Wilderness Society v. Dombeck, 97-35954

• Decision Date: 16 February 1999
• Docket Number: No. 97-35954,97-35954
• Citation: 168 F.3d 367
• Parties: 29 Envtl. L. Rep. 20,648, 99 Cal. Daily Op. Serv. 1159, 1999 Daily Journal D.A.R. 1429 THE WILDERNESS SOCIETY, and Great Bear Foundation, non-profit corporations, Plaintiffs-Appellants, v. Michael DOMBECK, in his official capacity as Chief, United States Forest Service; David F. Jolly, in his official capacity as Regional Forester, Northern Region; Robert L. Schrenk, in his official capacity as Supervisor, Kootenai National Forest; United States Forest Service, an agency of the United States; and Noranda Minerals Corp., a Delaware Corporation and wholly-owned subsidiary of Noranda, Inc., a Canadian corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 367

168 F.3d 367

29 Envtl. L. Rep. 20,648, 99 Cal. Daily Op.

Serv. 1159,

1999 Daily Journal D.A.R. 1429

THE WILDERNESS SOCIETY, and Great Bear Foundation non-profit corporations, Plaintiffs-Appellants, v. Michael DOMBECK, in his official capacity as Chief, United States Forest Service; David F. Jolly, in his official capacity as Regional Forester, Northern Region; Robert L Schrenk, in his official capacity as Supervisor, Kootenai National Forest; United States Forest Service, an agency of the United States; and Noranda Minerals Corp., a Delaware Corporation and wholly-owned subsidiary of Noranda, Inc., a Canadian corporation, Defendants-Appellees.

No. 97-35954.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1999.

Decided Feb. 16, 1999.

Todd D. True, Earthjustice Legal Defense Fund, Seattle, Washington, for the plaintiffs-appellants.

Andrew C. Mergen, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for defendants-appellees Michael Dombeck, David F. Jolly, Robert L. Schrenk, and United States Forest Service.

David A. Bailey, Parcel, Mauro & Spaanstra, Denver, Colorado, for defendant-appellee Noranda Minerals Corp.

Appeal from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. No. CV-91-00078-CCL.

Before: CANBY, and GRABER, Circuit Judges, and GEORGE, District Judge. ^*

GEORGE, District Judge:

This case involves a challenge to the validity of two Noranda Minerals Corp. ("Noranda") mining claims in the Montanore Deposit situated within the Cabinet Mountains Wilderness Area in northwestern Montana. The Wilderness Area is within the Kaniksu National Forest, but is administered by the Cabinet Ranger District of the Kootenai National Forest. In 1971, Pacific Coast Mines, Inc., Noranda's predecessor-in-interest and a wholly owned subsidiary of the United States Borax and Chemical Corporation ("Borax"), began exploring for silver and copper in the Revett Formation, a geologic formation which extends across a vast portion of northwest Montana and eastern Idaho.

In October 1982, Borax located its initial Hayes Ridge ("HR") lode claims several thousand feet to the northwest of Rock Lake. In July 1983, Borax discovered a mineralized outcrop of the Montanore Deposit adjacent to Rock Lake. It staked claims from Rock Lake to a point several thousand feet to the northwest (joining up with the original HR claim block). On August 1, 1983, Borax located the original HR 73 and 74 lode claims in the vicinity of Rock Lake. On September 24, 1983, Borax located HRs 133 and 134, which partially overlapped HRs 73 and 74.

Borax applied to conduct a pre-withdrawal exploratory drilling program on the Montanore deposit, but the Forest Service denied the request because environmental review procedures could not be completed in time. Ultimately, the Forest Service allowed Borax to complete four drill holes. Two exploratory holes (HRs 2 and 3) drilled about 700 feet to the northwest of the outcrop, but within claim boundaries, showed ore-grade mineralization; two other drill holes (HRs 1 and 4), drilled at approximately 15,500 and 22,000 feet to the northwest of the outcrop, did not reveal ore-grade mineralization.

In a report (known as a "valid existing rights" determination) dated February 27, 1985, the Forest Service determined that four of Borax's mining claims, HRs 73, 74, 133, and 134, contained valid existing rights. In January 1988, Borax filed with the Bureau of Land Management ("BLM") a notice of abandonment of HRs 73 and 74. On August 2, 1991, Noranda filed an application for a mineral patent for claims HR 133 and 134 with the BLM. The Wilderness Society and the Great Bear Foundation (collectively "TWS") filed a patent protest challenging the validity of Noranda's mining claims. The BLM requested the Forest Service to provide a report on whether the patent should issue. On June 23, 1993, the Forest Service issued its report, concluding that Noranda had valid mining rights on HRs 133 and 134.

On May 24, 1991, TWS filed the instant action against Noranda and the Forest Service. TWS originally challenged the 1985 Forest Service determination that claims HR 133 and 134 were valid. While the action was pending, the Forest Service proceeded to review and to approve Noranda's patent application for the special use permits necessary to develop the claims. TWS filed administrative appeals of these permit decisions. The appeals were denied On August 24, 1994. Thereafter, TWS amended its complaint to assert that the Forest Service violated the Wilderness Act, 16 U.S.C. §§ 1131 et seq., in (1) determining that Noranda's mining claims were validly located under state law, (2) failing to recognize that Noranda's extralateral mineral rights were extinguished by the December 31, 1983, withdrawal of wilderness areas from mineral exploration, (3) relying on drilling data obtained after the withdrawal date to determine that Noranda had valid existing mineral rights, and (4) failing to properly analyze whether Noranda's mining claims contained a valuable mineral deposit.

On August 13, 1997, the district court issued a consolidated opinion, order, and judgment denying TWS's motions for summary judgment, excluding the declarations of TWS's expert, Dr. W. Goerold, and granting summary judgment to the government and Noranda on all claims. On October 8, 1997, TWS filed its notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I. The Validity of Noranda's Mining Claims Under Montana Law

State mining law controls procedures for locating mining claims to the extent that it is not inconsistent with federal law. See Butte City Water Co. v. Baker, 196 U.S. 119, 126, 25 S.Ct. 211, 49 L.Ed. 409 (1905). The district court upheld the Forest Service's determination that Noranda's mining claims were validly located under state law. We review questions of statutory interpretation de novo, but will defer to the agency's interpretation of statutes that it administers unless it contravenes the express language of the statute or clear congressional intent. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). TWS disputes whether the Forest Service's determination of the validity of the subject claims under Montana mining law should be given deference in this case. We need not resolve this dispute, however, because the Forest Service's and the district court's analyses are consistent with a de novo interpretation of Montana law.

Borax located HRs 133 and 134 over portions of its HRs 73 and 74 claims. TWS argues that HRs 133 and 134 are invalid because they fail to qualify as relocations of senior claims under Montana law. The parties agree that a claim whose discovery point is within the boundaries of a prior claim constitutes a relocation. ¹ TWS argues, however that the relocation of a mining claim is not entitled to the protections of Montana mining law, unless the prior overlapping location is replaced, abandoned or automatically extinguished at the time of relocation. The district court concluded that "there is nothing in Montana law or federal law that required Borax to abandon its previous claims at the time of relocation, and Plaintiffs have provided no authority that demonstrates otherwise." We agree.

Mont.Code Ann. § 82-2-109 provides:

Amendment or relocation not a waiver of acquired rights. Where a locator or claimant amends or relocates his own claim, such amendment or relocation shall not be construed as a waiver of any right or title acquired by him by virtue of the previous location or record thereof, except as to such portions of the previous location as may be omitted from the boundaries of the claim as amended or relocated. As to the portion of ground included both in the original location and the location as amended or relocated, he may rely either upon the original location or the location as amended or relocated or upon both; provided that nothing herein contained shall be construed as permitting the locator or claimant to hold a tract which does not include a valid discovery.

(Emphasis added.)

TWS reads the last phrase of the first sentence of § 82-2-109 as establishing that, upon relocation, the original claim is replaced and lost. Because Borax retained the original claims until it abandoned them in 1988, TWS argues that the relocation was void. A plain reading of the statute, however, does not support TWS's interpretation. The last phrase of the first sentence of § 82-2-109 simply provides that the boundaries of a senior claim are deemed contracted upon the relocation so as to exclude ground outside the boundaries of the junior claim. The succeeding sentence in § 82-2-109 speaks to what may be relied on in sustaining the area of overlap of the original and relocated claims: "As to the portion of ground included both in the original location and the location as amended or replaced, [the locator] may rely either upon the original location or the location as amended or relocated or upon both...." ²

While nothing in § 82-2-109 predicates the relocation of a claim on the abandonment of the original claim, TWS maintains that a reading of § 82-2-109 in conjunction with § 82-2-108 leads to that result. Section 82-2-108 provides:

Relocation by owner. A locator or claimant may at any time relocate his own claim for any purpose, except to avoid the performance of annual labor thereon, and, by such relocation, may change the boundaries of his claim or the point of discovery, or both, but such relocation must comply in all respects with the requirements of this law as to an original location.

According to TWS, the requirement of § 82-2-108--that a relocation must comply in all respects with the requirements of this law as to an original location--dictates that the discovery point of the relocation must be on...