Earthworks v. U.S. Dep't of the Interior, Civil Action No. 09-1972 (RC)

• Citation: 496 F.Supp.3d 472
• Decision Date: 26 October 2020
• Docket Number: Civil Action No. 09-1972 (RC)
• Parties: EARTHWORKS, et al., Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

496 F.Supp.3d 472

EARTHWORKS, et al., Plaintiffs,

v.U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants.

Civil Action No. 09-1972 (RC)

United States District Court, District of Columbia.

Signed October 26, 2020

Edward S. Scheideman, DLA Piper LLP, Washington, DC, Jeffrey C. Parsons, Pro Hac Vice, Roger Flynn, Pro Hac Vice, Western Mining Action Project, Lyons, CO, for Plaintiffs.

Joseph H. Kim, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ; GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

A coalition of environmental groups ("Plaintiffs") challenges two mining-related rules issued by the Bureau of Land Management ("BLM"), part of the U.S. Department of the Interior ("Interior"). Plaintiffs allege that the rules were not promulgated in compliance with various statutory authorities, including the General Mining Law of 1872 ("The Mining Law"), 30 U.S.C. §§ 22 – 47 ; the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. § 1701 et seq. ; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. ; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 701 – 06.

Currently pending before the Court are the parties’ cross-motions for summary judgment. For the reasons below, the Court denies Plaintiffs’ motion and grants Defendants’ motions.

II. BACKGROUND

A. Statutory Background

1. The General Mining Law of 1872

The Mining Law allows citizens to explore unappropriated public lands and, without any prior government permission or paying any royalties, stake (or "locate") a mining claim. 30 U.S.C. § 22 ; United States v. Locke , 471 U.S. 84, 86, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). After discovering a valuable mineral deposit and satisfying certain minimal procedures (including paying a location fee), claimants obtain an "unpatented" mining claim and have the exclusive right to possess the land for mining purposes. See 30 U.S.C. § 26 ; see also Best v. Humboldt Placer Mining Co. , 371 U.S. 334, 336, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). Valid mining claims are "a unique form of property," Best , 371 U.S. at 335, 83 S.Ct. 379, describable as "fully recognized possessory interest[s]," Locke , 471 U.S. at 86, 105 S.Ct. 1785. But ultimate title to the claimed land remains with the United States unless the mining claimant takes the further step of filing for fee title, called a "patent." See id. ; Best , 371 U.S. at 336, 83 S.Ct. 379. Claimants can obtain a patent by submitting an application to the Secretary of the Interior and complying with further requirements, including paying a nominal per-acre fee. 30 U.S.C. § 29 ; Locke , 471 U.S. at 86, 105 S.Ct. 1785.¹ "Even without a patent, claimants can maintain their mining rights indefinitely so long as they comply with federal, state, and local requirements." Orion Rsrvs. Ltd. P'ship v. Salazar , 553 F.3d 697, 699 (D.C. Cir. 2009). These requirements include paying annual claim maintenance fees. See 30 U.S.C. § 28f(a) ; 43 C.F.R. §§ 3834–3835.

As implemented, the claim system tolerates a degree of uncertainty (or, at least, the language used to describe the legal status of a claim is not always precise). Formally speaking, a claim is valid against the United States only if there is a valuable mineral deposit within the limits of the claim. See 30 U.S.C. § 23 (providing that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located"); Best , 371 U.S. at 336, 83 S.Ct. 379 (unpatented mining claims are "valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met"). "If valid , it gives to the claimant certain exclusive possessory rights .... But no right arises from an invalid claim of any kind. " Cameron v. United States , 252 U.S. 450, 460, 40 S.Ct. 410, 64 L.Ed. 659 (1920) (emphases added); see also Cole v. Ralph , 252 U.S. 286, 296, 40 S.Ct. 321, 64 L.Ed. 567 (1920) ("Location is the act or series of acts whereby the boundaries of the claim are marked ... but it confers no right in the absence of discovery, both being essential to a valid claim.").

In practice, however, the BLM does not immediately confirm the validity of a claim but instead treats it as presumptively valid. See W. Shoshone Def. Project , 160 IBLA 32, 56 (2003) ("BLM generally does not determine the validity of the affected mining claims before approving a plan of operations."² ); see also 4 George Cameron Coggins & Robert L. Glicksman, Public Natural Resources Law § 42:9 (2d ed. 2020) (reporting that "the Interior Department historically has not challenged any but the most egregious claims"); Mark Squillace, The Enduring Vitality of the General Mining Law of 1872 , 18 Env't. L. Rep. 10,261, 10,266 (1988) (noting that the government "rarely considers the validity of an unpatented mining claim"). As a matter of both law and practice, validity proceedings are largely discretionary. See 43 C.F.R. § 4.451-1 ("The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim." (emphasis added)); see also Swanson v. Babbitt , 3 F.3d 1348, 1350 (9th Cir. 1993) ("At any time prior to the issuance of a patent, the government may challenge the validity of the mining claim and, if successful, the claim will be cancelled with all rights forfeited."). Validity examinations generally take place only when a claimant applies for a patent,³ see 43 C.F.R. § 3862.1-1(a) ; seeks to conduct operations on lands that have since been withdrawn from the public domain,⁴ see id. §§ 3809.11, 3809.100; engages in obvious abuse amounting to trespass, see, e.g. , United States v. Goldfield Deep Mines Co. of Nev. , 644 F.2d 1307, 1308 & n.2 (9th Cir. 1981) (government challenged claim after operator cut trees, dug roads, and used heavy equipment, all while implausibly maintaining that platinum and other valuable minerals could be extracted using "secret methods"); or operates on land in which the government has an interest, see, e.g. , Ickes v. Underwood , 141 F.2d 546, 546 (D.C. Cir. 1944) (government challenged claim as part of effort to secure land for construction of Grand Coulee Dam).

Facing such a challenge, a claimant has certain procedural rights. See Cameron , 252 U.S. at 460, 40 S.Ct. 410 (noting that the government "has no power to strike down any claim arbitrarily, but so long as the legal title remains in the government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void"). Additionally, a claimant may have rights against rival claimants prior to discovery under the old mining doctrine of pedis possessio. See Union Oil Co. of Cal. v. Smith , 249 U.S. 337, 346–47, 39 S.Ct. 308, 63 L.Ed. 635 (1919) (explaining that "a miner may hold the place in which he may be working against all others having no better right, and while he remains in possession, diligently working towards discovery is entitled—at least for a reasonable time—to be protected against forcible, fraudulent, and clandestine intrusions upon his possession"); 5 Nancy Saint-Paul, West's Federal Administrative Practice § 5856 (2020) ("Even before discovering a valuable mineral deposit on federal lands, a prospector can acquire a species of inchoate property right under the mining law doctrine of pedis possessio , meaning ‘foot possession’ or actual possession."). But ultimately, "[p]rior to validity proceedings, unpatented claims amount to a potential property interest, since it is the discovery of a valuable mineral deposit and satisfaction of statutory and regulatory requirements that bestows possessory rights." Freeman v. U.S. Dep't of Interior , 83 F. Supp. 3d 173, 178 n.6 (D.D.C. 2015), aff'd , 650 F. App'x 6 (D.C. Cir. 2016) (per curiam); see also Foster v. Seaton , 271 F.2d 836, 838 (D.C. Cir. 1959) (per curiam) ("One who has located a claim upon the public domain has, prior to the discovery of valuable minerals, only ‘taken the initial steps in seeking a gratuity from the Government.’ " (quoting Ickes , 141 F.2d at 549 )).

The Mining Law also allows the location and patent of lands for a "mill site." 30 U.S.C. § 42(a). These sites must be located on nonmineral lands and cannot be contiguous to a mine or lode, but they can be used for mining or milling activities in connection with a claim (such as milling, chemical processing, and waste dumping). Id. ; see also 43 C.F.R. § 3832.31 (noting that a mill site can be used "for activities reasonably incident to mineral development on, or production from, the unpatented or patented lode or placer claim with which it is associated"). No mill site location "shall exceed five acres." 30 U.S.C. § 42(a).

2. The Federal Land Policy and Management Act

In 1976, after a "broad[ ] inquiry into the proper management of the public lands in the modern era," Congress passed the FLPMA. Locke , 471 U.S. at 87, 105 S.Ct. 1785 ; see also Rocky Mountain Oil & Gas Ass'n v. Watt , 696 F.2d 734, 738 (10th Cir. 1982) (noting that "[t]he national policy declared in the FLPMA stands in marked contrast to the many older public land statutes that provided for the wholesale disposition of the public lands"). The FLPMA supersedes or supplements the Mining Law in certain ways. For example, it requires the Secretary, "[i]n managing the public lands," to "take any action necessary to prevent unnecessary or undue degradation," 43 U.S.C. § 1732(b), and encourages the "harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment," id. § 1702(c). As relevant here, it also "declares that it is the policy of the United...