Cliffs Synfuel Corp. v. Norton

Decision Date31 May 2002
Docket NumberNo. 01-4063.,01-4063.
Citation291 F.3d 1250
PartiesCLIFFS SYNFUEL CORPORATION, a Utah corporation, Plaintiff-Appellee, v. Gale NORTON, Secretary of the United States Department of the Interior, Nina Hatfield, Acting Director, Bureau of Land Management, United States Department of the Interior, Sally Wisely, Director, Utah State Office, Bureau of Land Management, United States Department of the Interior, The Department of the Interior of the United States, Defendants-Appellants. Crippled Horse Investments, LP; Estate of Frederick H. Larson; Phillips 66 Company; Exxonmobil Corporation, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Lisa E. Jones, Attorney, (Gary B. Randall, Attorney, and Katherine W. Hazard, Attorney, Environment & Natural Resources Div., Department of Justice, Washington DC; John Cruden, Acting Assistant Attorney General, Washington, DC; Paul M. Warner, United States Attorney and Jeffrey E. Nelson, Assistant United States Attorney, Salt Lake City, UT; Karen Hawbecker and David K. Grayson, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, with her on the briefs) for Defendants-Appellants.

Robert G. Pruitt, Jr., (Michael S. Johnson and Shawn T. Welch, with him on the brief) Pruitt, Gushee & Bachtell, 1850 Beneficial Life Tower, Salt Lake City, UT, for Plaintiff-Appellee.

James A. Clark of Baker & Hostetler LLP, Denver, CO, for amicus ExxonMobil Corporation; and Donald L. Morgan of Cleary, Gottlieb, Steen & Hamilton, Washington, DC, for amici Crippled Horse Investments, LP, Estate of Frederick H. Larson, and Phillips 66 Company, filed an amici curiae brief.

Before TACHA, Chief Judge, and ALDISERT* and SEYMOUR, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Gale Norton, Secretary of the Interior, from a summary judgment in favor of Cliffs Synfuel Corp. ("Appellee"), requires us to decide whether the district court properly construed provisions of the General Mining Law of 1872, 30 U.S.C. §§ 21, et seq. ("Mining Law"), and the Mineral Leasing Act of 1920, 30 U.S.C. §§ 181 et seq. ("Leasing Act"), in light of the Court's interpretation of these statutes in Hickel v. Oil Shale Corp., 400 U.S. 48, 91 S.Ct. 196, 27 L.Ed.2d 193 (1970). Specifically, we must determine whether Cliffs Synfuel Corp. performed the requisite annual assessment work on its location in order for it to qualify under the savings clause of the Leasing Act. "Assessment work" is defined as "the annual work upon an unpatented mining claim on the public domain necessary under the U.S. law for the maintenance of the possessory title thereto." WEBSTER'S THIRD NEW INT'L DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED (1968).

I.
A.

The Green River Formation, located in eastern Utah, is the site of potentially valuable oil shale deposits. "Oil shale is a sedimentary rock containing an organic material called kerogen which, upon destructive distillation, produces a substantial amount of oil." Andrus v. Shell Oil Co., 446 U.S. 657, 659 n. 3, 100 S.Ct. 1932, 64 L.Ed.2d 593 (1980). Once mined, oil shale can be a valuable fossil fuel. This case involves an attempt by Cliffs Synfuel Corp. to patent four oil shale mining claims in Uintah County, Utah, which encompass approximately 520 acres of the Green River Formation.

Congress enacted the General Mining Law of 1872, which essentially gave away valuable mineral deposits, including oil shale deposits, to whomever first located them. The law was premised on a policy of encouraging exploration of valuable mineral deposits in the western United States. Utilizing the terminology of mining custom, the Mining Act provides that one who claims a mineral deposit is known as a "locator" and is required to perform a certain amount of work each year in prosecution of the claim site, known as the "location." The Act describes this "assessment work:"

All records of mining claims made after May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less that $100 worth of labor shall be performed or improvements made during each year....

30 U.S.C. § 28.

If a claimant failed to perform such work for a period and then later "resumed" work before anyone else asserted a claim on the same land, his claim remained intact. This became known in later years as the "resumption doctrine:"

[U]pon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.

Id.

Congress enacted the Mineral Leasing Act in 1920, which "completely changed the national policy over the disposition of oil shale lands." Hickel, 400 U.S. at 51, 91 S.Ct. 196. Thereafter, one could no longer simply explore the land, stake a claim and allege title in every situation. Rather, lands containing certain valuable mineral deposits, including oil shale, came within the dominion of the United States and could be offered to the public only through lease from the government.1

However, § 37 of the Act contained a "savings clause" which left intact those claims for oil shale which were already in existence as of February 25, 1920, so long as such claims were "thereafter maintained in compliance with the laws under which initiated...." 30 U.S.C. § 193.

The Leasing Act provides in pertinent part:

The deposits of coal, phosphate, sodium, potassium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, ... shall be subject to disposition only in the form and manner provided in this chapter, [by lease only] ... except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.

Id.

Thus, if one had a claim that existed prior to February 25, 1920, the claimant would not be required to lease the claimed land from the government, but could perfect title to it so long as the claim was maintained pursuant to pre 1920 law. "Discovery of a `valuable mineral' is not the only prerequisite of patentability. The mining law also provides that until a patent is issued a claimant must perform $100 worth of labor or make $100 of improvements on his claim during each year...." Andrus, 446 U.S. at 658 n. 1, 100 S.Ct. 1932 (citing 30 U.S.C. §§ 28, 29).

The dispute before us centers on this savings clause in which former locators of a claim were grandfathered in, provided they qualified. The Secretary contends that Appellee's purported claim does not come within the purview of this exception to the Leasing Act. The district court disagreed and entered judgment in favor of Appellee. The issue is now joined before us.

B.

In 1989, Cliffs Synfuel Corp. filed a mineral patent application with the Utah State Office of the Bureau of Land Management ("USO/BLM") covering four oil shale mining claims, which were originally located in 1917. On October 9, 1992, USO/BLM issued a First Half/Mineral Entry Final Certificate ("Final Certificate") and on February 26, 1993, transmitted the application to a BLM certified mineral examiner in Vernal, Utah, for a field inspection and Mineral Report. The Mineral Report was issued on June 18, 1996. A government contest was initiated by USO/BLM against all four claims alleging (1) lack of discovery on or before February 25, 1920, (2) lack of discovery at the present time, and (3) failure of the claim owners to comply with the annual assessment work required in 30 U.S.C. § 28. On the basis of these charges, USO/BLM requested that all four claims be declared invalid and cancelled.

A two-day evidentiary hearing in Salt Lake City was held on December 15 and 16, 1997, before an Administrative Law Judge ("A.L.J.") of the Interior Department's Office of Hearings and Appeals. Appellee presented testimony and evidence supporting its position that the required "discovery" had been timely on each claim, and that annual assessment work, which had been non-existent for 46 years, had resumed in 1977 in satisfaction of the resumption doctrine codified at 30 U.S.C. § 28.

The A.L.J. determined that all four of Appellee's claims met the standards for "discovery" under the law as it existed both in 1920, as well as the present. He thus rejected the government's two discovery challenges. However, the A.L.J. determined that the four claims were still invalid for failure to comply with the annual assessment work requirement of 30 U.S.C. § 28. In so ruling, he relied on the Interior Department's Interior Board of Land Appeals ("IBLA" or "Board") decision in United States v. Herr, 130 IBLA 349, 101 I.D. 113 (1994) to conclude that in light of Hickel, the Appellee did not meet the statutory requirements.

Cliffs Synfuel Corp. appealed the A.L.J.'s decision to the Board, asserting that the resumption doctrine was still in effect in 1977 — the year the claim owner resumed assessment work, after 46 years of inactivity. An Administrative Judge of the Board affirmed the A.L.J.'s ruling.

Appellee thereafter filed a complaint in the district court for a review of the Board's final order, as authorized by the Administrative Procedure Act, 5 U.S.C. §§ 701-706.2 Appellee requested that the court reverse the agency action on the ground that its decision was arbitrary, capricious and otherwise inconsistent with current law. The district court granted the relief, concluding that the Board had misinterpreted the Hickel decision:

In sum, Hickel does not hold that failure to do assessment work, even substantial...

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