Red Top Mercury Mines, Inc. v. U.S.

• Decision Date: 03 October 1989
• Docket Number: No. 88-4270,88-4270
• Citation: 887 F.2d 198
• Parties: RED TOP MERCURY MINES, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 198

887 F.2d 198

RED TOP MERCURY MINES, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 88-4270.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1989.

Decided Oct. 3, 1989.

Randall E. Farleigh, Anchorage, Alaska, for plaintiff-appellant.

Dean K. Dunsmore, Asst. U.S. Atty., Anchorage, Alaska, for defendant-appellee.

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

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

ORDER

For the reasons stated in the order of the district court entered on September 19, 1988, in the District of Alaska, we affirm the district court's dismissal of this case.

We adopt the district court's eighteen-page analysis as appended, finding it dispositive of all issues on appeal.

AFFIRMED.

APPENDIX

Plaintiff, Red Top Mercury Mines, Inc., brings this action pursuant to 28 U.S.C. Sec. 1331 and 5 U.S.C. Secs. 701-706 seeking judicial review of the decisions of the Department of the Interior as rendered by the Interior Board of Land Appeals ("IBLA") in Red Top Mercury Mines, Inc., 96 I.B.L.A. 391 (Apr. 14, 1987). At issue are six unpatented mining claims which the Department of the Interior, Bureau of Land Management (BLM), declared were abandoned by operation of 43 U.S.C. Sec. 1744(a).

The general mining laws of the United States, 30 U.S.C. Sec. 22, et seq., and the practice thereunder were described by the United States Supreme Court in United States v. Locke, 471 U.S. 84, 86-90, 105 S.Ct. 1785, 1788-90, 85 L.Ed.2d 64 (1985). See also Best v. Humboldt Mining Co., 371 U.S. 334, 335-36, 83 S.Ct. 379, 381-82, 9 L.Ed.2d 350 (1963); 1 Rocky Mountain Mineral Law Institute, America Law of Mining, 53-70 (1983). From the 19th Century until 1976, location and development of mineral deposits on public lands was subject to few constraints. Discovery of a valuable mineral deposit, in conjunction with minimal procedures to locate a claim boundary on the ground embracing the deposit, gave an individual the right of exclusive possession of the lands for mining purposes. This right of exclusive possession could be retained as long as the claimant maintained the claim under 30 U.S.C. Sec. 28, usually by conducting at least $100 of assessment work annually. For purposes of assessment work, the assessment year commenced at "12 o'clock meridian on the 1st day of September." 28 U.S.C. Sec. 28. For a nominal fee, a patent could be obtained, but this was an option the claimant could exercise or ignore, and patenting was the exception not the rule.

By 1976, the number of unpatented mining claims seriously complicated management of the public lands. There was no federal system for recording either location notices or evidence of annual assessment work on existing claims. Location and recording requirements were determined by state law and local mining district customs. In 1976, Congress remedied this in the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. Sec. 1701, et seq. Pursuant to section 314 of the FLPMA, 43 U.S.C. Sec. 1744, ¹ a claimant had three years within which to register all existing claims with the BLM, and thereafter a claimant had to annually file with the BLM either a notice of intent to hold or proof of completion of the annual assessment work. This action involves the requirement of 43 U.S.C. Sec. 1744(a) to annually file either a notice of intention to hold or an affidavit of assessment work.

The Department of the Interior has promulgated regulations to implement the FLPMA. The portions of these regulations relevant to this action are set forth below.

Sec. 3833.0-5 Definitions.

As used in this subpart:

....

(n) "Assessment year" is defined in 30 U.S.C. Sec. 28 and commences at 12 o'clock noon on September 1st of each year. For the purpose of complying with the requirements of section 314(a) of the Act, the calendar year in which the assessment year ends is the year for which the evidence of annual assessment work shall be filed.

(o) "Filing year" for the purposes of complying with the Act begins on January 1st of each year and continues through December 30th.

Sec. 3833.2-1 When filing is required.

(a) ....

(1) Except as provided in paragraph (a)(2) of this section, the owner of an unpatented mining claim, mill site or tunnel site located within any unit of the National Park System shall file before October 22, 1979, and on or before December 30 of each calendar year after the year of recording ... a notice of intention to hold the mining claim, mill site or tunnel site. Such notice shall be in the form prescribed by Sec. 3822.2-3 of this title and shall be filed with the proper BLM office.

43 C.F.R. Secs. 3833.0-5, 3833.2-1.

Pursuant to the requirements of 43 U.S.C. Sec. 1744(a), plaintiff filed its notices of location with the BLM on December 20, 1976. Plaintiff's first notice of assessment work was received by the BLM on December 27, 1978. Thereafter, similar notices were received by the BLM on December 31, 1979, December 11, 1980, December 29, 1982, February 14, 1983, and December 10, 1984. With its first notice of assessment work, plaintiff established a pattern of doing this work in August and September of alternate years. This would allow plaintiff to do the assessment work required for two years in one continuous effort since the assessment year starts on September 1.

On July 25, 1985, the BLM issued a decision which determined that the six unpatented mining claims at issue as well as one mill site were deemed abandoned and declared void for failure to timely file one or more of the assessment work notices or notices of intention to hold for the years 1981 and 1984. Plaintiff was notified that this determination could be appealed to the IBLA. A "Notice of Appeal and Statement of Reasons" in support of the appeal was received by the BLM on August 26, 1985.

On appeal to the IBLA, plaintiff asserted four errors. It contended that annual notices were filed in 1981 and 1984. It contended that the filing of a combined statement of assessment work for assessment years 1980-81 in calendar year 1980 complied with the requirements of 43 U.S.C. Sec. 1744(a) for filing in 1981 as well as 1980. Plaintiff argued in the alternative that a letter received by the BLM in 1981 should be treated as an acceptable notice of intention to hold. Finally, plaintiff argued that its failure to make required filings for its mill site was a curable defect.

On appeal, it was conceded on behalf of the BLM that indeed the required filing was made in 1984. A notice of assessment work for the years ending September 1, 1984, and September 1, 1985, was received by the BLM on December 10, 1984, but returned to plaintiff as incomplete. As noted at that time, the defect in the document was deemed curable. As indicated therein, the missing information was to have been provided within thirty days. There is no indication in the record that plaintiff provided the additional information within the thirty days allowed. Nevertheless, on appeal the IBLA agreed that the necessary filing had been made for 1984. Red Top Mercury Mining, Inc., 96 I.B.L.A. 391, 393 (Apr. 14, 1987).

The IBLA also determined that, with respect to mill sites, 43 U.S.C. Sec. 1744 only requires the filing of notices of location. The annual filing of notices of intention to hold is only required by regulation, and is a defect which the claimant must be given an opportunity to correct. Accordingly, the decision that the mill site was abandoned was reversed.

The IBLA did, however, determine that no notice of assessment work was filed in 1981 with respect to the six unpatented mining claims. It also held that a letter dated March 17, 1981, was insufficient to meet the requirements for a notice of intention to hold. Accordingly, the IBLA affirmed the BLM determination that the six mining claims were abandoned. This action followed.

The following interrelated issues are now presented to this court:

(1) Did plaintiff file an evidence of assessment work for 1981 as required by 43 U.S.C. Sec. 1744(a)?

(2) Did the filing of a combined notice in 1980 for assessment work performed for the 1980 and 1981 assessment years comply with the requirements of 43 U.S.C. Sec. 1744?

(3) Did plaintiff's letter of March 17, 1981, constitute a notice of intention to hold for purposes of 43 U.S.C. Sec. 1744(a)?

This court's review is limited to: whether the agency's decision was arbitrary, capricious, or an abuse of discretion; whether the agency considered all relevant facts; and whether the agency complied with all applicable procedural requirements. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); MarkAir, Inc. v. CAB, Inc., 744 F.2d 1383, 1385 (9th Cir.1984); Arizona Past & Future Foundation, Inc. v. Lewis, 722 F.2d 1423, 1425 (9th Cir.1983).

As long as the interpretation of a statute is reasonable, the court may not substitute its own interpretation. State of Alaska v. Lyng, 797 F.2d 1479, 1481 (9th Cir.1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987). In N.L. Indus., Inc. v. Secretary of the Interior, 777 F.2d 433 (9th Cir.1985), a case specifically involving the annual filing provisions of 43 U.S.C. Sec. 1744(a), the Ninth Circuit Court of Appeals stated:

The district judge observed that more than one reasonable interpretation of section 314(a) was possible, but that his own interpretation was the "most reasonable" one. Because the proper standard of review is whether the Secretary's interpretation is "arbitrary and capricious," however, the district judge is not free to substitute his own interpretation, even if more reasonable.

Id. at 440.

Did Plaintiff File a Notice of Assessment Work in 1981?

The administrative record in this case does not show that any notice of assessment work was filed in 1981. The only documents received in 1981 contained in the record are:

(1...