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California Miner Appeals Denial of Attorneys' Fees

By William Perry Pendley

DENVER - A California miner who won the right to engage in placer mining on his claim in the mountains of northern California after a February 2007 ruling by the Interior Board of Land Appeals (IBLA) on Jan. 24 appealed the ruling of a California federal district court that he may not be reimbursed by the United States for all legal expenses leading to his major victory.

In 2007, the IBLA ruled against the U.S. Forest Service in upholding a December 2003 administrative law judge's (ALJ's) ruling that the claim of Donald Eno, a disabled veteran on fixed income, has an economic value that is more substantial than all the other uses argued by the Forest Service and is not located on sacred, scenic, or geologically unique federal land. Later, when Eno sought to be reimbursed under the Equal Access to Justice Act (EAJA), for fees and expenses, another ALJ ruled against him ruling the government's legal action "substantially justified." In June 2010, the IBLA upheld that ruling; subsequently, Eno filed suit. In December 2012, the federal district court held Eno received only a "license."

"We are disappointed with the ruling and believe it is contrary to law," said William Perry Pendley of Mountain States Legal Foundation, which represents Eno. "Therefore, we noticed the Ninth Circuit of our appeal."

Eno owns the Hound Dog placer mining claim, which is located in the Plumas National Forest Service near Quincy, California, some 110 miles northeast of Sacramento. Since 1998, he has paid taxes and maintenance fees on the claim. Because the land upon which his claim is located was withdrawn in 1927 for use as a "power site," the Forest Service sought an order barring mining because it would "substantially interfere with other uses of the land." In late 2003, the ALJ rejected the Forest Service's arguments.

In an attempt to stop Eno from developing his claim, the Forest Service asserted that the gold and travertine have no value and that the land is more valuable as a scenic or geologically unique site or as a sacred site to American Indians. Those assertions were examined painstakingly and then rejected by the ALJ in a 26-page opinion.

A five-day hearing was conducted in June 2002, after which the Forest Service and Eno filed various briefs. In his brief, Eno pointed out, for example, that the travertine alone is worth $20 million to $35 million. Mountain States Legal Foundation's Chief Legal Officer Steven J. Lechner presented the case at the hearing and filed the briefs. The Forest Service appealed to the IBLA and sought a stay. In rejecting the Forest Service's motion for a stay, the IBLA noted that Eno's claim is located in an area that has seen "considerable mining activity."

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver.

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