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Mining Claim

Catron County's fight for property rights.

 

The people of Catron County are rightly famous for sticking up for their rights. Sometimes they win and sometimes they lose. This column is about a recent win. (Much of the facts for this column comes from a copyrighted article in the July 10, 2006, Albuquerque Journal.)

The late Richard Manning was a litigious leader of the anti-federal government local control movement. He owned a mine and a gold and silver ore-processing mill on Gila National Forest land outside Mogollon in Catron County.

In 1992, Manning wanted to reopen his Challenge Mining Co. operation, which had been closed since 1985. But his Forest Service-required operating and reclamation plans expired the next year. To add to his bad luck, the 1993 New Mexico Mining Act imposed regulations to ensure mining lands are reclaimed.

Later in 1993, federal and state officers, intent on inspecting Manning's mill site, got in through a gap in the fence. Manning filed criminal trespass charges, but those charges were dismissed.

Manning next sued the Forest Service. In 1996, however, a federal court not only dismissed his request to be relieved from updating his operating plan, but also enjoined Manning from reopening his mill until he submitted his operating plan and posted a bond in an amount acceptable to the Forest Service.

As you might imagine, Manning was not happy. So he filed a civil lawsuit in 1998, claiming the State of New Mexico had "taken" his property without just compensation because the new Mining Act's regs made it impossible for him to operate the mine and mill. Remember, Manning's mine and mill are not on his private land—they are on federal land in the Gila National Forest.

Manning claimed that he could not reopen without federal approval and he could not get federal approval without state approval. A classic governmental runaround.

Richard Manning was 67 when he died in 2004. He died without ever being able to reopen his operation, even though he had been trying to get it done for about 11 years. His son, Dirk Manning, told the Albuquerque Journal his father had invested $6.5 million in Challenge Mining Co. and the state had "essentially regulated him out of business."

That same year Richard Manning died, the New Mexico Court of Appeals upheld the district court's summary judgment against Manning. The appeals court said the state is immune from being sued for violating the federal "takings" law because "sovereign immunity" does not allow a citizen to sue the state for violating a federal law. (Sovereign immunity means a citizen cannot sue the sovereign. This law is so old that, when it was first recognized, the "sovereign" was the king of England.)

Now, however, the New Mexico State Supreme Court says otherwise. The Supremes found that Manning was not just suing New Mexico under a federal law, but was suing based upon the Fifth Amendment of the US Constitution. (Yes, I know you think the Fifth Amendment just means you can refuse to testify against yourself by "taking the Fifth." The Fifth Amendment actually gives us more rights than that.)

The Fifth Amendment bars the government from taking private property, either directly or by regulation, without just compensation. Our State Supreme Court says Richard Manning's heirs may go ahead with their legal claim that the state's mining regulations "took" Manning's mining and milling operation by essentially regulating him out of business.

The Supreme Court did not decide whether or not the state had violated the Fifth Amendment nor whether or not the state regulated Manning out of business. The court just decided Manning (or his heirs) can try to prove his legal claim—he can finally have his day in court.

An interesting side-note: The Mannings' attorney is Pete V. Domenici Jr. I wonder who his dad is?

If you want to read the full court decision, it is Manning Estate vs. Mining and Minerals Division of the Energy, Minerals, and Natural Resources Department of the State of New Mexico and New Mexico Environment Department, 2006-NMSC-027.

Next month's The People's Law column looks at a news flash: Firemen in New Mexico may now sue for emotional trauma caused by responding to gruesome emergency scenes.

 

Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him at tito@zianet.com, (505) 524-4540,
(800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.

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