Backes v. Bernhardt, Case No. 1:19-cv-00482-CL

Decision Date18 February 2021
Docket NumberCase No. 1:19-cv-00482-CL
PartiesGEORGE E. BACKES, and RICK BARCLAY Plaintiffs, v. DAVID BERNHARDT, Acting Secretary of Interior, et al, Defendant.
CourtU.S. District Court — District of Oregon


CLARKE, Magistrate Judge.

Plaintiffs George Backes and Rick Barclay bring this cause of action challenging the final decision of the Internal Board of Land Appeals, which found Plaintiffs in violation of the Bureau of Land Management regulations concerning their mining operation and occupancy of public lands. The case comes before the Court on cross motions for summary judgment. On February 3, 2021, the Court held a telephonic oral argument hearing on the motion. For the reasons below, the Plaintiffs' motion (#34) should be DENIED, and the defendants' motion (#37) should be GRANTED. This case should be dismissed, and judgment entered for the defendants.


The first claim in this action seeks review pursuant to 5. U.S.C. §§ 701 et seq. (the federal Administrative Procedures Act or "APA") of a final decision of the United States Department of Interior's Bureau of Land Management through its Interior Board of Land Appeals (IBLA). Plaintiffs' second claim challenges the underlying validity of the final decision because the Noncompliance Notices on which the decision was based are alleged to have been executed by a person who did not have the proper delegated authority.


This case involves public lands managed by the Bureau of Land Management (BLM) in Josephine County, Oregon near the Rogue River, which are subject to Plaintiffs' unpatented mining claims. ECF 1 ¶ 10-11; DEFS_10.1 Five of Plaintiffs' six mining claims were located before the enactment of the Surface Resources and Multiple Use Act of 1955 ("SRA"). DEFS_5. In January 2015, the BLM undertook a site inspection of Plaintiffs' operations. DEFS_11-12; DEFS_561-562; DEFS_554-560 (photos from site inspection). During the site inspection, the BLM observed the presence of "mechanized earth moving equipment" used to "install a water pipe system, improve roads, clear adit entrances, and level areas for structures and work areas." DEFS_531. The BLM found that this exceeded "casual use" under 43 C.F.R. Subpart 3809 and found violations of specific prohibited acts under 43 C.F.R. § 3809.605. DEFS_532.

The BLM also observed two camp trailers, an on-site watchman, two private gates, multiple no-trespassing and warning signs, a residential cabin, a milling facility, a recently poured concrete slab, several mills and crushers, storage of large equipment, and mining supplies on the public lands. DEFS_528. The BLM found these uses constituted "occupancy" under 43C.F.R. Subpart 3715 and found violations of specific prohibited acts under 43 C.F.R. § 3715.6. DEFS_529.

Accordingly, in March 2015 the BLM issued two Noncompliance Notices, each listing the observed violations of 43 C.F.R. Subparts 3809 and 3715. DEFS_528-533. The Notices are signed by a purported individual whose signature appears to be that of someone named "Jim Bell." At the administrative level, Plaintiffs did not dispute the contents of the Notices, but they did dispute the BLM's authority to regulate Plaintiffs' mining claims.

On appeal to the IBLA, Plaintiffs argued that holders of unpatented mining claims located before the enactment of the Surface Resources Act of 1995 have the exclusive right to use and manage the surface of the claims, subject only to the limitation that use must be "reasonably incident to mining." The IBLA disagreed with the Plaintiffs. Even after assuming all of the disputed facts in favor of the Plaintiffs, the IBLA found that 43 C.F.R. 3715 and 3809 are consistent with the BLM's statutory authority to regulate all mining claims, and it held that the BLM properly applied the regulations to Plaintiffs' claims.

During the years in which the administrative proceedings were pending before the IBLA, Plaintiffs submitted one or more Freedom of Information Act (FOIA) requests attempting to determine the identity of the person who had executed the BLM Notices on behalf of the agency "acting for" Field Manager Allen Bollschweiger. The BLM's responses to the FOIA requests redacted the pertinent information, and the agency has not disclosed the identity of the person who signed the notices. Plaintiffs claim that no one with the name "Jim Bell" or anything similar is known to be associated with the local BLM offices from which the Notices originated, nor has the BLM established that the individual who appears to have executed the Notices had authorityto do so. The issue of the signature provided on the Noncompliance Notices was not raised to the IBLA, nor was it addressed in those administrative proceedings.

a. The Mining Law

The Mining Law of 1872 ("Mining Law") is considered the "cornerstone of federal legislation dealing with mineral lands." United States v. Coleman, 390 U.S. 599, 600 n. 1 (1968). The Mining Law, as amended, is codified at 30 U.S.C. §§ 22-54. Under the Mining Law, a private citizen may enter public lands to prospect and mine for mineral deposits. 30 U.S.C. § 22. The grant of rights to use public lands pursuant to the Mining Law has always been restricted solely to explore for and mine valuable mineral deposits. See Multnomah Mining, Milling & Dev. Co. v. United States, 211 F. 100 (9th Cir. 1914).

The Mining Law also authorizes citizens to stake, or "locate," a valid mining claim upon "discovery" of a valuable mineral deposit and compliance with all other applicable statutory and regulatory requirements. Chrisman v. Miller, 197 U.S. 313, 320-21 (1905). Legal title to the public lands encumbered by mining claims remains with the United States, unless and until the mining claimant obtains a "patent" to the lands by complying with the requirements set forth in the Mining Law. 30 U.S.C. § 29; see Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 575 (1987); Teller v. United States, 113 F. 273, 281 (8th Cir. 1901); Freese v. United States, 639 F.2d 754, 756 (Ct. Cl. 1981); Copar Pumice Co. v. Bosworth, 502 F. Supp. 2d 1200, 1202 (D.N.M. 2007) (explaining that "title to the land where the mining claim is located remains with the Government").

The text of the Mining Law makes clear that use and occupancy of public lands subject to mining claims, such as the lands at issue, is subject to regulation:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States . . . under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

30 U.S.C. § 22; see also id. § 26 (providing mining claimants with the right of possession "so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title").

The government retains substantial regulatory powers over mineral interests on the public lands established under the Mining Law. United States v. Locke, 471 U.S. 84, 105 (1985) ("Claimants thus must take their mineral interests with the knowledge that the Government retains substantial regulatory power over those interests."); Chambers v. Harrington, 111 U.S. 350, 353 (1884); see also United States v. Shumway, 199 F.3d 1093, 1102-03 (9th Cir. 1999) (stating that, until a patent issues, federal land management agencies retain authority and control over the lands that are subject to mining claims).

b. Surface Resources and Multiple Use Act of 1955

Congress passed the Surface Resources and Multiple Use Act of 1955 ("SRA"), 30 U.S.C. §§ 611-612, as "corrective legislation" to clarify the law and alleviate prior abuses under the Mining Law, as well as the land management challenges that grew out of the provision in 30 U.S.C. § 26 granting mining claimants "exclusive right of possession" of the surface of their claims. United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1280 (9th Cir. 1980).

Congress implemented this purpose in the SRA by (1) expressly limiting activities on mining claims to "prospecting, mining or processing operations and uses reasonably incident thereto," 30 U.S.C. § 612(a); (2) withdrawing "common varieties" of minerals previously subjectto disposal under the Mining Law and placing them under the authority of the Materials Act of 1947, id. § 611; and (3) making mining claims located after its enactment subject to "the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof" provided that use by the United States, its licensees, and permittees with regard to vegetative resources and surface resources other than minerals subject to disposal under the Mining Law did not "materially interfere" with mining or processing operations. Id. § 612(b).

c. The Federal Land Policy and Management Act of 1976

In 1976, Congress passed the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-1787. Section 302(b) of FLPMA expressly acknowledged that it amended the Mining Law in only four discrete ways.2 One of those four ways is relevant here: "In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b). This language required the Secretary of Interior to manage the public lands—including all public lands used and occupied for mining operations under the Mining Law—in such a manner as to prevent the unnecessary or undue degradation of those lands.

d. The BLM's Regulations: 43 C.F.R. Subparts 3809...

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