C. § 601 , interpreted in light of the legislative history, should apply only to minerals used as building…