NL Industries, Inc. v. Secretary of Interior of U.S.

• Decision Date: 04 December 1985
• Docket Number: No. 84-2344,84-2344
• Citation: 777 F.2d 433
• Parties: NL INDUSTRIES, INC., a New Jersey corporation, Plaintiff-Appellee, v. SECRETARY OF the INTERIOR OF the UNITED STATES of America, Defendant, and All Minerals Corporation, a Nevada corporation, Defendant in Intervention- Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 433

777 F.2d 433

2 Fed.R.Serv.3d 578

NL INDUSTRIES, INC., a New Jersey corporation, Plaintiff-Appellee, v. SECRETARY OF the INTERIOR OF the UNITED STATES of America, Defendant and All Minerals Corporation, a Nevada corporation, Defendant in Intervention- Appellant.

No. 84-2344.

United States Court of Appeals Ninth Circuit.

Argued March 15, 1985.

Submitted May 29, 1985.

Decided July 25, 1985.

As Amended on Denial of Rehearing

and Rehearing En Banc

Dec. 4, 1985.

Earl M. Hill, Thomas P. Erwin, Hill, Cassas, Delipkau & Erwin, Reno, Nev., Don H. Sherwood, James M. King, Sherman & Howard, Denver, Colo., for plaintiff-appellee.

Hugh C. Garner, Thomas A. Mitchell, Salt Lake City, Utah, for All Minerals Corp.

Appeal from the United States District Court for the District of Nevada.

Before WALLACE and POOLE, Circuit Judges, and STEPHENS, ^* District Judge.

WALLACE, Circuit Judge:

All Minerals Corporation (AMC) appeals from the district court's order reversing a decision of the Interior Board of Land Appeals (Board) which held that an unpatented mining claim filed by NL Industries (NL) had been forfeited for failure to comply with the filing requirements of section 314(a) of the Federal Land Policy and Management Act, 43 U.S.C. Sec. 1744(a). We have jurisdiction under 28 U.S.C. Sec. 1291. We reverse the district court and reinstate the Board's decision.

I

NL and AMC each held unpatented mining claims located on federal land in Nevada. Both the NL and the AMC claims originated from exploration that took place in 1967. Several of the NL and AMC claims were in conflict. In October 1979, NL filed a civil action against AMC in Nevada state court to determine ownership of the conflicting claims and to "resolve issues of priorities of location concerning the conflicting claims." That case is still pending.

On October 21, 1976, the Federal Land Policy and Management Act (the Act), 43 U.S.C. Secs. 1701-1782, became effective. Section 314(a), codified at 43 U.S.C. Sec. 1744(a), mandates the initial recording of unpatented mining claims with the federal government and the annual filing of affidavits of assessment work. NL initially recorded its claim involved in this case on December 7, 1977, and filed evidence of assessment work on December 14, 1977. NL failed to file evidence of assessment work or a notice of intention to hold the claim during 1978. NL did, however, file such evidence for the year 1979 on September 20, 1979. During the pendency of NL's state court suit against AMC, the Nevada office of the Bureau of Land Management (Bureau) issued two decisions invalidating both the NL and the AMC claims for failure to comply with the Act's filing provisions. The Bureau deemed both the NL and AMC claims conclusively abandoned pursuant to section 314(c), 43 U.S.C. Sec. 1744(c). NL and AMC each appealed to the Board.

AMC was granted leave to intervene as a party in NL's Board appeal based upon AMC's status as defendant in the NL state court suit. In AMC's own appeal to the Board, the Board affirmed the decision of the Bureau that AMC's claims were invalidated. AMC took no appeal from this decision. AMC had, however, previously attempted to relocate its claim so that, in the event both NL's and AMC's original claims were invalidated, AMC could argue that it had first right to the claims.

NL also lost its appeal to the Board, which affirmed that NL's claims were abandoned and void for noncompliance with the filing provisions of the Act. NL appealed that decision to the district court of Nevada. AMC was again allowed to intervene as of right under Fed.R.Civ.P. 24(a) because of its interest in NL's disputed mining claims. If the district court had affirmed the Board decision, AMC could have argued that it was the prevailing claimant to the NL claims invalidated by the Board.

The district court granted summary judgment in favor of NL, reversing the Board, and ordered the Secretary of the Interior (the Secretary) to reinstate NL's claims. The district court stated that the Board's decision was arbitrary, capricious, and an abuse of discretion, and that the Board's interpretation of the filing requirements of the Act exceeded the statutory authority granted by Congress. The Secretary did not appeal this decision, but instead prepared to reinstate NL's claims. As a defendant/intervenor, however, AMC filed this timely appeal.

II

The order to restore NL's unpatented mining claims is directed to the Secretary, who has chosen not to appeal. We must first determine whether AMC as an intervenor may properly bring this appeal.

AMC asserted an interest in the specific claims of NL that were being adjudicated in the district court. Moreover, AMC's interest in the property was significantly different from the Secretary's interest in these claims. Thus, the Secretary could not adequately represent AMC. AMC therefore clearly met the test of a proper intervenor under Fed.R.Civ.P. 24(a).

In determining whether an intervenor may subsequently appeal from a decision not being appealed by one of the parties in the district court, the test is whether the intervenor's interests have been adversely affected by the judgment. See Shaff v. United States, 695 F.2d 1138, 1140 n. 1 (9th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983); Cerro Metal Products v. Marshall, 620 F.2d 964, 969 (3d Cir.1980) ("the general rule [is] that an intervenor may appeal from any order adversely affecting the interest that served as a basis for intervention") (footnote omitted). In this case, the district court's decision to restore NL's claims undermined AMC's argument that it possessed a claim to the property based on its 1979 relocations. Thus, AMC is entitled to bring this appeal because its interests have been adversely affected. See Bryant v. Yellen, 447 U.S. 352, 366-68, 100 S.Ct. 2232, 2240-41, 65 L.Ed.2d 184 (1980) (government's failure to appeal does not deprive intervenor of ability to appeal adverse judgment) (Bryant).

III

NL argues that this appeal should nevertheless be dismissed as moot because the district court's order to reinstate the NL mining claims was directed to the Secretary, who neither appealed nor moved for a stay of the judgment. NL contends that the order is therefore final, unappealable and conclusive, with no relief available to AMC even if it wins its appeal on the merits.

NL relies on In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir.1977), a case in which ten appeals regarding properties sold or leased by a trustee in bankruptcy to third parties were declared moot. In that case, we observed that, as to several of the properties, a reversal of the district court's order would be ineffective to unwind the already concluded transactions. We pointed out that in order for the appellant to obtain relief "he would be required to bring a new action" to set aside the transactions "and join the buyers and lessees as parties." Id. at 189.

AMC faces no such hurdles. NL is already a party to the action. We are not dealing with third party bona fide purchasers for value, but rather with a party fully aware of AMC's claims. It is true that the Secretary has not appealed the order to reinstate the NL mining claims, but he was a party in the district court action. Although the record indicates that the Secretary has implemented the district court's order, it must be assumed that he remains fully aware of this appeal. AMC sought stays of the judgment in both the district court and in this court after posting a supersedeas bond, which motions were served on the Secretary. They were denied only on the basis that AMC failed to show any irreparable harm resulting from not entering a stay.

Our case is unlike the situation in Combined Metals in which the disputed properties were no longer within the court's jurisdiction, leaving us "powerless to do anything more than simply point out the circumstances of the district court's ruling." Id. at 192. Here, a decision in this case could clearly provide AMC the relief that it seeks.

AMC has done all that it could to preserve its clear right to appeal the district court's decision, see Bryant, 447 U.S. at 366-68, 100 S.Ct. at 2240-41 (government's failure to appeal adverse judgment does not deprive intervenor of right to bring appeal), when it sought stays both in the district court and here. When AMC's notice of appeal was filed, we inherited jurisdiction over the entire case and controversy under 28 U.S.C. Sec. 1291. Should we find the district court in error, we can order it to direct the Secretary to reinstate the Bureau decision. There is no need to assert jurisdiction over third parties who have not been involved in this litigation, as in Combined Metals, nor is there any property involved that is beyond the jurisdiction of the district court.

We agree with AMC that a finding of mootness under these circumstances "would be to make the appellate process meaningless to any defendant whose fellow defendant did not seek reversal of an adverse judgment." Simply because the Secretary is not a party to this appeal does not mean that the Secretary was not a party to the proceedings over which the district court had jurisdiction. The Secretary's failure to appeal only means that he cannot raise any objections in this court; it cannot act as a unilateral termination of an appeal by another party to the proceedings. See Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483, 485 n. 2 (9th Cir.1974) (compliance with judgment by one defendant that moots its ability to appeal "in no way jeopardizes" the ability of other parties to appeal). "Nothing has transpired that has deprived this Court of the power to affect the rights of the litigants in this case." Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980) (per curiam) (distinguishing Combined Metals because "all parties to the transactions are before the Court"), cert. denied...