Mt. Emmons Min. Co. v. Babbitt

• Decision Date: 30 June 1997
• Docket Number: No. 96-1230,96-1230
• Parties: 27 Envtl. L. Rep. 21,485, 97 CJ C.A.R. 1113 MT. EMMONS MINING COMPANY, a corporation, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of Interior, Department of Interior, and Bureau of Land Management, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

117 F.3d 1167

27 Envtl. L. Rep. 21,485, 97 CJ C.A.R. 1113

MT. EMMONS MINING COMPANY, a corporation, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of

Interior, Department of Interior, and Bureau of

Land Management, Defendants-Appellees.

No. 96-1230.

United States Court of Appeals, Tenth Circuit.

June 30, 1997.

Stephen D. Alfers, Alfers & Carver, Denver, CO (Bruce C. Kirchhoff, Alfers & Carver, Denver, CO; Don H. Sherwood, Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, CO; and John R. Henderson, Vranesh & Raisch, LLC, Boulder, CO, with him on the brief), for Plaintiff-Appellant.

Robert H. Oakley, U.S. Department of Justice, Environment & Natural Resources Division (Gerald S. Fish, U.S. Department of Justice, Environment & Natural Resources Division; Lois J. Schiffer, Assistant Attorney General; and Karen Hawbecker, Office of the Solicitor, with him on the brief), Washington, DC, for Defendants-Appellees.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Mt. Emmons Mining Company (Mt.Emmons) appeals from the district court's order granting summary judgment in favor of defendant Bruce Babbitt, Secretary of the Interior, (Secretary) in Mt. Emmons' action to compel the Secretary to continue processing its application for several mining patents covering ten lode mining claims in Gunnison, Colorado. The district court found as a matter of law that the Secretary could not further process the patent application because of a congressionally-imposed moratorium. We have jurisdiction under 28 U.S.C. § 1291. We reverse and find that the Secretary has unlawfully withheld agency action in refusing to continue processing Mt. Emmons' application.

I.

On December 30, 1992, Mt. Emmons filed a patent application for ten lode mining claims with the Colorado office of the Bureau of Land Management (BLM). On March 2, 1993, the Secretary revoked the authority of subordinate officials to issue "first half final certificates" (FHFC's) ¹ and patents. Append. I at 25. Nevertheless, patent applications were processed initially in state BLM offices until they reached the point where the issuance of an FHFC would be the next step. After review by the proper state director, the application, together with (1) a cover memo with concurrence lines, (2) an FHFC prepared for the Secretary's signature, and (3) various documents from the case file, were to be sent to the Regional Solicitor's office, then to the Solicitor, then to the Director, then to the Assistant Secretary of Land and Minerals Management, and if all concurred, then to the Secretary. The final review process for issuance of a patent follows a similar chain of command.

Richard Tate, the senior land law examiner for the Colorado BLM office, completed his review of Mt. Emmons' application and, on September 15, 1994, wrote to Mt. Emmons requesting payment of $875 for purchase of the lands subject to the patent application. Mt. Emmons immediately tendered payment. On September 19, 1994, BLM accepted payment and on a "Receipt and Accounting Advice," Tate marked "mineral entry allowed." Append. I at 128. Tate prepared the application to be sent to the Regional Solicitor's office, the next level of the review process leading up to issuance of a first half final certificate by the Secretary.

On September 30, 1994, Congress enacted the Department of Interior and Related Agencies Appropriations Act, PL 103-332, 108 Stat. 2499, § 112, which placed a moratorium on the expenditure of funds by the Department of Interior for processing mining or millsite patent applications and issuing patents under the general mining laws "[i]f the House-Senate Committee on H.R. 322 fails to report legislation which is enacted prior to the adjournment of the 103d Congress sine die." ² Congress also provided an exemption for certain patent applications in § 113 of the legislation:

The [moratorium] provisions of section 112 shall not apply if the Secretary of the Interior determines that, for the claim concerned (1) a patent application was filed with the Secretary on or before the date of enactment of this Act, and (2) all requirements established under sections 2325 and 2326 of the Revised Statutes (30 U.S.C. 29 and 30) for vein or lode claims ... were fully complied with by the applicant by that date. ³

By Instruction Memorandum (IM) No. 95-01 dated October 4, 1994, the Secretary adopted the following interpretation of § 113:

Only the following applications may be processed:

(1) Those for which a FHFC was signed before October 1, 1994 and;

(2) those for which a FHFC was pending in Washington, D.C., as of September 30, 1994.

Tate retained Mt. Emmons' application in the Colorado BLM office. Mt. Emmons subsequently requested that its application be forwarded to Washington, D.C. Tate responded that local BLM officials no longer had authority to sign final certificates and, under the Secretary's interpretation of the moratorium, Mt. Emmons' application could not be processed further. It is undisputed that no FHFC was issued and that the application was not forwarded to Washington, D.C.

On December 30, 1994, Mt. Emmons filed the complaint in this action, seeking to compel the Secretary to continue processing its application. The complaint sought relief under the Administrative Procedure Act (APA), 5 U.S.C. § 706, mandamus, and declaratory judgment. Mt. Emmons filed a motion for discovery on June 7, 1995. The Secretary filed a motion for summary judgment, arguing he lacked authority to process Mt. Emmons' application. The Secretary argued to the district court, as he urges on appeal, that his construction of the scope of the § 113 exemption is a reasonable construction and is entitled to judicial deference.

Mt. Emmons filed a Rule 56(f) motion for a continuance pending discovery. Mt. Emmons argued that, despite the Secretary's explanation of his treatment of the application, discovery was needed to determine the Secretary's "contemporaneous construction of IM 95-01." Mt. Emmons further argued its claim for unreasonably delayed agency action prior to the effective date of the moratorium required discovery into the reasons for that delay. The magistrate judge found the only determinative issues in the case dealt with the Secretary's interpretation of § 113 and, thus, discovery was not needed. The magistrate recommended that summary judgment be rendered in favor of the Secretary. The magistrate specifically held that Mt. Emmons was not entitled to an exception to the moratorium under § 113 because (1) an FHFC had not been issued to Mt. Emmons before October 1, 1994, and (2) its patent application had not been forwarded to Washington, D.C., and therefore was not "filed with the Secretary on or before the enactment of the Act" as required by § 113. The district court agreed and granted summary judgment on the basis that the moratorium prevented the Secretary from processing the patent application and that the § 113 exemption did not apply under the Secretary's interpretation of that exemption in IM 95-01.

II.

Mt. Emmons raises two issues on appeal: (1) whether the Secretary's refusal to continue processing its patent application violates § 113; and (2) whether the district court erred in refusing to permit Mt. Emmons to conduct discovery prior to granting summary judgment in favor of the Secretary.

Under the APA, 5 U.S.C. § 706(2)(A), as a reviewing court, we must set aside the Secretary's action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See Washington v. Department of Transp., 84 F.3d 1222, 1224 (10th Cir.1996); Osborne v. Babbitt, 61 F.3d 810, 812 (10th Cir.1995). Moreover, as a reviewing court, we must "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The availability of a remedy under the APA technically precludes Mt. Emmons' alternative request for a writ of mandamus, Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir.1993), although the mandatory injunction is essentially in the nature of mandamus relief, Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir.1984). Consequently, we must determine whether the Secretary's refusal to continue processing Mt. Emmons' application unlawfully withholds agency action. Our review of the administrative record is de novo and we accord no deference to the district court. Santa Fe Energy Products Co. v. McCutcheon, 90 F.3d 409, 413 (10th Cir.1996).

The question of whether the Secretary, through IM 95-01, lawfully applied the moratorium to Mt. Emmons' patent application requires us to interpret § 113 and apply it to the facts presented. If a statute is clear and unambiguous, the court must interpret the statute to effect the unambiguous intent of Congress, regardless of the interpretation given to the statute by an administrative agency with responsibility for enforcement. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); Wyoming v. Alexander, 971 F.2d 531, 535 (10th Cir.1992). "[W]hen a court is reviewing an agency decision based on a statutory interpretation, 'if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.' " National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52 (1992) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782). "[A]n agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning the statute can bear." MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 229, 114 S.Ct. 2223, 2231, 129 L.Ed.2d 182 (1994). Therefore, no deference is due an agency interpretation which fails to incorporate the plain meaning of the statute. Public...