White Hope lawsuit ends with decision in favor of Forest Service

The lawsuit and subsequent counterclaim that pitted the U.S. Government against Lincoln-area miners in a dispute over mining regulations and property rights ended last week with a decision in favor of the U.S. Forest Service.

The Feb. 21 decision by Judge Charles Lovell ordered Intermountain Mining and Refining, LLC to remove any unauthorized locks, signs and explosives, and an unapproved 12x20 foot garage by June 30 of this year. It brings to a close three-and-a-half years of legal wrangling that began Aug. 11, 2015, when the federal government filed a civil suit against the late George Kornec, Phil Nappo and Intermountain, claiming they illegally interfered with public access to National Forest land and were conducting unauthorized activities on the White Hope group of mining claims.

“We’re glad that the situation is resolved peacefully,” Helena-Lewis and Clark Forest Supervisor Bill Avey said Friday. “The decision strongly affirms the Forest Service position to manage National Forest land on behalf of the American public.”

Intermountain attorney Joshua Campbell responded to an inquiry from the BVD, saying his client currently does not have a comment, but will let us know if that changes.

Disputes between Intermountain and the Forest Service dating back to 2007 came to a head in August 2015 - just prior to the government’s lawsuit- with the arrival of The Oath Keepers in Lincoln. The quasi-military group dedicated to defending the U.S. Constitution came to town at the invitation of Nappo and Kornec for a “security operation” at the White Hope Mine. Their stated goal was to ensure the miners had “their day in court,” to defend their 4th and 5th Amendment due process rights, and to protect them from alleged “strong-arm tactics” by the Forest Service that they said included threats of arson and of Kornec’s eviction from the claim. The Oath Keepers were joined by the Pacific Patriots Network and the III% of Idaho – as well as a brief but glaring media spotlight - for “Operation Big Sky.” The groups declared victory after the government filed its lawsuit, but continued their operation until mid-September.

Kornec and Nappo responded to the government’s suit with a counterclaim on Oct.1, 2015. In it they argued that the original claims filed by Walt O’Connor and Sam Kornec in 1924 gave them private property rights to the mining claims under the Mining Law of 1872. They also sought an injunction to end what they considered to be a pattern of harassment and interference in their mining operations by U.S. Forest Service personnel they said began shortly after Nappo and Kornec formed Intermountain in 2007. Kornec transferred White Hope Mining Inc.’s claims to Intermountain in 2010.

At the heart of Lovell’s judgement was his finding that Intermountain does not, in fact, have private property rights to the surface lands of the unpatented White Hope, Sammy K and Silver Dollar mining claims. Lovell concluded that Kornec had abandoned the White Hope group of claims in 1986, by failing to submit the required “Application of Annual Representation of Mining Claims” to the Bureau of Land Management before Dec. 31, 1985.

According to the counterclaim, Kornec had the affidavit notarized and filed with Lewis and Clark County Dec. 30, 1985, and walked it directly to the Post Office, where it received a Dec. 31 postmark only because it arrived after noon. Lovell rejected the argument that Kornec’s effort met the legal filing requirement and he cited a 1985 U.S. Supreme Court decision in a similar case that found a Dec. 31 submission does not meet the requirement, regardless of the reason for the late filing.

Kornec refiled the White Hope group of claims in 1986, which according to Lovell, made them subject to Forest Service regulation under the Surface Resources and Multiple Use Act of 1955. Additionally, he found that a Ninth Circuit Court of Appeals decision from 1994 confirmed that unpatented mining claims located on National Forest land before 1955 are also subject to Forest Service regulations under the Organic Administration Act of 1897, which established the National Forest System.

“If Mr. Kornec had not abandoned his pre-1955 claims, those claims would have been subject to regulation by the United States Forest Service based on the provisions of the Organic Administration Act,” Lovell wrote.

He explained that though Intermountain does have property interest in the mining claims, that does not extend to excluding members of the public or Forest Service personnel from the property.

Although Kornec passed away in 2016, his daughter Denise Freeman, who inherited his half interest in the mine, carried on the suit with Nappo. “My dad wanted it to go through, for sure, so I’m going to honor him and continue it,” she said shortly after his death.

Despite the heated rhetoric and the “security operation,” Kornec and Nappo agreed in September 2015 to try to settle the dispute through mediation. By October 2017, efforts to reach an agreement apparently failed and the U.S. Attorney’s Office filed a motion for summary judgment.

After determining that the White Hope claims are subject to Forest Service regulation, Lovell turned to the question of whether Forest Service personnel were, as Nappo and Kornec’s counterclaim alleged, “arbitrary and capricious” in their actions regarding the violations they found.

The major points of contention revolved around notice by Amber Kamps, the Lincoln District Ranger at the time, that a 12x20-foot garage built between October 2013 and April 2014, and the cutting of trees violated the regulations.

Between 2012 and 2014, Kornec and Nappo were working under an operation plan approved. That plan referenced cutting trees and storing some explosives, but made no mention of the garage.

Lovell found that Intermountain failed to get permission before removing the trees on the claims, despite indicating they would do so in their approved plan. While cutting trees on mining claims is authorized under the Forest Service Manual, Lovell noted Forest Service personnel were within their authority to charge Intermountain for the wood based on a previous court decision that found the manual serves as a guideline for Forest Service authority, rather than as a limitation to it.

Likewise, he found that the garage built between October 2013 and April 2104, when it was first noticed during a visit by Forest service staff, was a clear violation of regulations that prohibit such construction without prior approval. Intermountain didn’t dispute that it was built without authorization, but argued instead that it constituted only a minimal surface disturbance to the surface of the claim. Although several subsequent plans of operation submitted by Intermountain referenced the garage, Lovell agreed that an order to remove the building, issued by Kamps in 2014 and affirmed by Avey, was neither arbitrary nor capricious.

Finally, Lovell concluded that, although Intermountain had been authorized to store some explosives on the claims under their 2012 Plan of Operations, they lost that benefit in August 2015 by sending the USFS a letter revoking “all prior signatures” on any previously submitted plan of operation.

Lovell’s judgement ultimately declared Intermountain’s actions to be “illegal and a violation of the regulations governing the surface land of the unpatented mining claims at issue in this case.”

Avey said the Helena-Lewis and Clark National Forest will nevertheless continue to work with Nappo and Intermountain, as they have in the past, to provide access to his mining operations under the requirements of the law.