Vane Minerals (Us), LLC v. United States
| Decision Date | 29 April 2014 |
| Docket Number | No. 13-413 L,13-413 L |
| Parties | VANE MINERALS (US), LLC, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Arizona Wilderness Act of 1984, Pub. L. 98-
406, 98 Stat. 1485 (as amended);
Federal Land Policy and Management Act of
1976, 43 U.S.C. § 1701 et seq.;
Mining Law of 1872, 30 U.S.C. §§ 22-47;
National Environmental Policy Act of 1969,
Surface Mining Control and Reclamation
Act of 1977, 30 U.S.C. §§ 1201-1328
(governing surface coal mining
operations);
Ripeness;
36 C.F.R. § 228.4(c) (plan of operations for
mining on Forest Service lands);
36 C.F.R. § 228.5(a)(1)-(5) (approving a
plan of operations for mining on Forest
Service lands);
43 C.F.R. § 3809.100(a) (provisions
applicable to segregated or withdrawn
lands);
43 C.F.R. § 3809.401(b) (requirements for
plan of operations on BLM lands);
43 C.F.R. § 3832.11(c)(1) (locating mining
claims);
RCFC 12(b)(1) (jurisdiction);
RCFC 12(b)(6) ().
John C. Lacy, DeConcini McDonald Yetwin & Lacy, P.C., Tucson, Arizona, Counsel for Plaintiff.
Gregory Daniel Page, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., Counsel for the Government.
VANE Minerals (US), LLC ("Plaintiff"), a Delaware limited liability company, has been in the business of locating and exploring mineral properties in Northern Arizona since 1979. Compl. ¶¶ 5, 10; 1/2/13 Hefton Decl. ¶ 2. Since October 2004, Plaintiff primarily has focused on uranium exploration and mining, and has invested more than $8.5 million in uranium mining exploration. Compl. ¶¶ 5, 8, 11; 1/2/13 Hefton Decl. ¶ 1.
As of June 21, 2013, Plaintiff held 678 unpatented lode mining claims on two areas of federal land in Northern Arizona. Compl. ¶¶ 1, 7-10. The first area, known as the "Arizona Strip," includes 626,678 acres. 1/2/13 Hefton Decl. ¶ 10. The second area includes 355,874 acres in the Kaibab National Forest. 1/2/13 Hefton Decl. ¶ 10. Plaintiff asserted these claims, pursuant to the Mining Law of 1872, 30 U.S.C. §§ 22-47, that "authorizes citizens to stake, or 'locate,' a valid mining claim upon 'discovery' of a valuable mineral deposit on public lands." Copar Pumice Co., Inc. v. United States, 112 Fed. Cl. 515, 520 (2013) (internal citations omitted). The claims include "commercially viable concentrations of uranium [that] are located within geological features known as breccia pipes,"2 and are "among the highest grade in the world." 1/2/13 Hefton Decl. ¶¶ 3-5. Mining uranium from breccia pipes occurs underground; the ore is then transported for processing. 1/2/13 Hefton Decl. ¶ 6.
On July 21, 2009, the United States Department of the Interior ("Interior"), acting through the Bureau of Land Management ("BLM"), published a Notice of Proposed Withdrawal of "approximately 633,547 acres of public lands and 360,002 acres of National Forest System lands for up to 20 years from location and entry under the Mining Law of 1872[.]" Notice of Proposed Withdrawal and Opportunity for Public Meeting; Arizona, 74 FED. REG. 35,887-01 (July 21, 2009) (the "Withdrawal Notice"); see also 1/2/13 Hefton Decl. ¶ 10. The Withdrawal Notice further segregated the aforementioned lands ("Withdrawal Area") from location and entry under the Mining Law of 1872 for a period of two years to "protect the Grand Canyon watershed from adverse effects of locatable hardrock mineral exploration and mining," and to allow "studies and analyses, including appropriate National Environmental Policy Act analysis." Withdrawal Notice, 74 FED. REG. at 35,887. If approved by the Secretary of the Interior, Interiorwas authorized to withdraw the lands within the Withdrawal Area "subject to valid existing rights." Id. All of Plaintiff's unpatented lode mining claims are located within the Withdrawal Area. 1/2/13 Hefton Decl. ¶ 10.
On August 20, 2009, the United States Forest Service ("Forest Service") met with all interested uranium exploration and mining companies within the Withdrawal Area to discuss the proposed mineral examination process that would be used to determine whether mining claimants within the Withdrawal Area had valid existing rights that would be exempt from the effects of the Withdrawal Notice. 8/8/13 Schuppert Decl. ¶¶ 5-9. At some unidentified time thereafter, Plaintiff submitted a plan of operations to the Forest Service. 8/8/13 Schuppert Decl. ¶ 9. On April 8, 2010, the Forest Service informed Plaintiff, in a letter addressed to Mr. Hefton, of the steps necessary to obtain a valid existing rights determination and scheduled a field examination for May 3, 2010. 8/8/13 Schuppert Decl. Ex. A. On May 7, 2010, Mr. Hefton participated in a teleconference with various representatives from the Forest Service, during which Mr. Hefton inquired about the consequences if Plaintiff withdrew its pending plan of operations. 8/8/13 Schuppert Decl. Ex. C at 2. That same day, Mark Schwab, a Forest Service Mineral Examiner, informed Mr. Hefton via email that if "the [p]lan of [o]perations is withdrawn, there would be no need to conduct [a valid existing rights] determination of the subject mining claims, and the [valid existing rights] examination would not occur." 8/8/13 Schuppert Decl. Ex. C at 2. Later that day, Mr. Hefton withdrew Plaintiff's proposed, submitted plan of operations and all other plans of operation "on all of [Plaintiff's] projects in the Kaibab National Forest[.]" 8/8/13 Schuppert Decl. Ex. C at 1.
On June 21, 2011, close to the expiration of the two-year Withdrawal Notice, Interior issued an "emergency six month withdrawal order of the subject Federal lands," pursuant to the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701 et seq. ("FLPMA"). Compl. ¶ 35.
On January 18, 2012, Interior "withdr[ew] approximately 1,006,545 acres of public and National Forest System lands from location and entry under the Mining Law of 1872 . . . , subject to valid existing rights, for a period of 20 years in order to protect the Grand Canyon Watershed from adverse effects of locatable mineral exploration and development." Public Land Order No. 7787; Withdrawal of Public and National Forest System Lands in the Grand Canyon Watershed; Arizona, 77 FED. REG. 2,563-01 (Jan. 18, 2012) (the "Withdrawal Order")). The Withdrawal Order became effective on January 21, 2012. Id.
On September 27, 2012, Plaintiff filed a Complaint in the United States Court of Federal Claims, alleging that the Withdrawal Order violated: the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"); FLPMA; the Arizona Wilderness Act of 1984, Pub. L. 98-406, 98 Stat. 1485 ("AWA"), and regulations adopted to implement each of these statutes. Complaint, Vane Minerals v. United States, No. 12-cv-646 (Fed. Cl. Sept. 27, 2012), ECF No. 1. The September 27, 2012 Complaint sought damages under two theories: inverse condemnation and estoppel. Id.
On November 26, 2012, the Government filed a Motion To Dismiss, pursuant to RCFC 12(b)(1), arguing that the court did not have jurisdiction to adjudicate the claims alleged in the September 27, 2012 Complaint, because Plaintiff previously filed Complaints-In-Intervention on June 4, 2012 and June 27, 2012 in the United States District Court for the District of Arizona in cases that arose from the same set of operative facts as the suit in the United States Court of Federal Claims.
On December 26, 2012, Plaintiff filed a Notice in the United States District Court for the District of Arizona requesting that the June 4, 2012 and June 27, 2012 Complaints-In-Intervention be dismissed, without prejudice. See Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz. Dec. 26, 2012), ECF No. 86. On January 8, 2013, the United States District Court for the District of Arizona dismissed Plaintiff's Complaints, without prejudice. See Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz. Jan. 8, 2013), ECF No. 87.
On January 2, 2013, Plaintiff filed a Response to the Government's November 26, 2012 Motion To Dismiss. On January 22, 2013, the Government filed a Reply.
On May 29, 2013, the United States Court of Federal Claims issued a Memorandum Opinion And Final Order, determining "that 28 U.S.C. § 1500 divests the court of jurisdiction . . . , because at the time of the filing of the September 27, 2012 Complaint in the United States Court of Federal Claims, Plaintiff was a party to two prior related cases in the United States District Court for the District of Arizona, arising from the same set of operative facts." See Vane Minerals (US), LLC v. United States, 111 Fed. Cl. 253, 255-56 (2013) ("Vane I").
On June 21, 2013, Plaintiff filed a second Complaint in the United States Court of Federal Claims that is almost identical to that dismissed on May 29, 2013 in Vane I.
The Complaint alleges that, within the Withdrawal Area, 3,350 mining claims are located, including 678 of Plaintiff's unpatented lode mining claims constituting 20.2% of that total and an "estimated undiscovered uranium endowment of 12,250 tons of uranium oxide." Compl. ¶ 57(a)-(c). Approximately 1,837 tons of uranium oxide underlying Plaintiff's claims is commercially feasible to mine, representing a projected net value to Plaintiff (after deducting projected development expenses) of "between $68,550,000 and $123,615,000." Compl. ¶¶ 57(d)-58. To date, the BLM and Forest Service have refused to allow Plaintiff to explore its mining claims or locate additional claims. Compl. ¶ 60. In particular, the Complaint alleges that the Withdrawal Notice effectively prevented Plaintiff from engaging in mining operations until the BLM prepared a mineral examination report, confirming that Plaintiff had made a "mineral discovery." 1/2/13 Hefton Decl. ¶ 11 (citing 43 C.F.R. § 3809.1003); see also Pl. Resp. 6 ("Hadthe [Withdrawal Notice], and later the [W]ithdrawal [...
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