Kosanke v. U.S. Dept. of Interior

• Decision Date: 05 June 1998
• Docket Number: No. 97-5145,97-5145
• Parties: , 28 Envtl. L. Rep. 21,428 Steve KOSANKE, et al., Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 873

144 F.3d 873

330 U.S.App.D.C. 230, 28 Envtl. L. Rep. 21,428

Steve KOSANKE, et al., Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Appellees.

No. 97-5145.

United States Court of Appeals District of Columbia Circuit.

Argued March 26, 1998.

Decided June 5, 1998.

Appeal from the United States District Court for the District of Columbia (No. 96cv00369).

Francis E. Froelich argued the cause for appellants, with whom Charles T. Carroll, Jr., was on the briefs.

Sean H. Donahue, Attorney, U.S. Department of Justice, argued the cause for federal appellees, with whom Lois J. Schiffer, Assistant Attorney General, and Edward J. Shawaker and Caroline M. Zander, Attorneys, were on the brief.

Before: EDWARDS, Chief Judge, TATEL, Circuit Judge and BUCKLEY, Senior Circuit Judge.

EDWARDS, Chief Judge:

Appellants are two individuals who allegedly staked mining claims on federal lands and two other individuals to whom they assigned an interest in these claims. The Department of the Interior's ("DOI") Bureau of Land Management ("BLM") declared Appellants' mining claims void ab initio, on the grounds that the land in question had been closed to mining entries pursuant to two separate DOI actions segregating the land from the operation of mining law, both of which had been duly noted on the appropriate public land records. The Interior Board of Land Appeals affirmed this decision. Appellants appealed to the United States District Court for the District of Columbia, which granted the DOI's motion for summary judgment. This appeal followed.

We find that the parcels at issue were segregated from the operation of mining laws on June 17, 1994 as indicated by a notation entered on the appropriate public land records in accordance with the notation rule set forth at 43 C.F.R. § 2201.1-2(a), which governs the segregation of public lands pending a proposed land exchange. This notation remained in effect at the time Appellants attempted to enter their mining claims in November 1994 and January 1995. Such notation effectively bars mining claims--even if the underlying segregation was illegally or erroneously entered--until the notation is corrected or superceded on the public land records. Thus, we affirm the lower tribunals' decisions finding Appellants' mining claims null and void ab initio on the basis of the June 1994 notation, without reaching Appellants' claims that the underlying segregations were unlawful.

I. BACKGROUND

A. Mining Law

The General Mining Law of 1872 provides that "[e]xcept 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 on which they are found to occupation and purchase, by citizens of the United States ..." in accordance with specified procedures for filing mining claims. 30 U.S.C. §§ 22, 29 (1994); see also Pathfinder Mines Corp. v. Hodel, 811 F.2d 1288, 1291 (9th Cir.1987). However, any lands withdrawn from mineral entry are no longer considered to be within the public domain and therefore are not subject to the statutory rights enumerated in the General Mining Law. See Oklahoma v. Texas, 258 U.S. 574, 599-602, 42 S.Ct. 406, 66 L.Ed. 771 (1922); Pathfinder Mines, 811 F.2d at 1291.

The Federal Land Policy and Management Act of 1976 ("FLPMA"), as amended, 43 U.S.C. §§ 1701-1784 (1994), specifies conditions under which the Secretary of the Interior or an authorized delegate ("the Secretary") may withdraw or segregate lands from the operation of some or all of the public land laws, including mining laws. As relevant here, the Secretary may segregate public lands to preserve the status quo of a parcel of land pending a proposed land exchange. See id. § 1716. The FLPMA, as amended by the Federal Lands Exchange Facilitation Act of 1988, authorizes the Secretary to exchange public lands for other lands where the Secretary determines that such an exchange would serve the public interest, see 43 U.S.C. § 1716(a), to "temporarily segregate the Federal lands under consideration for exchange from appropriation under the mining laws ... for a period of not to exceed five years," id. § 1716(i)(1), and to promulgate regulations governing his implementation of this authority, see id. § 1716(f)(1). The regulations issued in accordance with this mandate are codified in C.F.R. Title 43, Part 2200 (1997). See 58 Fed.Reg. 60,904 (1993) (promulgating C.F.R. Title 43, Part 2200 regulations as final rules following notice and comment procedure).

These regulations, in pertinent part, detail the procedures governing the commencement and termination of the segregative effect of a proposed land exchange authorized by 43 U.S.C. § 1716:

(a) If a proposal is made to exchange Federal lands, the authorized officer may direct the appropriate State Office of the Bureau of Land Management to segregate the Federal lands by a notation in the public land records. Subject to valid existing rights, the Federal lands shall be segregated from appropriation under the public land laws and mineral laws for a period not to exceed 5 years from the date of the record notation.

43 C.F.R. § 2201.1-2(a) (emphasis added).

B. Procedural History

On February 26, 1992, the Secretary, acting under 43 C.F.R. §§ 2310.1, 2310.2(a) (providing for segregation of lands from mining laws pending congressional action withdrawing the lands for military purposes), signed Public Land Order No. 6924, segregating approximately 135,000 acres of land located in the southern portion of the Chocolate Mountain Aerial Gunnery Range in Imperial County, California, from the operation of federal mining law for a period of five years or until the segregation was lifted. See 57 Fed.Reg. 6,560 (1992). The purpose of this segregation was to preserve the status quo of the land pending congressional action on a DOI request to permanently reserve the land for military use. Id. This segregation was duly noted in the appropriate public land records. See Kosanke, IBLA 95-438 (Dec. 7, 1995) ("IBLA Decision"), reprinted in Joint Appendix ("J.A.") 3.

On June 17, 1994, the California State Office of the BLM, acting under 43 U.S.C. § 1716(i) (authorizing segregation of lands pending a proposed land exchange), segregated a portion of the lands included in the February 1992 segregation in order to maintain the status quo of the land pending a possible exchange of lands with a private party by noting the segregation of these lands on the appropriate public land records pursuant to 43 C.F.R. § 2201.1-2(a). The June 1994 segregation included the north-half section of section 5 and the north-half section of section 6 of the Township 13 South, Range 19 East, San Bernandino Meridian, Imperial County, California. See Memorandum from BLM Area Manager to BLM State Director for California (June 15, 1994), J.A. 143.

On October 31, 1994, Congress passed the California Military Lands Withdrawal and Overflights Act of 1994, Pub.L. No. 103-433, § 803(b), 108 Stat. 4502 (1994), withdrawing the lands segregated by the February 1992 order, except for the parcels included in the June 1994 segregation. See Appellees' Br. 6 (it is undisputed that the parcels at issue in this case were not part of the lands withdrawn by the Act).

On November 1, 1994, Appellants Steve and Mary Lou Kosanke entered onto the same two parcels of land included in the June 1994 segregation and purportedly located 34 lode mining claims and 16 placer mining claims. They filed notices of location pertaining to these claims with the California State Office of the BLM on November 23, 1994 and January 27, 1995. See, Kosanke, CAMC 264550 et al. (Mar. 20, 1995) ("BLM Decision"), J.A. 63. When Appellants filed these claims, notations pertaining to both the February 1992 and the June 1994 segregations remained in the relevant public land records; nothing in the records indicated that they had been canceled, superceded, or otherwise nullified. See IBLA Decision, J.A. 3.

Subsequently, on March 20, 1995, the California State Office of the BLM issued a decision declaring these mining claims null and void ab initio. See BLM Decision, J.A. 63-65. The BLM found that the subject lands had been validly removed from operation of mining law on February 26, 1992 and June 17, 1994 and that these segregations remained in effect at the time Appellants attempted to locate and file their mining claims. Therefore, the BLM concluded, Appellants' claims were without legal effect. Id. at 63-64. In upholding the validity of the June 1994 segregation, the BLM noted that the parcels at issue were withdrawn for a proposed land exchange and that the segregation of the parcels from the operation of mining law pending the proposed exchange was duly noted on the relevant land records pursuant to the notation rule set forth in 43 C.F.R. § 2201.1-2. Id. at 64.

Appellants appealed the BLM's decision to the Interior Board of Land Appeals ("IBLA"), arguing that both the February 1992 and June 1994 segregations were invalid and thus that their respective notations in the land records were without any legal effect. The IBLA rejected Appellants' claims and affirmed the BLM's decision. See IBLA Decision, J.A. 2-4. In its decision, the IBLA stated that it was immaterial whether the underlying segregations were posted illegally or in error. See id. at 3. Rather, the IBLA determined that, "the decisive issue before this Board is whether BLM's records indicated that the lands were open to the location of mining claims on the particular day when the claims were located." Id. (citation omitted). Since the two segregation notations appeared in the public land records and these records did not include any notation nullifying the segregations, the IBLA concluded that, pursuant to the notation rule, these notations worked to remove the subject lands from mineral entry. Id. The IBLA held that, "[e]ven if a withdrawal is effected or perpetuated in...