Lara v. Secretary of Interior of U.S.
| Citation | 820 F.2d 1535 |
| Decision Date | 08 July 1987 |
| Docket Number | No. 86-3954,86-3954 |
| Parties | Robert B. LARA, Plaintiff-Appellant, v. The SECRETARY OF the INTERIOR OF the UNITED STATES of America, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard F. Lancefield, Portland, Or., for plaintiff-appellant.
Vicki L. Plaut, F. Henry Habicht II, Charles H. Turner, James L. Sutherland, Alan Brenner, Dirk D. Snel and Vicki L. Plaut, Washington, D.C., for defendant-appellant.
Appeal from the United States District Court, District of Oregon.
Before ANDERSON, FARRIS and BRUNETTI, Circuit Judges.
Robert Lara appeals a judgment invalidating two mining claims and half of a third claim. Lara contends that the administrative decisions affirmed by the district court are not supported by substantial evidence and are based on improper legal standards.
Lara purchased two twenty-acre placer mining claims, Madeline No. 1 and Madeline No. 2, in southern Oregon in 1971. In 1973, this land was withdrawn from the operation of the federal mining laws and is thus no longer subject to mineral entry. Lara purchased the twenty-acre Sunshine claim in 1975. The northern half of the Sunshine claim had been withdrawn from mineral entry in 1971.
In 1977, Paul Boswell, a Forest Service mining engineer, took mineral samples from all three claims. He reported that none of the claims contained mineral "discoveries." A mining claimant has the right to possession of a claim only if he has made a mineral discovery on the claim. On the basis of Boswell's 1977 tests, the Forest Service filed administrative complaints contesting the validity of the three claims. However, after tests were performed at Lara's request in March 1979, the Forest Service conceded that a discovery existed in the southwest corner of the Sunshine claim.
An administrative law judge (ALJ) held a hearing in Portland, Oregon on July 30, 1979. The ALJ held a second hearing in October 1979 to permit Lara to testify. On September 8, 1980, the ALJ issued an opinion finding the Madeline claims invalid for lack of a mineral discovery. The ALJ also found the northern half of the Sunshine claim invalid under the ten-acre rule. The ALJ did not reach the other allegations in the Forest Service complaint. 1
Lara appealed to the Interior Board of Land Appeals (IBLA). The IBLA affirmed the ALJ's decision. 67 IBLA 48 (1982). Upon reconsideration, the IBLA affirmed its earlier decision and delineated the invalid portion of the Sunshine claim. 80 IBLA 215 (1984).
Lara then sought judicial review. The government counterclaimed, seeking an order that Lara vacate the claims and remove all structures on them. On May 1, 1986, the district court affirmed the IBLA and granted the relief requested in the counterclaim. 642 F.Supp. 458 (D.Or.1986). A May 1, 1986 order required Lara to vacate the claims and remove all structures from them within 120 days of the date of the order.
Lara appealed on June 24, 1986. On July 3, 1986, the district court entered its judgment. The judgment reiterated the May 1, 1986 decision and order. It also authorized the issuance of a writ of assistance pursuant to Fed.R.Civ.P. 70.
Lara argues that the ten-acre rule applies only to placer claims located by associations, groups of two or more persons, not to claims located by individuals. He also contends that the IBLA improperly divided the Sunshine claim by drawing a line inconsistent with public land subdivision lines.
Under 30 U.S.C. Sec. 35, "no [placer] location shall include more than twenty acres for each individual claimant." A claimant may gain possessory rights to a twenty-acre location if he makes one mineral discovery on the location. 43 C.F.R. Sec. 3842.1-1. However, the Interior Department (Department) has "established a rule that, when challenged, the claimant must show that each ten-acre tract on his claim contains a valuable mineral." McCall v. Andrus, 628 F.2d 1185, 1188 (9th Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1700, 68 L.Ed.2d 197 (1981). Each ten-acre tract must be "mineral in character." Id.
Lara does not contest the validity of the ten-acre rule but contends it is inapplicable to an individual's placer claim. Interpretation of an administrative rule is a question of law which we review de novo. Cf. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We give great deference, however, to the interpretation of the Department as it created the rule. See Jewett v. Commissioner, 455 U.S. 305, 318, 102 S.Ct. 1082, 1090, 71 L.Ed.2d 170 (1982) ().
Lara contends that the ten-acre rule applies only to an association's placer claim, which may be as large as 160 acres, 30 U.S.C. Sec. 36, and only in patent proceedings. Whether the ten-acre rule applies to an individual's twenty-acre placer claim is a question of first impression.
As the district court noted, the policy behind the rule applies equally to individual and association placer claims. 642 F.Supp. at 464. We stated that policy in McCall, "[c]onsidering all the statutes relating to mining claims it seems clear that it was not their purpose to permit the entire area allowed as a placer claim to be acquired as appurtenant to placer deposits irrespective of their extent." 628 F.2d at 1188 (quoting American Smelting & Refining Co., 39 L.D. 299, 301 (1910)). The fact that 30 U.S.C. Sec. 35 permits an individual to locate a maximum of twenty acres, does not mean Lara has a right to possess twenty acres if only ten contain placer deposits. Dicta in several cases support this application of the ten-acre rule. See American Smelting and Refining Co., 39 L.D. 299, 301 (1910); Ferrell v. Hoge, 29 L.D. 12, 13 (1899); Laden v. Andrus, 595 F.2d 482, 491 (9th Cir.1979). Moreover, contrary to Lara's contention, use of the rule is not restricted to patent proceedings. See, e.g., United States v. Nickol, 47 IBLA 183 (1980).
Lara also argues that the ten-acre rule violates 30 U.S.C. Sec. 35 which requires similar treatment of lode and placer claims. Lara misinterprets 30 U.S.C. Sec. 23 to contend that it permits an individual to locate a lode claim of twenty acres regardless of the size of the lode. Section 23 limits the length of lode claims to the lode's length and permits the claim to extend 300 feet to either side of the lode. Thus, it is no support for Lara's assertion that one discovery entitles him to possession of a twenty-acre placer claim regardless of the mineral character of the rest of the claim. Furthermore, the Department rejected this argument in Ferrell v. Hoge, 29 L.D. 12, 13-15 (1899).
Lara also challenges the line drawn by the IBLA to separate the valid and invalid portions of the Sunshine claim. He contends the IBLA abused its discretion because the line is not consistent with public land subdivision lines.
The IBLA divided the Sunshine claim into two square ten-acre parcels. Because the boundaries of the Sunshine claim do not conform to public land subdivision lines, 2 the IBLA was unable to use those lines to divide the claim into two ten-acre parcels. The IBLA reasoned that "[i]n applying the ten-acre rule, each claim must be subdivided along the axis in which it was laid out on the ground." 80 IBLA at 216.
This division furthers the policy behind the ten-acre rule by permitting Lara to keep only that part of the claim that is mineral in character. And, as the Secretary points out, Lara's interpretation would penalize those who have located claims in conformance with public land subdivision lines as required by statute. 30 U.S.C. Sec. 35. Therefore, the district court properly deferred to the agency's expertise to find the line was proper. 642 F.Supp. at 464; see Multiple Use, Inc. v. Morton, 504 F.2d 448, 452 (9th Cir.1974) ().
Lara contends that he did not have notice that the government was contesting the validity of the northern half of the Sunshine claim. The Administrative Procedure Act provides that "[p]ersons entitled to notice to an agency hearing shall be timely informed of ... the matters of fact and law asserted." 5 U.S.C. Sec. 554(b). "The purpose of [this section] is satisfied, and there is no due process violation if the party proceeded against 'understood the issue' and 'was afforded full opportunity' to justify his conduct." Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431, 1435 (9th Cir.) (quoting Golden Grain Macaroni Co. v. FTC, 472 F.2d 882, 885 (9th Cir.1972)), cert. denied, --- U.S. ----, 107 S.Ct. 109, 93 L.Ed.2d 58 (1986).
The Forest Service's complaint was based on Boswell's 1977 mineral tests which revealed insufficient gold in the Sunshine claim. Boswell's 1979 examination revealed a mineral discovery in the southwest corner of the claim. Boswell issued a report to this effect shortly before the July 1979 hearing. At the hearing, the Forest Service conceded that the southwest portion of the claim was supported by a discovery but it contended the northern portion was not valid mineral ground. The ALJ then stated, "Well, of course, each legal subdivision [of ten acres] has to be considered when it's [a] placer [claim]." The ALJ went on to inform Lara's attorney, Murray, that "I think the Government is contending that it's not mineral in character...." Murray responded, "That 10-acre subdivision rule only applies to association placers, not to an individual placer." The ALJ then stated that Murray's statement was not his "understanding of the law" and that Murray would "have an opportunity to brief that question."
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