Shearer v. Zinke

• Decision Date: 09 November 2018
• Docket Number: No. 3:18-cv-0035-HRH,3:18-cv-0035-HRH
• Parties: PAUL G. SHEARER, Plaintiff, v. RYAN ZINKE, UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, and NATIONAL PARK SERVICE, Defendants.
• Court: U.S. District Court — District of Alaska

PAUL G. SHEARER, Plaintiff, v. RYAN ZINKE, UNITED STATES DEPARTMENT OF INTERIOR,BUREAU OF LAND MANAGEMENT,and NATIONAL PARK SERVICE, Defendants.

No. 3:18-cv-0035-HRH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

November 9, 2018

ORDER

Motion to Dismiss

Defendants move to dismiss plaintiff's complaint.¹ This motion is opposed.² Oral argument was not requested and is not deemed necessary.

Background

Plaintiff is Paul G. Shearer. Defendants are Ryan Zinke, the Department of Interior ("DOI"), the Bureau of Land Management ("BLM"), and the National Park Service ("NPS").

This case involves two unpatented mining claims, the Banjo and Pass claims, which "are located in the Kantishna Mining District within Denali National Park and Preserve, Alaska[.]"³ Plaintiff alleges that the Banjo and Pass mining claims were discovered in the late 1920s by Joseph Quigley; and that in 1937, Quigley and his wife "optioned" the claims to E. Fransen and C.M. Hawkins.⁴ Plaintiff alleges that Fransen and Hawkins subsequently "assigned their option to Red Top" Mining Company.⁵

Plaintiff alleges that Red Top developed and mined the Banjo and Pass claims from 1938 to 1942, but ceased mining the claims in 1942 due to an executive order closing gold mines because they were nonessential to the war effort.⁶ Plaintiff alleges that Michael R. Mark Anthony ("Anthony") acquired Red Top's interest in the Banjo and Pass claims sometime in the 1980s and that "on July 19, 1989, [he] filed a patent application . . . for the Banjo and Pass Claims. . . ."⁷ Plaintiff alleges that Anthony's ownership of the Banjo and Pass Claims was confirmed in a quiet title action Anthony commenced in state court in 1991.⁸ More specifically, plaintiff alleges that Anthony's ownership of the Banjo and Passclaims was confirmed by the court when it approved a 2000 settlement agreement reached by the parties (Anthony, Red Top, and plaintiff) to the quiet title action.⁹

Plaintiff alleges that he "purchased all of Anthony's rights to the Banjo and Pass Claims in 2005."¹⁰ In addition, plaintiff alleges that the parties to the state quiet title action reached an agreement in 2005, in which Red Top assigned or transferred any remaining rights it might have had in the Banjo and Pass claims to plaintiff.¹¹ Plaintiff alleges that the 2000 and 2005 settlement agreements in the quiet title action, and the court orders approving same, "resolved all remaining issues that were brought, or could have been brought, by parties opposed to [plaintiff's] claims of interest in the Banjo and Pass Claims."¹²

"On November 14, 1997, . . . Congress passed an Appropriations Act for the Department of Interior that included 'Section 120,' a provision taking all mining claims in the Kantishna Mining District in Denali National Park and establishing a procedure to pay just compensation to the claim owners."¹³ "Specifically, Section 120 allows owners of 'patented mining claims and valid unpatented mining claims . . .' within the Kantishna Mining District in the boundaries of Denali National Park to consent to a taking of theirclaims by the Government."¹⁴ "Section 120 also provides for the payment of 'just compensation . . . of any valid claims to which title has vested in the United States pursuant to [Section 120], determined as of the date of taking."¹⁵

Plaintiff alleges that in February 1998, pursuant to Section 120, he and Red Top both "filed written consents to the taking of any interest in mining claims" that they owned as of February 1998.¹⁶ Plaintiff alleges that he did not own any interest in the Banjo and Pass claims in February 1998 because at that point in time, Anthony "was the owner of record of [the] Banjo and Pass" claims.¹⁷ Because Anthony did not consent to the taking of the Banjo and Pass claims, plaintiff contends that the Banjo and Pass claims have not been taken by the United States.

In November 2003, plaintiff filed a complaint in this court "seeking compensation under Section 120 for the claims he owned" that had been taken by the United States pursuant to his 1998 consent ("Case No. 263").¹⁸ In his original complaint in Case No. 263, plaintiff only sought compensation for "his ownership of . . . a 3.05 acre tract[] of the Doherty patented mining claim that [he] consented to have taken pursuant to . . . Section120."¹⁹ However, in May 2005, plaintiff filed a first amended complaint in Case No. 263.²⁰ In his first amended complaint, plaintiff sought compensation for additional mining claims (Parcels 2-21), which included the Banjo and Pass claims (Parcel 7).²¹ Plaintiff alleged that he had consented to the taking of whatever interest in the Banjo and Pass claims the Quigley heirs had conveyed to him and that Red Top had consented to the taking of any interest it had in the Banjo and Pass claims on or before February 12, 1998.²² Plaintiff also "reserve[d] the right to amend [the first amended] Complaint to remove the Banjo and Pass mining claims . . . from the list of Claims consented and proceed to complete the current patent application which is in progress on those mining claims."²³

In September 2005, the United States moved for partial summary judgment in Case No. 263.²⁴ The United States argued that plaintiff's consent to the taking of Parcels 2-21 "was not effective to invoke the provisions of Section 120" because plaintiff had notadequately described the claims at issue.²⁵ This motion was denied, except as to claims that plaintiff had agreed should be dismissed.²⁶ Plaintiff had not agreed that the Banjo and Pass claims should be dismissed.

In 2007, plaintiff filed a second amended complaint in Case No. 263.²⁷ In the second amended complaint, as to the Banjo and Pass claims, plaintiff again alleged that he had consented to the taking of whatever interest had been conveyed to him by the Quigley heirs and that Red Top had consented to the taking of whatever interest it had as of February 1998.²⁸ And, plaintiff again reserved the right to amend his complaint as to the Banjo and Pass claims to remove them from the consent list and proceed with completing the patent application that Anthony had filed in 1989.²⁹

In 2008, plaintiff and the United States reached a settlement as to most of plaintiff's claims in Case No. 263.³⁰ The settlement agreement did not, however, involve the Banjo and Pass claims.³¹

In April 2011, the United States filed a renewed motion to dismiss in Case No. 263.³² On January 6, 2012, the court granted the renewed motion to dismiss in part and denied it in part.³³ Plaintiff's claim for Section 120 compensation for the Banjo and Pass claims was not dismissed because the United States did not move to dismiss this claim.³⁴ However, the court did address plaintiff's "reservation of the right to 'amend this Complaint to remove the Banjo and Pass mining claims . . . from the list of claims consented to [under Section 120]. . . ."³⁵ The court observed that "if Shearer successfully consented to the taking of those parcels under Section 120, title will have vested in the United States, and he cannot simply take the property back."³⁶ The court further observed that it had "already ruled, over the Government's objection, that any interest held by Shearer in [the Banjo and Pass mining claims] was taken under Section 120 by the Government with Shearer's consent."³⁷ The court also stated that it had never "held[] that Shearer had perfected his title [of the Banjo and Pass claims] at the time he consented to their taking by the Government. The [c]ourt's ruling was merely that Shearer [in February 1998] had consented to the taking of any title that he had in theseparcels."³⁸ The court thus rejected plaintiff's "assertion of a reservation of right to withdraw consent" because the court had "already ruled on the validity of Shearer's consent to the taking of the Banjo and Pass claims . . . , and there is no reason to believe that the [c]ourt would ever revisit the ruling and find that the consent was invalid."³⁹

Shortly after the court entered the order on the United States' renewed motion to dismiss in Case No. 263, the DOI issued the first of two 2012 decisions involving the validity of the Banjo and Pass claims, which had been the subject of administrative proceedings for a number of years. As set out above, Anthony had filed a patent application for the Banjo and Pass claims in 1989,⁴⁰ and in 1995, the DOI approved the First Half Final Certificate for the claims.⁴¹

Issuance of the FHFC "[c]onfirms [that] equitable title is vested in the applicant, subject to the confirmation of a discovery of a valuable mineral deposit by a mineral examiner," and "[c]ertifies that the applicant has satisfactorily complied with all of the 'paperwork' requirements of the Mining Law (title, proofs, posting requirements, purchase money)."

Independence Min. Co. v. Babbitt, 885 F. Supp. 1356, 1357-58 n.3 (D. Nev. 1995) (quoting Bureau of Land Management, Processing Mineral Patent Applications H-3860-1, Rel. No. 3-265, at VI-1 (1991)). But, in 2003, "BLM, on behalf of NPS, initiated an administrativeadjudication of the validity of the Banjo and Pass [c]laims."⁴² In 2011, the IBLA issued a decision upholding the validity of the Banjo and Pass claims.⁴³

On February 9, 2012, however, Secretary of Interior Ken Salazar issued a decision cancelling the First Half Final Certificate.⁴⁴ Salazar's decision explained that the certificate was being cancelled because at the time that Red Top had filed the necessary Federal Land Policy and Management Act ("FLPMA") paperwork in 1979,⁴⁵ it was not the owner of the claims and thus the claims were deemed abandoned as of December 30, 1980, by operation of law.⁴⁶

On April 5, 2012, Marcilynn Burke, DOI Acting Assistant Secretary for Land and Minerals Management, issued a final decision on the validity of the Banjo and Pass claims. Burke declared the Banjo and Pass claims "abandoned and void as of October 22, 1979, for failure to comply with the initial...