                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

WALTER B. FREEMAN,

                         Plaintiff,
                                                                 Civil Case No. 12-1094 (BAH)
                         v.                                      Judge Beryl A. Howell

UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,

                         Defendants.


                                          MEMORANDUM OPINION

        The plaintiff Walter B. Freeman filed this action under the Administrative Procedures

Act (“APA”), 5 U.S.C. § 706(2), against the United States Department of the Interior (“DOI”)

and two of its components, the Interior Board of Land Appeals (“IBLA”) and the Bureau of Land

Management (“BLM”), seeking to set aside two decisions of the IBLA relating to the plaintiff’s

mining rights, on the grounds that the decisions were arbitrary, capricious, and lacked substantial

evidence. See Compl. at 19 (“Prayer for Relief”), ECF No. 1. Pending before the Court is the

plaintiff’s Motion for Partial Summary Judgment on his First Cause of Action, challenging the

May 7, 2008 IBLA decision in United States v. Freeman, 174 IBLA 290 (2008) (“2008 IBLA

Decision”),1 which upheld the jurisdiction of DOI’s Office of Hearings and Appeals (“OHA”) to

determine the validity of unpatented mining claims at historical dates when the claims were

allegedly subject to a government taking within the meaning of the Fifth Amendment of the


1
 The 2008 IBLA Decision is contained in the Administrative Record (“AR”) for this action, at pages AR 1182–90.
Since the voluminous AR, which contains 15,274 pages of documents, is on a CD provided to the Court and has not
been filed on the docket for this case, see Notice Regarding AR at 1, ECF No. 14, citations to the 2008 IBLA
Decision will be to both the publicly available IBLA Digest of decisions and the AR.

                                                           1
Constitution. Pl.’s Mot. Partial Summ. J. & Mem. Supp. (“Pl.’s Mot.”) at 2–3, ECF No. 15.2

For the reasons explained below, the plaintiff’s motion is denied and the 2008 IBLA Decision

stands.3

I.       BACKGROUND

         The Court first briefly reviews the statutory and regulatory framework for assessing the

validity of mining claims under the General Mining Law of 1872 (“Mining Law”), 30 U.S.C. §§

22‒54 (2006), before turning to a summary of the two decades of administrative proceedings that

have culminated in this lawsuit.

         A.       Statutory and Regulatory Framework


           “To encourage mining in the western United States, Congress enacted the General

Mining Act of 1872.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 699 (D.C. Cir.

2009); see also Watt v. W. Nuclear, 462 U.S. 36, 47–49 (1983) (noting that “[w]ith respect to

land deemed mineral in character, the mining laws provided incentives for the discovery and

exploitation of minerals”). As an incentive to explore for valuable mineral deposits, the Mining

Law permits citizens “to go onto unappropriated, unreserved public land,” United States v.

Locke, 471 U.S. 84, 86 (1985), and to “stake, or locate, claims to extract minerals without prior

government permission and without paying royalties to the United States.” Orion Reserves, 553

2
  The Court acceded to the parties’ request to bifurcate review of the plaintiff’s two causes of action and to decide,
first, whether the IBLA correctly concluded in its 2008 decision that DOI’s OHA had jurisdiction over DOI’s
contest challenge, before considering the plaintiff’s second cause of action, which seeks review of IBLA’s 2010
merits decision that concluded plaintiff’s mining claims were null and void as of the alleged taking dates due to the
lack of discovery of valuable mineral deposits. See Meet and Confer Statement, at 1, ECF No. 13. The parties
explain that, “[i]f, as Plaintiff contends, jurisdiction was lacking in the agency below, there will be no need for
judicial review of the merits of the agency’s decision under the second cause of action” since “[t]he judicial
challenge to the agency’s decision on the merits will be moot if the agency had no jurisdiction.” Id.
3
 The plaintiff has requested oral argument on the pending motion, Pl.’s Mot. at 3, but given the ample written
submissions of the parties, this request is denied. See LCvR 7(f) (allowance of oral hearing is “within the discretion
of the court”).
                                                               2
F.3d at 699 (citing 30 U.S.C. § 26) (internal quotation marks omitted); see also Kunkes v. United

States, 78 F.3d 1549, 1551 (Fed. Cir. 1996); Cook v. United States, 85 Fed.Cl. 820, 823 (2009),

aff’d, 368 Fed. App’x. 143 (Fed. Cir. 2010); Freese v. United States, 639 F.2d 754, 757–58 (Ct.

Cl. 1981).4 Those who locate “mining locations” on public land are expressly granted “the

exclusive right of possession and enjoyment” but only “so long as they comply with the laws of

the United States, and with State, territorial, and local regulations . . . .” 30 U.S.C. § 26.

                  1.       Requirements for Valid Mining Claim

         Before a Congressional moratorium was enacted in 1994, claimants could “apply for

purchase of a deed, or ‘patent,’ conveying full legal title to the land on which their claims are

located.” Orion Reserves, 553 F.3d at 699 (citing 30 U.S.C. § 29).5 To qualify for a patent, the

applicant must establish that the mining claim is valid. United States v. Shumway, 199 F.3d

1093, 1101‒02 (9th Cir. 1999) (“[N]o right arose from an invalid claim.”). The D.C. Circuit has

pointed out, however, that “[e]ven without a patent, claimants can maintain their mining rights

indefinitely so long as they comply with federal, state, and local requirements” for a valid claim.

Orion Reserves, 553 F.3d at 699 (citing 30 U.S.C. §§ 26, 28). These possessory interests are

“unpatented” claims and give the owner equitable title, as opposed to “patented” claims, in

which a private owner has been bestowed full legal title. Kunkes v. United States, 32 Fed. Cl.

4
  The Secretary of the Interior is authorized to withdraw or sequester land from mining operations under the Mining
Law. 43 U.S.C. § 1714; Kosanke v. U.S. Dep’t of Interior, 144 F.3d 873, 874 (D.C. Cir. 1998) (“[A]ny lands
withdrawn from mineral entry are no longer considered to be within the public domain and therefore are not subject
to the statutory rights enumerated in the General Mining Law.”).
5
  Beginning on October 1, 1994, Congress placed a moratorium on the processing of patent applications for
unpatented mining claims in the Department of the Interior and Related Agencies Appropriations Act of 1995, Pub.
L. No. 103-332, § 112, 108 Stat. 2499, 2519 (1994) (“[N]one of the funds appropriated or otherwise made available
pursuant to this Act shall be obligated or expended to accept or process applications for a patent for any mining . . .
claim.”). The moratorium did not apply to certain applications pending before the Secretary of the Interior at the
time of the moratorium, see id. § 113; Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, § 314(c),
110 Stat. 3009 (1996), but the plaintiff’s claims were affected. This moratorium has been continued in effect. See
Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 408(a), 121 Stat. 1844, 2519 (2007).
                                                                3
249, 252 (Fed. Cl. 1994), aff’d, 78 F.3d 1549 (Fed. Cir. 1996) (noting that for an unpatented

claim “legal title to the land remains in the United States, [but] the claimant enjoys a valid,

equitable title in the claim, possessing all of the incidents of real property”); Ford v. United

States, 101 Fed. Cl. 234, 238 n.6 (Fed. Cl. 2011) (“An unpatented mining claim is an interest in

only the minerals in the land and not in the land’s surface; the government retains fee title to the

land.”).

           An unpatented mining claim is valid against the United States only when both a

discovery of valuable mineral deposit within the limits of the claim has been made, and the

claimant has complied with all statutory and regulatory requirements relating to the location,

recordation, and filing of claims. See 30 U.S.C. §§ 22, 26, 28, 28e.6 See also Best v. Humboldt

Placer Mining Co., 371 U.S. 334, 336 (1963) (unpatented mining claims are “valid against the

United States if there has been a discovery of mineral within the limits of the claim, if the lands

are still mineral, and if other statutory requirements have been met”). As the Supreme Court

explained almost a century ago, “no right arises from an invalid claim of any kind . . . otherwise

they work an unlawful private appropriation in derogation of the rights of the public.” Cameron

v. United States, 252 U.S. 450, 460 (1920).

           Thus, although a claimant may explore for mineral deposits before perfecting a mining

claim, without a discovery, the claimant has no right to the property against the United States or

an intervenor. 30 U.S.C. § 23 (mining claim perfected when there is a “discovery of the vein or

lode”); see also Cole v. Ralph, 252 U.S. 286, 295–96 (1920); Waskey v. Hammer, 223 U.S. 85,


6
 The D.C. Circuit in Orion Reserves, 553 F.3d at 699, noted that “[a]mong these obligations is a duty to perform
annual assessment work. The Mining Law requires that until a patent has been issued therefor, not less than $100
worth of labor shall be performed or improvements made during each year. When a claimant fails to perform this
annual assessment work, his claim is open[ed] to relocation . . . as if no location of the [mineral deposit] had ever
been made.” (internal quotation marks and citations omitted).
                                                               4
90 (1912) (noting that discovery is “a prerequisite to the location of the claim”); Am. Colloid Co.

v. Babbitt, 145 F.3d 1152, 1156 (10th Cir. 1998) (“Before one may obtain any rights in a mining

claim, one must ‘locate’ a valuable deposit of a mineral.”); Mineral Policy Ctr. v. Norton, 292 F.

Supp. 2d 30, 48 (D.D.C. 2003) (“‘A mining claim does not create any rights against the United

States and is not valid unless and until all requirements of the mining laws have been satisfied.’”

(quoting Skaw v. United States, 13 Cl. Ct. 7, 28 (1987))).

           To satisfy the discovery requirement for a valid claim, the mere physical presence of a

mineral is insufficient. Instead, “the discovered deposits 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 quotations omitted); see also Cameron, 252 U.S. at

459 (“[T]o support a mining location the discovery should be such as would justify a person of

ordinary prudence in the further expenditure of his time and means in an effort to develop a

paying mine. That is not a novel or mistaken test, but is one which the Land Department long

has applied and this court has approved.”); Davis v. Nelson, 329 F.2d 840, 846 (9th Cir. 1964)

(“[V]alidity of [ ] title . . . depends upon the resolution of a question of fact, that is, has there

been a discovery of valuable mineral within the limits of the claim?”); Foster v. Seaton, 271 F.2d

836, 838 (D.C. Cir. 1959). “The obvious intent was to reward and encourage the discovery of

minerals that are valuable in an economic sense.” Coleman, 390 U.S. at 602. If the discovered

deposits fail the “prudent person” test, the Government has the right to clear the title and the

right to the possession of its land from a “useless and annoying encumbrance.” Davis, 329 F.2d

at 846 (quoting Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir. 1964)).7 On the other hand, if

7
    A complementary “marketability” test may be used to evaluate whether the mine can be operated and minerals can
                                                              5
the discovered deposits are valuable under the “prudent person” test, the unpatented mining

claim “is a property right in the full sense, unaffected by the fact that the paramount title to the

land is in the United States.” Union Oil Co. of Cal. v. Smith, 249 U.S. 337, 349 (1919). This

constitutes a property interest, “which is within the protection of the Fifth Amendment’s

prohibition against the taking of private property for public use without just compensation.”

Skaw v. United States, 740 F.2d 932, 936 (Fed. Cir. 1984).

                  2.        Administrative Review of Contested Claims

          BLM is a subagency within DOI tasked with administering mining claims on federal

public land. See generally 43 C.F.R. § 3809; Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305,

307–08 (D.C. Cir. 1987) (BLM is “the subagency of the Department charged with land

management responsibilities, with permanent, comprehensive guidelines for carrying out its

mandate”). To determine whether a claim is valid, BLM conducts a mineral examination. If the

examination indicates the lack of discovery of a valuable mineral deposit or that the applicant

failed to meet other administrative requirements under the Mining Law, the BLM may initiate an

administrative mining contest proceeding to challenge the validity of the claim, since either of

those examination results, if substantiated, may render the mining claimant ineligible for a

patent.

          Prior to validity proceedings, unpatented claims amount to a potential property interest,

since it is the discovery of a valuable mineral deposit and satisfaction of statutory and regulatory

requirements that bestows possessory rights. See Ickes v. Underwood, 141 F.2d 546, 548–49

(D.C. Cir. 1944) (until there has been a determination that there has been a valuable discovery,


be sold at a profit. Coleman, 390 U.S. at 602 (stating that the marketability test “identif[ies] with greater precision
and objectivity the factors relevant to a determination that a mineral deposit is ‘valuable’” and describing it as a
“logical complement to the ‘prudent-man test’”).
                                                                6
claimants had only a gratuity from the United States); Payne v. United States, 31 Fed. Cl. 709,

711 (1994) (rejecting plaintiff’s argument that in the absence of a challenge to validity, the court

must take at face value their assertion that claims are supported by an adequate mineral

discovery). To have a compensable interest in an unpatented mining claim sufficient to bring a

taking action, the validity of the mining claim must be established. See Ford, 101 Fed. Cl. at 238

(finding without BLM determination, plaintiff could not establish a valid property interest in his

unpatented mining claim).

        The BLM has broad authority to initiate contest challenges, and may do so “for any cause

affecting the legality or validity of any entry or settlement or mining claim.” 43 C.F.R. § 4.451-

1. The meaning and scope of this regulation is the gravamen of the dispute at issue in the

pending motion. Mining contest challenges are brought before the OHA, which “is an

authorized representative of the Secretary for the purpose of hearing, considering, and deciding

matters within the jurisdiction of the Department involving hearings, appeals, and other review

functions of the Secretary.” 43 C.F.R. § 4.1. 8 The OHA provides two levels of review to

resolve mining contests: Administrative Law Judges (“ALJs”) in the Hearing Division have

authority to hold evidentiary hearings and issue decisions concerning the validity of mining

claims; and the IBLA decides appeals from ALJ rulings. 43 C.F.R. §§ 4.452-4–8; 43 C.F.R. §

4.452-9.

        In contest proceedings before an OHA ALJ, the BLM bears the initial “burden of going

forward with sufficient evidence to establish a prima facie case” that the claim is invalid. Foster,

271 F.2d at 838. “The government presents a prima facie case where a governmental mineral


8
 OHA is composed of a Hearings Division and three standing boards: Interior Board of Contract Appeals, Interior
Board of Indian Appeals, and the IBLA. Only the decisions of the IBLA are at issue in this action.
                                                            7
examiner offers expert testimony, based on probative evidence, that the discovery of a valuable

mineral deposit has not been made within the boundaries of a contested claim.” Ernest K.

Lehmann & Assocs. of Montana, Inc. v. Salazar, 602 F. Supp. 2d 146, 150 (D.D.C. 2009), aff’d,

377 F. App’x 28 (D.C. Cir. 2010) (citing United States v. Pass Minerals, Inc., 168 IBLA 115,

123 (IBLA 2006)). Once the government has made a prima facie case, the burden shifts to the

claimant to establish by a preponderance of the evidence sufficient proof of validity. Id. The

claimant bears the ultimate burden of persuasion and must produce evidence to rebut the

government’s case and establish the validity of the mining claim. Lara v. Sec’y of Interior, 820

F.2d 1535, 1542 (9th Cir. 1987); see also Ernest K. Lehmann & Assocs., Inc., 602 F. Supp. 2d at

150 (citing United States v. Rannells, 175 IBLA 363, 380 (IBLA 2008))); Reoforce, Inc. v.

United States, 2013 U.S. Claims LEXIS 250, at *17 (Fed. Cl. Apr. 4, 2013); United States v.

Everett Foster, 65 Interior Dec. 1, 11 (1958) (“Although the Government initiated the charges

and had the initial burden of sustaining at least the first charge—that there had been no

discovery—if it were to prevail in the contests, once the Government had produced evidence to

show that no discovery had been made, it was up to the contestees to overcome that evidence.”).

       Either party may appeal the ALJ determination to the IBLA, see 43 C.F.R. § 4.410(a),

which serves as DOI’s “review authority charged with deciding, on behalf of the Secretary,

matters relating to the use and disposition of public lands and their resources.” Aera Energy LLC

v. Salazar, 642 F.3d 212, 216 (D.C. Cir. 2011) (internal quotations and citations omitted).

Decisions of the IBLA constitute final agency action, 43 C.F.R. §4.403, and, therefore, no further

administrative appeal is authorized within DOI, 43 C.F.R. § 4.21(d). See also Hoyl v. Babbitt,

129 F.3d 1377, 1382 (10th Cir. 1997) (“The IBLA’s decision represents the final agency action .

. . .”); Doria Mining & Eng’g Corp. v. Morton, 608 F.2d 1255, 1257 (9th Cir. 1979) (“A decision
                                                     8
of the IBLA is not subject to further appeal before either the Director or any Appeals Board…

[and] constitute[s] the Secretary of the Interior’s final decision”)

         B.       Factual and Procedural Background

         The instant dispute stems from the plaintiff’s original 161 unpatented mining claims,9

located by his predecessors-in-interest between 1940 and the early 1970s, on approximately

4,968 acres of Federal land administered by BLM and the United States Forest Service

(“USFS”), mostly located in the Siskiyou National Forest in Southern Oregon. Freeman, 174

IBLA at 291; AR at 1183. Litigation over the validity of the plaintiff’s claims has been ongoing

for over two decades before the United States Court of Federal Claims (“CFC”), in DOI

administrative proceedings, and, now, before this Court.

                  1.       Effect of Moratorium on Plaintiff’s Patent Application

         On September 9, 1992, the plaintiff filed an application seeking to patent 151 of the 161

mining claims. Freeman, 174 IBLA at 291‒92; AR 1183‒84. Before the application was acted

on by BLM, the congressional moratorium took effect on October 1, 1994, halting the processing

of patent applications for unpatented mining claims. See Department of the Interior and Related

Agencies Appropriations Act of 1995 § 112. Due to this moratorium, “BLM has since refused to

process [the plaintiff’s] application.” Freeman, 174 IBLA at 292; AR 1184. On December 17,

1992, the plaintiff filed a “plan of operations” (“POO”) with the USFS, proposing to sample and

mine his claims. Id. “After several delays by the USFS and intervening administrative appeals

by [the plaintiff], the USFS denied his POO, rejecting his last appeal on October 11, 2000.” Id.



9
  The minerals contained within these mining claims are nickel, iron and chromium. See Pl.’s Mot. at 1, n.1. During
the contest proceedings, the plaintiff abandoned at least 79 of these claims, reducing the number of contested claims
to 82. Id. at 7, n.15.
                                                              9
                  2.       Proceedings Before the U.S. Court of Federal Claims

         On January 22, 2001, the plaintiff filed suit in the CFC, alleging that the defendants had,

“by refusing to approve his patent application and by effectively denying approval of his POO,

engaged in a taking of his property rights,” in violation of the Fifth Amendment. Freeman, 174

IBLA at 292; AR 1184; see also AR 10699‒712 (CFC Complaint). The plaintiff’s claim before

the CFC turns on whether he possessed a compensable property right against the United States.

To facilitate making this determination, the CFC stayed proceedings in the case and remanded

the matter to the DOI “for determination of validity of plaintiff’s mining claims.” AR 10728

(CFC Order at 1, Freeman v. United States, No. 01-39L (Oct. 10, 2001)).10

         Following the stay of CFC proceedings, the parties successfully reached agreement

regarding both the dates when the plaintiff claimed the alleged taking occurred and the

appropriateness of the use of those dates for a validity determination. The plaintiff’s counsel

emphasized that “we believe this process should try to determine the validity of [the plaintiff’s]

claims as of the date of the taking,” reiterating that “the critical date should be the date the claims

were taken.” AR 10877, Ex. 101 at 5 (Letter, dated September 5, 2003, from Richard M.

Stephens, plaintiff’s counsel, to Otto Schumacher, Western Mine Engineering, Inc. & Terry

Maley, BLM). Indeed, the plaintiff’s counsel cautioned that “[w]e hope this case does not follow

the path used in Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984), where BLM determined

that claims were not valid as of a date well after the alleged taking.” Id. at 6. As to the

applicable dates, the plaintiff suggested two possible dates for the validity determination: “the

first date is 1993 when the Forest Supervisor publicly stated in no uncertain terms that there was


10
  The CFC commonly stays litigation over alleged government takings of unpatented mining claims until the “BLM
has determined the validity of the plaintiffs’ mining claims.” Holden v. United States, 38 Fed. Cl. 732, 735 (Fed. Cl.
1997).
                                                              10
‘no way in hell’ that the Forest Service would allow [the plaintiff] to mine his claims;” and “the

second potential date of taking is the date the Forest Service’s formal process [on the plaintiff’s

POO] was completed . . . in 2000.” Id.

       In response to the plaintiff’s proposal about using the years 1993 or 2000 as the dates

when the alleged taking occurred, DOI sought more precise dates than entire years. AR 10887‒

89, Ex. 105 (Letter, dated November 12, 2003, from Bradley Grenham, Regional Solicitor DOI

to Richard M. Stephens, plaintiff’s counsel). At the outset, DOI rejected the plaintiff’s

suggestion that the date when a Forest Service employee allegedly made the “no way in hell”

statement could constitute the date of a taking since, even if that statement were made, such an

oral statement would not constitute a final agency action necessary for the validity determination.

Id. at 10888. At the same time, DOI suggested the date of October 6, 2000, for the validity

determination, since this was the date of the denial of the POO, which was cited in the plaintiff’s

complaint before the CFC as a taking. Id. at 10887‒88. In addition, DOI proposed October 1,

1994, the effective date of the congressionally imposed moratorium on the processing of mineral

patents, as another possible date to use for the validity determination. Id. at 10888. The agency

requested that the plaintiff provide notice, in writing, by December 1, 2003, of any disagreement

about the use of either October 6, 2000, or October 1, 1994, as the dates of the alleged taking for

the validity determination. Id.

       The plaintiff’s response did not dispute the appropriateness of these two dates—October

1, 1994 and October 6, 2000—as the alleged taking dates. Rather, the plaintiff agreed that

“October 6, 2000 is one possible appropriate date.” AR 10892, Ex. 106 (Letter, dated November

19, 2003, from Richard M. Stephens, plaintiff’s counsel, to Bradley Grenham, Regional Solicitor

                                                     11
DOI). The plaintiff reiterated that 1993 was another possible date, but acknowledged that, since

this date was close to the 1994 moratorium date offered by the agency, the plaintiff agreed that

“October 4, 1994 is the appropriate date for the temporary taking of Mr. Freeman’s rights to a

patent.” Id.

       With this agreement on the alleged “taking” dates, the BLM reviewed the plaintiff’s

mining claims to determine whether the requisite discovery had occurred by either of those dates.

After extensive examination, the mineral team assigned to determine the validity of the mining

claims as of the two alleged “taking” dates, determined that there was a lack of discovery and

recommended that the BLM issue a mining contest. AR 7751–52, Ex. 1 (DOI-BLM Mineral

Report, dated January 31, 2005, stating “no discovery . . . exists on any of the Claimant’s 161

mining claims . . . It is recommended that the BLM initiate contest proceedings . . . . Minerals

have not been found on any of the 161 mining claims . . . in sufficient qualities or quantities to

constitute a discovery. The minerals could not have been marketed at a profit as of either the

1994 or 2000 marketability dates.”).

               3.      2007 OHA ALJ Ruling

       An OHA ALJ conducted a 25-day contest claim hearing initiated by BLM, and received

over 400 exhibits and over 3,400 transcript pages of testimony elicited by the parties. See

Freeman, 174 IBLA at 293; AR 1186. At the conclusion of the hearing, the ALJ raised sua

sponte the concern that he lacked “jurisdiction or authority to resolve the allegation of the

[contest] Complaint that discovery of a valuable mineral deposit did not exist on any of the

contested claims as of 1994 and 2000.” AR 1264 (OHA ALJ Order, dated August 10, 2007, on

“Ruling on Jurisdictional Issue and Certification for Interlocutory Appeal; Claim Validity As of

the Date of Hearing Is Not At Issue”) (“2007 ALJ Ruling”). Both parties expressed
                                                     12
disagreement with the jurisdictional concern expressed by the ALJ and took the position that

OHA “has jurisdiction to determine the validity of the claims as of the alleged takings dates in

1994 and 2000.” Id. at 1265.11 Nevertheless, contrary to the views of both parties, the ALJ ruled

that the OHA lacked jurisdiction to review the validity of mining claims at the critical historical

dates when the alleged takings occurred. Id. at 1262, 1265.12

         The 2007 ALJ Ruling acknowledged the lack of “any controlling precedent directly

addressing the jurisdictional issue,” as well as the lack of clear direction as to what constitutes

the “critical date for determining validity when a patent application has been filed.” AR 1266.

Due to this perceived dearth of controlling authority, the 2007 ALJ Ruling relied heavily on dicta

in two other ALJ decisions, “which concluded that this office had no authority to determine

whether contested mining claims were valid as of the date of alleged takings which were subject

to a federal lawsuit.” Id. at 1265 (citing United States v. Aloisi, CACA 41272 (May 2, 2007) and

United States v. Story, Idaho 15974 (Nov. 19, 1981)).

         Three inter-related reasons are set out in the 2007 ALJ Ruling to reach this conclusion

about the OHA ALJ’s lack of authority to decide the validity of mining claims as of the alleged

takings dates. First, the ALJ construed the authority of the government to initiate claim contests

under the DOI regulation codified at 43 C.F.R. 4.451-1, and found that although this regulation


11
   Indeed, the plaintiff argued strenuously in his written submission before the OHA ALJ that “THE ALJ HAS
AUTHORITY TO RULE WHETHER FREEMAN’S MINING CLAIMS WERE VALID IN 2000 AND IN 1994,”
AR 1350 (capitalization in original), noting that “there is nothing to restrict the authority of the Secretary from
making a validity determination on any particular date.” AR 1351 (“Contestee Walter Freeman’s Brief on Authority
of [ALJ] To Determine Validity as of Certain Dates”). Moreover, the plaintiff pointed specifically to the language
in the regulation in dispute here, stating, “this language is broad and certainly includes the allegations by the
Government that in 1994 or 2000 the Freeman claims were not legal or valid discovery.” AR 1353.
12
  The ALJ rejected the plaintiff’s alternative suggestion that the validity of the mining claims be determined at the
date of the hearing, in addition to the alleged taking dates, because the contest complaint challenged only “the
existence of a discovery as of 1994 and 2000.” Id. This part of the 2007 ALJ Ruling was affirmed by the IBLA.
Freeman, 174 IBLA at 293; AR 1185.
                                                              13
grants “broad” power to DOI to initiate a contest, it also limits the charge or contest that may be

brought to “a cause affecting the legality or validity of a mining claim.” Id. at 1268. The ALJ

listed such causes as including “the failure to discover a valuable mineral deposit within the

claim, the failure to properly locate the claim, or the failure to pay any required annual

maintenance fee.” Id. at 1274. By contrast, the ALJ characterized “the alleged taking of a

mining claim” as a “motivating reason[] for filing a contest but . . . not [a] cause[] affecting the

legality or validity of a claim.” Id. In short, the ALJ determined that the regulation “has

conditioned” the Secretary’s authority regarding mining claims to causes “affecting the legality

or validity of a mining claim” and such causes “do not include an alleged taking of the mining

claim.” Id.

       Second, and relatedly, since a validating discovery of valuable minerals “may be made

even after a contest proceeding has been initiated,” id. at 1268 (citing United States v. Foster, 65

Interior Dec. 1, 5‒6 (1958), aff’d, Foster v. Seaton, 271 F.2d 836 (D.C. Cir. 1959)), the ALJ

determined that the “law does not appear to contemplate making a discovery determination as of

the dates of alleged takings, unless such a date coincidentally coincides with the applicable

critical date: the date of the hearing or, if Contestee complied with all the patent requirements,

the date of compliance,” id. at 1269. In the plaintiff’s case, the 1994 and 2000 dates did not

correspond with the hearing date, and because “it seems unlikely that [the plaintiff] complied”

with the requisite patent requirements by the alleged taking dates, those takings dates failed to

correspond with either critical date. Id. at 1270–71.

       Finally, the ALJ concluded that the purpose of the Mining Law is “better served by

restricting” validity determinations to the critical dates of the contest hearing or compliance with


                                                     14
patent requirements, rather than “based upon facts existing as of the dates of the alleged takings

or some other non-critical dates in the past.” Id. at 1270. Indeed, the ALJ called it “nonsensical

to encourage and reward through a determination of validity the development and discovery of

deposits not presently valuable,” or to find “a deposit which is presently valuable, and whose

development should rewarded and encouraged by validating the encompassing mining claim, . . .

invalid for lack of discovery at some prior point in time.” Id. at 1271.

         The ALJ found that “[t]he foregoing leads to the conclusion that [DOI] has no authority

to initiate a contest, and this office has no jurisdiction to resolve a contest, based upon the charge

that no discovery existed on each mining claim as of 1994 and 2000 rather than the applicable

critical date.” Id. at 1274.

                  4.       2008 IBLA Decision Reversing ALJ’s 2007 Ruling

         The BLM filed an interlocutory appeal to the IBLA challenging the 2007 ALJ ruling that

the Secretary, and by extension OHA, did not have the necessary jurisdiction to determine the

validity of unpatented mining claims as of alleged takings dates prior to the contest hearing.13

On May 7, 2008, the IBLA reversed the ALJ’s ruling that it lacked jurisdiction, finding instead

that “the Secretary, through BLM, has the authority to bring a contest to determine the validity of

mining claims as of the dates of the alleged takings,” and that OHA ALJs have “jurisdiction and

13
  Until the ALJ threw a proverbial “monkey wrench” into the proceedings by raising sua sponte the issue of
jurisdiction, both parties agreed that the dates of the alleged taking were appropriate benchmarks for determining
discovery. See Defs.’ Opp’n at 9 (citing Pl.’s Brief on Authority of Administrative Law Judge to Determine
Validity as of Certain Dates at 7, 11; AR 1351, 1355). In what the defendants accurately label as an “about-face
from the years over which Plaintiff agreed that the mineral exam and any contest would consider October 1994 and
October 2000 as the validity dates,” Defs.’ Opp’n at 9, the plaintiff did not join BLM’s interlocutory appeal but
rather reversed his position. Specifically, after “initially agreeing with BLM that [the ALJ] has jurisdiction to
determine validity as of the alleged takings dates,” before the IBLA, the plaintiff “assert[ed] that the ALJ lacks such
jurisdiction.” Freeman, 174 IBLA at 296 n.4; AR 1190. The plaintiff filed his own interlocutory appeal to the
IBLA challenging only the ALJ’s ruling that OHA lacked authority to determine the validity of the plaintiff’s
mining claims as of the hearing date. As noted, see note 11, supra, the 2008 IBLA Decision denied the plaintiff’s
interlocutory appeal and affirmed the ALJ’s determination that the validity of the claim as of the hearing date was
not alleged in the contest petition and, therefore, not at issue. Id.; AR 1190.
                                                               15
authority to adjudicate such a contest.” Freeman, 174 IBLA at 297; AR 1189. The IBLA

observed that while “a claimant may make a discovery and validate a mining claim after any

such date, even after contest proceedings have begun,” there “is nothing in the applicable

statutes, Departmental regulations, or case law that restricts mining contests” in the manner

interpreted by the ALJ. Freeman, 174 IBLA at 296; AR 1188. In fact, the IBLA noted that

“[t]he Board has upheld numerous contest decisions in which the contestant’s complaint alleged

invalidity only as of a date years prior to the date of the hearing.” Freeman, 174 IBLA at 296

n.9; AR 1188 (citing United States v. Clear Gravel Enters., Inc., 2 IBLA 287 (1971); United

States v. Stewart, 1 IBLA 161 (1970); and United States v. Bartlett, 2 IBLA 275 (1971)).

         The IBLA disagreed with the ALJ’s interpretation of the governing DOI regulations and

concluded that a “claim that is not supported by a discovery as of the alleged takings dates would

be invalid at that time under the mining laws, and the Government can surely bring a contest on

that basis pursuant to 43 C.F.R. § 4.451-1.” Freeman, 174 IBLA at 296; AR 1188 (emphasis in

original).14 The IBLA pointed out that the “Department’s authority to determine claim validity

as of any point in time has long been recognized by the courts.” Freeman, 174 IBLA 295; AR

1187 (citing Cameron, 252 U.S. at 460). Correspondingly, this authority “surely encompasses

providing assistance to the United States in resolving a takings lawsuit that arises out of mineral

entries on public lands.” Id.

                  5.       Remand and 2010 IBLA Decision

         The IBLA remanded the matter to the ALJ. During post-hearing briefing, the plaintiff

conceded the invalidity of 50 claims, which the ALJ declared null and void. Subsequently, the

14
  The IBLA noted that the ALJ failed to consider another prerequisite for validation of a mining claim in addition to
discovery, namely, the absence of an intervening right, stating that, “regardless of the date for which validity has
been challenged,” upon initiation of a contest claim, the United States is asserting a “competing property interest
against that of the claimant. 174 IBLA 296 n.8; AR 1188.
                                                             16
ALJ concluded that discovery of valuable mineral deposits had not been made on the remaining

111 claims at the time of the alleged takings. See United States v. Freeman, 179 IBLA 341, 345

(2010) (“2010 IBLA Decision”); AR 5809. The IBLA affirmed this decision in 2010. Id. at

389–90. 15

                  6.       The Plaintiff’s Instant Complaint

         On June 27, 2012, the plaintiff filed the instant complaint, challenging the 2008 and 2010

IBLA Decisions in two causes of action. See Compl. at 1. The first cause of action alleges that

IBLA’s 2008 holding “that mining claims can be determined to be presently invalid based on

historic economic conditions is arbitrary, capricious, [] [an] abuse of discretion, [] not in

accordance with the law,” id. ¶ 32, and “in excess of its statutory jurisdiction,” id. ¶ 33. The

plaintiff alleges that the IBLA “confuse[d] the initiation of contest proceedings with the

establishment of intervening rights,” id. ¶ 36, failed to observe procedural rules, id. ¶ 38, failed

to support its decision by substantial evidence, id. ¶ 39, and that the DOI “is collaterally estopped

from taking [a] position contrary to the rulings” in other OHA cases, id. ¶ 40.

         The second cause of action alleges that the “IBLA’s 2010 decision[,] declaring Plaintiff’s

mining claims invalid for lack of discovery of a valuable mineral deposit,” id. ¶ 43, is “arbitrary

and capricious,” id. ¶ 44, contrary to the plaintiff’s constitutional rights, id. ¶ 45, in excess of

statutory authority, id. ¶ 46, “issued without observance” of procedural requirements under the

APA, id. ¶ 47, and unsupported by substantial evidence, id. ¶ 48. The plaintiff’s pending partial

motion for summary judgment addresses only the first cause of action.




15
   Since the 2010 IBLA Decision is challenged in the plaintiff’s second cause of action, described below, and not at
issue in the pending motion, the reasoning of this decision is not further discussed here.
                                                             17
II.    LEGAL STANDARD

       A.      Summary Judgment

       Granting a motion for summary judgment is appropriate if the movant carries the burden

of showing “that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law,” based upon the pleadings, depositions, and affidavits, and other

factual materials in the record. FED. R. CIV. P. 56(a), (c); Ali v. Tolbert, 636 F.3d 622, 628 (D.C.

Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). A genuine issue of material fact is

one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). The Court is only required to consider the materials explicitly cited by the

parties, but may, on its own accord, consider “other materials in the record.” FED. R. CIV. P.

56(c)(3).

       In this case, the Court is presented with a partial motion for summary judgment for the

purposes of reviewing the plaintiff’s legal challenge to a final agency action in the form of an

IBLA decision. “[W]hen an agency action is challenged[] . . . [t]he entire case on review is a

question of law, and only a question of law.” Marshall Cnty. Healthcare Auth. v. Shalala, 988

F.2d 1221, 1226 (D.C. Cir. 1993). This Court need not and ought not engage in lengthy fact

finding, since “[g]enerally speaking, district courts reviewing agency action under the APA’s

arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate

courts resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096

(D.C. Cir. 1996); see also Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006)

(“Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that

is supported by the administrative record, whereas the function of the district court is to

determine whether or not as a matter of law the evidence in the administrative record permitted
                                                     18
the agency to make the decision it did.”) (quotation marks and citation omitted); McDonough v.

Mabus, 907 F. Supp. 2d 33, 42 (D.D.C. 2012); Wilson v. McHugh, 842 F. Supp. 2d 310, 315

(D.D.C. 2012); Caez v. United States, 815 F. Supp. 2d 184, 188 (D.D.C. 2011). Neither party

has raised a disputed material fact necessary to resolution of the legal issue posed in the pending

partial motion for summary judgment.

       B.      Deference Under APA

       When an administrative determination is challenged under the APA, “a reviewing court

shall set aside any agency action, finding, or conclusion that is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Theodore Roosevelt Conservation P’ship

v. Salazar, 616 F.3d 497, 507 (D.C. Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)). An agency

action is arbitrary and capricious if the agency has “entirely failed to consider an important

aspect of the problem, offered an explanation for its decision 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.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 42‒43 (1983). “The scope of review under the ‘arbitrary and capricious’

standard is narrow and a court is not to substitute its judgment for that of the agency.” Mount

Royal Joint Venture v. Kempthorne, 477 F.3d 745, 753 (D.C. Cir. 2007) (quoting Motor Vehicle

Mfrs. Ass’n, 463 U.S. at 43).

       An agency’s interpretation of its own regulation commands substantial judicial deference.

See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 415–17 (1945); Auer v. Robbins, 519

U.S. 452, 463 (1997); Drake v. F.A.A., 291 F.3d 59, 68 (D.C. Cir. 2002). “It is sometimes said

that this deference is even greater than that granted an agency interpretation of a statute it is

entrusted to administer.” Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 584
                                                  19
(D.C. Cir. 1997). “When an agency interprets its own regulation, the Court, as a general rule,

defers to it ‘unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (quoting Chase Bank USA, N. A. v.

McCoy, 131 S. Ct. 871, 880 (2011)) (quoting Auer, 519 U.S. at 461); see also Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (agency’s interpretation controls

unless it is plainly erroneous or inconsistent with the regulation); Seminole Rock, 325 U.S. at 414

(noting that a regulation “becomes . . . controlling weight unless it is plainly erroneous or

inconsistent with the regulation.”); Texas v. EPA, 726 F.3d 180, 195 (D.C. Cir. 2013) (agency

interpretation of its regulation is “controlling because the interpretation is neither plainly

erroneous [n]or inconsistent with the regulation, and there is no reason to suspect that it does not

reflect the agency’s fair and considered judgment on the matter in question”) (internal quotations

and citations omitted; brackets in original). Thus, a plaintiff challenging an agency’s

interpretation of its own regulations carries a “heavy burden in advancing [that] claim” because

an “agency’s interpretation of its own regulations ‘must be given controlling weight unless it is

plainly erroneous.’” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.

— MDL No. 1993, 709 F.3d 1, 11 (D.C. Cir. 2013) (internal citations omitted); see Auer, 519

U.S. at 463; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“[W]e must defer to

the [agency]’s interpretation unless an ‘alternative reading is compelled by the regulation’s plain

language or by other indications of the Secretary’s intent at the time of the regulation’s

promulgation.”). “Although an agency is ‘entitled to significant deference in interpreting its own

regulation—perhaps even more than an agency gets in interpreting a statute under Chevron—it is

unlikely we would defer to an unreasonable agency interpretation of an ambiguous regulation.”

Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319, 343 (D.C. Cir. 2011) (internal citations
                                                      20
omitted). Indeed, an agency is not permitted to “to promulgate mush and then give it concrete

form only through subsequent less formal ‘interpretations.’” Paralyzed Veterans of Am., 117

F.3d at 584–85.

       The D.C. Circuit has provided explicit instructions on the scope of review under the

arbitrary and capricious standard applicable to challenges, such as the instant one, to a decision

of the IBLA regarding mining claims. See Aera Energy LLC, 642 F.3d at 218 (“[T]he IBLA’s

decision . . . represents Interior’s final agency action for the purposes of judicial review”).

Specifically, in Orion Reserves, 553 F.3d at 703–04, the Court stated: “We uphold the IBLA’s

determinations so long as the Board engaged in reasoned decisionmaking and its decision is

adequately explained and supported by the record. Likewise, because substantial evidence

means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion, we reverse an agency’s decision only when the record is so compelling that no

reasonable factfinder could fail to find to the contrary.” Id. (internal citations and quotation

marks omitted).

III.   DISCUSSION

       The Supreme Court has long recognized that the Secretary of DOI is granted broad

plenary authority under the Mining Law over the administration of public lands, including the

determination of the validity of any mining claims. As the Supreme Court explained in

Cameron, 252 U.S. at 459–60,

       [b]y general statutory provisions the execution of the laws regulating the
       acquisition of rights in the public lands and the general care of these lands
       is confided to the Land Department, as a special tribunal; and the
       Secretary of the Interior, as the head of the department, is charged with
       seeing that this authority is rightly exercised to the end that valid claims
       may be recognized, invalid ones eliminated, and the rights of the public
       preserved.
                                                      21
Id. The Court further made clear that even when “the mineral land law does not in itself confer

such authority . . . in the absence of some direction to the contrary, the general statutory

provisions before mentioned vest it in the land department.” Id. at 461. See also Best, 371 U.S.

at 336–39 (noting that “the Department has been granted plenary authority over the

administration of public lands, including mineral lands; and it has been given broad authority to

issue regulations concerning them” and that “Congress has entrusted the Department of the

Interior with the management of the public domain and prescribed the process by which claims

against the public domain may be perfected”).

        The plaintiff does not challenge the general jurisdiction of DOI to make claim validity

determinations or the grant to the OHA, under 43 C.F.R. § 4.1, of “the full authority of the

Secretary.” Pl.’s Mot. at 13. Rather, the plaintiff contends that OHA’s authority to exercise the

power of the Secretary has been limited by regulation “to those matters within the jurisdiction of

the Department involving hearings and appeals,” which jurisdiction is set out in regulation 43

C.F.R. § 4.451-1, governing the government’s initiation of contests. Id. According to the

plaintiff, regulation 43 C.F.R. § 4.451-1 does not provide authority for the agency to make

determinations regarding the legality or validity of mining claims as of discrete historical dates,

but may only “determin[e] the legality or validity [of mining claims] in the present.” See Pl.’s

Mot. at 13 (emphasis in original); id. (“A contest complaint which does not seek a determination

of present legality or validity is not within the scope of this regulation.”); id. at 14 (“despite the

broad authority of OHA, its jurisdiction is limited by the Department’s regulations regardless of

whether the parties, including the Department, desire a decision”). The defendants disagree with

this “pinched and constricted” reading of the disputed regulation, Defs’ Opp’n at 24, contending

                                                      22
that the plain language of this regulation broadly authorizes the agency “to determine validity on

any date relevant to the action prompting the validity determination,” id. at 33.

       The plaintiff argues that this regulation does not authorize OHA “to determine the

validity of Freeman’s claims as of historical dates based on historical circumstances no longer in

existence,” Pl.’s Mot. at 2–3, and that the 2008 IBLA Decision to the contrary is arbitrary and

capricious, for principally the following three reasons: (1) the plain meaning of the disputed

regulation limits OHA’s jurisdiction “to determining the legality or validity in the present,” id. at

13; (2) the decision conflicts with DOI policies and the purpose of the Mining Law, id. at 23–27;

and (3) the decision relies upon precedent not supportive of the conclusion and fails to follow

precedent in a manner violative of collateral estoppel principles and the Equal Protection clause,

id. at 27–35.

       For the reasons discussed below, the Court finds that regulation 43 C.F.R. § 4.451-1 is

unambiguous and, further, that the agency’s interpretation of its regulation reflected in the 2008

IBLA Decision is fully consistent with the plain language of the regulation and entitled to

substantial deference. For the reasons set out below, the plaintiff’s arguments that the 2008

IBLA Decision is arbitrary and capricious are unavailing.

       A.       2008 IBLA Decision Reflects Unambiguous Meaning of Disputed Regulation

       The DOI regulation at issue here, 43 C.F.R. § 4.451-1, provides, in pertinent part, that

“The Government may initiate contests for any cause affecting the legality or validity of . . . any

mining claim.” 43 C.F.R. § 4.451-1. The parties dispute whether the phrase “affecting the

legality or validity,” as used in the regulation, is sufficiently broad to provide authority for the

OHA to evaluate mining claims based on historical dates. See Pl.’s Mot. at 13 (language of

disputed regulation “does not refer to the ‘historical validity’ of the mining claim”); Defs.’ Mem.
                                                      23
Opp’n Pl.’s Partial Mot. Summ. J. (Defs.’ Opp’n”) at 15, ECF No. 16 (“[T]here is nothing in the

applicable statutes, Departmental Regulations, or case law that restricts mining contest” in this

manner). Construction of this DOI regulation must begin with the words in the regulation and

their plain meaning.

         The regulation permits the government to contest a mining claim and the OHA to hear

such contest, premised on “any cause.” Thus, the power of the government to bring, and OHA’s

concomitant power to hear, a contest claim is broad. As the Supreme Court has recently noted,

the word “any” “has an “ ‘expansive meaning,’” that “can broaden to the maximum, but never

change in the least, the clear meaning of the phrase selected by Congress here.” Freeman v.

Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012) (quoting Dep’t of Hous. and Urban Dev. v.

Rucker, 535 U.S. 125, 131 (2002). See also Defs.’ Opp’n at 16 (noting that “[a]ny cause, by

definition, is any reason for the action, any motive, or any ground for legal action” and citing

Merriam-Webster’s Collegiate Dictionary 182 (9th ed. 1998)). While this authority is broad, the

disputed regulation sets two conditions upon the exercise of this authority.16 These condition

precedents are that the cause must be (1) “affecting the legality or validity” (2) of “any mining

claim.” See 43 C.F.R. § 4.451-1. Thus, the “expansive” word “any” refers both to the “cause”

for the initiation of the contest proceeding as well as to the “mining claim” at issue. In other

words, the regulation is written in the broadest terms possible.

         Rather than focus on the key terms of “any cause” related to “any mining claim,” the

plaintiff seizes upon the phrase “affecting the legality or validity,” to argue that this “reference . .

16
  The plaintiff makes the unremarkable and undisputed observation that the IBLA’s jurisdiction is limited by
department regulations. Pl.’s Mot. at 14. The defendants note, however, that the plaintiff exaggerates this claim.
For example, while the plaintiff cites several cases for this proposition, “none of the cases concern mining contests,”
and are wholly inapplicable to the instant case. Defs.’ Opp’n at 21; see e.g., Defenders of the Wildlife, 169 IBLA
117, 127 (2006) (dismissing a request to order the BLM to update its Environmental Impact Statements and Records
of Decision).
                                                              24
. is in the present tense.” See Pl.’s Mot. at 13. As noted, according to the plaintiff, 43 C.F.R. §

4.451-1 “does not refer to the ‘historical validity’ of the mining claim,” but rather is “limited to

determining the legality or validity in the present.” Id. (emphasis in original). As a result, under

the plaintiff’s reading of the disputed regulation, “[a] contest complaint which does not seek a

determination of present legality or validity is not within the scope of this regulation.” Id.

Notwithstanding the fact that an OHA ALJ adopted this same construction of the regulation in

the 2007 Jurisdictional Decision, this argument that OHA is limited to making validity

determinations only as of the present time is specious for at least three reasons.

       First, contrary to the plaintiff’s interpretation, the phrase “affecting the legality or

validity” does not indicate “the present,” but rather no time tense at all. This gerund phrase

functions to describe the subject matter of the contest proceeding that may be initiated by the

government, without constraint on the timing of when that proceeding is brought or the point in

time when the mining claim is subject to evaluation.

       Second, the other clauses in the regulation also impose no time constraints on when the

“cause,” which prompts the need for the contest proceeding and a determination of a mining

claim’s validity, may arise. The cause affecting the validity of a mining claim may arise in the

past and the effect of that cause may be determined as of that time. In other words, the plaintiff’s

construction of the disputed regulation, and by extension the OHA ALJ’s 2007 Jurisdictional

Decision, reads into the regulation a time limitation requiring a determination of validity only as

of the “present” time. The plain meaning of “any cause,” authorizes a determination of validity

that, depending upon the nature of the cause, may be as of the time of the cause’s effect, which

may not be in the “present” time. The plaintiff incorrectly conflates the timing of a

determination, which is obviously made in the present time, with the date when a mining claim
                                                      25
may be deemed valid. See Pl.’s Mot. at 15 (conceding that “Secretary may institute a challenge

to the validity of a mining claim at any point in time,” but opining that this “does not mean the

Department may contest the validity of mining claims as of any point in time”) (emphasis in

original). Contrary to the plaintiff’s opinion, a mining claim may be deemed valid or not, as of

any date covered by the broad swathe of time when “any cause” may arise.

        Finally, if the Secretary “intended that its mining claims validity determinations be

limited to specific instances and specific dates, then the government contest regulation could

easily have been written in this manner.” Defs.’ Opp’n at 25. The defendant correctly points out

that this regulation has “no part . . . limiting it to only present circumstances” and does not “state

“‘any present cause’ or ‘present legality or validity’” as a limit on contests. Defs.’ Opp’n at 19.

In other words, the disputed regulation does not limit, as the plaintiff contends, the “cause”

triggering the need for a contest proceeding to those affecting the validity of a mining claim in

the present time but instead more broadly authorizes a contest for “any cause.” As the

defendants point out, “[t]o read the regulation as stringently as does Plaintiff is simply to read

‘any cause’ out of the regulation.” Defs.’ Opp’n at 25. Such cherry-picking of regulatory

language does not lead to accurate interpretation or appropriate application. See Fin. Planning

Ass’n v. SEC, 482 F.3d 481, 488 (D.C. Cir. 2007) (“To read out of a statutory provision a clause

setting forth a specific condition or trigger to the provision’s applicability is . . . an entirely

unacceptable method of construing statutes.” (quoting Natural Res. Def. Council v. EPA, 822

F.2d 104, 113 (D.C. Cir. 1987)).

        Changing tack, the plaintiff also contends that “the mere filing of a taking claim is not a

cause affecting the legality or validity of the mining claims.” Pl.’s Reply Supp. Mot. Partial

Summ. J. (“Pl.’s Reply”) at 5, ECF No. 17 (emphasis in original); id. at 7 (“a takings lawsuit is
                                                       26
not a ‘cause affecting the legality or validity’ of a mining claim”). Consequently, in the

plaintiff’s view, a referral for an administrative determination of claim validity arising from a

takings claim does not confer authority under the disputed regulation for the initiation of a

contest. See id. at 12 (“to read the regulation as authorizing contest proceedings simply because

a takings claim, the presence of which has no effect on the legality or validity of the claims, is to

read ‘any cause affecting the legality or validity’ out of the regulation.”). This contention

simplistically conflates the legal questions raised in the plaintiff’s CFC complaint with the

underlying question posed in the administrative proceeding. The “cause” for the initiation of the

contest hearing is not, as the plaintiff suggests, his taking claims pending in another tribunal, but

the lack of any validating discovery on the plaintiff’s mining claims that “could [] have been

marketed at a profit as of either 1994 or 2000.” AR 7469 (Contest Complaint ¶ 5.1).

       In analogous circumstances, the Supreme Court has expressly approved the referral of

claim validity determinations to DOI as “the administrative agency that has special competence

in the field.” Best, 371 U.S. at 338. In Best, the government sought to condemn property with

unpatented mining claims, inherently raising the issue of the validity of appellants’ mining

claims since, if valid, the claimants were entitled to just compensation for the taking of their

claims. Id. at 340 (remarking that “entry into possession marks the taking, gives rise to the claim

for compensation, and fixes the date as of which the property is to be valued”). The Supreme

Court reversed the appellate court’s decision that “the validity of the claims was, of necessity,

left to judicial determination” because the condemnation suit was in Federal court. Id. at 338.

Noting DOI’s “plenary authority over the administration of public lands,” id. at 336, as well as

the different purposes of the condemnation case “to obtain immediate possession” of the

property and the administrative proceeding to determine claim validity, the Court concluded
                                                     27
“that the District Court acted properly in holding its hand until the issue of the validity of the

claims has been resolved by the agency entrusted by Congress with the task.” Id. at 340. Just as

in Best, where the compensation that would be due upon condemnation turned on the validity of

the mining claims located on the condemned property, the compensation due to the plaintiff in

his CFC complaint turns on the validity of his mining claims, which matter DOI has “plenary

authority” to decide. The “cause” of the administrative proceedings in both Best and here was

not the federal suit, as the plaintiff suggests, but the fundamental question of whether the mining

claims are valid, a question plainly within the authority of DOI and its OHA to determine.

            The 2008 IBLA Decision relied upon the plain and unambiguous meaning of the disputed

regulation to conclude that “there is nothing in the applicable statutes, Departmental regulations,

or case law that restricts mining contests in the manner suggested by [the 2007 ALJ Ruling].”

Freeman, 174 IBLA at 296; AR 1188. Rather, the legal claim that a taking occurred raises the

separate mixed legal and factual question of whether the property interest underlying such taking

claim was valid as of the date underlying the alleged taking event. Both the statutory authority

granted to the Secretary and the delegated authority to the OHA set out in the disputed regulation

are sufficiently broad in scope to authorize the government to initiate a contest proceeding to

accomplish the task of answering the question regarding the validity of the property interest.

            Since the plain language of the disputed regulation supports this conclusion, not

surprisingly, the 2008 IBLA Decision observed that DOI’s authority to perform this task of

“determin[ing] claim validity as of any point in time has long been recognized by the courts.”

Freeman, 174 IBLA at 295; AR 1187.17 The IBLA’s decision that DOI “can initiate a contest

and an ALJ can determine the validity of mining claims as of the date of alleged takings,” AR

17
     The plaintiff’s challenge to the case law precedent for this conclusion is discussed in Part III.C., infra.
                                                                   28
1186, is not only entitled to substantial deference as an agency interpretation of its own

regulation, but also is a clearly reasonable conclusion to be reached based on the plain language

of the disputed regulation. Thus, the defendants understandably urge that “[b]ecause the

government contest regulation is written so broadly and is plain on its face, no further analysis is

necessary to conclude that the contest at issue was properly filed under 43 C.F.R. § 4.451-1. . .

[and] OHA has jurisdiction.” Defs.’ Opp’n at 16.

       Nevertheless, in the face of the plaintiff’s challenge, the Court proceeds to discuss how

IBLA’s interpretation of the disputed regulation is both consistent with DOI policies and furthers

the purposes of the Mining Law.

       B.      2008 IBLA Decision Comports with DOI Policies and Furthers Purpose of
               the Mining Law

       The plaintiff contends that the 2008 IBLA Decision neither comports with DOI policies,

as reflected in the BLM Handbook titled “Mineral Reports—Preparation and Review,” No. 3060

(“BLM Handbook”), Pl.’s Mot. at 23–24, nor furthers the statutory purposes of the Mining Law,

id. at 24. These arguments are unavailing.

               1.      DOI Policies

       The plaintiff relies on a provision of the BLM Handbook that provides guidance for

validity determinations of mining claims on “land open to entry” and instructs that “the

discovery date is the date of the field examination by the Mineral Examiner or the hearing.”

Pl.’s Mot. at 24 (citing BLM Handbook at .081C1). The plaintiff points out that this guidance is

consistent with BLM’s Mineral Commodity Pricing (“MCP”) policy, 65 Fed. Reg. 41,724, AR

7246, which provides that, “where there is no patent application and no withdrawal,” mining

claim validity determinations are made “as of the date of the mineral examination.” Pl.’s Mot.


                                                     29
at 24 (quoting AR 7197 and AR 7247) (emphasis in plaintiff’s motion)). According to the

plaintiff, these policies “demonstrate the longstanding policy of the Department to determine the

validity of mining claims using current, as opposed to historical, information, except where there

is a withdrawal or a patent.” Id. at n.37. Contrary to the plaintiff’s contention, the 2008 IBLA

Decision does not conflict with these cited BLM policies.

       At the outset, notably, the IBLA is not bound by the BLM Handbook, which sets out DOI

internal guidance. See Byrd v. Jossie, 2009 U.S. Dist. LEXIS 10455, at *21 (D. Or. Feb. 11,

2009) (“BLM manuals, although not legally binding, . . . set forth the agency’s policy and

procedures”) (internal citation omitted); United States v. Michael R. Mark Anthony, 180 IBLA

308, 343 (2011) (explaining “that while BLM employees may be obliged to follow internal BLM

instructions, such instructions do not bind this Board or the public.” (citing Biodiversity

Conservation Alliance, 174 IBLA 174, 180 (2008) and Wyo. Outdoor Council, 171 IBLA 153,

166–68 (2007))); Mike & Sandra Sprunger, 150 IBLA 64, 73 (1999) (“The BLM Manual is not

promulgated with the same procedural protections associated with Departmental regulations, and

[the IBLA is] therefore not bound to follow it.”); M.L. Inv. Co. v. BLM, 130 IBLA 376, 391

(1994) (finding that “the BLM Manual is not promulgated pursuant to the procedures required

[under law] and thus does not have the force and effect of law.” (citing United States v. Harvey,

659 F.2d 62 (5th Cir. 1981))); Kugel v. United States, 947 F.2d 1504, 1507–08 (D.C. Cir. 1991)

(citing Schweiker v. Hansen, 450 U.S. 785, 789 (1981)) (internal policy guidelines create no

legal duty on the agency); Phillips Petroleum Co., 117 IBLA 255, 260–61 (1991) (finding that

“[t]his Board is not bound to follow internal agency interpretative pronouncements such as the

Procedure Paper” at issue which “provid[ed] internal guidance” on valuation of natural gas liquid

products for royalty purposes (citing Hansen, 450 U.S. at 789 and United States v. Kaycee
                                                     30
Bentonite, 64 IBLA 183, 214 (1982))); accord Hansen, 450 U.S. at 789–90 (holding that Claims

Manual “for internal use by” Social Security Administration (“SSA”) employees “is not a

regulation. It has no legal force, and it does not bind the SSA.”). Nor is the IBLA confined in its

reasoning or decision-making to the MCP policy, which was issued by an Assistant Secretary of

the Interior. See 65 Fed. Reg. 41,726 (July 6, 2000) (MCP policy issued under signature of an

Assistant Secretary of the Interior); Michael R. Mark Anthony, 180 IBLA at 345 (finding that the

IBLA is not bound by non-adjudicative statements of an Assistant Secretary because “the

Assistant Secretary does not have authority to issue policy statements that bind all other offices

of the Department not subordinate to the Assistant Secretary”); Robison v. Bureau of Land

Mgmt., 120 IBLA 181, 183 (1980) (“In any case, decisions of subordinate officials of the

Department have no precedential value.”).

        Thus, even if the policies articulated in the BLM Handbook and the MCP policy applied

to a validity determination made in the context of evaluating an alleged taking, which they do

not, any lack of adherence by the IBLA to those policies would not, standing alone, render the

2008 IBLA Decision arbitrary or capricious.

       Turning first to consideration of the BLM Handbook, the plaintiff correctly recites the

guidance set out in the section titled “Determination Dates for Mineral Reports.” This guidance

suggests two possible dates for discovery, stating that, for certain validity determinations, “the

discovery date is the date of the field examination by the Mineral Examiner or the hearing,”

BLM Handbook, § .08 D.3. The plaintiff overlooks the significant limitation on the use of this

guidance, however. Specifically, the very first section of the Handbook sets out its “Purpose” to

provide “minimum standards for preparing, reviewing and approving energy and mineral

resources reports in response to a specific action or application listed in” four other sections of
                                                     31
the handbook. BLM Handbook § .01. None of the enumerated actions requiring a mineral

report that are covered by the scope of this Handbook refer to alleged takings claims. See, e.g.,

id. § 11 (“Actions Requiring a Mineral Report”); id. § .21 (“Actions Requiring a Coal Mineral

Report”); id. § .22 (“Actions Requiring an Other-Solid Leasable Minerals Report”); and id. § .31

(“Actions Requiring a Fluid Minerals Report”). This explicit limitation on the application of this

guidance is a good reason “not to treat the cited guidance as exhaustive,” as the defendants urge,

noting “that there are obvious omissions.” Defs.’ Opp’n at 32 n.9.18

         Similarly, the MCP policy undercuts, rather than supports, the plaintiff’s view that

historical dates may not be used to determine the validity of a mining claim. In order to provide

“a consistent approach in determining claim validity,” this policy outlines various steps “to

determine the price of mineral commodities when analyzing the economic marketability of a

mineral deposit,” 65 Fed. Reg. at 41,725, and facilitate the evaluation of “whether a mining

claim contains a ‘discovery’ of a valuable mineral deposit.” 65 Fed. Reg. 41,724. This policy

makes clear that the validity of a mining claim may be determined at the time “the claimant

seek[s] to patent the claim,” but also “at any other time for any other reason.” Id. The

“particular significant date” for determining the validity of the claim may vary “depending, for

example, on whether [the claimant has] filed a patent application or [the claimaint’s] mining

claim is in an area subsequently withdrawn from mining claim location,” since “the value must

be tied to an appropriate time period.” Id. The defendants note that “[t]he focus of the policy


18
  The defendants also note that the guidance provided in the BLM Handbook is not entirely correct, explaining that
the section cited by the plaintiff provides “that validity on withdrawn lands should be determined as of the date of
withdrawal and the date of mineral examination or hearing,” when instead “the date of hearing has no relevance”
and “the relevant dates for mining claims on withdrawn lands that are the subject of a pending patent application are
only: (1) the date of each applicable withdrawal that pre-dates the patent application; and (2) the date that the mining
claimant satisfied all the requirements for patenting.” Defs.’ Opp’n at 32 n.9. This is yet another reason for the
IBLA not to be bound by internal guidance documents from BLM.
                                                               32
was on how to calculate the price for purposes of analyzing validity, rather than to establish strict

rules about marketability dates.” Defs.’ Opp’n at 31 n. 8.

       The plaintiff also highlights language in the MCP policy indicating that when, as here,

there is “no patent application and no withdrawals,” the validity of unpatented mining claims is

determined “as of the date of the mineral examination.” 65 Fed. Reg. at 41,725. Yet, this

reference begs the question of the date actually used for the mineral examination, which is the

issue at bar. The MCP policy’s “general” terms suggest that, as part of the mineral examination,

the mineral examiner must “determine the mineral commodity price to use on any specific

marketability date,” 65 Fed. Reg. at 41,725, which date may vary depending on the

circumstances. In this case, the defendants state that “in firm reliance on stipulations, the dates

analyzed in mineral examination are October 1994 and October 2000,” and “the mineral exam

dates were always intended to be October 1994 and October 2000.” Defs.’ Opp’n at 32. Thus,

even if the MCP policy were binding on the IBLA, which, as noted, it is not, the use of historical

dates as of the alleged takings to determine the validity of the plaintiff’s mining claims would not

run counter to this policy.

               2.      Purposes of the Mining Law

       Relying upon a point raised in the 2007 ALJ Ruling, the plaintiff argues that the IBLA’s

interpretation would undercut the Mining Law’s purpose. Pl.’s Mot. at 24. The reasoning

parroted by the plaintiff is that the purpose of the Mining Law, “‘to reward and encourage the

discovery and development of valuable mineral deposits,’” id. at 25 (quoting 2007 ALJ Ruling at

AR 1270), would not be served “by making the discovery determination for land still open to

mineral entry based upon facts existing as of the dates of the alleged taking or some other non-

critical date in the past,’” id. (quoting 2007 ALJ Ruling at AR 1270). To further the goal of
                                                     33
developing mining claims that are currently valuable, the plaintiff argues that the date of the

hearing must be used “as the critical date.” Id. Otherwise, validity claims would be asserted for

claims with no current value or, conversely, claims with current value would be invalidated due

to a determination based on a date in the past when the claim lacked value. Id. The plaintiff

further speculates that allowing the government to initiate contests based upon a selection of “an

earlier and most inopportune market conditions to determine that a claim is presently invalid

based on those earlier market conditions,” would “create[] a significant uncertainty in mining

law.” Id. at 26. The plaintiff’s reasoning mixes contexts like proverbial apples and oranges and

is therefore fundamentally flawed for at least two reasons.

       First, context matters. The legal question concerning the validity of a mining claim may

turn on different critical dates, depending on the factual context prompting the contest hearing.

No matter the critical date at issue, whether it is in the present or past, OHA has been granted

broad jurisdiction to make the determination. For example, if the current validity of a mining

claim were at issue, reaching back in time to some historical date to evaluate a claimant’s

discovery or compliance with requirements would likely be both irrelevant and unfair. On the

other hand, as even the plaintiff concedes, if a claimant asserts a claim on land that has been

withdrawn, the past date of withdrawal, not the date of the hearing, becomes the critical date

since, if no discovery occurred as of the date when the land is withdrawn, the claim is not

perfected on that date and no rights have either been acquired or lost as a result of the

withdrawal. See United States v. Mavros, 122 IBLA 297, 301 (1992) (considering marketability

of mining claim as of a past critical date on withdrawn land); Pl.’s Reply at 11.

       The Supreme Court’s decision almost a century ago in Cameron v. United States, 252

U.S. at 459, is instructive on this point. In that case, the United States sued to enjoin a miner
                                                     34
from using land on the southern rim of the Grand Canyon in Colorado. Id. at 454. While the

miner had located his mining claims at issue in 1902, the land was withdrawn as a monument

reserve in 1908. Id. at 455. A saving clause granted continued rights “to any ‘valid’ mining

claim theretofore acquired.” Id. at 455. In a contest hearing held shortly after the creation of the

monument reserve, the miner sought “to bring the claim within the savings clause,” requiring

him to show that “discovery must have preceded the creation of that reserve.” Id. at 456–57.

The Secretary found no discovery at the time of the hearing nor at a time “‘prior to the

establishment of the National Monument and the withdrawal of the lands therein embraced, as to

bring them within the saving clause of the Executive Order.’” Id. at 457 (quoting Secretary’s

decision). The miner challenged, inter alia, the Secretary’s “authority to determine the character

of the land or the question of discovery, or to pronounce the claim invalid.” Id. at 459. The

Supreme Court rejected as “not tenable,” id. at 459, the challenge to the Secretary’s authority to

make a validity determination, including at the historical date of the withdrawal of the land, and

confirmed that the “power of the department to inquire into the extent and validity of the rights

claimed against the Government does not cease until the legal title has passed,” id. at 413

(internal quotation and citation omitted).

       As the defendants point out, just because certain dates are critical to determine claim

validity in patenting and withdrawal cases, due to the factual and legal contexts that typically

arise in such cases, does not mean “these exact dates must limit OHA’s jurisdiction in all

contests.” Defs.’ Opp’n at 21. The defendants provide additional examples of circumstances

where the purposes of the Mining Law are served by examination of the validity of mining

claims as of historical dates outside of the context of patent applications and withdrawn land.

Specifically, when association placer mining claims are transferred from an original number of
                                                    35
locators to a smaller number of locators, discovery must exist at the time of the transfer. See 43

C.F.R. § 3833.33(a). In this context, validity of the association placer mining claim must be

established as of the date of the transfer, not the date of the hearing, and restricting a

determination to the hearing date “would make it impossible for the Department to combat

abuses of the Mining Law with respect to association placer claims.” Defs.’ Opp’n at 34.

Similarly, in order to mine “common variety” minerals, which were removed from the purview

of the Mining Law on July 23, 1955, see 30 U.S.C. § 611, the claimant must show a validating

discovery as of that 1955 date. The defendants explain that the “only way to know whether the

common variety mineral can be mined under the locatable minerals regulations (because

discovery predated the 1955 act) or whether the mineral must be mined under the material sales

regulations at 43 C.F.R. § 3600 (because there was no discovery as of 1955 or discovery was lost

sometime after 1955) is to examine validity of the mining claims as of July 23, 1955.” Defs.’

Opp’n at 35.

       When a contest hearing is initiated to inform a CFC’s determination of whether a

compensable taking occurred, the critical date for the determination of validity “is the date of the

event that the mining claimant alleges resulted in a governmental taking of the mining claims.”

Id. at 22. A mining claim not supported by discovery of valuable minerals as of the date of the

alleged taking, would be invalid at that time and no compensable right would have vested in the

claimant. See 30 U.S.C. § 23 (noting that a mining claim perfected when there is a “discovery of

the vein or lode”); see also Best, 371 U.S. at 337 (“[N]o right arises from an invalid claim of any

kind.”); Holden v. United States, 38 Fed. Cl. 732, 735 (Fed. Cl. 1997) (“In order to properly state

a claim for a taking under the Fifth Amendment, a plaintiff must allege and establish his



                                                      36
ownership in a compensable property interest . . . in their unpatented mining claims that were

alleged to have been taken”) (internal citations omitted) (emphasis in original).

         Thus, when a contest is initiated to determine the validity of a claim at the time of an

alleged government taking, historical dates are not arbitrarily picked by the government with the

“manipulat[ive]” purpose of pre-dating discovery and undermining a legitimate claim, as the

plaintiff suggests. Pl.’s Mot. at 26. Calling the plaintiff’s argument a “red herring,” the

defendants point out that, in takings litigation, the historical dates are identified by the mining

claimant, not the government, and used to determine the validity of the claim in order to evaluate

whether any compensable property interest was taken. Defs.’ Mot. at 30. In fact, the dates of the

alleged takings at issue here, in 1994 and 2000, originated in the complaint filed by the plaintiff

before the CFC alleging a taking of his property interests in the mining claims at issue based on

two alleged events associated with those dates. See AR 10702 (CFC Complaint ¶¶ 6, 11–12

(stating that in 1994 BLM notified the plaintiff that “it would not process applications,”

including the patent applications he had previously filed, “due to moratorium contained in

Congressional appropriations act”)); AR 10706 (CFC Complaint ¶ 30 (stating that “[o]n October

11, 2000, the Regional Forester denied [plaintiff’]s appeal of the ROD,” which is the Record of

Decision denying plaintiff’s Plan of Operations)). Moreover, the plaintiff agreed, in a

stipulation, to the historical dates in 1994 and 2000 as the critical dates of the alleged takings

asserted in the complaint. See Defs.’ Mot. at 8; AR 10877 (plaintiff’s counsel acknowledged that

1994 and 2000 might not be the most economically opportune dates but they were appropriate

because “the critical date should be the date the claims were [allegedly] taken”).19 When the key


19
  The strategy behind the plaintiff’s agreement to the “critical” dates is clear: the plaintiff hoped to avoid a scenario
where his mining claims would be invalidated based upon events occurring after the events of the alleged takings.
See AR 10877 (plaintiff’s counsel noting, in September 5, 2003 letter to BLM, that the parties “should try to
                                                                37
legal question triggering the initiation of a contest hearing is the validity of mining claims at

dates when a claimant alleges a government taking, the use of those historical dates is obviously

necessary to answer the question.

         A second reason that the OHA does not undermine the purpose of the Mining Law when

making a validity determination as of historical dates of an alleged taking identified by a

claimant, is that this is precisely the role statutorily assigned to the Secretary of the Interior and

delegated to the OHA. Although the plaintiff focuses on the purpose of the Mining Law “to

encourage the development of mineral deposits,” Pl.’s Mot. at 25, this purpose is not unbounded.

Norton, 292 F. Supp. 2d at 47‒48 (noting that a claimant’s “use of the land may be

circumscribed . . . because it is not explicitly protected by the Mining Law”). The Mining Law

authorizes the Secretary of the Interior to serve as a guardian of the public’s rights as part of its

management of public lands. See 43 U.S.C. § 1457 (charging Secretary of Interior “with the

supervision of public business relating to . . . Public lands, including mines”); Knight v. United

Land Ass’n, 142 U.S. 161, 181 (1891) (describing DOI as the “guardian of the people of the

United States over the public lands”). Determining the validity of mining claims and removing

any invalid encumbrances from public lands is a fundamental management responsibility of

DOI. Cameron, 252 U.S. at 460 (“[S]o long as the legal title remains in the government it does

have power, after proper notice and upon adequate hearing, to determine whether the claim is

valid and, if it be found invalid, to declare it null and void.”); Union Oil Co. v. Udall, 289 F.2d

790, 792 (D.C. Cir. 1961) (“[I]t is well established that until legal title has passed to the applicant

determine the validity of [plaintiff’s] claims as of the date of the taking of them” and indicating that “[w]e hope this
case does not follow the path used in Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984)[,] where BLM
determined that claims were not valid as of a date well after the alleged taking of them”).


                                                               38
for a patent, the Secretary may require further inquiry into the validity of claimed rights to public

land.”); Davis, 329 F.2d at 846; see also Freeman, 174 IBLA at 295–96; AR 1187.

        Supervision of the public’s rights in public lands vis a vis mining claimants

“encompasses providing assistance to the United States in resolving a takings lawsuit that arises

out of mineral entries on public lands.” Id. at 295; AR 1187; see Holden, 38 Fed. Cl. at 735

(noting that CFC should stay takings proceedings for a determination by the BLM of mining

claim validity since the “determination of the validity of such claims is entrusted to the BLM”).

The Supreme Court in Best, 371 U.S. at 339, expressly sanctioned referral to DOI for an

administrative determination of the validity of mining claims, stating that “[i]t is difficult to

imagine a more appropriate case for invocation of the jurisdiction of an administrative agency for

determination of one of the issues involved in a judicial proceeding.”20 The Court explained that

“Congress has entrusted the Department of the Interior with the management of the public

domain and prescribed the process by which claims against the public domain may be perfected.

The United States, which holds legal title to the lands, plainly can prescribe the procedure which

any claimant must follow to acquire rights in the public sector.” Id. at 339.

        Accordingly, the plaintiff’s arguments that application of the plain terms of the disputed

regulation would undermine DOI policies and the purposes of the Mining Law are simply

unsupportable.

        C.       The 2008 IBLA Decision Properly Addresses Precedent

        The plaintiff makes several arguments designed to deconstruct the reasoning of the 2008

IBLA Decision and show that the decision was arbitrary and capricious. Specifically, the


20
  The Supreme Court “express[ed] no views” on the claimants’ objection that “in the District Court value would be
determined as of the time of the taking, while before the agency value is determined as of the date of the hearing
before the Examiner.” Best, 371 U.S. at 339 & n.9.
                                                            39
plaintiff contends that the IBLA, first, improperly “conclude[d] that the initiation of a mining

contest is the establishment of an intervening right,” Pl.’s Mot. at 19, and, second, otherwise

relied upon cases that “simply do not provide the needed support,” id. at 27. Next, the plaintiff

argues that the IBLA “employ[ed] differing procedures to [plaintiff] than to others similarly

situated,” id. at 31, which amounts to a violation of collateral estoppel principles and the Equal

Protection clause of the U.S. Constitution, id. at 32, 34. These claims are addressed, seriatim,

below.

                1.      2008 IBLA Decision Does Not Hold that Contest Proceeding Establishes
                        An Intervening Right

         The plaintiff spills much ink arguing that the IBLA incorrectly “assumes” that

“‘intervening rights’ are nothing other than the issuance of a contest complaint.” Pl.’s Mot. at

18. This argument is simply a straw man attack on the 2008 IBLA Decision, since the IBLA

never held, as the plaintiff contends, that the United States’ “intervening right, where there is no

withdrawal or change in the law, prevent[s the plaintiff] from having a discovery after the contest

proceeding was underway.” Pl.’s Mot. at 18.

         There is no dispute that an “intervening right” refers to the rights of third parties “who

make a discovery after the original locator, but before the original locator makes a discovery.”

Pl.’s Mot. at 19. The 2008 IBLA Decision refers to “intervening rights” in a summary of well-

settled law that a mining claim location may be valid and provide “[v]ested property rights

against the United States” only after “the discovery of valuable minerals,” unless an intervening

right is asserted that renders the date of discovery “‘of no effect.’” 174 IBLA 295; AR 1187

(quoting Cole, 252 U.S. at 296). The defendants correctly observe that the plaintiff “twists the

IBLA’s decision to characterize it as saying that a finding of lack of discovery is an “intervening


                                                      40
right” by the United States thus precluding any future location and discovery by [the p]laintiff on

land that remains open to mineral exploration.” Defs.’ Opp’n at 27.

       Contrary to the plaintiff’s strained reading, the 2008 IBLA Decision did not deem the

government’s initiation of a contest proceeding as an intervening right that would automatically

render a mining claim invalid. Instead, the decision stated the law clearly that discovery was a

prerequisite for a validity determination, and mentioned the caveat that “the presence of an

intervening right” would render a discovery ineffective. 174 IBLA at 295; AR 1187. Moreover,

the IBLA’s decision did not declare that the plaintiff was prevented from seeking to relocate his

claims. To the contrary, the IBLA expressly noted that “if the lands remain open to mineral

entry, [plaintiff] would still be free to relocate the claims. . . .” 174 IBLA 296 n.10; AR 1188–89.

The plaintiff even concedes this point, stating that “[t]he IBLA also noted that [plaintiff] could

simply relocate his claims, which he has done.” Pl.’s Mot. at 28 n.40. Likewise, the IBLA’s

decision also did not attempt to bar the plaintiff from proving discovery at a date later than the

alleged takings, but determined that this was not an issue properly before the OHA. 174 IBLA at

298; AR 1190 (concluding that OHA ALJ “properly held that the validity of the 161 claims as of

the hearing date was not at issue because the contest complaint did not include such a charge.”).

Indeed, the IBLA noted that “[a]ssuming the lands remain open to entry under the mining law,

the unsuccessful claimant,” who failed to “prove a discovery during the contest hearing,” may

just like anyone else “‘seek[] to make a mining location.’” Id. at 296 n.8; AR 1188. Thus, the

plaintiff’s criticism of the 2008 IBLA Decision based on extrapolations, which are expressly

refuted in the decision, does not in any way undercut the merits of the decision.




                                                     41
                 2.    2008 IBLA Decision Cites Supportive Precedent

       As part of his deconstruction of the 2008 IBLA Decision, the plaintiff challenges the

legal cases cited as support for the conclusion that OHA has jurisdiction to make validity

determinations as of historical dates, arguing that the four cases relied upon by the IBLA are

distinguishable. Pl.’s Mot. at 27–30. The plaintiff apparently reasons that “the IBLA is [s]ilent

as to the [d]istinguishing features” of those cited cases, id. at 27, and, consequently, “arbitrarily

ignores its own precedent [to] creates [sic] a new rule applicable only to [plaintiff],” id. at 30.

The plaintiff’s argument is unpersuasive.

       First, the plaintiff takes on the IBLA’s citation in a footnote to Gwillim v. Donnellan, 115

U.S. 45, 55 (1985), for the proposition that, “If the claimant does not prove a discovery during

the contest hearing, then the claimant’s entire location falls before the superior interest of the

United States, regardless of the date for which validity has been challenged.” Id. at 27 (quoting

174 IBLA 296 n. 8; AR 1188). To the extent that the plaintiff’s analysis is intelligible, he

appears to be arguing that Gwillim involved “parties who claimed a right to the same minerals at

different times,” unlike the instant case which involves a contest initiated by the government, and

that Gwillim does not stand for the proposition that a government contest is “the establishment of

an intervening right that precludes [plaintiff] from establishing a discovery.” Id. As the

discussion in Part III.C.1., supra, indicates, the IBLA decision did not equate a government

contest with the assertion of an intervening right and, thus, Gwillim simply was not cited for such

a proposition.

       Second, the plaintiff challenges the IBLA citation in another footnote to three cases for

the proposition that the IBLA has “upheld numerous contest decisions in which the contestant’s

complaint alleged invalidity only as of a date years prior to the date of the hearing.” Pl.’s Mot. at
                                                      42
27–28 (discussing 174 IBLA 296 n.9; AR 1188 n. 9 (citing Clear Gravel Enters., Inc., 2 IBLA at

287 ; Stewart, 1 IBLA at 161; and Bartlett, 2 IBLA at 275)). According to the plaintiff, “[t]he

IBLA is silent as [to] the obvious difference between these cases and the present,” id. at 28, and

“never addresses” the argument that invalidity of a mining claim requires “proof that the claims

were not presently valid,” id. at 30.

         The IBLA decision does not assert that the three cases challenged by the plaintiff are

identical on their facts to the instant case, but rather, using the signal “See, e.g.,” cited the cases

as examples of circumstances when historical dates are used to determine claim validity. In both

Clear Gravel Enterprises, Inc., 2 IBLA at 294 and Stewart, 1 IBLA at 164, the IBLA determined

that the claims were invalid because “the materials on the claims were not marketable” as of a

prior historical date when a congressional act removed those materials from the mining laws. In

Bartlett, 2 IBLA at 276, the IBLA determined that as of a historical date when the land was

withdrawn from mineral entry, “a market did not exist for” the minerals, which invalidated the

claim.

         The crux of the plaintiff’s criticism of the IBLA’s citation to these three IBLA cases is

that validity determinations as of historical dates should be limited to the factual scenarios

presented in those three cases, namely, “the withdrawal of land or ‘withdrawal’ of specified

minerals,” and “when the miner has filed to receive a patent to the land.” Pl.’s Mot. at 29. The

plaintiff points out the obvious, that “[n]one of those considerations exist in the present case,”

id., and apparently reasons from that observation that the IBLA lacked precedential foundation

for its conclusion regarding OHA’s jurisdiction to determine claim validity as of historical dates

of alleged takings.



                                                       43
         The factual differences noted by the plaintiff are immaterial. Instead, as the plaintiff

acknowledges, in the factual scenarios presented in the three cited IBLA cases, “the

consideration of validity in the past is critical to determining present validity or present relief.”

Pl.’s Mot. at 29. This same consideration applies here: whether a valid claim existed at the

historical date of an alleged taking is “critical” to determining whether a claimant is entitled to

“present relief” for a compensable interest subject to that historical taking. Thus, the IBLA

properly relied upon these cases in support of its conclusion and the factual distinctions in the

three cited IBLA cases do not render the IBLA’s decision-making erroneous.21 See Thomas

Jefferson Univ., 512 U.S. at 512 (“[T]he agency’s interpretation must be given controlling

weight unless it is plainly erroneous or inconsistent with the regulation.”) (internal quotations

and citations omitted); see also Sierra Club v. Leavitt, 355 F. Supp. 2d 544, 548 (D.D.C. 2005).

         The plaintiff’s view that “discovery may be proven after adverse proceedings have been

started,” Pl.’s Mot. at 22, is well-supported when the query before the OHA is whether a mining

claim is presently valid. Yet, that was not the query raised either in (1) the plaintiff’s CFC

complaint, where he contends that the “Forest Service’s actions caused a taking of [plaintiff]’s

property rights,” AR 10699–712 (CFC Complaint ¶¶ 40, 48, 55, 62), which alleged actions all

occurred at historical dates prior to the future contest hearing; or (2) the government’s contest

complaint, which charged in relevant part that “[m]inerals have not been found on any of the 161


21
  The plaintiff also relies on United States v. Houston, 66 Interior Dec. 161 (1959), for the proposition that where
claims are found to be invalid at the time of a patent application, nonetheless the “claims cannot be declared null and
void unless the claims are also proven to be invalid at the time of the hearing.” Pl.’s Mot. at 29. According to the
plaintiff, this case confirms that “there must have been proof that the claims were not presently valid” for the claims
to be null and void. Id. at 29–30. The relevance of the Houston decision to the case at bar is difficult to discern
since the contexts are so different, but it bears pointing out that, in the former case, (1) the government did not ask
for the claims to be declared null and void, which is why no such finding was made, 66 Interior Dec. 633; and (2)
the decision acknowledges that the possibility of ascertaining discovery as of a historical date, stating “[i]f it ever
becomes material, the existence of a past discovery within the limits of each claim will have to be established with
precision,” id at 165.
                                                              44
mining claims in sufficient qualities or quantities to constitute a discovery [and] [a]ny minerals

could not have been marketed at a profit as of either 1994 or 2000,” AR 7468–76 (Contest

Complaint at ¶ 5). In other words, prompted by the plaintiff’s complaint before the CFC, the

query posed in the contest complaint was whether the plaintiff’s mining claims were valid as of

the historical dates of the alleged takings. Thus, it is the plaintiff, not the IBLA, who relies on

incorrect precedent by relying on caselaw focused on the present validity of mining claims.

       For example, the plaintiff relies on United States v. Foster, 65 Interior Dec. 1 (1958), and

Davis v. Wiebbold, 139 U.S. 507 (1891), for the propositions that “30 U.S.C. § 22 requires that a

valid mining claim contain a valuable mineral deposit at present,” and that “a discovery may be

proven after adverse proceedings have been started,” Pl.’s Mot. at 22 (emphasis in original).

Allowing validation of claims at historical points of time would, according to the plaintiff,

impermissibly depart “sub silientio” from Foster and its progeny. Id. at 23 (quoting FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 515 (2009)). The OHA ALJ expressed the same view,

observing that “[c]onsistent with the pronouncements in Foster, and in the absence of a

withdrawal, the mining law dictates that the existence of a discovery be determined in a contest

as of the present, i.e., the date of hearing, or, where a patent application has been filed and the

application complied with all of the requirements for obtaining a patent.” AR 1269.

       Both Foster and Davis, however, contain important caveats that undercut the plaintiff’s

reliance and, instead, confirm that the use of historical dates to evaluate the validity of a claim

may be required in some contexts. The issue addressed in Foster was straight-forward: the

claimants contended that validating mineral deposits had been discovered both at the time of the

government initiated contest hearing and at a prior time when the government believed the

location had been withdrawn. Foster, 65 Interior Dec. at 3. The IBLA summarized the legal
                                                      45
principles that applied, explaining that “[w]hen the Government withdraws the land, a discovery

after the withdrawal will not serve to validate the claim” but a discovery made “after adverse

proceedings have been started . . . will permit the locator to retain possession of the land, all else

being regular, and in the absence of a withdrawal of the land in the interim.” 65 Interior Dec. at

5–6. After evaluating the evidence at the Foster hearing, the IBLA concluded that there was no

credible evidence of discovery and therefore that the claims were presently invalid.

Consequently, the IBLA did “not reach” the question of whether the claims were valid before the

lands were purportedly withdrawn, id. at 11, certainly implying that such a determination at an

earlier date was within its purview to “reach.” The defendants further note that the decision in

Foster supports the IBLA’s conclusion because, “[j]ust as [in] Foster” where “‘a discovery after

the withdrawal will not serve to validate the claim,’ similarly a discovery after the date of alleged

taking will not serve to create a property right as against the United States as of the date of

alleged taking.” Defs.’ Opp’n at 20.

       The plaintiff’s reliance on Davis v. Wiebbold, 139 U.S. at 508, is similarly misplaced.

Pl.’s Mot. at 22. In that case, the plaintiff sought possession of land, to which he held a patented

mining claim, over the objection of the defendant, who held a competing town-site patent, which

had been issued earlier than the mining claim patent for the same location. Davis, 139 U.S. at

508. The Supreme Court reversed the lower court’s ruling in favor of the plaintiff and ordered a

new trial, explaining that “[n]o proof was offered to show when the mining claim was originally

located.” Id. at 526. While making clear that the defendant land owner may not be deprived “of

the premises purchased and occupied by him because of a subsequent discovery of minerals in

them and the issue of a patent to the discoverer,” id. at 518, the Court explained that “the

question was not whether there were valuable minerals at the time that [the mining claim] patent
                                                      46
was issued, but whether such minerals were known to exist within the premises at the date of the

town-site patent.” Id. at 527. Thus, the Court sent the case back for a new trial to address

whether a validating discovery had been made “and the rights of the mining claimant had thus

attached before the town-site patent was issued,” id. at 529, thereby expressly sanctioning the use

of historical dates in evaluating the validity of the mining claim when the question so required.

        In short, the cases relied upon by the plaintiff and in the 2008 IBLA Decision support the

common sense conclusion that the relevant date for determination of a mining claim’s validity

may vary, depending upon the legal and factual context at issue.

                3.      2008 IBLA Decision Is Not Barred By Collateral Estoppel

        In a last gasp effort to avoid the ruling in the 2008 IBLA Decision, the plaintiff argues

that BLM should be precluded from asserting that the OHA had jurisdiction to review the mining

claims as of the alleged takings dates because the agency is barred from doing so under the

doctrine of collateral estoppel. Pl.’s Mot. at 32. Specifically, the plaintiff relies on two

“unappealed” ALJ rulings in unrelated contest proceedings, in which the ALJ found that “OHA

has no jurisdiction to determine the validity of mining claims in the past when such a ruling has

no effect on the present validity of the claims.” Pl.’s Mot. at 32 (citing ALJ rulings in Aloisi,

CACA 41272 and Story, Idaho 15974). Although recognizing that collateral estoppel cannot be

applied “automatically” offensively against the government, id. (citing United States v. Mendoza,

464 U.S. 154, 159 (1984)), the plaintiff argues that “in this case collateral estoppel should be

applied defensively,” since the ALJ rulings were “final,” “not appealed,” and “the alignment in

subject matter . . . is as close as possible.” Id. The plaintiff is incorrect.

        First, OHA ALJ rulings simply are not binding on the IBLA or even other OHA ALJs.

See West Cow Creek Permittees v. Bureau of Land Mgmt., 142 IBLA 224, 237 (1998)
                                                       47
(“Decisions of administrative law judges are not Departmental precedents and are not binding on

this Board or other administrative law judges.” (citation omitted)); McLean v. Bureau of Land

Mgmt, 133 IBLA 225, 235 n.16 (1995) (“decisions of [ALJs], while certainly worthy of

respectful consideration, are not Departmental precedents and are not binding on this Board nor

are they binding upon other [ALJs], unless they are adopted by the Board in adjudication of an

appeal”); Robison, 120 IBLA at 183 (finding ALJ decisions not controlling because “Hearings

Division decisions are not published, the Board does not routinely receive copies, and appellants

have not submitted copies of the cited decisions. In any case, decisions of subordinate officials

of the Department have no precedential value.”); United States v. Gayanich, 36 IBLA 111, 116

(1978) (noting that decisions of hearing examiners “absent any appeal, become final for the

Department, although not precedential”). The fact that the rulings in Aloisi and Story were not

appealed and, thus, were final in that sense for purposes of those proceedings, does not elevate

them to the level of a binding final agency action, which is reserved solely for IBLA decisions.

43 C.F.R. § 4.21 (d); Wildearth Guardians v. Jewell, 738 F.3d 298, 304 (D.C. Cir. 2013).

Moreover, the fact that the ALJ rulings in Aloisi and Story relied upon by the plaintiff for

preclusive effect in this case were not appealed by BLM does not somehow make them more

authoritative or binding on DOI.

       Second, the undisputed description by the defendants of the procedural posture of Aloisi

and Story when the ALJ’s issued their no-jurisdiction rulings explains why those rulings were

“unappealed.” See generally Pl.’s Reply. The lack of any appeal of those unrelated ALJ rulings

was certainly not due to DOI agreeing with or acquiescing in those decisions in a manner that

would suggest a changed agency policy being applied to the plaintiff here. In Aloisi, the ALJ

refused to certify an interlocutory appeal of his ruling that he lacked jurisdiction to determine
                                                     48
validity as of the dates of the alleged temporary takings when the contest complaint failed to

provide those dates, or to stay the imminently-scheduled hearing, which did not leave adequate

time for an appeal prior to the hearing. Defs.’ Opp’n at 37–38; AR 1335–36. By contrast, in this

case, the OHA ALJ certified the interlocutory appeal of his jurisdictional ruling and the contest

complaint clearly set out the dates of the alleged takings as the appropriate dates for the validity

determination. In Story, the contest proceeding was dismissed without prejudice, before the

issuance of any decision on the merits of the contest, because the mining claims were declared

abandoned and void by operation of law due to the claimant’s failure to comply with mandatory

annual filing requirements, obviating any need for an interlocutory appeal of the ALJ’s

jurisdictional ruling. See Defs.’ Opp’n at 39.22

         Finally, the plaintiff tries to justify his invocation of collateral estoppel here as

“defensive,” and falling outside the general rule against applying offensive estoppel to the

government, Pl.’s Mot. at 32, but this distinction makes no difference. The Supreme Court has

made clear that a private party may not invoke non-mutual collateral estoppel against the

government with respect to an issue on which a different private party prevailed in prior

litigation with the government. In Mendoza, 464 U.S. at 160, the Court explained that,

         allowing nonmutual collateral estoppel against the Government in such
         cases would substantially thwart the development of important questions
         of law by freezing the first final decision rendered on a particular legal
         issue. Allowing only one final adjudication would deprive this Court of
         the benefit it receives from permitting several courts of appeals to explore
22
   Informed by this background information explaining the reasons for no appeal of the ALJ no-jurisdiction rulings
in Aloisi and Story, the plaintiff’s reliance on State of Alaska Dep’t of Transp. and Public Facilities (“State of
Alaska”), 154 IBLA 57 (2000), is particularly inapposite. Pl.’s Mot. at 32 n. 44. In State of Alaska, the IBLA
determined that mutual collateral estoppel may be applied “when a party had an opportunity to obtain review within
the Department and no appeal was taken,” and applied the doctrine to the State of Alaska, which “had the
opportunity to challenge before the Board all facets of [a prior] decision, but it elected not to take advantage of that
option by not appealing.” 154 IBLA at 61. Here, the plaintiff is seeking to apply non-mutual collateral estoppel
against the government and, even if this were appropriate, agency had little to no opportunity to appeal the no-
jurisdiction rulings in Aloisi and Story.
                                                               49
       a difficult question before this Court grants certiorari.

Id. Moreover, the Court stressed that “a contrary result might disserve the economy interests in

whose name estoppel is advanced by requiring the Government to abandon virtually any exercise

of discretion in seeking to review judgments unfavorable to it.” Id. at 163. See also United

States v. Alaska, 521 U.S. 1, 13 (1997) (remarking that “the doctrine of nonmutual collateral

estoppel is generally unavailable in litigation against the United States”); AFL-CIO v. Fed. Labor

Relations Auth., 835 F.2d 1458, 1462 (D.C. Cir. 1987) (“Collateral estoppel will apply against

the government only if mutuality of parties exists.”); Tunica-Biloxi Tribe of La. v. United States,

577 F. Supp. 2d 382, 416 (D.D.C. 2008) (same); Love v. Veneman, 2001 U.S. Dist. LEXIS

25201, at *4 n.4 (D.D.C. Dec. 13, 2001) (recognizing that “nonmutual offensive collateral

estoppel is not available against the government”). These policy reasons underlying the general

rule against allowing nonmutual collateral estoppel against the government certainly apply here,

when the subject matter involves a fundamental question about the jurisdiction of the OHA to

assist the CFC in alleged takings cases, and the prior ALJ rulings which the plaintiff here seeks

to give preclusive effect were not only lower level administrative decisions not otherwise

binding on DOI but also did not provide a full and fair opportunity for appeal to the government.

Under these circumstances, the general rule amply applies and no non-mutual preclusive effect is

warranted for the ALJ rulings in Aloisi and Story.

       Accordingly, the ALJ rulings in two unrelated proceedings have no preclusive effect on

the IBLA and do not operate to bar application of the 2008 IBLA Decision in this case.

               4.      2008 IBLA Decision Does Not Violate the Equal Protection Clause

       Finally, the plaintiff argues that because the IBLA reached a different conclusion in the

plaintiff’s case than did the ALJs in Aloisi and Story, the IBLA violated the “fundamental norm
                                                     50
of administrative procedure that requires an agency to treat like cases alike,” Pl.’s Mot. at 34

(quoting Westar Energy, Inc., v. Fed. Energy Regulatory Comm’n, 473 F.3d 1239, 1241 (D.C.

Cir. 2007)), was arbitrary and capricious, and violated equal protection of the laws. Pl.’s Mot. at

34. The essence of this argument is that the plaintiff is similarly situated to other mining

claimants, but treated differently without a legitimate government interest.

       Under both the APA and the Equal Protection Clause, agencies are prohibited from

treating similarly situated individuals differently without providing sufficient justification. See

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013) (“To prevail on an equal

protection claim, the plaintiff must show that the government has treated it differently from a

similarly situated party and that the government’s explanation for the differing treatment ‘does

not satisfy the relevant level of scrutiny.’” (quoting Settles v. U.S. Parole Comm’n, 429 F.3d

1098, 1102–03 (D.C. Cir. 2005))). As the plaintiff concedes, Pl.’s Mot. at 36, the relevant level

of scrutiny applied to DOI’s decision here is rational basis “because Interior’s action does not

target a suspect class or burden a fundamental right,” Muwekma Ohlone Tribe, 708 F.3d at 215.

Thus, so long as the agency decision has a firm rational basis, the Court is bound to uphold it.

Hosp. of Univ. of Penn. v. Sebelius, 634 F. Supp. 2d 9, 13 (D.D.C. 2009) (citing Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). To be similarly situated, the

parties must be “prima facie identical in all relevant respects, or directly comparable . . . in all

material respects.” Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 680

(7th Cir. 2005) (internal citations and quotation marks omitted).

       Assuming arguendo that the plaintiffs in Aloisi and Story are similar in sufficiently

material respects with the instant plaintiff, the plaintiff’s argument is nonetheless unavailing

because the 2008 IBLA Decision was well justified. First, an equal protection claim cannot be
                                                      51
used to impose a requirement on the IBLA to adhere to ALJ rulings that otherwise have no

binding or precedential value for the IBLA. Second, the IBLA has sufficient justification based

upon the plain meaning of the disputed regulation to exercise its authority and review the

plaintiff’s mining claims based upon historical dates. Finally, the 2008 IBLA Decision is

bolstered on the merits by the additional justifications that the contest charges alleging the

mining claims’ invalidity as of historical dates were based upon the parties’ agreement regarding

the dates of the alleged takings, see Freeman, 174 IBLA at 292; AR 1184; prior IBLA decisions

employed historical dates to determine claim validity, id. at 295; AR 1187; and plenary

authority of DOI to supervise public business on public lands is sufficiently broad to encompass

providing assistance in resolving takings claims by determining validating discovery as of

alleged taking dates, id.

         Accordingly, the IBLA’s decision does not run counter to the mandates of the APA or the

Equal Protection Clause. See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir.

1981) (explaining that the “highly deferential” arbitrary and capricious standard “mandates

judicial affirmance if a rational basis for the agency's decision is presented”); Safari Club Int’l v.

Jewell, 11-CV-01564 BAH, 2013 WL 4041541, at *21 (D.D.C. Aug. 9, 2013). 23




23
  The plaintiff argues “in the alternative” that “if the OHA does have jurisdiction to determine the validity of
mining claims as of the dates of alleged takings, the IBLA’s decision that 1994 and 2000 were the alleged takings
dates is reversible under 5 U.S.C. § 706(2)(E).” Pl.’s Mot. at 37. The defendants respond that the “IBLA did not
independently determine the alleged dates of takings, so there is nothing to reverse.” Defs.’ Opp’n at 43. As this
partial motion for summary judgment solely challenges the IBLA’s decision regarding jurisdiction, see Pl.’s Mot. at
36 (calling the jurisdictional issue the “primary issue”), not the subsequent IBLA determination on the merits that
the plaintiff’s mining claims were not valid as of 1994 and 2000, because there was no discovery as of those alleged
takings dates, the Court concludes that this “alternative” argument relates to the plaintiff’s second cause of action,
which the parties requested to be subject to separate briefing. Consequently, the “alternative” argument will not be
addressed here.
                                                              52
IV.   CONCLUSION

      For the aforementioned reasons, the plaintiff’s Partial Motion for Summary Judgment is

denied. An appropriate order accompanies this Memorandum Opinion.


                                                                 Digitally signed by Hon. Beryl A.
                                                                 Howell
                                                                 DN: cn=Hon. Beryl A. Howell,
      Date: April 16, 2014                                       o=District of Columbia, ou=U.S.
                                                                 District Court for the,
                                                                 email=Howell_Chambers@dcd.usco
                                                                 urts.gov, c=US
                                                 __________________________
                                                                 Date: 2014.04.16 17:31:10 -04'00'


                                                 BERYL A. HOWELL
                                                 United States District Judge




                                                53
