Shearer v. Bernhardt
| Decision Date | 19 June 2020 |
| Docket Number | No. 3:18-cv-0035-HRH,3:18-cv-0035-HRH |
| Parties | PAUL G. SHEARER, Plaintiff, v. DAVID BERNHARDT, UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, and NATIONAL PARK SERVICE, Defendants. |
| Court | U.S. District Court — District of Alaska |
In this APA case, plaintiff Paul G. Shearer has timely filed his opening brief1 in which he seeks judicial review of two 2012 United States Department of the Interior ("DOI") decisions involving the Banjo and Pass mining claims. Defendants David Bernhardt, the DOI, the Bureau of Land Management ("BLM"), and the National Park Service ("NPS") have timely responded.2 Also pending in this case are plaintiff's motions for judicial notice and a writ of mandamus.3 These motions are opposed.4 Oral argument has not been requested and is not deemed necessary.
"Under the General Mining Act of 1872, 30 U.S.C. §§ 21-54, citizens can enter and use public lands for mining exploration." R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1063 (9th Cir. 1997). "A mining claim on public lands of the United States is initiated by location." Multiple Use, Inc. v. Morton, 353 F. Supp. 184, 189 (D. Ariz. 1972). "The location of a mining claim gives the locator certain rights against rival mining claimants, but . . . [t]he locator obtains no rights against the United States until there has been a discovery of a valuable mineral deposit within the limits of the claim." Id. at 189-90. "If valuable mineral deposits are found, a mining claim may be filed for a lode or placer claim[.]" R.T. Vanderbilt Co., 113 F.3d at 1063. "Possessory interest in a claim can be held indefinitely upon discovery of valuable mineral deposits provided that annual assessment work is performed, all necessary filings and fee payments are made, and the valuable mineral deposit continues to exist." Id. "An individual who possesses a valid mining claim may go through an additional process to obtain a patent, thereby purchasing from the Federal Government the land and minerals and obtaining ultimate title to them." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993) (citation omitted). "At any time prior to the issuance of a patent, the government may challenge the validity of the mining claim and, if successful, the claim will be cancelled with all rights forfeited." Id.
A mining patent application is initially submitted to the appropriate BLM state office. The applicant must show "that he has the possessory right to the claim, in virtue of a compliance by himself . . . with the mining rules, regulations, and customs of the mining district or State in which the claim lies, and with the mining laws of Congress[.]" 43 C.F.R. § 3862.1-1(a). This showing must include "the facts constituting such compliance, the origin of his possession, and the basis of his claim to a patent." Id. "The application should containa full description of the kind and character of the vein or lode and should state whether ore has been extracted therefrom; and if so, in what amount and of what value." Id. "It should also show the precise place within the limits of each of the locations embraced in the application where the vein or lode has been exposed or discovered and the width thereof." Id. "The showing in these regards should contain sufficient data to enable representatives of the Government to confirm the same by examination in the field and also enable the Bureau of Land Management to determine whether a valuable deposit of mineral actually exists within the limits of each of the locations embraced in the application." Id.
Once the paperwork requirements for a mining patent are complete and the applicant has paid the purchase price,5 the State BLM director reviews the application and makes recommendations as to whether the "First Half of Mineral Entry Final Certificate" ("FHFC") should issue, which is "DOI's administrative recording of a [patent] applicant's compliance with the initial paperwork requirement of the Mining Law." Independence Min. Co. v. Babbitt, 105 F.3d 502, 506 (9th Cir. 1997). After further review of the patent application by the BLM and officials within the DOI, the patent application package is sent to the Secretary for final action on the FHFC. Id. at 506-97.
After an FHFC is issued, there must be "a determination that the claim is valid." Id. "Before a determination of validity can be made, a mineral examiner must do a field examination; collect and analyze samples; estimate the value of the mineral deposit and the cost of extracting, processing and marketing the minerals, including the costs of complying with any environmental and reclamation laws." Id. at 506-07. "Upon completion of themineral report, all patent applications undergo legal and secretarial review, and if approved, the patent will issue." Id. at 507.
In 1972, pursuant to the Alaska Native Claims Settlement Act, the DOI withdrew the lands around the Banjo and Pass claims from mineral entry but preserved valid existing mining rights. 37 Fed. Reg. 5579, 5582 (Mar. 16, 1972). In 1976, Congress enacted the Federal Land Policy and Management Act ("FLPMA"). Section 314 of FLPMA required owners of unpatented lode mining claims to record their claims with the BLM by October 22, 1979. 43 U.S.C. § 1744(a). Section 314 also requires mine owners to thereafter file an annual affidavit of assessment of work done on the claim or a notice of intent to hold the claim. 43 U.S.C. § 1744(a)(1). Failure to file any of the required documents is deemed an abandonment of the mining claim. 43 U.S.C. § 1744(c).
In 1980, Congress enacted the Alaska National Interest Lands Conservation Act ("ANILCA"). ANILCA expanded Denali National Park and Preserve, which resulted in the mining claims at issue in this action being surrounded by park land. However, preexisting valid mining rights were preserved.
The Banjo and Pass claims are located in the Kantishna Mining District within Denali National Park and Preserve in Alaska. The Banjo and Pass claims are rectangular, contiguous, along strike, and total 35.709 acres.6 J.B. Quigley discovered the Banjo claim in 19287 and the Pass claim in 1929.8 Quigley executed notices of locating the Banjo andPass claims.9 The location notices were recorded on October 2, 1928, and July 3, 1929, respectively.10 In August 1937, Quigley and his wife, Fannie Quigley, optioned the Banjo and Pass claims (along with other mining claims) to E. Fransen and C.M. Hawkins.11 The Banjo and Pass claims were expressly identified in the Option Agreement.12 The Option Agreement gave Fransen and Hawkins the "option to purchase" the Quigleys' mining claims for $100,000, to be paid in yearly installments of $10,000.13 The Option Agreement provided that if all the installment payments were made, then the Quigleys would deliver "good and sufficient deed for all of the lode claims" described in the contract to Fransen and Hawkins.14 In October 1937, Fransen and Hawkins assigned their interest in the Option Agreement to Red Top Mining Company.15 Red Top mined the Banjo and Pass claims from 1938 until 1942, when the federal government closed gold mines as nonessential to the war effort.16 From 1942 through 1978, annual assessment affidavits were filed by Red Top as the owner of the claims.17
On July 3, 1979, Red Top recorded the Banjo and Pass claims with the BLM.18 Red Top stated that "[t]he title to all these claims passed from Joseph and Fannie Quigley to E. Fransen and C.M. Hawkins by an option-contract agreement dated August 20, 1937" and "[t]hen the title passed from E. Hansen and C.M. Hawkins to Red Top Mining Company."19
Red Top submitted annual assessment affidavits for 1979, 1980, 1981, 1982, and 1984.20 In 1985, the BLM notified Red Top that the Banjo and Pass claims were deemed abandoned and void because no affidavit or notice of intention to hold was filed for 1983.21 That decision was vacated after Red Top provided proof of assessment work completed in 1983.22 Red Top thereafter submitted assessment affidavits for 1985, 1986, 1987, and 1988.23 Beginning in 1989, Mike R. Mark Anthony ("Anthony") began submitting the assessment affidavits for the Banjo and Pass claims.24
On March 28, 1989, Anthony recorded an affidavit in which he averred that in July 1988, he gave notice of a claimant lien to the last known shareholders of Red Top and that he also published notice of the claimant lien.25 Anthony averred that in response, a number of Red Top shareholders, who claimed a total ownership percentage of 4.45%, paid theirproportionate share of the assessment work on the claims.26 Anthony further averred that "[n]o other Co-Owners responded to the said Notice, therefore forfeiting whatever interest they may have claimed" in the Banjo and Pass claims.27
On April 17, 1989, Anthony submitted a letter to the BLM, in which he stated that he was "the Majority Owner/Manager" of the Banjo and Pass claims.28 Attached to the letter was the March 28, 1989, affidavit and other supporting documents.29 The BLM case file abstract indicates that there was a "name change/trans of int" on that day.30
In July 1989, Anthony applied for a patent for the Banjo and Pass claims.31 In the application, Anthony represented that he owned 94.98% of the property, which he had acquired through his interest in Red Top.32 Anthony stated that he held "a controlling interest" in Red Top.33
In 1990, Anthony began acquiring interests in the Banjo and Pass mining claims by means of quitclaim deeds of various dates between November 1990 and September 1992.34
In 1991, Anthony filed a quiet title and partition action in Fairbanks Superior Court (Case No. 2148). The defendants in this action were a number of individuals, some of whom were surviving directors of Red Top35 or Red Top shareholders named in Anthony's patent application.36 However, not all of the Red Top shareholders named in...
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