                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             AUG 24 2015
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN H. MCKOWN, IV,                               No. 13-16099

              Plaintiff - Appellant,              D.C. No. 1:09-cv-00810-SKO

 v.
                                                  MEMORANDUM*
UNITED STATES OF AMERICA; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Eastern District of California
                   Sheila K. Oberto, Magistrate Judge, Presiding

                              Submitted July 8, 2015**
                              San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

      John H. McKown IV appeals the finding by the Interior Board of Land

Appeals (IBLA) that three unpatented mining claims, White Cap Nos. 1, 2, and 3,

to which he asserts an interest, are invalid for lack of discovery of a valuable


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
mining deposit. The district court affirmed the IBLA’s decision on these

Administrative Procedure Act (APA) claims. McKown also brought four separate,

non-APA claims in district court, which were dismissed with prejudice; McKown

argues that these claims should be dismissed without prejudice in the event the

APA claims are valid. We have jurisdiction under 28 U.S.C. 1291, and we affirm.

      “In reviewing decisions of the IBLA, this court exercises a limited standard

of review.” Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir. 1999). Under this

standard, an agency’s factual conclusions should be supported by “substantial

evidence,” which is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (internal citations omitted). If the IBLA’s

decision “considered the relevant factors and articulated a rational connection

between the facts found and the choice made,” then the decision must be affirmed.

Pac. Coast Fed’n of Fishermen’s Ass’ns. v. Blank, 693 F.3d 1084, 1091 (9th Cir.

2012).

      Where a mining claim is located on land withdrawn from mineral entry

under the Wilderness Act, the claimant must prove discovery of a valuable mineral

deposit at the time of a withdrawal, see Wilderness Soc’y v. Dombeck, 168 F.3d

367, 375 (9th Cir. 1999), and at the time of the contest hearing, see Hjelvik, 198

F.3d at 1074. “[T]o qualify as valuable mineral deposits, the discovered deposits


                                          2
must be of such a character that a person of ordinary prudence would be justified in

the further expenditure of his labor and means, with a reasonable prospect of

success, in developing a valuable mine.” United States v. Coleman, 390 U.S. 599,

602 (1968) (internal quotation marks omitted). The government’s evidence

demonstrated “that there were no exposed minerals on White Cap Nos. 2-3 and that

the cost to mine the exposed quartz outcrop on White Cap No. 1 would exceed the

resale value of the silicon produced from the quartz, both when Congress removed

the land from mineral entry in 1994 and at the time of the hearing.” This evidence

is sufficient to support the IBLA's conclusion that none of McKown's claims

contained valuable mineral deposits. See Hjelvik, 198 F.3d at 1074.

      Additionally, the legal description of the lands that Congress designated as

part of the Kiavah Wilderness, and the official map that Congress used to designate

the boundaries of the Kiavah Wilderness, provided substantial evidence for the

IBLA to find that McKown’s claims were included within the Kiavah Wilderness.

The IBLA also had substantial evidence to conclude that the Forest Service had

allowed McKown to use “motorized vehicles and contemporary equipment to

access the claims and to collect samples.”

      Finally, substantial evidence supported the IBLA’s conclusion that the

Forest Service did not prevent McKown from taking core samples, as substantial


                                         3
evidence instead supports the conclusion that the lack of core samples was

McKown’s fault as he failed to file the necessary paperwork with the Forest

Service in order to drill and take core samples.

      Lastly, the district court did not abuse its discretion by ordering McKown’s

non-APA claims dismissed with prejudice. On appeal, McKown makes clear that

he only seeks reinstatement of such claims if we reverse the district court’s ruling

on his APA claims. We affirmed the district court's dismissal of the APA claims,

and therefore affirm the district court's dismissal of McKown's complaint.

AFFIRMED




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