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United States v. Robertson

United States District Court, D. Montana, Helena Division

November 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH ROBERTSON and CARRIE PFLEGER ROBERTSON, Defendants.

          MEMORANDUM AND ORDER

          SAM E. HADDON, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs Renewed Motion for Summary Judgment[1]seeking declaratory and injunctive relief[2] A hearing on the motion was held on September 24, 2018.

         Background

          This case has been fraught with repeated delay since filing on May 15, 2017. Defendants initially sought and received two extensions of time to file an answer.[3] After Plaintiffs Renewed Motion for Summary Judgment was filed, Defendants sought and received two extensions in which to file a response, [4]

         Concurrent with other delays, Defendants moved for admission of pro hac vice counsel. That request was initially granted, [5] but later withdrawn for failure to comply with L.R. 7.3.[6] A motion for reconsideration of the withdrawal filed later was denied.[7]

         On August 24, 2018, Defendants moved to reopen discovery.[8] A hearing on the motion was held on September 24, 2018. The motion was denied.[9]

         Proposed findings of fact and conclusions of law, and optional supplemental briefing directed to the Plaintiffs Renewed Motion for Summary Judgment were filed.[10]

         On August 31, 2018, Defendants filed a response to Plaintiffs Renewed Motion for Summary Judgment, and a Statement of Disputed Facts.[11] Twenty-seven of the twenty-eight separately numbered statements of undisputed fact submitted by Plaintiff were asserted to be disputed by Defendants, all of which were supported by the following statement:

Disputed, for the reasons that the Defendants have not had the opportunity to conduct necessary discovery in this matter, and cannot determine the veracity of the United States' statements. The Defendants have filed a Motion to Reopen Discovery (ECF Nos, 65-66), and have further requested relief under Rule 56(d), F.R.Civ.P., in their response to the United States' Motion for Summary Judgment.[12]

         On October 12, 2018, Defendants filed an optional supplemental brief with multiple untimely submissions attached.[13] A motion to strike the untimely attachments was filed by Plaintiff on October 15, 2018, [14] and was granted on October 24, 2018.[15]

         Undisputed Facts

          If a party fails to properly address another party's assertion of fact as required by Rule 56(c), "the court may .. . consider the fact undisputed for purposes of a summary judgment motion."[16] Defendants have failed to properly address the Plaintiffs asserted facts.

         The following facts are undisputed for purposes of Plaintiff s Renewed Motion for Summary Judgment.

         1. Defendants Joseph and Carrie Robertson ("Robertsons") "own and reside on a patented mining claim on the Jefferson [Ranger] District of the Beaverhead-Deerlodge National Forest near Basin, Montana" ("White Pine claim").[17]

         2. The White Pine claim is bordered on three sides by federal land within the Beaverhead-Deerlodge National Forest and on a fourth side by an unpatented mining claim ("Mohawk claim").[18]

         3. In October of 2006, the United States Forest Service ("USFS") conducted an investigation of a suspected trespass on federal land surrounding the White Pine claim.[19]

         4. "On April 23, 2007, Forest Service Law Enforcement officer John Janik issued multiple citations to Joseph Robertson for unauthorized occupation of [National Forest System ("NFS")] land adjacent to the White Pine claim."[20]

         5. On June 9, 2007, Janik returned to conduct a follow-up investigation and found that the property stored in trespass had not been removed.[21] Janik documented the continued violations.[22]

         6. "On August 9, 2007, [Joseph] Robertson was tried in absentia and found guilty on five violations."[23] Final judgment was entered on August 14, 2007, and he was ordered to pay a $2, 625 fine.[24]

         7. "In September of 2010, the Forest Service completed a survey of the boundary between the [White Pine] claim ... and NFS land."[25] The September 2010 survey confirmed that a portion of the Robertsons' barn, a variety of vehicles, equipment, and other materials were on NFS land.[26]

         8. The Mohawk mining claim was closed December 30, 2010 for failure to pay annual maintenance fees.[27]

         9. On August 31, 2011, "John Janik returned to the vicinity of the Robertsons' White Pine claim" and documented continuing violations that had first been discovered by Janik in 2006.[28]

         10. On June 26, 2012, United States Magistrate Judge Lynch found Joseph Robertson guilty of, inter alia, "use or occupancy of NFS lands without authorization."[29] "Robertson was sentenced to 6-months unsupervised probation."[30]

         11. "On October 24, 2013, while investigating [Joseph] Robertson's compliance with his sentence conditions . . . continued trespass on [NFS] lands was documented.[31] Additional documentation of trespass on the White Pine claim occurred on July 31, 2012, October 24, 2013, November 6 and 15, 2013, May 20, 2014, October 16, 2014, May 8 and 14, 2015, and July 27, 2015.[32]

         12. On October 9, 2015, the USFS notified Defendants that a USFS agent had observed unauthorized surface activity on the Mohawk claim.[33] "Defendants were directed to cease activity and submit a Plan of Operations."[34] "To date, the [USFS] has not approved a Plan of Operations from the Robertsons."[35]

         14. On October 12, 2017, the Bureau of Land Management sent a letter informing Defendants that the Mohawk claim "was declared null and void."[36]

         15. Robertsons do not currently have any unpatented mining claims on the ...


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