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$1.25-Billion Suit by Miner Thrown Out

April 25, 1985|PAT BRENNAN | Times Staff Writer

A $1.25-billion lawsuit that challenged the federal government's right to include a tungsten mine in a San Gabriel Mountains wilderness area has been dismissed by a U.S. District Court judge in Los Angeles.

In a ruling Monday, Judge Robert J. Kelleher said that miner Ron Curtis had failed to show how he had been harmed by the year-old law. The law allows the Forest Service to limit the expansion of mining operations within the wilderness area, but the federal agency has yet to impose restrictions.

Curtis has contended that the wilderness designation could jeopardize his ability to expand operations at the mine, which federal officials have said contains about $250 million in deposits, making it one of the largest tungsten claims in the nation. Moreover, Curtis has said, he could be a millionaire if allowed to mine the tungsten without restrictions. His attorney argued in court that the federal law amounts to a legislative "taking" of the claim because it could limit mining operations.

Constitutionality Issue

But Kelleher said he would not rule on the constitutionality of the so-called California Wilderness Act, because "judges don't tell Congress what to do." The suit alleges that the act was unconstitutional because an environmental study that served as a basis for the wilderness legislation was not subject to judicial review.

The judge added that because the claim can still be mined according to an operating plan that Curtis filed with the U.S. Forest Service in 1978, no infringement of Curtis' rights could be proven.

Curtis' attorney, Ronald Cohen, said he thought Kelleher took "an easy way out."

"When the judge said we can't tell Congress what to do," Cohen said, "I think that was a severe abdication of judicial responsibility."

Curtis, who shut down his operation when the act became law because of questions over his access to roads and the mine itself, said he plans to restart his five-man, $1,100-a-day operation as early as next week.

Meanwhile, Curtis said, he plans to pursue his fight by splitting his lawsuit into three federal court cases. Kelleher cleared the way for such a move by dismissing the lawsuit without prejudice, a legal move that allows a plaintiff to refile.

Cohen said he will file new suits in three separate courts: an appeal of Kelleher's decision on the Wilderness Act's constitutionality, to be filed with the U.S. 9th Circuit Court of Appeals; a claim of damages against the government, to be filed with the U.S. Claims Court; and a claim of fraud and conspiracy on the part of the Forest Service, which will again be filed in U.S. District Court.

The Curtis suit had named the Department of Agriculture, of which the Forest Service is a division, the Bureau of Land Management and the federal government as defendants. The lawsuit said that Curtis' mining rights were not fairly considered by the Forest Service before it submitted the environmental study on the wilderness area to Congress.

But Assistant U.S. Atty. James Arnold, in a court brief filed last week, argued not only that the Forest Service adequately considered Curtis' claim before submitting the report, but that Curtis himself testified in front of a Senate subcommittee about the mine in 1983. Arnold also said that no actual infringement of Curtis' right to mine his 30-year-old claim has yet occurred.

Curtis' lawsuit had asked for $1.25 billion in damages from the government. The figure includes the mine's projected value and $750 million in punitive damages.

The 38-year-old miner acknowledged that his right to mine the claim has never been questioned by the Forest Service. And as yet, Forest Service officials have issued no new restrictions, although they say some will probably be imposed to protect the new wilderness area in accord with federal guidelines.

But Curtis said he fears that the Forest Service could prevent him from expanding the road to allow larger trucks through to haul down the ore, place a lid on the size of his future processing plant and otherwise prevent him from extracting the "maximum profit" from the mine. "They'll make the restrictions up as they go along," Curtis said outside the courtroom.

Cohen told the judge that when the time comes to draw up a new plan, the Forest Service is likely to clamp down on the mine with harsh restrictions that will prevent its further growth.

"As soon as the new operating plan is issued by the Forest Service, we may in fact be back (in court) on this same question," Cohen told Kelleher.

Arnold said he did not expect Curtis' future civil actions to take the issue any farther.

"I don't expect them to have any grounds to sue the Forest Service," Arnold said. "The judge, after taking a good, hard look at all his claims, found they were simply without merit. The judge is not about to issue an injunction against Congress."

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