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Maher v. United States

filed: May 26, 1995.


Appeal from the United States District Court for the District of Arizona. D.C. No. CV-90-00500-ACM. Alfredo C. Marquez, District Judge, Presiding.

Before: Joseph T. Sneed, William A. Norris, and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Sneed; Dissent by Judge Norris.

Author: Sneed

SNEED, Circuit Judge:

This appeal presents a single question of law: Is a plaintiff who enters federal land to work a mining claim an invitee or a licensee under Arizona tort law? The district court held that the plaintiff in this case was a licensee. We affirm.


In August 1989, Steven Maher was injured on federal land in the Black Hills Rockhound Area when an access road gave way underneath the backhoe he was driving, causing the vehicle to roll down an embankment. The road was among several thousand miles of dirt roads running through federal lands in the area. These roads are not maintained by the federal Bureau of Land Management (BLM), which has jurisdiction over the area. Maher was using the road to reach a mining site, one of several to which his family had laid claim pursuant to federal law. He was in the process of performing maintenance work on the sites in order to preserve the claims, as required by federal regulations.

Maher filed suit against the BLM under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), which permits judgments against the United States if "a private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." After a bench trial, the district court held that, under Arizona tort law, the BLM owed Maher the duty owed to a licensee - that is, the duty "to refrain from knowingly letting [the licensee] run upon a hidden peril or wantonly or wilfully causing him harm." Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990, 994 (Ariz. 1967) (en banc). On appeal, Maher concedes that the BLM did not violate this duty of care, but he contends that the district court erred in not holding that he was an invitee owed a duty of reasonable care. We review the district court's finding of law de novo. Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978). This court has jurisdiction under 28 U.S.C. § 1291.


Arizona follows the common law regarding a landowner's duty to entrants, as recited in the Restatement (Second) of the Law of Torts. See Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330, 332-33 (Ariz. 1982); Hicks v. Superstition Mountain Post No. 9399, 601 P.2d 281, 283 (Ariz. 1979). At common law, an invitee is either a "public invitee" or a "business visitor." Restatement (Second) of Torts § 332(1) (1965). Maher maintains that he was an invitee under both definitions of the term. However, we agree with the district court that Maher was a licensee.

Maher first argues that the BLM expressly invited the public to enter the area to search for rocks, particularly "fire agates." See id. § 332(2). Even were this true, state statutory law relieves property owners of any duty to keep the premises safe for recreational users. Ariz. Rev. Stat. Ann. § 33-1551.*fn1 Maher therefore cannot take advantage of any general invitation to the public to "rockhound" as the source of his invitee status.

Maher's more substantial argument is that the United States "invited" him onto government land for the nonrecreational purpose of discovering and maintaining mining claims. The BLM counters that federal mining laws only "grant permission" to miners to enter public land and do not extend an "invitation." As the Restatement makes clear:

It is not enough, to hold land open to the public, that the public at large, or any considerable number of persons, are permitted to enter at will upon the land for their own purposes. As in other instances of invitation, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come.

Restatement (Second) of Torts § 332 cmt. d. The question, then, is whether the United States acted in a way that induced or encouraged the public, including Maher, to enter the Black Hills Rockhound Area to establish and maintain mining claims.

The federal mining laws under which Maher's family established its claims are "based on the notion that the mineral wealth of the public lands should be available to those who seek and find it and that the public lands should be free and open for such exploration and development." Rocky Mountain Mineral Law Foundation, American Law of Mining § 4.10 (2d ed. 1994). Congress has reiterated these goals, which date back to the General Mining Law of 1872 and even earlier, by stating that "it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in . . . the orderly and economic development of domestic mineral resources . . . ." Mining and Minerals Policy Act of 1970 § 2, 30 U.S.C. § 21a (emphasis added). Pursuant to this policy, Congress has provided that "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase . . . ." General Mining Law of 1872 § 1, 30 U.S.C. § 22. Any person who discovers a mineral claim and complies with certain procedural requirements gains the exclusive right to possess the land and extract minerals from it. Baker v. United States, 613 F.2d 224, 225 (9th Cir.), cert. denied, 449 U.S. 932, 66 L. Ed. 2d 157, 101 S. Ct. 332 (1980). It is therefore true, as Maher argues, that Congress sought to create incentives for individuals to explore and develop the ...

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