United States District Court, D. Montana, Helena Division
MEMORANDUM AND ORDER
HADDON, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Renewed Motion for Summary
Judgmentseeking declaratory and injunctive
relief A hearing on the motion was held on
September 24, 2018.
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. After Plaintiffs Renewed
Motion for Summary Judgment was filed, Defendants sought and
received two extensions in which to file a response,
with other delays, Defendants moved for admission of pro
hac vice counsel. That request was initially granted,
later withdrawn for failure to comply with L.R.
A motion for reconsideration of the withdrawal filed later
August 24, 2018, Defendants moved to reopen
discovery. A hearing on the motion was held on
September 24, 2018. The motion was denied.
findings of fact and conclusions of law, and optional
supplemental briefing directed to the Plaintiffs Renewed
Motion for Summary Judgment were filed.
August 31, 2018, Defendants filed a response to Plaintiffs
Renewed Motion for Summary Judgment, and a Statement of
Disputed Facts. 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
October 12, 2018, Defendants filed an optional supplemental
brief with multiple untimely submissions
attached. A motion to strike the untimely
attachments was filed by Plaintiff on October 15, 2018,
and was granted on October 24, 2018.
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." Defendants have failed to properly
address the Plaintiffs asserted facts.
following facts are undisputed for purposes of Plaintiff s
Renewed Motion for Summary Judgment.
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").
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
October of 2006, the United States Forest Service
("USFS") conducted an investigation of a suspected
trespass on federal land surrounding the White Pine
"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
June 9, 2007, Janik returned to conduct a follow-up
investigation and found that the property stored in trespass
had not been removed. Janik documented the continued
"On August 9, 2007, [Joseph] Robertson was tried in
absentia and found guilty on five
violations." Final judgment was entered on August 14,
2007, and he was ordered to pay a $2, 625 fine.
"In September of 2010, the Forest Service completed a
survey of the boundary between the [White Pine] claim ... and
NFS land." The September 2010 survey confirmed that
a portion of the Robertsons' barn, a variety of vehicles,
equipment, and other materials were on NFS
Mohawk mining claim was closed December 30, 2010 for failure
to pay annual maintenance fees.
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
June 26, 2012, United States Magistrate Judge Lynch found
Joseph Robertson guilty of, inter alia, "use or
occupancy of NFS lands without
authorization." "Robertson was sentenced to
6-months unsupervised probation."
"On October 24, 2013, while investigating [Joseph]
Robertson's compliance with his sentence conditions . . .
continued trespass on [NFS] lands was
documented. 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.
October 9, 2015, the USFS notified Defendants that a USFS
agent had observed unauthorized surface activity on the
Mohawk claim. "Defendants were directed to cease
activity and submit a Plan of Operations." "To
date, the [USFS] has not approved a Plan of Operations from
October 12, 2017, the Bureau of Land Management sent a letter
informing Defendants that the Mohawk claim "was declared
null and void."
Robertsons do not currently have any unpatented mining claims
on the ...