Opinion
Case No. 1:19-cv-00482-CL
02-18-2021
GEORGE E. BACKES, and RICK BARCLAY Plaintiffs, v. DAVID BERNHARDT, Acting Secretary of Interior, et al, Defendant.
FINDINGS AND RECOMMENDATION
Plaintiffs George Backes and Rick Barclay bring this cause of action challenging the final decision of the Internal Board of Land Appeals, which found Plaintiffs in violation of the Bureau of Land Management regulations concerning their mining operation and occupancy of public lands. The case comes before the Court on cross motions for summary judgment. On February 3, 2021, the Court held a telephonic oral argument hearing on the motion. For the reasons below, the Plaintiffs' motion (#34) should be DENIED, and the defendants' motion (#37) should be GRANTED. This case should be dismissed, and judgment entered for the defendants.
CLAIMS
The first claim in this action seeks review pursuant to 5. U.S.C. §§ 701 et seq. (the federal Administrative Procedures Act or "APA") of a final decision of the United States Department of Interior's Bureau of Land Management through its Interior Board of Land Appeals (IBLA). Plaintiffs' second claim challenges the underlying validity of the final decision because the Noncompliance Notices on which the decision was based are alleged to have been executed by a person who did not have the proper delegated authority.
BACKGROUND
This case involves public lands managed by the Bureau of Land Management (BLM) in Josephine County, Oregon near the Rogue River, which are subject to Plaintiffs' unpatented mining claims. ECF 1 ¶ 10-11; DEFS_10. Five of Plaintiffs' six mining claims were located before the enactment of the Surface Resources and Multiple Use Act of 1955 ("SRA"). DEFS_5. In January 2015, the BLM undertook a site inspection of Plaintiffs' operations. DEFS_11-12; DEFS_561-562; DEFS_554-560 (photos from site inspection). During the site inspection, the BLM observed the presence of "mechanized earth moving equipment" used to "install a water pipe system, improve roads, clear adit entrances, and level areas for structures and work areas." DEFS_531. The BLM found that this exceeded "casual use" under 43 C.F.R. Subpart 3809 and found violations of specific prohibited acts under 43 C.F.R. § 3809.605. DEFS_532.
The documents in the administrative record, (#17), are Bates-numbered with the prefix "DEFS_."
The BLM also observed two camp trailers, an on-site watchman, two private gates, multiple no-trespassing and warning signs, a residential cabin, a milling facility, a recently poured concrete slab, several mills and crushers, storage of large equipment, and mining supplies on the public lands. DEFS_528. The BLM found these uses constituted "occupancy" under 43 C.F.R. Subpart 3715 and found violations of specific prohibited acts under 43 C.F.R. § 3715.6. DEFS_529.
Accordingly, in March 2015 the BLM issued two Noncompliance Notices, each listing the observed violations of 43 C.F.R. Subparts 3809 and 3715. DEFS_528-533. The Notices are signed by a purported individual whose signature appears to be that of someone named "Jim Bell." At the administrative level, Plaintiffs did not dispute the contents of the Notices, but they did dispute the BLM's authority to regulate Plaintiffs' mining claims.
On appeal to the IBLA, Plaintiffs argued that holders of unpatented mining claims located before the enactment of the Surface Resources Act of 1995 have the exclusive right to use and manage the surface of the claims, subject only to the limitation that use must be "reasonably incident to mining." The IBLA disagreed with the Plaintiffs. Even after assuming all of the disputed facts in favor of the Plaintiffs, the IBLA found that 43 C.F.R. 3715 and 3809 are consistent with the BLM's statutory authority to regulate all mining claims, and it held that the BLM properly applied the regulations to Plaintiffs' claims.
During the years in which the administrative proceedings were pending before the IBLA, Plaintiffs submitted one or more Freedom of Information Act (FOIA) requests attempting to determine the identity of the person who had executed the BLM Notices on behalf of the agency "acting for" Field Manager Allen Bollschweiger. The BLM's responses to the FOIA requests redacted the pertinent information, and the agency has not disclosed the identity of the person who signed the notices. Plaintiffs claim that no one with the name "Jim Bell" or anything similar is known to be associated with the local BLM offices from which the Notices originated, nor has the BLM established that the individual who appears to have executed the Notices had authority to do so. The issue of the signature provided on the Noncompliance Notices was not raised to the IBLA, nor was it addressed in those administrative proceedings.
STATUTORY AND REGULATORY BACKGROUND
a. The Mining Law
The Mining Law of 1872 ("Mining Law") is considered the "cornerstone of federal legislation dealing with mineral lands." United States v. Coleman, 390 U.S. 599, 600 n. 1 (1968). The Mining Law, as amended, is codified at 30 U.S.C. §§ 22-54. Under the Mining Law, a private citizen may enter public lands to prospect and mine for mineral deposits. 30 U.S.C. § 22. The grant of rights to use public lands pursuant to the Mining Law has always been restricted solely to explore for and mine valuable mineral deposits. See Multnomah Mining, Milling & Dev. Co. v. United States, 211 F. 100 (9th Cir. 1914).
The Mining Law also authorizes citizens to stake, or "locate," a valid mining claim upon "discovery" of a valuable mineral deposit and compliance with all other applicable statutory and regulatory requirements. Chrisman v. Miller, 197 U.S. 313, 320-21 (1905). Legal title to the public lands encumbered by mining claims remains with the United States, unless and until the mining claimant obtains a "patent" to the lands by complying with the requirements set forth in the Mining Law. 30 U.S.C. § 29; see Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 575 (1987); Teller v. United States, 113 F. 273, 281 (8th Cir. 1901); Freese v. United States, 639 F.2d 754, 756 (Ct. Cl. 1981); Copar Pumice Co. v. Bosworth, 502 F. Supp. 2d 1200, 1202 (D.N.M. 2007) (explaining that "title to the land where the mining claim is located remains with the Government").
The text of the Mining Law makes clear that use and occupancy of public lands subject to mining claims, such as the lands at issue, is subject to regulation:
Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States . . . under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.30 U.S.C. § 22; see also id. § 26 (providing mining claimants with the right of possession "so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title").
The government retains substantial regulatory powers over mineral interests on the public lands established under the Mining Law. United States v. Locke, 471 U.S. 84, 105 (1985) ("Claimants thus must take their mineral interests with the knowledge that the Government retains substantial regulatory power over those interests."); Chambers v. Harrington, 111 U.S. 350, 353 (1884); see also United States v. Shumway, 199 F.3d 1093, 1102-03 (9th Cir. 1999) (stating that, until a patent issues, federal land management agencies retain authority and control over the lands that are subject to mining claims).
b. Surface Resources and Multiple Use Act of 1955
Congress passed the Surface Resources and Multiple Use Act of 1955 ("SRA"), 30 U.S.C. §§ 611-612, as "corrective legislation" to clarify the law and alleviate prior abuses under the Mining Law, as well as the land management challenges that grew out of the provision in 30 U.S.C. § 26 granting mining claimants "exclusive right of possession" of the surface of their claims. United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1280 (9th Cir. 1980).
Congress implemented this purpose in the SRA by (1) expressly limiting activities on mining claims to "prospecting, mining or processing operations and uses reasonably incident thereto," 30 U.S.C. § 612(a); (2) withdrawing "common varieties" of minerals previously subject to disposal under the Mining Law and placing them under the authority of the Materials Act of 1947, id. § 611; and (3) making mining claims located after its enactment subject to "the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof" provided that use by the United States, its licensees, and permittees with regard to vegetative resources and surface resources other than minerals subject to disposal under the Mining Law did not "materially interfere" with mining or processing operations. Id. § 612(b).
c. The Federal Land Policy and Management Act of 1976
In 1976, Congress passed the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-1787. Section 302(b) of FLPMA expressly acknowledged that it amended the Mining Law in only four discrete ways. One of those four ways is relevant here: "In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b). This language required the Secretary of Interior to manage the public lands—including all public lands used and occupied for mining operations under the Mining Law—in such a manner as to prevent the unnecessary or undue degradation of those lands.
It states: "Except as provided in section 1744, section 1782, and subsection (f) of section 1781 of this title and in the last sentence of this paragraph, no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b).
d. The BLM's Regulations: 43 C.F.R. Subparts 3809 and 3715
In 1980, the BLM promulgated 43 C.F.R. Subpart 3809 to implement FLMPA's mandate by "establish[ing] procedures to prevent unnecessary or undue degradation of Federal lands which may result from operations authorized by the mining laws." 43 C.F.R. § 3809.1(a). The Subpart 3809 regulations require operators to, among other things, have a BLM-approved plan of operations or an acknowledged notice before beginning any surface disturbance from mining operations on public lands that will exceed "casual use." See 65 Fed. Reg. at 70002 (discussing the addition of the term "casual use" as "threshold" for notice/plan of operations).
In 1996, the BLM promulgated the "use and occupancy" regulations, 43 C.F.R. Subpart 3715, to help ensure that mining operations do not exceed the rights granted under the Mining Law. The stated purpose of the regulations is to manage the use and occupancy of the public lands for the development of locatable mineral deposits by limiting such use or occupancy to that which is reasonably incident to mining. 43 C.F.R. § 3715.0-1(a). The subpart also states that "the [BLM] will prevent abuse of the public lands while recognizing valid rights and uses under the Mining Law of 1872 (30 U.S.C. 22 et seq.) and related laws governing the public lands, regardless of when those rights were created. 43 C.F.R. § 3715.0-1. The authority for the Subpart 3715 regulations is also found in the Department of the Interior's duty to prevent "unnecessary or undue degradation" because if a use of public lands is not "reasonably incident," it is not authorized under the mining laws; consequently, it is an "illegal use" which "inherently constitutes 'unnecessary or undue degradation' of public lands." 61 Fed. Reg. at 37118.
LEGAL STANDARD
The Mining Law, SRA, and FLPMA do not contain provisions for judicial review, so Plaintiffs bring their claims under the Administrative Procedure Act ("APA"). See City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 (9th Cir. 2004). Under the APA, a reviewing court will uphold agency action unless it finds the action was "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Ctr. for Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1005 (9th Cir. 2011), quoting 5 U.S.C. § 706(2)(A).
An agency decision is arbitrary and capricious "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal quotation omitted).
The Ninth Circuit and this Court apply substantial deference to the IBLA's interpretations of statutes administered by the Department of the Interior. See Akootchook v. United States, 271 F.3d 1160, 1166-67 (9th Cir. 2001) (deferring to IBLA interpretation of the Alaska Native Claims Settlement Act); Brandt-Erichsen v. U.S. Dep't of Interior, Bureau of Land Mgmt., 999 F.2d 1376, 1381 (9th Cir. 1993) (giving "substantial deference" to IBLA's decisions interpreting the meaning of a statutory term); Nevitt v. United States, 828 F.2d 1405, 1406-07 (9th Cir. 1987) (deferring to the IBLA's interpretation of a statutory term); Oregon Nat. Desert Ass'n v. McDaniel, No. 09-cv-369, 2011 WL 1654265, at *12 (D. Or. April 28, 2011) (same). Other federal courts apply similar deference to the IBLA interpretations of statutes that are administered by the Interior Department. See, e.g., Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754-55 (D.C. Cir. 2007) (applying substantial deference to the IBLA's interpretation of FLPMA); Hoyl v. Babbitt, 129 F.3d 1377, 1385-86 (10th Cir. 1997) (deferring to the IBLA interpretation of statute); New West Materials LLC v. Interior Bd. of Land Appeals, 398 F. Supp. 2d 438, 444 & n. 18 (E.D. Va. 2005) (collecting cases); Two Bay Petroleum v. U.S. Dep't of Interior, No. 2:05-CV-2335-MCE-JFM, 2007 WL 2028192, at *5 (E.D. Cal. July 10, 2007) (deferring to the IBLA's interpretation of the Mineral Leasing Act).
DISCUSSION
The final decision by the Interior Board of Land Appeals should be affirmed. Defendants' motion for summary judgment should be granted; Plaintiffs' motion should be denied.
I. The defendants' motion for summary judgment on Plaintiff's first claim should be granted.
a. The IBLA rationally applied the BLM regulations to the undisputed facts in the record.
Defendants' summary judgment motion against Plaintiffs' first claim, brought against the IBLA's October 2018 decision, should be granted. The IBLA reached a rational interpretation that the regulations at 43 C.F.R. Subparts 3715 and 3809 govern all operations on public lands under the Mining Law "regardless of when [any mining] claims [within the project area] were located or the applicability of the Surface Resources Act to the claims." DEFS_5-6. As the IBLA found, "even assuming Plaintiffs "have pre-1955 surface rights and that all their activities are reasonably incident to mining," the regulations apply to Plaintiffs' operations and Plaintiffs failed to comply with them. DEFS_17; see DEFS_17-29. The IBLA's interpretation was rational because it was based on well supported findings demonstrating that the Subparts 3809 and 3715 regulations apply by their terms and by clear regulatory intent to all public lands used and occupied under the Mining Law, including lands subject to mining claims, regardless of date of location. DEFS_19-20. As the IBLA found, the Mining Law itself gives the BLM statutory authority to regulate all public lands subject to pre-1955 mining claims to ensure compliance with the Mining Law and FLPMA, DEFS_20-22.
The IBLA rationally found that the BLM's regulations properly implement the directives in the Mining Law and FLPMA by establishing notice or approval procedures that enable the BLM to ensure mining claimants may fully exercise their surface rights but not exceed them. See DEFS_23-27. As the IBLA found, the regulations "allow BLM to determine whether proposed occupancy or operations are reasonably incident to mining or likely to cause unnecessary or undue degradation of the public lands." DEFS_27. The IBLA concluded that "the procedures of the regulations . . . apply whenever occupancy is proposed and operations exceed casual use." Id.
After rationally interpreting the regulations, the IBLA properly upheld the BLM's March 2015 decisions based on the record. The record includes the BLM's inspection, which showed that Plaintiffs violated the Subparts 3809 and 3715 regulations "by initiating occupancy of the claims and conducting operations that exceed casual use without seeking the BLM's concurrence with occupancy and without submitting a notice to the BLM concerning its operations or obtaining the BLM's approval of a plan of operations." DEFS_29. As the IBLA noted, Plaintiffs made "no real effort" to establish compliance with the regulations. "By [Plaintiffs'] own admission, they have initiated occupancy and conducted operations on their mining claims that exceed casual use." DEFS_30.
b. The case law supports the IBLA's interpretation that Subparts 3809 and 3715 govern mining claims regardless of the location date of the claim.
The Supreme Court has upheld the applicability of BLM regulations promulgated under FLPMA and the Mining Law to mining claims located prior to 1955. United States v. Locke, 471 U.S. 84 (1985). In Locke, the mining claimants owned 10 unpatented mining claims; the claims were initially located in 1952 and 1954, and they were valued at several million dollars as sources of gravel and building materials. Id. at 89. Throughout the twenty-year period during which they owned the claims, the claimants complied with annual state-law filing and assessment work requirements, and they satisfied FLPMA's initial recording requirement by properly filing with the BLM a notice of location, thereby putting their claims on record for purposes of FLPMA. Id. At the end of 1980, however, the claimants failed to file the annual notice of intention to hold the claim, which is due "prior to December 31" of every year after the year of the initial recording. Id. at 90. Section 314(c) of the Act (FLPMA) provides that failure to comply with these requirements "shall be deemed conclusively to constitute an abandonment of the mining claim ... by the owner." 43 U.S.C. § 1744(c). The claimants filed their annual notice of intention on December 31; one day too late. Id.
Section 314 of the Act (FLPMA) establishes a federal recording system that is designed both to rid federal lands of stale mining claims and to provide federal land managers with up-to-date information that allows them to make informed land management decisions. For claims located before FLPMA's enactment, the federal recording system imposes two general requirements. First, the claims must initially be registered with the BLM by filing, within three years of FLPMA's enactment, a copy of the official record of the notice or certificate of location. Stat. 2743, § 314(b), 43 U.S.C. § 1744(b). Second, in the year of the initial recording, and "prior to December 31" of every year after that, the claimant must file with state officials and with the BLM a notice of intention to hold the claim, an affidavit of assessment work performed on the claim, or a detailed reporting form. 90 Stat. 2743, § 314(a), 43 U.S.C. § 1744(a). See Locke, 471 U.S. at 87-89.
Reviewing the facts, the Supreme Court pointed out that, in many cases, the loss of a mining claim in this way would have minimal practical effect; the claimant could simply locate the same claim again and then rerecord it with the BLM. Id. In Locke, however, relocation of these particular claims was prohibited by the Common Varieties Act of 1955, 30 U.S.C. § 611, a subchapter of the SRA. That Act prospectively barred location of the sort of minerals yielded by these claims. The claimants' mineral deposits thus escheated to the Government.
Harsh result notwithstanding, the Supreme Court affirmed that all mining claimants are required to abide by the BLM's regulations implementing the recordation requirements of section 314. Locke, 471 U.S. at 105-06 (citing 43 U.S.C. § 1744(b)). Explaining the decision, the Court discussed the long history of mining regulations, noting that those who sought to make their living by locating and developing minerals on federal lands "were virtually unconstrained by the fetters of federal control," creating "virtual chaos with respect to the public lands" by the 1960's. Id. at 86. This chaos is what led to the enactment of FLPMA in 1976. The Court found that "there can be no doubt" of Congress's authority to apply the recording requirements to all mining claims, as such a requirement was supported by a "legitimate legislative purpose furthered by rational means." Id. at 105 (internal quotation omitted). Notably, in confirming that the mining claims were subject to the section 314 requirement even though they were located before the enactment of FLPMA, and the requirement "thus applie[d] to vested claims," the Court did not make an exception based on the fact that the mining claims were located in 1952 and 1954—before the enactment of the SRA. Id.
The section 314 recordation requirement at issue in Locke was one of the four discrete ways that FLPMA amended the Mining Law. See 43 U.S.C. § 1732(b). The statutory mandate to prevent unnecessary or undue degradation, under which BLM promulgated the Subpart 3809 regulations at issue here, was another. See id. The regulations stemming from both requirements are supported by the same "legitimate legislative purpose furthered by rational means." There is no reasonable basis to hold that the recordation requirement of FLPMA applies to mining claims whenever located, while the FLPMA requirement to prevent unnecessary or undue degradation of the lands applies only to claims located after 1955. Therefore, in the case at bar, as in Locke, the BLM regulations enacted under FLPMA apply to mining claims, whenever located.
Additionally, the BLM regulations apply, regardless of how obvious the claimants' use of the claim. In Locke, the claimants had been utilizing their claims and complying with state and federal regulations for 20 years, but the Court found they were still required to meet section 314's annual notice requirement. In this case, Plaintiffs claim that their case should be remanded back for a hearing to show that their activities were clearly "incident to mining." Even if this is true, and the IBLA assumed that it was true, Plaintiffs are still required to meet the BLM regulations' requirements to give notice or get BLM concurrence when their activities exceed "casual use." In both cases, the requirements do not exist simply to ensure the substantive result, but to allow efficient management of the public lands, correcting and avoiding the "chaos" of the 1960's.
For the same reason, the harsh result decried by the mining claimants in both cases, arguably much harsher in the Locke case, does not excuse the claimants' failure to comply with the applicable regulations. In Locke, the result was the permanent loss and ejection of the claimants from the mining claim, forever, for the mere failure to file an annual notice by one, single day. Here, Plaintiffs are not permanently ejected. They need only to bring their operations into compliance with the BLM regulations requiring notice or concurrence in order to continue their use and occupancy of the claim. Plaintiffs' assertion that the result in this case would be an unprecedented impingement on their mining rights is thus unpersuasive.
Other case law supports the conclusion that the BLM regulations apply to Plaintiffs' pre-SRA mining claims. The Court of Federal Claims required a mining claimant to abide by the Subpart 3809 regulations and obtain an approved mining plan of operations before mining and occupying federal lands. Strubel v. United States, No. 06-112C, 2009 WL 1636355 (Fed. Cl. June 10, 2009). The court found no legal basis to exempt the mining claimant from complying with BLM regulations, even though the mining claim was allegedly located in 1851. The court held that even where miners may have acquired the "exclusive right of possession" under 30 U.S.C. § 26 by locating a pre-1955 mining claim, such owners are "still subject to the government's right to require that their exclusive possession further the development and extraction of mineral resources, commensurate with applicable laws and regulations." Strubel, 2009 WL 1636355, at *6.
Courts have similarly concluded that the location dates of mining claims do not affect the application of the Forest Service's regulations governing operations authorized by the Mining Law, regulations that are essentially parallel to the BLM regulations at issue here. For example, in United States v. Langley, 587 F. Supp. 1258, 1265-67 (E.D. Cal. 1984), the court required a miner to file a plan of operations under regulations promulgated under the Mining Law even though the mining claim was located before 1955. Id. at 1266-67. "There can be little doubt that the Forest Service regulations apply" to the defendant's "mining operations and to his residence." Id. at 1265. Accord United States v. Kornec, 2019 WL 830508, at *8 (D. Mont. Feb. 21, 2019) (Forest Service's authority to require compliance with mining-operations regulations authorized by the Mining Law extends to lands subject to pre-1955 mining claims). This Court finds no reason that the Forest Service regulations, but not the parallel BLM regulations, should apply to pre-1955 mining claims.
c. Application of BLM regulations to pre-1955 mining claims is good policy.
There are sound policy reasons to reject Plaintiffs' assertion that the location date of their unpatented mining claims should exempt their mining operations from the Subparts 3809 and 3715 regulations. Creating an exception for mining operations on pre-1955 mining claims would lead to an incongruous result with the purpose of FLPMA. See Locke, 471 U.S. at 101. The logical extension of Plaintiffs' theory would make a large number of mining operations and occupancies exempt from the requirement to notify or obtain approval before beginning surface use, as well as the related requirements to meet environmental and performance standards in 43 C.F.R. § 3809.420 and § 3715.5; to have reclamation plans in § 3809.401(b)(3) and § 3715.5-1; and to provide financial guarantees to ensure that the public does not bear the cost of reclamation. Id. § 3809.500. Allowing certain mining operations to avoid these requirements based only on the location date of the underlying mining claims has no rational basis and is not aligned with FLPMA's goal of preventing unnecessary or undue degradation of the public lands. See 43 U.S.C. § 1732(b). Indeed, such a result effectively negates the purpose of FLPMA, to rein in the "laissez-faire regime" which "had created virtual chaos with respect to public lands." See Locke, 471 U.S. at 86.
II. Plaintiffs' motion for summary judgment on the first claim should be denied.
For all of the same reasons discussed above, Plaintiffs' motion for summary judgment on their first claim for relief should be denied. Plaintiffs argue that the IBLA erred in not adjudicating whether Plaintiffs have surface rights their mining claims. Pls.' Memo 8-9. The SRA provides specific procedures for such determinations, to ascertain whether the bundle of rights associated with a mining claim located before the statute's enactment included the "exclusive right of possession" afforded under 30 U.S.C. § 26, or whether the mining claimant could only assert a non-exclusive right under 30 U.S.C. § 612(b). In this case, however, the outcome of any surface rights determination is immaterial because the IBLA assumed that all of Plaintiffs' pre-1955 mining claims have retained their exclusive surface rights." DEFS_18. As explained above, regardless of whether Plaintiffs have "exclusive" surface rights, they must comply with the procedures of the Subparts 3809 and 3715 regulations.
III. Plaintiffs' second claim for relief is not cognizable; defendants' motion for summary judgment on this claim should be granted, and Plaintiffs' motion should be denied.
Plaintiffs' claim challenging the authenticity of the Noncompliance Notices issued by the BLM in 2015, is not cognizable. First, under the APA, the IBLA decision is the only "final agency action" that is appealable and reviewable by this Court. See Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1064-65 (9th Cir. 2010) (holding that an IBLA decision was the "final agency action" for judicial review, not the underlying BLM decision). Thus, the underlying BLM decisions in this case, including the Noncompliance Notices issued to Plaintiffs, are not reviewable.
Second, even if the underlying Notices were reviewable final agency actions, there is no statutory legal basis for the Plaintiff's second claim. "There is no right to sue for a violation of the APA in the absence of a relevant statute whose violation forms the legal basis" for the claim. El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991) (internal quotations omitted). See also Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 797, nn.10 & 11 (9th Cir. 1996). The APA "do[es] not declare self-actuating substantive rights, but rather, . . . merely provide a vehicle for enforcing rights which are declared elsewhere." Perales v. Casillas, 903 F.2d 1043, 1050 n. 4 (5th Cir. 1990) (citing El Rescate, 959 F.2d at 753). Plaintiffs' second claim is based on the failure of the BLM to properly delegate authority to sign the Noncompliance Notices issued to Plaintiffs. While Plaintiffs cite to the internal BLM Manual and internal BLM policies requiring such delegation, there is no statute establishing a duty to delegate the signatory authority that would create a legal basis for the claim.
Third, even if the claim were cognizable, any signature error was harmless in this case. The APA requires that courts take due account of harmless error. U.S.C. § 706; Shinseki v. Sanders, 556 U.S. 396, 406 (2009). An error is harmless "when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached." Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 807 (9th Cir. 2005). As discussed above, the substance of the decision made by the IBLA was a legal conclusion that the BLM regulations applied to the Plaintiffs' pre-1955 mining claims. Plaintiffs did not dispute any of the underlying facts alleged by the BLM about their mining operations or occupancy and use of the land at issue. Any signature-delegation error that may have occurred would not have impacted the underlying facts of the case, which were conceded by Plaintiffs, nor would it have impacted Court's analysis that the BLM regulations applied to Plaintiffs' claims. Therefore, any error was harmless and did not prejudice Plaintiffs in this case.
RECOMMENDATION
For the reasons above, the final decision of the IBLA should be affirmed. Defendants' motion for summary judgment (#37) should be GRANTED, and Plaintiffs' motion (#34) should be DENIED. Judgment should be entered in the defendants' favor and this case should be dismissed.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 18 day of February, 2021.
/s/_________
MARK D. CLARKE
United States Magistrate Judge