United States of America v. John M. Wasson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN M. WASSON,
Defendant - Appellant.
No. 14-30104
D.C. No. 2:13-CR-00463-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted October 14, 2015**
Portland, Oregon
Before: FERNANDEZ, GILMAN,*** and BEA, Circuit Judges.
FILED
OCT 26 2015
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.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.

-- 1 of 6 --

John Wasson occupied land in the National Forest System from April 2012
until March 2013. Some of his time was spent working on a small, unpatented mining
claim, but he also set up a permanent campsite and began continuously residing on the
land. Wasson did not obtain authorization for this residency from the Forest Service,
and he stored human feces in a bucket located on his campsite. The government
charged Wasson with violating 36 C.F.R. § 261.10(b) (unauthorized residency on
Forest System lands) and 36 C.F.R. § 261.11(d) (improper removal or disposal of
sewage). A magistrate judge conducted a trial for these misdemeanor offenses, found
Wasson guilty of violating both regulations, and fined him $400. Wasson appealed
that decision to the district court, which affirmed the magistrate judge’s ruling. He
now appeals the district court’s judgment.
Wasson presents two arguments. First, he contends that the Forest Service
lacks authority to interfere with his occupancy vis-à-vis his mining claim. Second, he
contends that the evidence at trial was insufficient to establish that he improperly
disposed of or failed to remove sewage from his campsite.
Wasson’s first argument is based on the General Mining Law of 1872, which
provides that an individual who discovers mineral deposits on federal land “shall have
‘exclusive right of possession and enjoyment of all the surface included within the
lines’” of his claim. United States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012)
-2-

-- 2 of 6 --

(quoting 30 U.S.C. § 26). The law also states that, “[e]xcept as otherwise provided,
all valuable mineral deposits in lands belonging to the United States . . . shall be free
and open to exploration.” 30 U.S.C. § 22. Wasson apparently reads the law’s
references to “exclusive . . . possession and enjoyment” and “free and open”
exploration as foreclosing Forest Service interference with his mining claim.
This court in Backlund addressed a similar argument. It noted that, even if the
General Mining Law speaks of “exclusive . . . possession and enjoyment,” other
statutes—such as the Multiple Use Act of 1955—nonetheless limit a miner’s
activities. 689 F.3d at 991. Hence, “use of an unpatented mining claim on public land
is limited to activities that are reasonably incident to prospecting, mining and
processing operations,” and such uses are “subject to the right of the United States to
manage surface resources.” Id. The court then concluded that the same regulation at
issue in this case—36 C.F.R. § 261.10(b)—is a valid exercise of the government’s
resource-management rights. Id. at 990, 996.
Based on Backlund, the Forest Service was entitled to regulate Wasson’s
occupancy with regard to his mining claim. Further, Wasson’s persistent and
continual residency on his claim was not “reasonably incident” to the limited scope
of his mining activities. Wasson therefore needed to obtain authorization for his
residency from the Forest Service. See 36 C.F.R. § 251.50 (requiring authorization
-3-

-- 3 of 6 --

for most uses of Forest System lands); id. § 261.10(b) (specifically prohibiting
residency on Forest System lands without the required authorization). But Wasson
failed to do so. The district court therefore did not err in holding that Wasson had
violated 36 C.F.R. § 261.10(b).
Wasson’s second argument is that the district court lacked sufficient evidence
to conclude that he had violated 36 C.F.R. § 261.11(d). That regulation prohibits the
following conduct: “Failing to dispose of all garbage, including any paper, can,
bottle, sewage, waste water or material, or rubbish either by removal from the site or
area, or by depositing it into receptacles or at places provided for such purposes.”
The regulation thus requires a person to dispose of waste by either (1) removing it
from “the site or area,” or (2) depositing it “into receptacles or at places provided for
such purposes.”
In the present case, Wasson stored waste (human feces) in a bucket. The bucket
and feces were still present on his campsite when the Forest Service eventually
removed Wasson’s property, so Wasson himself did not remove the waste from “the
site or area.” That leaves Wasson with the argument that the bucket qualifies as a
“receptacle[] or . . . place[] provided for such purposes.” 36 C.F.R. § 261.11(d).
Wasson argues that the phrase “provided for such purposes” modifies only the word
“places,” rather than modifying both “receptacles” and “places.” He therefore
contends that a person can comply with § 261.11(d) by depositing waste into any sort
-4-

-- 4 of 6 --

of “receptacle,” regardless of whether it was provided for the purpose of waste
disposal.
Wasson’s argument rests on the “rule of the last antecedent,” see, e.g., Jama
v. Immigration & Customs Enforcement, 543 U.S. 335, 343 (2005) (“[T]he
grammatical rule of the last antecedent [states that a] limiting clause or phrase should
ordinarily be read as modifying only the noun or phrase that it immediately follows.”
(internal quotation marks and ellipsis omitted)), but this rule is “not an absolute and
can assuredly be overcome by other indicia of meaning,” Barnhart v. Thomas, 540
U.S. 20, 26 (2003). In the current case, “other indicia of meaning” demonstrate that
36 C.F.R. § 261.11 is intended to prevent the release of potentially hazardous or
unsanitary material. See, e.g., 36 C.F.R. § 261.11(b) (prohibiting the possession of
“refuse, debris, or litter in an exposed or unsanitary condition”); id. § 261.11(c)
(prohibiting the release of “any substance” that might cause pollution in a stream or
lake).
Contrary to this regulatory purpose, Wasson’s reading of 36 C.F.R. § 261.11
would allow a person to place waste of any kind in any type of receptacle, regardless
of whether the waste is hazardous or if the receptacle is designed to prevent the release
of such waste. For example, a person could comply with Wasson’s reading of
36 C.F.R. § 261.11(d) by depositing waste such as the human feces at issue in this
case in anything from a used coffee cup to an empty soda can to a plastic garbage bag.
-5-

-- 5 of 6 --

See Merriam Webster’s Collegiate Dictionary 975 (10th ed. 1997) (defining
“receptacle” as anything that “receives and contains something”). Such haphazard
disposal of dangerous waste would undercut the Forest Service’s goal of maintaining
the forest in a sanitary condition, so we do not read subsection (d) of the regulation
as broadly as Wasson would like. Instead, we read the regulation to require the
disposal of waste in a receptacle specifically provided for the purpose of waste
disposal.
The question then becomes whether the district court had sufficient evidence
to conclude that Wasson’s bucket was not such a receptacle. Relevant to this issue is
the fact that Wasson’s “Notice of Intent” had informed the Forest Service that any
human waste would be “collected in a port-a-potty” at his campsite. The Forest
Service approved this arrangement. But Wasson conceded during trial that he
collected his feces in a bucket, not in a port-a-potty. This concession demonstrates
that Wasson placed his waste in a receptacle that had not been provided for the
purpose of human waste disposal, so the district court did not err in concluding that
there was sufficient evidence that Wasson violated 36 C.F.R. § 261.11(d).
For all of the above reasons, WE AFFIRM.
-6-

-- 6 of 6 --