Appeal from the United States District Courtfor the District of ArizonaStephen M. McNamee, District Judge, PresidingArgued and SubmittedJune 12, 1997--San Francisco, CaliforniaFiled December 28, 1999Before: Joseph T. Sneed and Andrew J. Kleinfeld,Circuit Judges, and Evan J. Wallach.1Opinion by Judge Kleinfeld;Concurrence by Judge Wallachowner of a valid mining claim merely for failure to submit anapproved operating plan.Pursuant to mining claims, appellants Ray and MollyShumway own seven millsites in the Tonto National Forest inArizona. Because they are in a national forest, the millsitesare subject to U.S. Forest Service operating plan approval.The Forest Service approved a cyanide leaching operation forextraction of gold and silver, and required the Shumways tohave someone living onsite to guard against vandalism.In the late 1980s, the Forest Service directed the Shumwaysto stop stabling a horse on the property, and to clean up "trashand junk." According to the Shumways, they used the horseto inspect the perimeter of the millsites because no motorvehicles were allowed in the National Forest, and the materi-als stored on the property had been or were incidental to oper-ations. The Forest Service also ordered the Shumways out oftheir home in a trailer on one of the sites, although they hadbeen required to have an onsite caretaker.Between 1979 and 1990, the Forest Service raised its bondrequirements from $2000 to $18,000. When the Shumwaysproffered a corporate surety bond, the Forest Service rejectedit on the ground that the insurer was not listed by the TreasuryDepartment as an accepted surety. The Shumways wereunable to find a surety that would post the required bonds, andthey did not have the $18,000 for a cash bond. The Forest Ser-vice directed them to cease milling operations, and warnedthat if they tried to get approval for a new operating plan, thebond would be raised to $150,000 or $200,000.Meanwhile, the Shumways duly applied for patents to theirmillsites. The Secretary of the Interior signed the crucial"First-half of the Mineral Entry Final Certificate," which wasnecessary for their patents on the millsites. Although theDepartment advised the Shumways that a patent would issueif a mineral examiner found everything in order, their case filewas not forwarded to a mineral examiner.Appellee United States sued the Shumways to evict themfrom two of the millsites and to clean them up. The govern-ment moved for summary judgment.Mr. Shumway submitted an affidavit stating that ore-processing operations had been ongoing at the millsites for 15years, and that the things on the property, including the horse,had been or were incidental to the operations.The Shumways also offered the affidavit of Clay Thorne,the head of an environmental cleanup and testing firm. He hadqualified in state and federal courts as a mining expert, wasclosely acquainted with the millsites, and had inspected themwith a biochemist.Thorne stated from personal knowledge that the millsitehad been used by local mining interests in assaying ore, andthat the alleged junk was usable mining equipment with areplacement value of $400,000. Thorne also said that therehad been no substantial changes in the Shumway operation,or any increase in environmental damage, for the past severalyears. As to tailing ponds, Thorne found that they posed littleif any risk of environmental contamination in light of the waythe chemicals involved in their operation had been used andstored.The district court rejected Mr. Shumway's affidavit as self-serving and conclusory, and excluded Thorne's affidavit onthe ground that he failed to allege personal knowledge. Thecourt concluded that the Shumways had presented "noevidence" contradicting the government's evidence that muchof the material on the millsites was scrap or junk.The district court granted summary judgment for the gov-ernment, ruling that the Shumways had to remove themselvesand their personal property from the sites and to restore themto their natural condition, or forfeit the sites and pay damages.The Shumways appealed.[1] Issuance of the "First Half of the Final Certificate,"such as the Shumways obtained, confirms that equitable titleis vested in the applicant, subject to confirmation of a discov-ery of a valuable mineral deposit by a mineral examiner, certi-fies that the applicant has satisfactorily complied with allpaperwork requirements, and eliminates the need for perfor-mance of assessment work.[2] A mining claim is not a claim in the ordinary sense ofthe word--a mere assertion of a right--but rather is a prop-erty interest, which is itself real property in every sense. [3]The government cannot reserve its own land from an unpa-tented mining claim without paying the owner the value of theclaim.[4] There was a presumption that the Shumways were enti-tled to a patent because the First Half of the Final Certificatehad been issued. If the Shumways were entitled to a patentwhen they applied, as of that time they had full equitable title,with the government retaining only the naked legal title intrust for them, and subject to their fully vested rights and obli-gations of ownership.[5] If the applicants are in compliance with the mininglaws, their right to the unpatented claim, or the "title of alocator," is vested, even of the Department if the Interior hasnot taken action on their application for a patent. That anapplicant has yet to receive, or even apply for, a patent doesnot mean that the government has plenary power over a mill-site.[6] So long as the Shumways complied with mining lawand Forest Service regulations, they were entitled to the pos-sessory right and title of a locator--a right to possess themillsite--and could not be evicted unless their claim was asham or otherwise invalid. [7] Even if the Shumways' rightto a patent had not vested, they could still defeat a motion forsummary judgment if they demonstrated that the Forest Ser-vice raised the bond requirements arbitrarily, and unreason-ably circumscribed their milling operations.[8] Because the Shumways had a possessory right to theirmillsites, they were not only permitted, but until their right toa patent vested, required to use and occupy the millsites formilling purposes, and were entitled to have a residence,equipment, materials, tools, and other property on the siteincident to milling operations. [9] Regarding the things on theproperty, the district court was bound on summary judgmentto determine only whether there was a genuine issue of mate-rial fact, and was not empowered to weigh the evidence, ordetermine the truth of the matters asserted.[10] That an affidavit is self-serving bears on its credibility,not on its cognizability for purposes of establishing a genuineissue of material fact. If the affidavit stated only conclusions,and not facts admissible in evidence, it would have been tooconclusory to be cognizable, but Mr. Shumway's affidavitwas not inadmissible for failure to state facts.[11] Mr. Shumway swore in his affidavit material facts forwhich personal knowledge and competence was established.Those statements were all facts admissible in evidence on Mr.Shumway's testimony, so the district court erred in disregard-ing them. They had to be taken as true for purposes of deter-mining whether there was a genuine issue of material factprecluding summary judgment.[12] Thorne established competence as an expert witnesson some matters and personal knowledge on others. His affi-davit showed that he was competent to testify to those mat-ters, and that it was made on personal knowledge. The districtcourt therefore erred in disregarding it.[13] The Multiple Use Act empowers the Forest Service toregulate non-mining activity on mining claims, so long as thenon-mining activity does not interfere with mining activities,or uses reasonably incident to them. The Forest service itselfasked the Shumways to live on the site for security purposes.The Shumways claimed that there was a continued need forsecurity to prevent vandalism of their equipment. They estab-lished a genuine issue of material fact in that respect.[14] As to the equipment, or "junk, " the Shumways estab-lished a factual issue for trial. While the Forest Service mighthave regarded the equipment as junk, it did not prove it. TheShumway affidavit established a genuine issue as to whetherthe equipment and materials were incidental to milling opera-tions.[15] Nothing about the plan of operations was disapprovedexcept the Shumways' surety on their bond. [16] There wasan issue of fact as to whether the government properlyincreased the bond amount to an arbitrary figure, and threat-ened additional arbitrary increases if the Shumways met thefigure. The Shumways presented evidence contradicting theForest Service's assertion that the millsite operations hadchanged substantially, and that their equipment and materialswere "junk." If that was true, the bond amount should nothave drastically changed.[17] The Shumways also raised a genuine issue of materialfact as to whether remediation would include the cost of haul-ing away the equipment and materials on the site. If the equip-ment had a replacement value of $400,000, costs oftransportation were merely a factor affecting the price atwhich the equipment could be sold.[18] Nor did the record provide a basis for evicting theShumways. There was uncontradicted evidence that theShumways owned the millsite claims. There was no evidencethat the Shumways' claim was a sham. Even if there hadbeen, the Shumway and Thorne affidavits would have estab-lished a genuine issue to the contrary. The Forest Serviceoffered no explanation why its disapproval of an operatingplan should result in eviction. The more appropriate remedywould have been an injunction. Failure to file an approvedoperating plan cannot, ipso facto, cause a forfeiture of thebona fide claim owner's equitable title and possessory right.The Shumways were not guests at their millsite, but propertyowners.Judge Wallach concurred separately, observing that whatmay have been "junk" to the Forest Service could have beenserviceable mining equipment for small mining operators likethe Shumways.
_____________________________COUNSEL Arthur E. Lloyd, Payson, Arizona, for the defendants-appellants.Robert Bartels, Assistant United States Attorney, Phoenix,Arizona, for the plaintiff-appellee.
_____________________________OPINION KLEINFELD, Circuit Judge:This is a mining law case. Issues arise regarding the extentto which the owner of an unpatented mining claim or mill sitehas surface rights despite the absence of approval of his oper-ating plan or bond, and also the constraints on disapproval.FactsRay and Molly Shumway own seven mill sites in the TontoNational Forest in Arizona. Two of the seven mill sites, BLMclaim numbers AMC 203225 and 209240, are the subject ofthis lawsuit. The mill sites were held pursuant to mill siteclaims. Mining claims and mill site claims, in mining law ter-minology, are vested possessory rights which are recognizedas interests in real property; they are not merely assertions ofrights, as claims are in the more common sense of the word.Because this case was decided on summary judgment, thefacts, where disputed, are taken most favorably to the Shum-ways based on the cognizable evidence submitted on the sum-mary judgment motions.2The mill sites are subject to Forest Service operating planapproval because they are in a national forest. 3 Approvals ofthe Shumways' plans of operations have been repeatedlygranted. The first approval in the record was in 1979, for1979-80. In its 1981 approval, the Forest Service approved acyanide leaching operation on the sites (cyanide combinesusefully with gold and silver, so is used extensively to extractthose valuable metals from their ores). The Forest Servicerequired the Shumways to have someone live on site to dis-courage vandalism.Friction appears to have begun between the Shumways andthe Forest Service in the late 1980s. Mr. Shumway states inhis affidavit that a Mr. Rodney Byers of the Forest Servicecame to the district and told him that he "would try to figureout a way to get me off of" his claims before patents forwhich Mr. Shumway had applied were issued. In 1987, theForest Service directed Shumway to stop stabling a horse onthe property, and clean up trash and junk. But Mr. Shumwayfelt he needed the horse to inspect the perimeter of his mill-sites and to inspect mines in the forest, because no motorvehicles were allowed. Mr. Shumway states in his affidavitthat "[a]ll of the equipment and materials stored on the mill-sites have been or were incidental to the milling operations."That same year, the Forest Service ordered the Shumways outof their home in a travel trailer on one of the sites, though in1981 it had required that someone live there to guard againstthe risk of vandalism. No more cyanide leaching was takingplace by then, which had been the Forest Service's stated rea-son for requiring residence on the site, but other chemicalswere being used.The Forest Service also changed its bond requirements withrespect to the Shumway mill sites. The operating planapproved in 1979 required the Shumways to post a $2,000cash or surety bond to assure eventual reclamation of the dis-turbed area. In 1980, the Forest Service increased the requiredperformance bond to $3,200. The $3,200 amount wasapproved again in 1981. By 1990, the bond amount had creptup to $5,200, although less ore was being processed than inthe 1980s and no cyanide leaching was taking place. But in1990, the Forest Service raised the required bond to $18,000.The Shumways submitted a corporate surety bond, ade-quate in amount, from Globe Insurance Company, Ltd., butthe Forest Service rejected the bond because Globe was notlisted by the Department of the Treasury as an acceptedsurety. The Shumways unsuccessfully appealed the increasein the bond requirement and were unable to post it. Theyfound that no sureties on the Department's approved list werewriting such bonds, and they did not have $18,000 cash theycould spare from the milling operations. In 1991, the ForestService ordered them to stop all milling and mining and leavetheir residence on the mill site, because they had not postedthe bond. The Forest Service subsequently advised the Shum-ways that if they tried to obtain approval for a new operatingplan, they could expect the bond to be raised to $150,000 or$200,000.Meanwhile, the Shumways, in 1994, applied for patents totheir mill sites. A "patent" "is the conveyance by which the[federal government] passes its title to portions of the publicdomain."4 A patent does not merely pass title, like a deed, butoperates as an official declaration of title which is, with lim-ited exceptions, unassailable and not rebutable.5 The Shum-ways duly recorded, posted, and published notice. TheSecretary of the Interior had, in 1993, revoked his delegationof authority to the Bureau of Land Management to sign thecritical document preceding a patent, the "First Half of theMineral Entry Final Certificate," so the Shumways' paperswere forwarded to the Secretary himself. On December 1,1994, the Secretary of the Interior personally signed the FirstHalf-Mineral Entry Final Certificate for the mill sites at issueand five other Shumway claims.The Department then advised the Shumways that a patentwould issue "if all is found regular and upon demonstrationand verification of use and/or occupancy." This would be ver-ified "by a mineral examiner in an on-the-groundexamination." But the Shumways' case file was not assignedby the Department to a mineral examiner. As of the summerof 1995, the Arizona BLM was proceeding with only twofield examinations, and those had been requested seven andeight years before. There were eleven more to go before theBLM got to the Shumways' field examination.In 1995, the United States sued the Shumways to evictthem from the two mill sites, and require them to remove alltheir things and clean the sites up. The Complaint alleges thatthe Shumways were not conducting any milling at the millsites, had no approved plan of operations, had failed to postthe required bond, and were trespassing. The district courtgranted summary judgment in favor of the government, order-ing the Shumways to remove themselves and all their thingsfrom the sites and to restore the sites to their natural condi-tion, or if they did not, they would forfeit the sites and berequired to pay damages sufficient to restore the sites. TheShumways appeal.BackgroundIt is hard to understand this dispute about a relativelyarcane area of law without reference to history. During thefirst half of the nineteenth century, the United States estab-lished a mineral leasing system, so that the government wouldrealize much of the economic benefit of minerals found onpublic lands. But President Polk reported to Congress in 1845that the cost of government administration was more than fourtimes the lease income, and the leasing system was abandoned.6The California gold rush in 1849 took place without much lawto guide it, so the miners developed their own rules and cus-toms. They evolved in the miners' meetings, which were usedto govern mining camps before any official governmentexisted at these remote locations. Among the earliest success-ful prospectors in the 1849 California gold rush were experi-enced miners from Cornwall, England, Chile, participants inthe Dahlonega, Georgia gold rush of 1829, and other experi-enced prospectors and miners, who already knew somethingabout what practical rules were needed.7 That the rules wereso successful may reflect this combination of practical experi-ence with considerable learning, for "[i]n 1849 hardly a campexisted on the great Sierra slope that did not contain minerswho were graduates of colleges and law-schools or were law-yers of considerable experience."8The miners' meetings operated as might be expected of ahighly democratic process. They favored the interests of thosewho were there--mostly individuals and small firms withoutmuch capital. A much more centralized governmental processin Washington might have favored those with influence in thenational government--perhaps those who might want to max-imize federal revenue, preserve federal lands, or protect largefirms from having to pay huge amounts to buy claims fromsmall scale prospectors who discovered minerals but lackedthe capital to extract them.Other approaches were possible, and might have com-mended themselves to people with different interests. JusticeField took the position, to the great displeasure of the miners,that under the common law after Alta California becameAmerican, minerals passed to the owner of the land, so thatthe miner could not invade land privately held. 9 Another alter-native might have been the Mexican, based on the Spanishcustom, whereby the sovereign was entitled to a royal share,or royalty, of one fifth of the gold.10 Yet another approachmight be the English, where unlike the Spanish quinto, if anygold or silver was found in a mine the king was entitled to thewhole, at least if the precious metals were worth more thanthe base metals (though by two statutes of William and Mary,the king allowed the owner to keep the mine provided that thegold and silver must be sold to the king for the value of thetin in the ore).11 In the American gold rushes in the West, theminers made the rules, so the miners made the money. Thisstimulated a great deal of successful mining.Even though most of the gold in the California and otherwestern gold rushes was found on federal land, the federalgovernment adopted a mining law scheme late, long after thecustoms of ownership by discovery and extraction had beenestablished. The California gold rush of 1849, Colorado in1859, the Comstock Lode and other strikes in Nevada in1859-60, Idaho in 1862-63, Montana in 1863, and quite a fewothers, all preceded the federal mining laws. As in the soft-ware industry in the 1990s, the industry developed, many vastindividual fortunes were made, and the national wealth wasgreatly increased, all by a new kind of property, before muchof the legal framework for the industry developed.When it came, in skeletal form in 1866, and in substantiallyits current form in the Mining Law of 1872, the federal statu-tory law of mining "received" customary law in much thesame way that the states had received the common law. Thestatute, still in force, says "all valuable mineral deposits" infederal lands "shall be free and open to exploration andpurchase" under prescribed regulations "and according to thelocal customs or rules of miners in the several mining dis-tricts, so far as the same are applicable and not inconsistentwith the laws of the United States."12 Thus, instead of follow-ing any of the alternative schemes, which might have pre-served more government authority or revenue, Congressexpressly adopted the "local customs or rules of the miners."The most important of those customs created a property rightbased on discovery and extraction of valuable minerals, in theabsence of any title. Thus, the history of mining customs hasunusual relevance because in this area, as Faulkner said, "thepast isn't dead--it isn't even past."Despite much contemporary hostility to the Mining Law of1872 and high level political pressure by influential individu-als and organizations for its repeal, all repeal efforts havefailed, and it remains the law.13 The miners' custom, that thefinder of valuable minerals on government land is entitled toexclusive possession of the land for purposes of mining andto all the minerals he extracts, has been a powerful enginedriving exploration and extraction of valuable minerals, andhas been the law of the United States since 1866. Mill siteclaims, which are ancillary to mining because grinding the oreis often necessary to extracting the valuable minerals, followsubstantially the same rules as mining claims.14"A mineral claim is a parcel of land containing preciousmetal in its soil or rock."15 Under the Mining Law of 1872,there are three stages in patenting a mining claim. The firststage is "location" of a claim. "A location is the act of appro-priating such a parcel,"16 generally by posting notice on theground. "The locators of all mining locations . .. so long asthey comply with the laws . . . shall have the exclusive rightof possession and enjoyment of all the surface located withinthe lines of their locations, and of all veins,[and] lodes. . . ."17At the second stage, the prospector is required to performimprovements or assessment work. "[U]ntil a patent has beenissued therefor, not less than $100 worth of labor shall be per-formed or improvements made during each year." 18 Third, theprospector may apply for a patent. A person who has"located" a mining or millsite claim can apply for a patent(the term for a government conveyance of title to an individ-ual of public land) with the Bureau of Land Management,show compliance with the laws regarding location, post noticeof application, and file proof of notice.19 After further publica-tion of notice, the applicant files papers showing that the req-uisite labor has been expended on the claim and that thedescription is correct, and further proof of the requisite publi-cation of notice.20 At that point, if no adverse claim has beenfiled, "it shall be assumed that the applicant is entitled to apatent" upon payment of a nominal fee, unless it is shown thatthe applicant has failed to comply with the mining laws.21 Amill site is patented the same way.22[1] As the Bureau of Land Management's 1991 internalmanual explains the mill site procedure, "mill sites must beused or occupied for mining and milling purposes only, oruses reasonably in support of mining and milling purposes ascommonly recognized in the mining industry." 23 The manualsays that issuance of the "First Half of the Final Certificate,"such as the Shumways obtained, "confirms equitable title isvested in the applicant, subject to the confirmation of a dis-covery of a valuable mineral deposit by a mineral examiner,"24certifies that the applicant "has satisfactorily complied withall `paperwork requirements," and "eliminates the need forperformance of assessment work."25[2] In ordinary English, a "claim " is merely a demand forsomething, or an assertion of a right where the right has notbeen established. The phrase "mining claim" therefore proba-bly connotes to most laymen an unsupported assertion ordemand from which no legal rights can be inferred. But thatis emphatically not so. In law, the word "claim" in connectionwith the phrase "mining claim" represents a federally recog-nized right in real property. The Supreme Court has estab-lished that a mining "claim" is not a claim in the ordinarysense of the word--a mere assertion of a right--but rather isa property interest, which is itself real property in every sense,and not merely an assertion of a right to property. BensonMining & Smelting Co. v. Alta Mining & Smelting Co. 26 heldthat once the owners of a mining claim applied for a patentand paid the fees, and the right to a patent existed, they had"full equitable title,"27 and their failure to do subsequentannual work on the claim did not reopen it to subsequent loca-tion by another. "[O]nly the naked legal title remains in thegovernment, in trust for the [applicant], in whom are vestedall the rights and obligations of ownership." 28[3] The question in Bradford v. Morrison29 was whetherunpatented mining claims are real property. The Court heldthat the unpatented "title of a locator" is "property in the ful-lest sense of the word," noting that unpatented mining claims,at that time, "constitute[d] very largely the wealth of thePacific Coast states."30 In United States v. North American
_____________________________25 Id.26 Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145U.S. 428 (1892).27 Id. at 434.28 Id. at 432.29 Bradford v. Morrison,
212 U.S. 389
(1909).30 Id. at 394.Transportation & Trading Co.,31 the Army had been sent toNome to bring order during its gold rush, and the presidentestablished a federal reservation for the Army base. TheCourt, in an opinion by Justice Brandeis, held that a companyholding a mining claim at the site was entitled to compensa-tion for the taking, with interest from the date of the reservation.32This case establishes that the government cannot reserve itsown land from an unpatented mining claim without payingthe owner the value of the claim, because an unpatented min-ing claim is property.In 1920, oil, oil shale, gas and certain other minerals werecarved out of the Mining Law of 1872 and subjected to a fed-eral leasing system, with a saving clause protecting "validclaims existent [at the date of the passage of the Act]." 33Wilbur v. United States ex rel. Krushnic34 involved a disputebetween the Department of the Interior and persons who hadlocated a placer claim to oil shale before the new mineralleasing act. After the new leasing law had gone into effect, thelocators completed the required annual labor and applied fora patent.35 Like Mr. and Mrs. Shumway, they received whatis now called the First Half Final Certificate. 36 The Depart-ment refused to issue a patent because the annual assessmentwork had not been done during one of the necessary years,and was resumed only after the new statute made oil shaleplacer claims unavailable for patent.37 The Court ordered issuance of a writ of mandamus anyway,holding that failure to perform the assessment work did not"forfeit" the claim, but only subjected it to the risk that some-one would locate over it, a risk averted when the originallocator resumed work.38 This decision probably had much todo with the mining industry custom of operating on the basisof claims without obtaining patents, because it rendered pat-ents (and the miner examiners', surveyors', lawyers', andother fees to obtain them) unnecessary. "[W]hen the locationof a mining claim is perfected under the law, it has the effectof a grant by the United States of the right of present andexclusive possession. The claim is property in the fullestsense of that term . . . ."39 The Court held that the owner ofa perfected mining claim "is not required . . . to secure patentfrom the United States; so long as he complies with all provi-sions of the mining laws, his possessory right, for all practicalpurposes of ownership, is as good as though secured by patent."40In 1955, Congress dealt with the problem of sham miningclaims used for other purposes. Sham claims could be usedfor selling timber from national forests, or obtaining free resi-dential or agricultural land; one decision has suggested shamuse of mining claims along streams by non-serious prospec-tors (but serious fishermen) "to enjoy their own private fish-ing camp."41 The Multiple Use Act provides that "a miningclaim shall not be used, prior to issuance of patent therefor,for any purposes other than prospecting, mining or processingoperations and uses reasonably incident thereto."42 Miningclaims located after the effective date of the 1955 Act are sub-ject, prior to issuance of patent, to a right of the United Statesto manage surface resources and for the government andwhomever it permits to do so to use the surface, so long asthey do not endanger or materially interfere with prospecting,mining, or processing.43 Pursuant to that statute, we held thatwhere mining activity was limited to a caretaker watchingafter equipment, the government could permit public recre-ational use of roads crossing unpatented mining claims.44We considered an action by the government for trespassand an injunction, like the one in the case at bar, in UnitedStates v. Goldfield Deep Mines Co.45 The government pre-vailed, the company having damaged national forest landextensively without filing a plan of operations. 46 But the casediffered from the case at bar in a critical respect: there hadalready been an administrative adjudication that Goldfield hadno valid mining claim, because there were no significantminerals.47 The claim was a sham. In the case at bar, there hasbeen no determination of whether prudent persons wouldestablish a mill site in the Shumways' location. The record inthis case does not permit summary judgment on the basis thatthe claims are a sham.In Swanson v. Babbitt,48 Congress had passed a law prohib-iting issuance of new patents to mining claims in the Saw-tooth National Recreation Area. The appellants, who hadapplied prior to the new act for patents to several mining andmillsite claims, challenged the law as unconstitutional, on theground that his right to a patent had already vested. We notedthat "an unpatented mining claim remains a fully recognizedpossessory interest,"49 and that "[f]ederal mining claims are`private property' which enjoy the full protection of the FifthAmendment."50 But in Swanson (unlike the Shumways' case)the Bureau of Land Management had challenged the validityand scope of the claims, and we noted that for patent rightsto vest upon application, the application had to be valid, andno right arose from an invalid claim.51 As long as the claimanthad complied with applicable claims laws until filing, failureto adhere to regulations after filing could not invalidate hisclaim, but where the Secretary contested the claim in goodfaith and not for purposes of delay, then the delay was notmerely ministerial but resulted from the challenge, and theright to a patent did not vest until resolution of the challenge,which came after the effective date of the Act. 52 UnderSwanson, a mining claimant may be without a right to receivea patent if there is a good faith dispute as to its validity thoughhe would have a vested right if the only reason he has notreceived his patent is administrative delay by the Secretary.AnalysisThe Shumways argue that their equitable title in the millsite claims entitles them not to be treated as trespassers, theincrease in their bond requirement to $18,000 and then at least$150,000 if they were to get approval of a new operating planwas impermissible, and that the district court improperlyrejected their evidence on summary judgment. We review denovo because the case was decided on summary judgment.53I.The Shumways argue that because they had received theFirst Half Final Certificate toward their patent, they had equi-table title to the real estate inconsistent with the district courtdetermination that they were trespassers. The governmentargues that issuance of the First Half Final Certificate estab-lished only that the Shumways had filed their papers applyingfor a patent, not that they were entitled to a patent or posses-sion. To decide the case, it is necessary to figure out just whatthe Shumways owned.[4] The Shumways argue that their right to a patent hasvested, because they have done all that they are obligated todo in order to receive one, and the delay in issuance is attrib-utable merely to administrative delay. In this argument, theyare incorrect. There is a presumption that they are entitled toa patent, because, as explained above, the statute provides that"it shall be assumed"54 that they are entitled to a patent nowthat the First Half of the Final Certificate has been issued. Butthe presumption is rebuttable, as the statute provides in thephrase "unless it is shown that the applicant has failed to com-ply with the mining laws."55 If the Shumways were entitled toa patent at the time they applied, then it is true that as of thattime they have had "full equitable title" with the governmentretaining "only the naked legal title" in trust for them and sub-ject to their fully vested rights and obligations of ownership.56But that is true only if the right to a patent existed. Were theSecretary to have challenged, in good faith, the Shumways'compliance with the mining laws, then under our decision inSwanson they would not have a vested right to issuance of thepatent until resolution of the challenge.57[5] The government argues that until the Secretary of theInterior has decided that a patent application is valid, theapplicant has no vested rights at all, even if the applicant isin compliance with the mining laws and the Bureau of LandManagement has so found. That is also incorrect. It has longbeen established that if the applicants are in compliance withthe mining laws, then their right to the unpatented claim, orthe "title of a locator" is vested even though the Departmentof the Interior has as yet taken no action at all on their appli-cation for a patent.58 That an applicant has yet to receive, oreven apply for, a patent does not mean that the governmenthas plenary power over the mill site.[6] The owner of a mining claim owns property, and is nota mere social guest of the Department of the Interior to beshooed out the door when the Department chooses. Rather,pursuant to the Multiple Use Act, the Department must con-tinue to co-exist with a holder of a valid claim whose right topossession has vested. Therefore, so long as the Shumwayscomplied with mining law and forest service regulations, theywere entitled to the possessory right and title of a locator--aright to possess the mill site--and could not be evicted unlesstheir claim was a sham or otherwise invalid or they failed toobserve Forest Service regulations in such a way as to invali-date their claim. The Forest Service does not argue that theShumways did not have a bona fide mill site claim, so the restof our inquiry will focus on whether the Shumways failed tocomply with permissible Forest Service requirements in sucha way as to invalidate their possessory rights.II.[7] Even if the Shumways' right to a patent has not vested,they may still defeat a motion for summary judgment, if theydemonstrate that the Forest Service raised the bond require-ments arbitrarily, and unreasonably circumscribed their mill-ing operations. To determine whether the Shumways haveraised a sufficient factual dispute to defeat summary judg-ment, we must first revisit the district court's review of theevidence.A. The district court's treatment of the evidence.[8] The Shumways argue that the district court erred intreating as undisputed the Forest Service's claims that theirmill sites had changed, were strewn with junk, and thatcleanup would cost $150,000. The district court rejected Mr.Shumway's affidavit on the ground that it was "self-servingand conclusory" and rejected an affidavit by a Mr. Clay Rich-ard Thorne on the ground that he failed to allege personalknowledge. The district court said that the Shumways hadsubmitted "no evidence" contradicting the government's evi-dence that much of the material on the mill sites was "scrapor junk." This evidence was material both to whether the For-est Service had authority to order the Shumways to removethe material, and to the amount of a reasonable bond. Becausethe Shumways had a possessory right to their mill sites, theywere not only permitted, but until their right to a patentvested, required to use and occupy the mill sites for millingpurposes,59 and were entitled to have a residence, equipment,materials, tools, and other property on the site incident tomilling operations.60[9] Regarding the things on the property, the district courtwas bound, on summary judgment, to determine only whetherthere was a genuine issue of material fact, and was notempowered to weigh the evidence or determine the truth ofthe matters asserted.61 When a respondent to a motion forsummary judgment submits proper affidavits by individualswith personal knowledge and other cognizable and signifi-cantly probative evidence, such that a reasonable juror draw-ing all inferences in favor of the respondent could return averdict in the respondent's favor, the judge must treat that factas genuinely at issue.62[10] Mr. Shumway's affidavit was of course "self-serving,"as the district court noted. And properly so, because otherwisethere would be no point in his submitting it. That an affidavitis self-serving bears on its credibility, not on its cognizabilityfor purposes of establishing a genuine issue of material fact.If the affidavit stated only conclusions, and not "such facts aswould be admissible in evidence,"63 then it would be too con-clusory to be cognizable, but Mr. Shumway's affidavit wasnot inadmissible for failure to state facts. It does state facts.[11] Mr. Shumway swears in his 1995 affidavit to a numberof material facts for which personal knowledge and compe-tence is established by the affidavit. He says "the operationsconducted on my mill sites have not substantially changedover the last 15 years," and "I process ore on a regular basisat the mill site in the same manner I have done for the last 15years." As to the things on the site, he says "All of the equip-ment and materials stored on the mill sites have been or wereincidental to the milling operations including my horse whichI use to ride the perimeter fence of my mill sites and to rideinto the wilderness (no vehicles are allowed) to inspect minesthat are in the wilderness area." These statements are all "suchfacts as would be admissible in evidence" on Mr. Shumway'stestimony, so the district court erred in disregarding them.They must be taken as true for purposes of determiningwhether there is a genuine issue of fact precluding summaryjudgment.[12] As for Mr. Thorne, he established competence as anexpert witness on some matters and personal knowledge onothers. He says in his affidavit that he is the president of anenvironmental consulting, cleanup and testing firm, has minedhimself in the same area since the early 1970s, has testifiedin state and federal courts as a mining expert, and personallyinspected the Shumway millsite with a Stanford Universitybiochemist he employs. He swears that "I have personallyprocessed many tons of ore from my own mining operationsthrough the Shumway millsite," and "I have personal knowl-edge that many other mining interests in the area have utilizedthe Shumway millsite for processing or assaying of their ore."As to the alleged junk, Mr. Thorne says "I have inspected theequipment located on the Shumway millsite and in my esti-mation the usable mining equipment alone has a replacementvalue for mining purposes of no less than $400,000. " Afterdescribing his familiarity with the Shumway mill sites "sincetheir inception," Mr. Thorne says "there has been no substan-tial change whatsoever in the Shumway millsite operation norhas there been any increase in environmental damage at all forthe past several years." As to the tailing ponds, Mr. Thornesays "I have personally inspected the terrain " and states andexplains his opinion that there is little if any risk of environ-mental contamination because of where they are located, evenconsidering the 100 year flood level. He says the chemicalsare properly stored, and hazardous chemicals are used only inthe laboratory, which is "properly constructed with a cementfloor." All this is based on what Mr. Thorne swears in his affi-davit he saw with his own educated eyes. His affidavit shows"affirmatively that the affiant is competent to testify" to thesematters and that it is "made on personal knowledge."64 Thedistrict court therefore erred in disregarding it.The Shumways also submitted evidence attached to theirbrief on appeal, showing that in contrast to the government'snew estimates of $150,000 to $200,000 to clean up the site,75 to 100 times the original bond requirement, they hadobtained an actual bid to do the work for $13,115. Becausethis was not submitted to the district court when it consideredthe summary judgment motion, it can have no bearing onwhether the district court erred.65 We therefore decide the casewithout considering it. The evidence erroneously excludedmatters, as we explain below.B. The Forest Service requirements.The Shumways argue that the Forest Service has exceededits authority by raising the bond requirements arbitrarily andunreasonably circumscribing their milling operations. Therecord establishes a genuine issue of fact as to whether this isso.The owner of a mining or mill site claim does not need apatent, or a vested right to issuance of a patent, to possess anduse the property for legitimate mining or milling purposes. Amining or mill site claim is "property in the fullest sense ofthe word."66 Despite the absence of a patent, the governmentcannot take the a valid mining claim for public use withoutpaying compensation.67 The owner of a perfected mining ormill site claim "is not required . . . to secure patent from theUnited States; but so long as he complies with all provisionsof the mining laws, his possessory right, for all practical pur-poses of ownership, is as good as though secured by patent."68Mining claims located after the effective date of the 1955Multiple Use Act are subject, when a patent has not yetissued, to a right in the United States to manage surfaceresources and allow others to use surface resources, thoughthese uses "shall be such as not to endanger or materiallyinterfere with prospecting, mining or processing operations oruses reasonably incident thereto."69 The Shumways do notcontest applicability of the Multiple Use Act, and concede forpurposes of this appeal that their millsite claims are subject tothe right of the United States to manage the surface resourceswithin the limitations of the Act. What the Shumways do con-test is whether the Forest Service has stayed within the limita-tions of the Act.1. Circumscribing activity on the mill site. [13] The Multiple Use Act empowers the Forest Service toregulate non-mining activity upon mining claims, so long asthe non-mining activity does not interfere with mining activi-ties or "uses reasonably incident thereto." 70 The Forest Ser-vice has required the Shumways to remove their horse,residential trailer, and "junk." The Shumways apparently haveremoved the horse, which Mr. Shumway used to reach partsof his claim not accessible by road, but claim that the trailer,equipment, and materials are necessary in his milling opera-tion. The Forest Service itself asked the Shumways to live onthe site for security purposes when there was cyanide beingused in the mill site operations. The Shumways claim there isa continued need for security on the site to prevent vandalismof their equipment. They have established a genuine issue offact in this respect.[14] As to the equipment, or the "junk" as the Forest Ser-vice refers to it, the Shumways have also established a factualissue for trial. While the Forest Service might regard theequipment on the Shumways' sites as junk, it has not provedit. The Shumway affidavit establishes a genuine issue as towhether the equipment and materials are incidental to hismilling operations. The Thorne affidavit establishes a genuineissue by providing evidence that the Shumways have$400,000 worth of equipment, a proper laboratory properlyused, and properly stored valuable chemicals.The Forest Service's own evidence in some respects estab-lishes a genuine issue in favor of the Shumways. In particular,the Forest Service's photographs, submitted to show the"junk," display much that plainly is not. For example, a pho-tograph of a pile of tires is submitted to show "junk." But toanyone who drives much on bad, unpaved roads, what is nota-ble about the tires is that they are mounted on intact steelwheels. Such mounted tires have a use, and a market amongthose who operate vehicles in terrain where flats are frequentand bent wheels not unusual. Those of us who occasionallydrive on mining roads buy them, to have a couple of extramounted spares. If the Shumways drive the rigs shown in theexhibits, then it is extremely plausible as Mr. Shumway saysin his affidavit, that these mounted tires are equipment inci-dental to his milling operations. That the Forest Service callswhat appear to be good wheels "junk" may reflect a lack ofcompetence on its part to evaluate other people's equipment,rather than a lack of value of the equipment.Likewise, the Shumways have established a genuine issueabout whether their trailer is "junk" that should be removedor a dwelling reasonably incident to mill site activity forwhich their claim is held. The Shumways' evidence estab-lishes that (1) they mill at the mill site, which would givethem a reason to live there, just as a grocer may have a reasonto live upstairs from the store; (2) the Forest Service previ-ously ordered them to have someone living there, to protectagainst vandals who might spill cyanide; and (3) even thoughthey no longer use cyanide, they still need security to protectthe site from vandals. That a sham mining claim cannot fur-nish legal basis for a dwelling site does not imply that adwelling is not reasonably incident to a genuine mine or millsite. The need of humans to eat, sleep, and relax in the remotelocations where mines have often developed has alwaysnecessitated mining camps, bunkhouses, and other dwellings.2. The plan of operations and the bond requirement.As required by the Forest Service's organic act, the Secre-tary of Agriculture was delegated the authority to promulgateregulations for the protection of the forests: The Secretary of Agriculture shall make provisions for the protection against destruction by fire and dep- redations upon the public and national forests which may have been set aside . . . ; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereupon from destruction.71 That same organic legislation limited that power, requiringthat no such rule or regulation "prohibit any person fromentering upon the national forests for all proper and lawfulpurposes, including that of prospecting, locating and develop-ing the mineral resources thereof."72 "Such persons must com-ply with the rules and regulations covering such nationalforests."73 Interpreting thesestatutes in United States v. Weiss,74we held that the Secretary may adopt reasonable rules andregulations which do not impermissibly encroach upon theright to use and enjoyment of . . . claims for mining purposes."75Thus, under Weiss, the Forest Service may regulate use ofNational Forest lands by holders of unpatented mining claims,like the Shumways,76 but only to the extent that the regula-tions are "reasonable" and do not impermissibly encroach onlegitimate uses incident to mining and mill site claims. Con-gress has refused to repeal the Mining Law of 1872. Adminis-trative agencies lack authority effectively to repeal the statuteby regulations.The Forest Service regulations impose numerous require-ments on anyone running a mining operation in the NationalForests. Mine and mill site operators must give the Forest Ser-vice "a notice of intent to operate," and based on this notice"[i]f the District Ranger determines that such operations willlikely cause significant disturbance of surface resources, theoperator shall submit a plan of operations," unless the mineoperation falls within a small group of exceptions. 77 A plan ofoperations describes the type of operations proposed and themanner conducted.78 The plan of operations must be approvedby the District Ranger, who must "analyze the proposal, con-sidering the economics of the operation along with the otherfactors in determining the reasonableness of the requirementsfor surface resource protection."79 The Forest Service may also require a mine or mill siteoperator to furnish a bond to secure compliance with the planof operation's reclamation requirement.80 Because the bond islinked to the reclamation goals of the plan of operations, thebond amount may not be set arbitrarily. The regulations spe-cifically require the Forest Service to consider the costs ofreclamation in setting the bond amount: "In determining theamount of the bond, consideration will be given to the esti-mated cost of stabilizing, rehabilitating, and reclaiming thearea of operations."81 Also, the regulations expressly permitthe Forest Service to adjust the bond when the plan of opera-tions changes, and requires the Forest Service to reduce thebond amount as the Forest Service accepts portions of recla-mation as completed.82[15] The Forest Service, in 1990, requested that the Shum-ways submit a new plan of operations since "their operationshad changed substantially," citing additional equipment, pileof refuse and change in the type of chemicals used. The ForestService eventually agreed to approve the plan of operationsthat the Shumways submitted in December 1990, butincreased the bond requirement for the Shumways' mill sitesfrom $5200 to $18,000. But because the Shumways' bondwas by a surety not approved by the Department, no suretyapproved by the Department would write the bond, and theShumways could not spare $18,000 cash, their plan of opera-tions was not approved. Nothing else about the plan was dis-approved except the Shumways' surety on their bond. Morerecently the Forest Service estimated that the required bondwould be between $100,000 and $150,000. The Forest Ser-vice justified this dramatic increase as based on the cost ofclean up, due to the "current conditions" at the mill site--including the "substantial amount of equipment and othermaterial, including vehicles, scrap metal, and trash," whichthey disputably characterized as "junk."The Forest Service's Complaint asked the court to evict theShumways because they had not filed a plan of operations northe required bond. The Shumways argue that the Forest Ser-vice would not accept their plan until they filed the requestedbond. But the bond amount, argue the Shumways, was imper-missibly arbitrary.[16] Based on our review of the evidence before the trialcourt, there is an issue of fact as to whether or not the govern-ment properly increased the bond amount to an arbitrary fig-ure, and threatened additional arbitrary increases if theShumways met the figure. As we discussed above, the Shum-ways presented evidence contradicting the Forest Service'sassertion that the mill site operations had changed substan-tially and that their equipment and materials were "junk." Ifthat is true, the bond amount should not have drasticallychanged.[17] The Shumways have also raised a genuine issue ofmaterial fact as to whether remediation would include the costof hauling away the equipment and materials on the site. If,as the Thorne affidavit says, the equipment has a replacementvalue of $400,000 then costs of transportation would merelybe a factor affecting the price at which the equipment couldbe sold.[18] Nor does the record provide a basis for evicting theShumways. There is uncontradicted evidence that the Shum-ways own the mill site claims. There is no evidence inthe record before us that (as was the case in Goldfield DeepMines83) the Shumways' claim is a sham. Even had therebeen, the Shumway and Thorne affidavits would establish agenuine issue to the contrary. The Forest Service has offeredno explanation for why its disapproval of an operating planshould result in eviction. The more appropriate remedy, con-sistent with the mining or mill site claim owner's rights aswell as the Forest Service's would be an injunction, requiringappropriate measures to protect surface resources or prohibit-ing mining or milling pending approval of an appropriate planor bond. Failure to file an approved operating plan cannot,ipso facto, cause a forfeiture of the bona fide claim owner'sequitable title and possessory right. The Shumways are notguests at their mill site, but property owners. Like someonewho proposes to operate a nursing home in an area zoned forsingle family residential and light retail, regulations may pro-hibit their proposed use, but it does not follow that they forfeittheir interests in the real estate.ConclusionGenuine issues of fact preclude summary judgment.REVERSED.
_____________________________WALLACH, District Judge, Concurring separately:I concur in this opinion. The Forest Service would do wellto remember that miners explored and built much of the west-ern United States using long-established techniques, some ofwhich dated from the Middle Ages. Many of those methodsare still perfectly workable. Mining equipment, especially thatused in grading, crushing, and grinding ore may well be old,battered, and rusty and yet still be entirely serviceable, partic-ularly for small operators. It is hardly "junk".
___________________________FOOTNOTES 1 The Honorable Evan J. Wallach, Judge of the United States Court ofInternational Trade, sitting by designation.2 See Berry v. Valence Tech., Inc. , 175 F.3d 699, 703 (9th Cir. 1999).3 See 36 C.F.R. 228.4 (1998).4 Smelting Co. v. Kemp,
104 U.S. 636
, 640 (1881).5 Id. at 640-41.6 See John C. Lacy, Historical Overview of the Mining Law: The Min-ers' Law Becomes Law, in The Mining Law of 1872: A Legal and Histori-cal Analysis 16-17 (1989).7 See Charles Howard Shinn, Mining Camps -- A Study in AmericanFrontier Government 38-39 (Knopf ed. 1948) (1885); see also CharlesWallace Miller, Jr., Stake Your Claim!: The Tale of America's EnduringMining Laws 16-17 (1991).8 Shinn, supra note 14, at 168.9 Stephen J. Field, The Annoyances of My Judicial Life 135 in PersonalReminiscences of Early Days in California (1893 2d ed.) (1877).10 Miller, supra note 14, at 2-3.11 1 William Blackstone, Commentaries on the Laws of England 284-85(1765).12 30 U.S.C. S 22 (1994).Cf. Alaska Stat. S 01.10.010 (Lexis 1998) ("Somuch of the common law not inconsistent with the Constitution of theState of Alaska or the Constitution of the United States or with any lawpassed by the legislature of the State of Alaska is the rule of decision inthis state."); Cal. Civ. Code S 22.2 (West 1982) ("The common law ofEngland, so far as it is not repugnant to or inconsistent with the Constitu-tion of the United States, or the Constitution or laws of this State, is therule of decision in all the courts of this State.").13 See, e.g., Sen. Dale Bumpers, Reform of the 1872 Mining Law, in TheMining Law of 1872: a Legal and Historical Analysis 7 (1989); Associ-ated Press, Babbitt Calls Mining Law "Outrageous Gift," The DenverPost, May 15, 1997, at B8; Miller, supra note 14, at 238-246 (stating thatenvironmental organizations and large mining companies have favoredreplacement of Mining Law of 1872 with leasing scheme, but the "littleman" has so far succeeded in mobilizing sufficient political strength toprevent change).14 See 30 U.S.C. 42(a) (1994).15 St. Louis Smelting & Ref. Co. v. Kemp,
104 U.S. 636
, 649 (1881).16 Id.17 30 U.S.C. S 26.18 30 U.S.C. S 28.19 30 U.S.C. S 29.20 Id.21 Id.22 See 30 U.S.C. S 42(a).23 BLM Manual, release 3-270, Millsite Claim Patent ApplicationsS 3864.1(F).24 Id. at ch. 6(A)(2).31 United States v. North Amer. Transp. & Trading Co.,
253 U.S. 330
(1920).32 See id. at 337-38.33 30 U.S.C. S 193.34 Wilbur v. United States ex rel. Krushnic,
280 U.S. 306
(1930).35 See id. at 315.36 See id.37 See id.38 See id. at 317.39 Id. at 316.40 Id. at 317.41 United States v. Curtis Nevada Mines, Inc., 611 F.2d 1277, 1282 (9thCir. 1980).42 30 U.S.C. S 612(a).43 See 30 U.S.C. S 612(b).44 See Curtis-Nevada Mines, 611 F.2d at 1284.45 United States v. Goldfield Deep Mines Co., 644 F.2d 1307 (9th Cir.1981).46 See id. at 1308.47 Id. at 1308 n.2.48 Swanson v. Babbitt, 3 F.3d 1348 (9th Cir. 1993).49 Id. at 1350.50 Id. at 1353.51 Id. at 1353.52 Id. at 1354.53 See Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999).54 30 U.S.C. S 29 (1994).55 Id.56 Benson Mining,
145 U.S. at 432
.57 See Swanson, 3 F.3d at 1353.58 See Bradford,
212 U.S. at 394
-95; Wilbur,
280 U.S. at 316
.59 30 U.S.C. S 42 (1994); United States v. Bagwell, 961 F.2d 1450,1455-56 (9th Cir. 1992).60 See 30 U.S.C. S 612(a) (1994) (stating that mining claim shall be usedonly for "prospecting, mining, or processing operations and other uses rea-sonably incident thereto").61 See Fed.R.Civ.P. 56(c); Summers v. A. Teichart & Son, Inc., 127 F.3d1150, 1152 (9th Cir. 1997).62 See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986);Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1153 (9th Cir. 1997).63 Fed. R. Civ. P. 56(e).64 Fed. R. Civ. P. 56(e).65 See USA Petroleum Co. v. Atlantic Richfield, Co., 13 F.3d 1276, 1279(9th Cir. 1994).66 Bradford,
212 U.S. at 394
.67 See North Amer. Transp.,
253 U.S. at 334
.68 Wilbur,
280 U.S. at 316
.69 30 U.S.C. S 612(b).70 Id.71 16 U.S.C. S 551 (1994).72 16 U.S.C. S 478.73 Id.74 United States v. Weiss, 642 F.2d 296 (9th Cir. 1981).75 Id. at 299.76 Like the plaintiffs in Weiss, the Shumways do not claim that the regu-lations at issue were unreasonable. Therefore we do not consider that issuein this case.77 36 C.F.R. S 228.4(a) (1998).78 See 36 C.F.R. S 228.4 (1998).79 36 C.F.R. S 228.5(a).80 See 36 C.F.R. S 228.13.81 36 C.F.R. S 228.13(b).82 See 36 C.F.R. S 228.13(c), (d).83 United States v. Goldfield Deep Mines Co., 644 F.2d 1307 (9th Cir.1981).