MEMORANDUM*

On March 6, 1987, the United States filed suit to enjoin appellant Lawrence Ward from trespassing on mining claims previously held in his name, but subsequently declared abandoned by the Department of the Interior. The original declaration of abandonment was made pursuant to Federal Land Policy and Management Act of 1976 (FLPMA), Pub.L. No. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. Secs. 1701-1782). Particularly, the declaration was based on failure to timely file an annual affidavit of work assessment as required by Sec. 1744(c) of the Act. Ward moved to dismiss the government's complaint on the single ground that the FLPMA was unconstitutional. After minimal discovery, the government moved for summary judgment which the district court granted, finding that Ward's only objection challenged the constitutionality of the FLPMA and did not controvert any of the government's asserted facts. Since the United States Supreme Court had already held FLPMA to be constitutional, see United States v. Locke, 471 U.S. 84 (1985), the trial court thus granted summary judgment in favor of the United States. Ward moved for relief from judgment or, in the alternative, amendment of judgment pursuant to Rules 60(b) and 59(e). The district court construed Ward's motion as one for reconsideration. Taking as true all the facts as asserted by Ward and drawing all reasonable inferences in his favor, the district court denied the motion. Ward appeals from the grant of summary judgment and the denial of his motion for reconsideration.

On September 1, 1950, appellant Lawrence Ward, along with others, located the "Hard Luck" mining claims. The claims were situated on federal lands administered by the Helena Ranger District, in the Helena National Forest, Powell County, Montana. Specifically, the claims were located in Sections 20 and 21, Township 8 North, Range 6 West, M.P.M.

By the 1970s, due to the lack of an adequate national recording system, mining claims on federal lands had become a morass of stale claims and out of date information. In response to this growing state of disarray, Congress enacted the FLPMA to assist in the management of unpatented mining claims. The FLPMA required that claims be recorded within three years of the FLPMA's enactment. 43 U.S.C. Sec. 1744(a) It further required that in the year of the initial recording and "prior to December 31 of each year thereafter," the claimant file with the proper officials a notice of intention to hold the claim, and an affidavit of assessment work performed on the claim. 43 U.S.C. Sec. 1744(a) (emphasis added). The failure to comply with either of these requirements is "deemed conclusively to constitute an abandonment of the mining claim ... by the owner." 43 U.S.C. Sec. 1744(c); see also United States v. Locke, 471 U.S. 84, 89 (1985).

Pursuant to the FLPMA's requirements, Ward initially recorded his claims in the Bureau of Land Management's Montana State Office on October 20, 1979. Apparently Ward mailed his annual assessment for 1980, but the BLM alleged that Ward's assessment filing was received late and declared his claims abandoned by a BLM decision issued April 20, 1981. Ward offered no evidence as to when the assessment was received in the BLM office.

In his affidavit filed with his motion for reconsideration in district court, Ward states that he mailed his 1980 affidavit of annual assessment work on December 28, 1980. In order to be timely under the FLPMA's regulations in 1980, the assessment had to be received in the BLM office prior to December 31, 1980, e.g. by midnight on December 30.1 It is unclear from the evidence offered by the government exactly when the assessment was received by the BLM. An affidavit from Ward's BLM casefile, submitted in 1987 by Jeanette M. Bejot, the Chief of the Solid Minerals Adjudication Section of the BLM, asserts that Ward's assessment was received on January 2, 1981.2 The BLM decision dated April 20, 1981, declaring Ward's claims abandoned states that the evidence of annual assessment work was received on "December 31, 1980 and January 2, 1981." The government also submits, as attached to the Bejot affidavit, an assessment filing by one John Fee which was received by the BLM on January 2, 1981. Fee is a stranger to this action, but he was mentioned in the April 20, 1981 abandonment decision along with Lawrence Ward. Fee's claims were declared abandoned by this same BLM decision.

An individual wishing to appeal from a decision of the BLM must file a notice of appeal with the Board of Land Appeals within thirty days after being served with the BLM decision. 43 CFR Sec. 4.411(a). Notice of the declaration of abandonment was sent to Ward by certified mail and returned by the post office marked "unclaimed" on May 19, 1981. Pursuant to 43 C.F.R. Sec. 4.401(c)(3) a notice sent by certified mail and returned by the post office as unclaimed is considered to be served at the time it is returned. The thirty day time limit passed without Ward filing an appeal. As a result, the BLM decision became final on June 19, 1981.

Ward continued to file his annual assessments through 1986. Until 1983 these assessments were returned to Ward with a letter stating that the assessments were rejected due to the earlier abandonment decision and informing Ward that his claims may be relocated and new certificates of location filed with the BLM. After 1983, the BLM neither returned Ward's annual assessments, nor did it recognize their validity.

Ward was notified on June 22, 1985, that the United States was asserting ownership of the improvements on his claims.3 By letter dated April 24, 1986, Ward was notified that he had approximately seven months to remove his property from the claims. After that time the United States would claim all property by physically posting the structures as property of the United States of America. Ward was notified of this posting by letter dated January 12, 1987, which was hand delivered January 13, 1987. The United States filed an action for declaratory relief on March 6, 1987 seeking a declaration that Ward's claimed interest in the land was inferior to the United States' interest and that the Forest Service may destroy or remove any structures located on the lands. Acting pro se, Ward filed a motion to dismiss on March 18, 1987, challenging the constitutionality of the FLPMA. The government opposed the motion and filed a motion for summary judgment. Ward contested the summary judgment motion based solely on his constitutional attack on the FLPMA. The United States Supreme Court had already determined that the FLPMA was constitutional. See United States v. Locke, 471 U.S. 84 (1985).

The district court (Lovell, J.) granted the United States' motion for summary judgment on July 18, 1988. On July 27, 1988, Ward, apparently after obtaining the assistance of counsel, filed a motion for relief from judgment or in the alternative a motion for amendment of the judgment. This motion was supported by Ward's affidavit stating that he had mailed his annual assessment on December 28, 1980, and therefore substantially complied with the FLPMA's filing requirement. Ward offers no evidence as to when the BLM actually received his assessment. The district court construed Ward's motion as a motion for reconsideration under Rules 60(b) or 59(e) of the Federal Rules of Civil Procedure. The district court (Lovell, J.) denied Ward's motion by order dated May 1, 1989. Ward now appeals the grant of summary judgment and the denial of his motion for reconsideration.

This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

A grant or denial of summary judgment is a question of law reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). "Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989). The denial of motions under Rules 59(e) and 60(b) are reviewed for abuse of discretion. Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir.1987).

Summary judgment is proper if "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of demonstrating for the court the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries its burden, the nonmoving party must come forward with specific facts showing there is no genuine issue of material fact. Fed.R.Civ.P. 56(e). The nonmoving party may not rely on mere allegations in the pleadings in order to oppose summary judgment. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

Ward opposed the summary judgment motion solely through his constitutional attack on the FLPMA. He offered no evidence in opposition to that offered by the government. The constitutionality of the FLPMA was established in United States v. Locke, 471 U.S. 84 (1985). In light of Ward's failure to show the existence of any genuine issue of material fact, and since his constitutional attack has no merit, the grant of summary judgment was proper.

Ward moved for relief from the judgment or in the alternative amendment of the judgment pursuant to Fed.R.Civ.P. 60(b) and 59(e). It was in this motion for reconsideration that Ward first raised the claim that he in fact mailed his assessment on December 28, 1980, thus substantially complying with the FLPMA filing requirement. Ward does not contend that the BLM received his assessment prior to December 31, 1980; instead, he argues that he received the notice of the district court's decision late and to deprive him of his mining claim that he had worked for 40 years simply because he acted pro se and thus did not raise the appropriate arguments, would be an overly harsh result.

While it is true that this result may appear to be harsh, Ward has no grounds for reconsideration.4 On appeal, Ward appears to argue that the fact that he received notice of the decision late and that he acted pro se constitutes excusable neglect. However, this circuit has recognized that simply because a litigant acts pro se, that status will not transform the litigant's errors into grounds for a motion for reconsideration based on excusable neglect. See Swimmer v. Internal Revenue Service, 811 F.2d 1343, 1345 (9th Cir.1987); Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir.1986).

Ward further argues that he is entitled to relief under Rule 60(b)(3) because the government misrepresented a material issue of fact by its inclusion and reliance on the Fee affidavit. There is no evidence that the government introduced the Fee affidavit to somehow mislead Ward or the court. Further, even if the government intentionally introduced and relied upon improper evidence, there is no indication that the Fee affidavit held any significance for the court nor that the court relied upon it in its decision.

Ward also argues that reconsideration is appropriate because later regulations provided that filings due on or before December 30 will be considered timely if postmarked on or before December 30 and received by the BLM by the close of business on the following January 19. 43 CFR Sec. 3833.0-5(m) (1983). This section became effective in 1982, two years after the events at issue in this litigation transpired. In 1985, the Locke court addressed this precise issue and concluded that a regulation that became effective in 1982 "cannot ... be relied on to validate a purported 'substantial compliance' in 1980." Locke, 471 U.S. at 102 n. 14. We note that the facts in Locke dealt with a situation nearly identical to that in this case. In Locke the defendant delivered the annual assessment report to the regional BLM office on December 31, 1980--one day late. While it is unclear exactly when the BLM received Ward's assessment, it appears that it was between 1 and 3 days late.

Thus, it is irrelevant whether Ward's filing would be timely under regulations now in effect. The filing was untimely under the applicable law at the time--the annual assessment had to be received in the BLM office prior to December 30. Under these circumstances we hold that the district court did not abuse its discretion in refusing to grant Ward's motion for reconsideration.

The district court's grant of summary judgment and its denial of appellant's motion for reconsideration are AFFIRMED.