Natalie M. Swanson v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIE M. SWANSON,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 12-55987
D.C. No. 3:10-cv-02363-IEG-NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted February 7, 2014
Pasadena, California
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
This lawsuit arises out of the Forest Service’s destruction of stone structures
on Natalie Swanson’s mining claims. The government concedes that Swanson still
owns the mining claims, can still use the mining claims, and can sell the mining
claims. Thus, this disposition only addresses the stone structures on Swanson’s
FILED
FEB 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

-2-
mining claims, not the claims themselves. Natalie Swanson appeals from the
district court’s grant of the United States’ motion to dismiss. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
First, the district court was correct that Swanson was collaterally estopped
from seeking a declaratory judgment that the Surface Resources Act of 1955 (30
U.S.C. § 612) did not apply to her unpatented mining claims. This exact same
issue was directly addressed on the merits and rejected in her previous 2006
litigation, and Swanson never appealed that decision. Thus, issue preclusion bars
her from relitigating it here. See Offshore Sportswear, Inc. v. Vuarnet Intern., B.V.,
114 F.3d 848, 851 (9th Cir. 1997) (issue preclusion bars plaintiff from relitigating
claims where “the issue that led to dismissal was adjudicated on its merits and was
conclusively determined when the time passed for appeal”).
Second, the district court was correct that Swanson was not entitled to a
declaratory judgment that she had a property right to use the stone structures in the
area around her mining claims. An unpatented mining claim gives the claimholder
the right to use the claim for mining and “uses reasonably incident thereto.” See 30
U.S.C. § 612(a)-(b); United States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012).
In United States v. Shumway, we established that a miner’s residence may be
incidental to mining. 199 F.3d 1093, 1106 (9th Cir. 1999). Here, however, the

-- 2 of 3 --

-3-
Forest Service concluded that the structures at issue were not reasonably incident
to Swanson’s mining operation. In the ten years since that determination was
made, Swanson never once challenged it in any of her lawsuits. Nor has she
alleged in this case that she used the structures in a way that would be incident to
her mining operation at the time the Forest Service removed the structures. Thus,
since the structures were not being used for mining purposes, Swanson had no
property right to use them.
Finally, the district court was correct to dismiss Swanson’s claims for
trespass to chattels, conversion, and negligence. First, to the extent these claims
were based on Swanson’s purported property right to use the structures, they fail
because Swanson had no such right. Second, to the extent these claims were based
on the destruction of personal property within the stone structures, the district court
correctly concluded that it lacked subject matter jurisdiction to address them.
Swanson’s administrative Federal Torts Claim Act claim only cited her purported
property right to use the structures and never mentioned any personal property; any
claims related to her personal property were thus never administratively exhausted
and the district court therefore lacked jurisdiction to address them. See 28 U.S.C. §
2675(a); Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1140 (9th Cir. 2013).
AFFIRMED.

-- 3 of 3 --