                     FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT

 KEN MCMASTER; MAUREEN E.                       No. 11-17489
 GALITZ; STEVEN E. FAWL,
               Plaintiffs-Appellants,             D.C. No.
                                               2:10-cv-00881-
                     v.                           GEB-EFB

 UNITED STATES OF AMERICA;
 BUREAU OF LAND MANAGEMENT;                       OPINION
 UNITED STATES FOREST SERVICE;
 KENNETH LEE SALAZAR,
             Defendants-Appellees.


          Appeal from the United States District Court
              for the Eastern District of California
       Garland E. Burrell, Senior District Judge, Presiding

                     Argued and Submitted
           June 14, 2013—San Francisco, California

                   Filed September 24, 2013

      Before: A. Wallace Tashima and Jay S. Bybee, Circuit
      Judges, and Kimba M. Wood, Senior District Judge.*

                    Opinion by Judge Bybee


  *
   The Honorable Kimba M. Wood, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2                MCMASTER V. UNITED STATES

                           SUMMARY**


                          Quiet Title Act

    The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal of the claims of the owner of the Oro
Grande mining claim, located in the Trinity Alps Wilderness
area in California, in the claim holder’s action against the
United States seeking to quiet fee-simple title to the mining
claim and its improvements.

    The panel held that the Quiet Title Act was the exclusive
means for the claim holder to bring suit, and therefore the
district court properly dismissed the Administrative
Procedure Act and Declaratory Judgment Act claims.
Regarding the claim holder’s Quiet Title Act claims, the
panel held that the Solicitor of the Department of the
Interior’s Opinion, which included an interpretation of the
Wilderness Act that was contrary to the claim holder’s
interpretation, was entitled to at least Skidmore deference,
and, thus, the claim holder did not have a “valid existing
right” to a fee-simple patent when he filed his patent
application. In addition, the panel held that the claim
holder’s second Quiet Title Act claim failed because the
claim holder failed to plead with particularity the
circumstances under which title to the improvements was
acquired.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              MCMASTER V. UNITED STATES                     3

                        COUNSEL

Steven J. Lechner (argued), Mountain States Legal
Foundation, Lakewood, Colorado; James S. Burling and
Joshua P. Thompson, Pacific Legal Foundation, Sacramento,
California, for Plaintiff-Appellants.

Robert G. Dreher, Acting Assistant Attorney General; Mark
Haag and Katherine J. Barton (argued), United States
Department of Justice, Environment & Natural Resources
Division, Appellate Section, Washington, D.C., for
Defendants-Appellees.


                         OPINION

BYBEE, Circuit Judge:

    McMaster owns the Oro Grande mining claim, located in
the Trinity Alps Wilderness area. In 1992, McMaster filed an
application for a patent, having satisfied all of the
requirements for receiving a patent under the General Mining
Law of 1872. However, the Bureau of Land Management
(“BLM”) granted McMaster a patent to only the mineral
estate; the surface estate was reserved to the United States.
McMaster brought suit under the Quiet Title Act (“QTA”),
Administrative Procedure Act (“APA”), and Declaratory
Judgment Act (“DJA”), seeking to quiet fee-simple title to the
Oro Grande mining claim and its improvements. The district
court dismissed all of McMaster’s claims under Federal Rule
of Civil Procedure 12(b)(6).

  We affirm the district court’s decision. We agree that the
QTA is the exclusive means for McMaster to bring suit, and
4              MCMASTER V. UNITED STATES

thus hold that the district court properly dismissed
McMaster’s APA and DJA claims. With regard to
McMaster’s QTA claims, we hold that McMaster did not
have a “valid existing right” to a fee-simple patent when he
filed his patent application, and that McMaster failed to plead
with particularity the circumstances under which title to the
improvements was acquired.

      I.   FACTS AND PROCEDURAL HISTORY

    Ken McMaster, Maureen E. Galitz, and Steven E. Fawl
(collectively referred to as “McMaster”) own the Oro Grande
mining claim. The Oro Grande “is an approximate[ly] 20-acre
placer mining claim located approximately 45 miles
northwest of Redding, California, along the South Fork
Salmon River in the Trinity Alps Wilderness.” The claim was
originally located in 1934, pursuant to the General Mining
Law of 1872.

    In 1934, McMaster’s predecessors-in-interest purchased
the Oro Grande—formerly called the Conrad Bar placer
mine—from the claim’s original locator, Edwin Lynch. The
Bill of Sale conveyed title to the mining claim and all
improvements, including a cabin and a shed. The claim was
subsequently “relocated” three times between 1934 and 1953.
The current configuration of the Oro Grande mining claim
was located on June 23, 1953, and the corresponding Notice
of Location noted improvements made to the claim, including
a cabin and a shed. After a series of intestate successions and
conveyances, the Oro Grande was conveyed to McMaster on
April 5, 1991. The 1991 Joint Tenancy Deed noted the cabin
and shed as improvements.
              MCMASTER V. UNITED STATES                     5

    McMaster actively mines the Oro Grande mining claim
when conditions permit—“when the South Fork Salmon
River level is low enough . . . and when access to the site is
possible”—in compliance with state and federal law. There
are now three structures on the Oro Grande mining claim,
which are used in furtherance of mining operations: a cabin,
a workshop, and an outhouse. The cabin was built in the early
1890s and is constructed of split logs and shakes. McMaster
uses the workshop to process samples during the mining
process and to store mining equipment during the seasons in
which he is unable to mine.

    On August 14, 1992, McMaster filed an application to
patent the Oro Grande mining claim. On August 16, 1993, the
BLM State Director for California certified that McMaster
had fully complied with the requirements of the 1872 Mining
Law and was entitled to the First Half Mineral Entry Final
Certificate (“FHMEFC”), “confirming that mineral entry was
allowed and occurred upon the date of acceptance of the
purchase price.” The FHMEFC was issued by the Secretary
of the Interior on December 1, 1994.

    On August 4, 2000, the BLM issued a mineral report for
the Oro Grande mining claim, concluding, inter alia, “[t]hat
a discovery of a valuable mineral deposit of gold was made
on the Oro Grande mining claim at the time it was located in
1953.” An early draft of the 2000 mineral report
recommended that the Oro Grande surface estate be patented
along with the mineral estate, but this recommendation was
ultimately revised based on an opinion issued on May 22,
1998 by the Solicitor of the Department of the Interior. See
Solicitor’s Opinion M-36994, Patenting of Mining Claims
and Mill Sites in Wilderness Areas (May 22, 1998)
(“Solicitor’s Opinion”). A second mineral report for the Oro
6              MCMASTER V. UNITED STATES

Grande mining claim was issued on April 10, 2006, and
likewise concluded that there was a discovery of a valuable
mineral deposit and relied on the Solicitor’s Opinion to
recommend that only the mineral estate be patented.

    On October 3, 2008, the BLM issued a patent for the Oro
Grande mining claim. That patent was later cancelled to
correct an error, and a new patent issued on February 10,
2009. The patent conveyed only “the mineral deposits within
[the] association placer mining claim known as the Oro
Grande Mining Claim,” reserving “[a]ll title in or to the
surface estate and products thereof” and “[a] right-of-way
thereon for ditches or canals constructed by the authority of
the United States” to the United States. Since the patent
issued, the United States Forest Service has asserted that
McMaster “do[es] not own the structures located on the Oro
Grande mining claim.”

    On April 13, 2010, McMaster filed a complaint in federal
district court under the Quiet Title Act, 28 U.S.C. § 2409a, to
quiet title to fee-simple ownership of the longstanding mining
structures and improvements located on the Oro Grande
mining claim. McMaster also brought a claim under the APA
for judicial review of the BLM’s action of issuing a patent
conveying only the mineral estate. On June 30, 2010, the
Government filed a motion to dismiss McMaster’s complaint
under Federal Rule of Civil Procedure 12(b)(6). The district
court granted the government’s motion, holding (1) that the
QTA is the exclusive means for challenging the United
States’ title to real property, (2) that under the QTA,
McMaster “did not acquire any right to a patent until [he]
filed the[] patent application,” at which time McMaster was
entitled to title to only the mineral estate, and (3) that under
the QTA, McMaster failed to “allege[] with particularity
               MCMASTER V. UNITED STATES                     7

when and how [he] obtained ownership to the structures at
issue.” McMaster was granted leave to amend his complaint.

    On September 24, 2010, McMaster filed his First
Amended Complaint, which added new claims under the
Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. The
government again filed a motion to dismiss the amended
complaint under Rule 12(b)(6), which the district court
granted, dismissing McMaster’s complaint with prejudice.
The district court concluded that it was barred from
reconsidering McMaster’s APA claims by the law-of-the-case
doctrine. It also dismissed McMaster’s new DJA claims
because it concluded that the QTA is the exclusive means for
challenging the United States’ interest in real property.
Regarding McMaster’s QTA claims, the district court
concluded that McMaster had failed to remedy the problems
that the court had identified in its prior dismissal order.
McMaster timely appealed.

              II.   LEGAL BACKGROUND

A. Statutory History

     The General Mining Law of 1872 (“Mining Law”),
30 U.S.C. § 22 et seq., was enacted to permit citizens to enter
and explore unappropriated federal lands in search of
“valuable mineral deposits,” id. § 22. Citizens who
discovered mineral deposits could then secure exclusive
rights to the land by meeting certain statutory requirements.
Id.; see Independence Min. Co., Inc. v. Babbitt, 105 F.3d 502,
506 (9th Cir. 1997). First, a claimant could validate his claim
by meeting the legal requirements for “locating” and
discovering the claim. See 30 U.S.C. § 28; see also Cole v.
Ralph, 252 U.S. 286, 294–96 (1920). The holder of a valid,
8              MCMASTER V. UNITED STATES

located claim is entitled to the “exclusive right of possession
and enjoyment of all the surface included within the . . .
location[],” as long as he continues to meet certain
requirements. 30 U.S.C. § 26; see id. § 28; see also Best v.
Humboldt Placer Min. Co., 371 U.S. 334, 335–36 (1963).
This possessory interest entitles the claim holder to “the right
to extract all minerals from the claim without paying royalties
to the United States,” Independence Min. Co., 105 F.3d at
506, but the United States retains title to the land, United
States v. Locke, 471 U.S. 84, 104 (1985). Second, “an
individual who possesses a valid mining claim may go
through an additional process to obtain a patent,” by applying
to the BLM, in the Department of the Interior, and meeting
additional statutory requirements. Swanson v. Babbitt, 3 F.3d
1348, 1350 (9th Cir. 1993); see 30 U.S.C. §§ 29, 35;
Independence Min. Co., 105 F.3d at 506. Under the General
Mining Law, a patent generally conveyed fee-simple title to
both the surface estate and the mineral deposits. See
Independence Min. Co., 105 F.3d at 506; see also Andrus v.
Shell Oil Co., 446 U.S. 657, 658 & n.1 (1980).

    In 1955, however, Congress enacted the Surface
Resources and Multiple Use Act, 30 U.S.C. § 601–615, which
established that any unpatented claim located after the
effective date of the Act could not be used “for any purposes
other than prospecting, mining or processing operations and
uses reasonable incident thereto,” id. § 612(a); see United
States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012).
Claimants would no longer receive the exclusive right of
possession and enjoyment of the surface prior to patenting
their claim; their claims would be subject to “the right of the
United States to manage and dispose” of the surface of any
such mining claim. 30 U.S.C. § 612(b); see Backlund,
689 F.3d at 991.
               MCMASTER V. UNITED STATES                     9

    Then, in 1964, Congress enacted the Wilderness Act,
16 U.S.C. §§ 1131–36, which “established the National
Wilderness Preservation System [(“NWPS”)] to be composed
of federally owned areas designated by Congress as
‘wilderness areas,’” id. § 1131(a). The stated purpose of the
Wilderness Act was to “secure for the American people of
present and future generations the benefits of an enduring
resource of wilderness” by creating and administering
wilderness areas “for the use and enjoyment of the American
people in such manner as will leave them unimpaired for
future use and enjoyment as wilderness, and so as to provide
for the protection of these areas, [and] the preservation of
their wilderness character.” Id. The Wilderness Act also
represented a compromise between mining and preservation
interests. See Kenneth D. Hubbard et. al., The Wilderness
Act’s Impact on Mining Activities: Policy Versus
Practice, 76 Denv. U. L. Rev. 591, 591–92, 597 (1999).
Section 1133(d)(3), in particular, was a product of this
compromise, see id. at 591–92; it limited the creation of
future mining interests, while preserving some pre-existing
mining interests and providing a grace period for discoveries.
See 16 U.S.C. § 1133(d)(3). “[S]ubject to valid existing
rights,” patents that issued after the effective date of the
Wilderness Act, would convey title only to the mineral
deposits, with the surface estate being reserved to the United
States. Id. New claims could also be located under the Act,
but only until December 31, 1983. Id. After December 31,
1983, no patent would issue to claims located within a
wilderness area, “except for valid claims existing on or before
December 31, 1983.” Id. And “[s]ubject to valid rights then
existing,” beginning on January 1, 1984, “all forms of
appropriation under the mining laws” would no longer apply
to any lands designated as wilderness areas. Id.
10             MCMASTER V. UNITED STATES

    Twenty years later, the California Wilderness Act of 1984
made the Wilderness Act applicable to the Oro Grande
mining claim as of September 28, 1984. Pub. L. No. 98-425,
Title I, § 101(a)(34) (1984).

B. Regulatory History

    In 1966, the BLM promulgated a regulation to implement
§ 1133(d)(3) of the Wilderness Act. See 43 C.F.R. § 3638.5
(1996) (“the regulation”). The regulation states that any
“patent issued under the U.S. mining laws for mineral
locations established after [the effective date of the
Wilderness Act], or validated by discovery of minerals
occurring after [the effective date of the Wilderness Act],”
would convey title only to the mineral deposits and would
reserve title to the surface of the land to the United States. Id.
Although § 3638.5 does not directly address whether such a
reservation of surface rights to the United States applied to
unpatented claims located prior to the effective date of the
Wilderness Act, in practice, the BLM regularly conveyed fee-
simple patents to such claims. See Solicitor’s Opinion at 1,
19–20. In 1981, the BLM also published a policy stating that
“[a] patent conveying both surface and mineral rights may be
issued on a valid claim located prior to the date the area was
included as part of the National Wilderness Preservation
System.” Bureau of Land Management, Wilderness
Management Policy, 46 Fed. Reg. 47,180-01 (1981) (“BLM
policy”) (emphasis added). And in 1991, the BLM issued a
manual stating that “[f]or claims located before enactment of
the Wilderness Act . . . the claims must have a discovery as
of the date of enactment to acquire the surface and mineral
estates,” BLM Manual H-3860-1, Mineral Patent Application
Processing, VIII-7 (1991) (“the Manual”).
               MCMASTER V. UNITED STATES                     11

    On May 22, 1998, the Solicitor of the Department of the
Interior issued Opinion No. M-36994 disagreeing with
BLM’s practice of conveying fee-simple patents to all valid
claims located before the wilderness designation. See
Solicitor’s Opinion at 20. The Solicitor’s Opinion recognized
the BLM’s policies and practices, see id. at 19–20, but
ultimately instructed the BLM to follow a new policy:

       [M]ineral patents issued under the Mining
       Law for lands within the wilderness areas . . .
       should convey only the mineral deposits
       within the claim, unless the mining claim for
       which the patent is sought was located and
       validated by a discovery prior to designation
       of the wilderness area and the claimant
       complied with all the requirements for
       obtaining a patent under the Mining Law prior
       to the wilderness designation, as determined
       by the Secretary.

Id. at 21. This interpretation specified that the new policy
should “be applied to . . . currently pending applications.” Id.

                    III.   DISCUSSION

    McMaster appeals the district court’s dismissal of his
QTA, APA, and DJA claims, arguing that he is entitled to
fee-simple title to the surface estate of his claim. “We review
de novo the district court’s dismissal for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).”
Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th Cir.
1995). We have jurisdiction pursuant to 28 U.S.C. § 1291.

A. QTA Claims
12             MCMASTER V. UNITED STATES

    McMaster raised two independent QTA claims: (1) that
the QTA required the government to convey fee-simple
ownership of surface and mineral estates of the Oro Grande
mining claim to McMaster; and (2) that McMaster properly
holds title to all improvements and structures located on the
Oro Grande mining claim. We consider each in turn.

     1. Fee-simple title to Oro Grande mining claim

    In dismissing McMaster’s first QTA claim, the district
court held pursuant to the Wilderness Act that McMaster did
not have a “‘valid existing right’ to a patent conveying fee-
simple ownership of the surface estate and structures
associated with [its] mining claim.” The relevant portion of
the Wilderness Act states:

        [H]ereafter, subject to valid existing rights, all
        patents issued under the mining laws of the
        United States affecting national forest lands
        designated by this chapter as wilderness areas
        shall convey title to the mineral deposits
        within the claim . . . , but each such patent
        shall reserve to the United States all title in or
        to the surface of the lands and products
        thereof, and no use of the surface of the claim
        or the resources therefrom not reasonably
        required for carrying on mining or prospecting
        shall be allowed except as otherwise expressly
        provided in this chapter: Provided, That,
        unless hereafter specifically authorized, no
        patent within wilderness areas designated by
        this chapter shall issue after December 31,
        1983, except for the valid claims existing on
        or before December 31, 1983. Mining claims
               MCMASTER V. UNITED STATES                      13

        located after September 3, 1964, within the
        boundaries of wilderness areas designated by
        this chapter shall create no rights in excess of
        those rights which may be patented under the
        provisions of this subsection.

16 U.S.C. § 1133(d)(3) (emphases added).

     McMaster argues that in passing the Wilderness Act,
Congress intended for claimants to receive fee-simple title to
their pre-existing valid claims. More specifically, McMaster
contends that the “valid existing rights” language of the
Wilderness Act protects claimants’ legitimate expectations of
fee-simple title, preserving the right to the surface estate for
all those who had properly located a mining claim prior to the
relevant wilderness designation.

    McMaster claims that the BLM’s regulation, policy, and
manual are consistent with its interpretation and should have
been applied to McMaster’s claim, and that the Solicitor’s
Opinion, which is contrary to McMaster’s interpretation, is
not entitled to any deference.

        a. BLM’s regulation, Manual, and BLM policy

     McMaster argues that the regulation, Manual, and BLM
policy are consistent with his interpretation and require that
McMaster be issued a fee-simple patent. None of these,
however, clearly requires issuing title to the surface estate for
all valid claims.

    First, the regulation contained in 43 C.F.R. § 3638.5 states
that for “mineral locations established after [the effective date
of the Wilderness Act], or validated by discovery of minerals
14             MCMASTER V. UNITED STATES

occurring after [the effective date of the Wilderness Act],”
title will issue to only the mineral deposits; the United States
will retain title to the surface of the land. 43 C.F.R. § 3638.5.
Section 3638.5 does not even address claims that were
established prior to the effective date of the Wilderness Act.
And stating that claims discovered after the effective date of
the Act receive only limited patents does not necessarily
mean that every valid claim located prior to the time
announced in the Regulation is entitled to a fee-simple patent.

    In contrast to the regulation, the Manual addresses claims
that were established prior to the wilderness designation. The
Manual states that “[f]or claims located before enactment of
the Wilderness Act . . . the claims must have a discovery as
of the date of enactment to acquire the surface and mineral
estates,” BLM Manual H-3860-1, Mineral Patent Application
Processing, VIII-7 (Apr 17, 1991). Although the Manual
indicates that a claim must be discovered prior to the
wilderness designation to receive title to the surface estate,
nowhere does the manual state that this is all that is required.
Indeed, discovery is a necessary, but not a sufficient,
condition for establishing a valid claim; the claim must also
be located “by reference to some natural object or permanent
monument as will identify the claim.” 30 U.S.C. § 28; see
Cole, 252 U.S. at 296. Moreover, even if the Manual could be
read as stating that valid claims established before the
wilderness designation are entitled to title to the surface state,
BLM manuals are not legally binding. See Schweiker v.
Hansen, 450 U.S. 785, 789–90 (1981) (holding that a Social
Security manual did not bind the Social Security
Administration because it is not a regulation and has “no legal
force”); Robert S. Glenn DeLloyd Cazier, 124 IBLA 104, 109
(IBLA 1992) (“Instruction Memoranda and BLM Manual
provisions do not have the force and effect of law and are not
               MCMASTER V. UNITED STATES                     15

binding on either this Board or the public at large.” (internal
quotation marks and citation omitted)).

    Finally, the BLM policy states that “[a] patent conveying
both surface and mineral rights may be issued on a valid
claim located prior to the date the area was included as part
of the National Wilderness Preservation System.” Bureau of
Land Management, Wilderness Management Policy, 46 Fed.
Reg. 47,180-01 (1981) (emphasis added). Although the BLM
policy indicates more clearly that valid claims may receive
fee-simple title, the language of the policy is discretionary
(“may be issued”). The policy thus leaves room for BLM to
impose additional requirements for receiving fee-simple title.
And, in any event, like the Manual, a BLM management
policy is not legally binding. See King’s Meadow Ranches,
126 IBLA 339, 341 n.2 (IBLA 1993) (stating that policies
“not established by regulation . . . lack[] the force and effect
of law”); see also Schweiker, 450 U.S. at 789–90.

    Thus, neither the regulation, nor the Manual, nor the BLM
policy entitles McMaster to fee-simple title to the surface
estate.

       b. The Solicitor’s Opinion

     In contrast to McMaster’s interpretation of “valid existing
rights,” the Solicitor’s Opinion concluded that the term refers
to a claimant who had actually “filed a patent application, and
established a right to a patent before the land in question was
designated as wilderness” by “complying with all the
requirements for obtaining a patent.” Solicitor’s Opinion at 3,
21. Under this reading, the Wilderness Act does not preserve
a right to a surface estate for those who “located a mining
claim and made a discovery of a valuable mineral claim
16             MCMASTER V. UNITED STATES

deposit before the land in question was designated as
wilderness, but . . . had not established a right to a patent
before the land was designated as wilderness.” Id. at 3–4.
Since the Solicitor’s Opinion is contrary to McMaster’s
interpretation of the statute, we must determine whether it is
owed deference.

           i. Chevron deference

     Under Chevron, we conduct a two-step inquiry to
determine whether an agency interpretation warrants
deference. At step one, we ask “whether Congress has
directly spoken to the precise question at issue.” Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984). “If the intent of Congress is clear, that is the end
of the matter; [and we] . . . must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43.
If, however, “the statute is silent or ambiguous,” id. at 843,
prior to step two, “we must decide how much weight to
accord an agency’s interpretation,” Tualatin Valley Builders
Supply, Inc. v. United States, 522 F.3d 937, 940 (9th Cir.
2008); see United States v. Mead Corp., 533 U.S. 218,
227–28 (2001); N. Cal. River Watch v. Wilcox, 633 F.3d 766,
772–73 (9th Cir. 2010). If we determine that Chevron
deference applies, then we move to step two, where we will
defer to the agency’s interpretation if it is “based on a
permissible construction of the statute.” Chevron, 467 U.S. at
843.

   First, we hold that the meaning of “valid existing rights”
in § 1133(d)(3) is ambiguous under Chevron step one.
Section 1133(d)(3) clearly excepts “valid existing rights”
from its mandate that patents should be issued to only the
mineral estate; but what constitutes a “valid existing right[]”
                MCMASTER V. UNITED STATES                       17

is not clear from the text; the term is undefined. See Chevron,
467 U.S. at 842–43. The contrasting interpretations that
McMaster and the government offer for “valid existing
rights” demonstrate the ambiguity inherent in the term. As
explained, McMaster argues that “valid existing rights”
preserves the right to the surface estate for all those who had
properly located a mining claim prior to the relevant
wilderness designation because they had a legitimate
expectation that they would receive title. In contrast, the
government argues that “valid existing rights” are akin to
“vested rights,” and Congress retains the authority to limit
and regulate a preexisting mining claimant’s opportunity to
obtain a patent. Courts that have interpreted the term “valid
existing rights” within the context of other statutes have
sometimes defined the term in accordance with the
government’s definition, see, e.g., Alaska Miners v. Andrus,
662 F.2d 577, 579–80 (9th Cir. 1981) (holding that a plaintiff
with valid claim did not have a “valid existing right” to a
patent “prior to the payment of any money for the granting of
the patent for the land”); Freese v. United States, 639 F.2d
754, 758 (Ct. Cl. 1981) (holding that claimant who was
denied a patent had his “valid existing rights” preserved and
that “[t]he law is well-settled that [a] vested right [to a] patent
does not arise until there has been full compliance with the
extensive procedures . . . for the obtaining of a patent”).
Other times courts have arguably interpreted the term in a
manner consistent with McMaster’s definition, see, e.g.,
Aleknagik Natives Ltd. v. United States, 806 F.2d 924,
926–27 (9th Cir. 1986) (holding that “‘valid existing rights’
does not necessarily mean vested rights[;] . . . legitimate
expectations may be recognized as valid existing rights,
especially where the expectancy is created by the government
in the first instance”); Seldovia Native Ass’n, Inc. v. Lujan,
904 F.2d 1335, 1343 (9th Cir. 1990) (applying Aleknagik); cf.
18                MCMASTER V. UNITED STATES

E. Cent. Eureka Mining Co. v. Cent. Eureka Mining Co.,
204 U.S. 266, 269–70, (1907) (holding that the phrase “rights
or interests . . . under existing laws” included “inchoate
rights”).

    In addition, the District of Columbia Circuit has
specifically held that the phrase “subject to valid existing
rights,” as contained in a different statute, is ambiguous under
Chevron step one. See Nat’l Mining Ass’n v. Kempthorne,
512 F.3d 702, 707–08 (D.C. Cir. 2008).1 Moreover, with
regard to the Wilderness Act in particular, the fact that the
Department of the Interior has changed its practice—and as
McMaster argues, also its written policies and regulations2—
with regard to what constitutes a “valid existing right” also
supports our conclusion that the term is ambiguous. See
Solicitor’s Opinion at 19–20.

    Since we conclude that the meaning of “valid existing
rights” in § 1133(d)(3) is ambiguous under Chevron step one,
we must determine how much weight to afford the agency
interpretation before moving to step two. See Tualatin Valley

  1
    The statute at issue in Nat’l Mining Ass’n was the Surface Mining
Control and Reclamation Act of 1977 (“SMCRA”). The Office of Surface
Mining Reclamation and Enforcement (“OSM”) has stated that “valid
existing rights” under SMCRA “is not analogous to [‘valid existing
rights’] under other Federal statutes,” Valid Existing Rights, 64 Fed. Reg.
70766-01 (Dec 17, 1999), including our interpretation of “valid existing”
rights in the Alaska Native Claims Settlement Act. See Aleknagik,
806 F.2d at 926–27. This further illustrates the ambiguity in the term.
  2
   As explained, although the BLM had a practice of issuing fee-simple
patents to claimants who had located their claims prior to the wilderness
designation, see Solicitor’s Opinion at 19–20, its written policies and
regulation were arguably not clear as to whether a fee-simple patent must
always issue to a claimant in McMaster’s position.
                  MCMASTER V. UNITED STATES                               19

Builders, 522 F.3d at 940; see also Mead, 533 U.S. at
227–28; Wilcox, 633 F.3d at 772–73. Chevron deference
applies only when (1) “it appears that Congress delegated
authority to the agency generally to make rules carrying the
force of law,” and (2) “the agency interpretation claiming
deference was promulgated in the exercise of that authority.”
Mead, 533 U.S. at 226–27.

     Although it seems clear that Congress has explicitly
delegated authority to the Secretary of the Interior to
prescribe regulations relating to the operation of the Mining
Law and the issuance of patents, see 30 U.S.C. § 22;
43 U.S.C. § 2,3 the Solicitor’s Opinion was not “promulgated
in the exercise of [the Department’s] authority” to issue
regulations regarding public lands. Mead, 533 U.S. at
226–27. The Supreme Court has stated that “[i]nterpretations
such as those in opinion letters which lack the force of law[]
do not warrant Chevron-style deference,” Christensen v.
Harris Cnty., 529 U.S. 576, 587 (2000), and we have relied
on Christensen to broadly conclude that “Solicitor’s opinions
. . . cannot properly be viewed as an administrative agency
interpretation of statute that has the force of law.” The


  3
    Congress has specified that citizens seeking to acquire title to mining
claims must follow “regulations prescribed by law,” 30 U.S.C. § 22, and
has made clear that the “Secretary of the Interior . . . shall perform all
executive duties appertaining to the . . . sale of the public lands of the
United States, or in anywise respecting such public lands, and, also, such
as relate to private claims of land, and the issuing of patents for all grants
of land under the authority of the Government.” 43 U.S.C. § 2. The
Supreme Court has confirmed that these statutes make clear that “the
Department [of the Interior] 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.” Best,
371 U.S. at 336–37.
20                MCMASTER V. UNITED STATES

Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1068 n. 16 (9th Cir. 2003), amended on reh’g en banc
by 360 F.3d 1374 (9th Cir. 2004).4 Thus, the Solicitor’s
Opinion does not warrant Chevron deference.

              ii. Skidmore deference

 4
   Wilderness Soc’y declares that Solicitor’s Opinions, as a class, are not
entitled to Chevron deference because “[s]uch opinions . . . normally are
the product of individual lawyers advising their client agencies . . . [and]
do not . . . involve procedural protections comparable to an agency’s
rulemaking procedures.” Id. at 1068 n.16. But see Mead, 533 U.S. at
230–31. If we were deciding the issue on a blank slate we might come out
somewhat differently. The Solicitor Opinion at issue in Wilderness Soc’y
addressed a specific project in Alaska, “d[id] not attempt to draw broader
conclusions regarding the permissibility of th[e] type of enterprise [at
issue],” and “was not a document intended to have the general force of
law.” Id. at 1068. In contrast, here, the Solicitor’s Opinion was arguably
issued with a “lawmaking pretense.” Marmolejo-Campos v. Holder,
558 F.3d 903, 908–09 (9th Cir. 2009) (en banc). The Opinion’s
interpretation of “valid existing rights” applies to an entire class of claims,
and the Opinion itself specifically requires the BLM to “amend its
regulations . . . and its Manual . . . to comport with th[e] Opinion,” and to
apply the Opinion to “all new and currently pending patent applications.”
Solicitor’s Opinion at 21–22. Moreover, Solicitor Opinions, generally,
have “precedential value”—they “bind future parties.” Marmolejo-
Campos, 558 F.3d at 909. Solicitor’s Opinions are binding on the Interior
Board of Land Appeals (“IBLA”), an appellate body that hears appeals
from BLM decisions. See Solicitor’s Opinion M-37003, Binding Nature
of Solicitor’s Opinions on the Office of Hearings and Appeals (Jan. 18,
2001); United States v. Rannells, 175 IBLA 363, 377 n.3 (IBLA 2008).
Indeed, it seems to be somewhat of an anomaly that we have concluded
that IBLA opinions are entitled to Chevron deference, see
Brandt-Erichsen v. U.S. Dep’t of Interior, Bureau of Land Mgmt.,
999 F.2d 1376, 1381 (9th Cir. 1993), but Solicitor Opinions, which are
binding on the IBLA and can overrule IBLA decisions are not, see
43 C.F.R. 4.5(a). But, since we ultimately conclude that the Solicitor’s
Opinion is entitled to Skidmore deference, the question of whether
Chevron applies is not determinative in this case.
               MCMASTER V. UNITED STATES                    21

    An agency action that does not warrant Chevron
deference may still warrant “respect proportional to its
‘power to persuade.’” Mead, 533 U.S. at 235 (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Under
Skidmore, “[t]he weight of such a judgment in a particular
case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and [any other] factors
which give it power to persuade.” Skidmore, 323 U.S. at 140.

    We conclude that the Solicitor’s Opinion is entitled to
respect under Skidmore. It is a well-reasoned, formal, signed,
twenty-two page opinion, see Solicitor’s Opinion at 1–22,
that is “thorough[] . . . in its consideration,” and ultimately
persuasive. Skidmore, 323 U.S. at 140.

    McMaster argues that the Solicitor’s opinion is
inconsistent “with earlier . . . pronouncements.” For the
reasons explained earlier, the Solicitor’s Opinion was not
clearly contrary to the regulation or, arguably, the Manual,
although it does appear to be in tension with the prior BLM
policy (though the policy still left the agency room for
discretion). To the extent there is any inconsistency, however,
this is just one factor under Skidmore. The Solicitor’s Opinion
also carefully analyzes the text, purpose, and legislative
history of the Wilderness Act, as well as the “modern judicial
treatment of valid existing rights with respect to legislation
affecting mining claims and patents.” Solicitor’s Opinion at
1–16. In sum, the Solicitor’s Opinion is a “persuasive
interpretation of the law,” Tualatin Valley Builders, 522 F.3d
22                 MCMASTER V. UNITED STATES

at 942, despite the fact that it arguably represents a change in
the agency’s view.5

    First, the Solicitor’s Opinion’s reading of “valid existing
rights” is consistent with the text of § 1133(d)(3). Section
1133(d)(3) states that “hereafter, subject to valid existing
rights, all patents issued under the mining laws of the United
States affecting national forest lands designated by this
chapter as wilderness areas shall convey title to the mineral
deposits within the claim.” Because the phrase “subject to
valid existing rights” clearly refers to the issuance of a
limited patent to the mineral estate, “valid existing rights”
must refer to a claimant’s valid existing right to a patent—not
merely a valid claim. See Solicitor’s Opinion at 5 (“[T]he
phrase ‘valid existing rights’ must refer only to a claimant’s
valid existing rights to a patent.”). Moreover, as the
Solicitor’s Opinion points out, see Solicitor’s Opinion at 6,
§ 1133(d)(3) references both “valid existing rights” and
“valid claims.” By virtue of the fact that Congress used both
of these phrases in the same section of a statute, we infer that
Congress intended different meanings. SEC v. McCarthy,
322 F.3d 650, 656 (9th Cir. 2003) (“It is a well-established

  5
     To the extent that McMaster argues that the Solicitor’s Opinion is
arbitrary and capricious because it represented a “reversal of agency
policy” or a “change from agency practice,” McMaster’s argument
fails. Agency inconsistency is “at most” a reason for concluding that an
action is arbitrary and capricious only when the change in position is
inadequately explained. Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 981–82 (2005); cf. id. at 981 (explaining
that Chevron still applied to an inconsistent policy because “[a]n initial
agency interpretation is not instantly carved in stone[;] . . . the agency . . .
must consider varying interpretations and the wisdom of its policy on a
continuing basis”). Here, the change in the agency’s practice was not
unexplained. The Solicitor Opinion clearly, and rather extensively, stated
the reasons supporting its interpretation.
               MCMASTER V. UNITED STATES                     23

canon of statutory interpretation that the use of different
words or terms within a statute demonstrates that Congress
intended to convey a different meaning for those words.”).
Thus, the exception of “valid existing rights” from
§ 1133(d)’s requirement that the surface estate be reserved to
the government cannot mean that any “valid claim” is
excepted from the requirement that the surface estate be
reserved. “Valid existing rights” must mean something
different.

    The Solicitor Opinion’s reading is also consistent with the
purpose of the Wilderness Act. The Wilderness Act was
enacted to “secure for the American people of present and
future generations the benefits of an enduring resource of
wilderness” by creating and administering wilderness areas
“for the use and enjoyment of the American people in such
manner as will leave them unimpaired for future use and
enjoyment as wilderness, and so as to provide for the
protection of these areas, [and] the preservation of their
wilderness character.” 16 U.S.C. § 1131(a). As the Solicitor’s
Opinion explains, reading “valid existing rights” narrowly, so
as to require more than a mere “valid claim,” helps to
“maximize protection of the wilderness” and is consistent
with the Act’s “protective thrust.” Solicitor’s Opinion at 7.
Although, to some extent, § 1133(d)(3) also represented a
compromise between mining and preservation interests, see
Hubbard, 76 Denv. U. L. Rev. at 597, construing “valid
existing rights” in this manner does not interfere with mining
interests. A fee-simple patent is not necessary for mining to
continue. See Independence Min. Co, 105 F.3d at 509 (stating
that a miner “need not obtain patents to continue its mining
operation”). The holder of a valid, located claim is entitled to
the “exclusive right of possession and enjoyment of all the
surface included within the . . . location[],” 30 U.S.C. § 26;
24             MCMASTER V. UNITED STATES

see id. § 28; see also Best, 371 U.S. at 335, and has “the right
to extract all minerals from the claim without paying royalties
to the United States,” Independence Min. Co., 105 F.3d at
506 (internal citation omitted).

    In addition to being consistent with the text and purpose
of the Wilderness Act, the Solicitor’s Opinion is also in
harmony with precedent. For example, in Alaska Miners v.
Andrus, claimants challenged a provision of the Alaska
Native Claims Settlement Act (“ANCSA”), 43 U.S.C. § 1601
et seq., which limited the issuance of patents to those with
valid claims who complied with the mining laws and applied
for a patent within a five year period. See Alaska Miners,
662 F.2d at 579–80; see also 43 U.S.C. § 1621(c). ANCSA
provided that “[a]ll conveyances . . . shall be subject to valid
existing rights,” 43 U.S.C. § 1613(g) (emphasis added); see
also Alaska Miners, 662 F.2d at 579–80. The claimants
argued that miners with valid claims “have a valid existing
right to require the government to hold open indefinitely the
option to apply for a patent,” Alaska Miners, 662 F.2d at 579,
essentially the same argument McMaster makes here. We
held that:

        Appellants ha[d] no such right to a patent or
        to the opportunity to apply for a patent outside
        of the time restriction [mandated by the Act].
        Appellants may well have an existing right to
        prevent third parties from interfering with
        their possessory interest. However, they have
        no right to prevent the government from
        conveying the legal title to the native
        corporations.
                  MCMASTER V. UNITED STATES                                25

Id. Moreover, we reasoned that “the interest of a claimant in
a mining claim, prior to the payment of any money for the
granting of the patent for the land, is nothing more than a
right to the exclusive possession of the land based upon
conditions subsequent, a failure to fulfill which forfeits the
locator’s interest in the claim.” Id. (emphasis added).6

    The U.S. Court of Claims has similarly held that the
owner of a valid but unpatented mining claim had no right to
receive a patent because he “had not yet taken the first step
towards obtaining patents.” Freese, 639 F.2d at 758. In
response to the claimant’s argument that “his right to the
issuance of a patent upon each of his mining claims vested as
soon as he completed the discovery and location of each
claim,” the court explained that “[t]he law is well-settled that
[a] vested right [to a patent] does not arise until there has
been full compliance with the extensive procedures set forth
in the federal mining laws for the obtaining of a patent.” Id.;
see also Cook v. United States, 37 Fed. Cl. 435, 445–46 (Fed.
Cl. 1997) (holding that plaintiffs were “entitle[d] to a patent”
and had a vested property interest once they did “all that
[was] required . . . under existing law to receive title to public


   6
      East Central Eureka Mining Co. v. Central Eureka Mining Co.,
204 U.S. 266, 269–71, (1907), is not to the contrary. In East Central, the
statutory language at issue was broader than “valid existing rights”—the
savings clause referred to “rights or interests in mining property acquired
under existing laws.” Id. at 270. The Court also concluded that
“rights”meant rights in the “popular” sense, rather than “technical[] legal
sense.” Id. at 271. In contrast, here, “valid existing rights” has been treated
as a technical, legal term that has been subjected to precise interpretations
by courts and agencies. See, e.g., Valid Existing Rights, 64 Fed. Reg.
70766-01 (Dec 17, 1999); Nat’l Mining Ass’n, 512 F.3d at 707–08;
Aleknagik, 806 F.2d at 926–27; Alaska Miners, 662 F.2d at 579–80;
Freese, 639 F.2d at 758.
26                 MCMASTER V. UNITED STATES

land, including the filing of all papers and, where applicable,
the payment to the United States of the purchase price for a
patent”). The court also explained that the claimant’s “‘valid
existing rights’ in his mining claims [were] . . . preserved,”
despite the fact that the claimant was completely denied a
patent, because the claimant’s “rights of use, enjoyment and
disposition in his unpatented mining claims remain[ed]
undiminished.” Freese, 639 at 758.

    Although we previously held in Aleknagik, with regard to
a different statute, that it was reasonable for an agency to
interpret “valid existing rights” “to mean something other
than ‘vested’” where plaintiffs had a “legitimate claim” and
the government represented that claimants had a right to that
claim, 806 F.2d at 926–27,7 no such representation has been
made to individuals in McMaster’s situation. We reasoned in
Aleknagik that “legitimate expectations may be recognized as
valid existing rights, especially where the expectancy is
created by the government in the first instance.” Id. at 927.
Here, however, individuals with valid claims who have not
even filed a patent application do not have a “legitimate
expectation” of receiving fee-simple title. They have not yet
completed even the “first step” of the process of applying for
a patent—in contrast to the claimants in Aleknagik. Id. at 926;
see 30 U.S.C. § 29. Nor has McMaster claimed that the
government has somehow represented to individuals with

     7
     We applied Aleknagik to the ANCSA in Seldovia Native Ass’n,
904 F.2d at 1343. There we held that conditional purchase options granted
under the Alaska Statehood Act “satisfy the requirements of a valid
existing right. Because they are granted by the State of Alaska pursuant
to an Act of Congress, they create legitimate expectations of property
interests. In addition, they are rights leading to the acquisition of title.” Id.
Seldovia is also distinguishable from this case because the claimant had
a legitimate expectation that was clearly created by an Act of Congress.
                  MCMASTER V. UNITED STATES                             27

valid claims that they have a right to fee-simple title.8 Rather,
the Mining Act indicates that an individual with a valid claim
will have an opportunity to apply for a patent and may
receive one if he can meet the statute’s requirements. See
30 U.S.C. § 29.

    Moreover, the Supreme Court has held that “[a]lthough
owners of unpatented mining claims hold fully recognized
possessory interests in their claims, . . . these interests are a
‘unique form of property.’ The United States, as owner of the
underlying fee title to the public domain, maintains broad
powers over the terms and conditions upon which the public
lands can be used, leased, and acquired.” Locke, 471 U.S. at
104 (citations omitted).9 Indeed, we held in Swanson v.
Babbitt that “[u]ntil a patent is issued, the government has
broad authority to manage public lands” and “to remove those
public lands from mining claims and patents,” 3 F.3d at 1352.
Thus, individuals such as McMaster, who have only a valid


 8
   By contrast, the government’s conduct in Aleknagik suggested that the
claimants—occupants of a townsite—had a right to fee-simple title. At the
Aleknagik claimants’ request, BLM had already completed a preliminary
process for forming a townsite, called “segregation.” 806 F.2d at 925.
Here, the government has not undertaken any steps to patent the claims
because McMaster has not filed the initial application. Nor has the
government explicitly represented through its policies that all valid claims
established before the effective date will receive fee-simple title. As
explained, neither the regulation, nor the Manual, nor the BLM policy
clearly require all valid claims to be patented.
  9
    Contrary to McMaster’s contentions, the Solicitor’s interpretation is
also consistent with Stockley v. United States, 260 U.S. 532 (1923). In
Stockley, the Court said that “‘existing valid claims’ [o]bviously means
something less than a vested right.” Id. at 544. Similarly, the Solicitor
interpreted “valid existing rights” to mean something more than an
“existing valid claim.” See Solicitor’s Opinion at 6.
28             MCMASTER V. UNITED STATES

claim, do not have a legitimate expectation of receiving a
patent.

    Finally, the Solicitor’s Opinion also addressed the
legislative history to the Wilderness Act. The Opinion
discusses a letter to the House of Representatives from
Assistant Secretary of the Interior, John A. Carver, Jr.,which
suggested adding the language “subject to valid existing
rights.” H. Rep. No. 88-1538 (1964), reprinted in 1964
U.S.C.C.A.N. 3615. The letter explained:

       The requirement of the bill that all patents
       issued after the effective date of this act shall
       convey title to mineral deposits with a
       reservation to the United States of all title to
       the surface of the lands must be subject to
       ‘valid existing rights.” The owner of a valid
       mining claim perfected under the mining laws
       prior to the effective date of this act has
       already acquired a possessory title to the
       surface of the land and any patent issued on
       such a claim after the effective date of this act
       must convey title to both the land and mineral
       deposits therein, unless provision is made for
       just compensation.

Id. at 3625. Although the letter states that a patent conveying
fee-simple title “must” issue to the “owner of a valid mining
claim perfected under the mining laws prior to the effective
date of th[e] act” because the owner has “already acquired a
possessory title to the surface of the land,” Carver does not
provide a legal basis for this assertion. See Solicitor Opinion
at 9–10. Carver’s reference to “just compensation,” however,
implies that his rationale for the amendment is based, at least
               MCMASTER V. UNITED STATES                    29

in part, on avoiding compensable takings. See H. Rep. No.
88-1538 (1964), reprinted in 1964 U.S.C.C.A.N. 3615, 3625.
Viewed in that context, Carver’s interpretation is an incorrect
statement of the law. We have held that just compensation is
required only when the claimant has a vested property right,
see Acton v. United States, 401 F.2d 896, 899 (9th Cir. 1968),
which requires more than a valid claim and a possessory
interest, see Swanson, 3 F.3d at 1348 (holding that a “vested
right does not arise until there has been full compliance with
the extensive procedures set forth in the federal mining laws
for the obtaining of a patent” (citation omitted)); see also
Alaska Miners, 662 F.2d at 579–80.

    In addition to the Carver letter, the Solicitor’s Opinion
also discusses the House Committee Report, which was
apparently based on the Carver letter. Solicitor’s Opinion
at 8. The House Report states that § 1133(d)(3)’s limitation
of surface rights would apply to “locators of claims staked
after the effective date of the act.” H. Rep. No. 88-1538
(1964), reprinted in 1964 U.S.C.C.A.N. 3615, 3618.
(emphasis added). As the Solicitor’s Opinion pointed out, this
statement is somewhat inconsistent with Carver’s
interpretation of the savings clause—those who have merely
staked a claim do not yet have a valid claim with a present
possessory interest. Solicitor’s Opinion at 10.

     We agree with the Solicitor’s Opinion that to the extent
that the Carver letter or House Report implied that “owners
of valid mining claims[, or staked claims,] have, without
more, vested rights to a patent including the surface as well
as the mineral deposits, [that] viewpoint is less persuasive,”
see Solicitor’s Opinion at 9, particularly since the Carver
letter and House Report are somewhat inconsistent in their
interpretation of “valid existing rights.” Moreover, the Carver
30                MCMASTER V. UNITED STATES

and House Report interpretations are also inconsistent with
the text and purpose of the Wilderness Act, as well as
relevant case law, as has been explained. We find the
Solicitor Opinion’s conclusion with regard to the legislative
history convincing: The “valid existing rights” provision is
“best viewed as responsive to the general constitutional
concern the Assistant Secretary raised, rather than as
legislating any precise understanding of the scope of those
rights.” Id. at 10. “[T]he suggestions offered in both the
Carver letter and the House Committee Report . . . should not
. . . be regarded as enacting into law a particular view of valid
existing rights. Instead, by using such a general, common
phrase, Congress was leaving it ultimately up to the courts to
determine what ‘valid existing rights’ meant in the patenting
context.” Id.

    In sum, because the Solicitor’s Opinion is consistent with
the text of the statute, purpose, and our prior precedent, and
because it adequately discussed and explained legislative
history that could be perceived contrary to its interpretation,
we find the Solicitor’s Opinion to be persuasive. We therefore
conclude that the Solicitor Opinion’s interpretation of “valid
existing rights” is entitled to Skidmore deference.

              iii. Application

    Applying the rule set forth in the Solicitor’s Opinion to
the facts of this case,10 it is undisputed that as of the effective


 10
    McMaster argues that the rule set forth in the Solicitor’s Opinion has
an impermissible retroactive effect as applied to its case. See Solicitor’s
Opinion at 21 (stating that the Opinion should be applied to all “currently
pending patent applications”). Although “retroactivity is not favored in the
law,” and an agency does not have “power to promulgate retroactive rules
                  MCMASTER V. UNITED STATES                               31

date of the California Wilderness Act—September 28,
1984—McMaster had nothing more than a valid claim in the
Oro Grande. McMaster did not fulfill the requirements for
procuring a patent until at least August 14, 1992. Therefore,
McMaster did not have a “valid existing right” to a fee-
simple patent under the Wilderness Act at the time that he
submitted its patent application, and was properly granted a
patent with reservation of the surface estates. McMaster’s
only “valid existing right” was to a claim, not a patent. The
district court did not err in dismissing McMaster’s first QTA
claim under Federal Rule of Civil Procedure 12(b)(6).

    2. Fee-simple title to mining structures                             and
       improvements on Oro Grande mining claim

    McMaster argues that he properly holds title to all
improvements and structures located on the Oro Grande
mining claim because “[i]t is well established that mining
structures incident to mining operations may be erected on
valid claims,” and “the mining structures [here] were
constructed expressly for the benefit of the Oro Grande, and
because they are . . . incident to mining the valuable mineral
deposits that were granted in the limited patent, the structures
are ‘appurtenances’ and were also granted to [McMaster].”


unless that power is conveyed by Congress in express terms,” Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), the rule set forth in
the Solicitor’s Opinion does not give the statute retroactive effect. The
Solicitor’s interpretation “does not impact [McMaster’s] current
possessory interest in the claims, but rather affects only its prospective
interest in further property rights in the claims.” R.T. Vanderbilt Co. v.
Babbitt, 113 F.3d 1061, 1067 (9th Cir. 1997); see Freese, 639 F.2d at 758
(“At best,” plaintiff, who had a valid claim and was denied an opportunity
to apply for a patent, “suffered a denial of the opportunity to obtain greater
property than that which he owned . . . .”).
32               MCMASTER V. UNITED STATES

    To invoke the QTA, a complaint must “set forth with
particularity the nature of the right, title, or interest which the
plaintiff claims in the real property, the circumstances under
which it was acquired, and the right, title, or interest claimed
by the United States.” 28 U.S.C. § 2409a(d). We have not
previously considered what it means to “set forth with
particularity” in the context of § 2409a(d). In another context,
however, this court has interpreted Federal Rule of Civil
Procedure 9(b)’s requirement that fraud be pled with
particularity to require “[t]he complaint [to] specify such
facts as the times, dates, places, benefits received, and other
details of the alleged fraudulent activity.” Neubronner v.
Milken, 6 F.3d 666, 671–72 (9th Cir. 1993) (“A pleading is
sufficient under Rule 9(b) if it identifies the circumstances
constituting fraud so that the defendant can prepare an
adequate answer from the allegations.” (internal quotation
marks and citation omitted)).11 We have likewise interpreted
the phrase “state with particularity all facts,” as contained in
the Private Securities Litigation Reform Act of 1995, to mean
“that a plaintiff must provide a list of all relevant
circumstances in great detail.” In re Silicon Graphics Inc.
Sec. Litig., 183 F.3d 970, 984 (9th Cir., 1999), abrogated on
other grounds by South Ferry LP, No. 2 v. Killinger, 542 F.3d
776, 784 (9th Cir. 2008). Particularity generally necessitates
a great deal of specificity.

    Thus, we agree with the district court that McMaster has
failed to plead with particularity when and how he obtained
ownership of the structures located on the former Oro Grande
mining claim. McMaster’s complaint states:


  11
      Federal Rule of Civil Procedure 9(b) states, in relevant part: “In
alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”
               MCMASTER V. UNITED STATES                     33

       Incident to, and in furtherance of, the mining
       operations, three structures have been erected
       on the Oro Grande mining claim: a cabin, a
       workshop, and an outhouse. The cabin was
       built in the early 1890s and is constructed
       entirely of split logs and shakes. The
       workshop is used to process samples during
       mining operations and to store mining
       equipment during seasons in which mining is
       not permitted.

McMaster also states that the Oro Grande claim was
purchased from Edwin Lynch in 1934 with a Bill of Sale that
conveyed all improvements, including a cabin and shed.
McMaster provided the documents supporting the
conveyance of the Oro Grande mining claim through time up
to 1991 when McMaster received a joint tenancy deed for the
Oro Grande mining claim noting improvements, including a
cabin and a shed.

    With regard to the origins of the title to the
improvements, McMaster only generally alleges that the
structures were constructed incident to mining operations, and
specifically alleges that the cabin was built sometime in the
early 1890s. Nowhere does McMaster allege whether or how
Lynch obtained title, or whether he retained title until he sold
the Oro Grande mining claim to McMaster. These particular
facts are important because title to the structures may have
passed to the Government at some time. When a claim is
abandoned or deemed invalid, the title to surface structures
passes to the United States. See Brothers v. United States,
594 F.2d 740, 741 (9th Cir. 1979). Thus, McMaster has failed
to plead with particularly sufficient facts showing all of the
circumstances under which his title to the structures was
34             MCMASTER V. UNITED STATES

acquired, 28 U.S.C. § 2409a(d), and has failed to satisfy his
burden under the QTA. See 28 U.S.C. § 2409a(d).

    And, in any event, because McMaster no longer holds a
valid claim to the Oro Grande lands, by virtue of the fact that
he received only a mineral patent, he is required to obtain a
special use permit prior to using the surface of the land. See
36 C.F.R. § 251.50. Thus, even if McMaster did “own” the
structures, he would not have the right to use them, and could
be required to remove them.

   We conclude that McMaster’s second QTA claim was
properly dismissed under Federal Rule of Civil Procedure
12(b)(6).

B. APA Claims

    McMaster argues that the district court erred in
dismissing his APA claims. McMaster’s amended complaint
contained three claims seeking relief under the APA.
McMaster claimed: (1) that the patent reservations were not
in accordance with law; (2) that the Solicitor’s Opinion was
not in accordance with law; and (3) that the BLM’s patent
reservations of the surface and remaining mineral estates,
after equitable title vested, was arbitrary, capricious, and not
in accordance with law.

    We agree with the district court that McMaster’s APA
claim is essentially a challenge to the United States’ title to
real property and, therefore, must be dismissed because the
QTA is the exclusive means for challenging the United
States’ title to real property.

     1. Legal background
                  MCMASTER V. UNITED STATES                            35

    The Supreme Court first held in Block v. North Dakota ex
rel. Bd. of Univ. & Sch. Lands that “Congress intended the
QTA to provide the exclusive means by which adverse
claimants could challenge the United States’ title to real
property,” 461 U.S. 273, 276–77 (1983). In Block, North
Dakota brought suit against the United States to settle a
dispute over ownership of certain riverbed located in the
Little Missouri River. Id. at 277–79. Although North Dakota
had asserted a number of jurisdictional bases for its claim that
it was entitled to injunctive and mandamus relief—including
the APA and the DJA,12 id. at 278—the Court held that
“North Dakota’s action [could] proceed, if at all, only under
the QTA.” Id. at 292–93. The Court reasoned that “[t]he
balance, completeness, and structural integrity of the [QTA]
belied the contention that it was designed merely to
supplement other putative judicial relief,” and explained that
if North Dakota were permitted to seek relief under the other
statutes then “all the carefully-crafted provisions of the QTA
deemed necessary for the protection of the national public
interest could be averted . . . by artful pleading.” Id. at
284–85 (internal quotation marks and citation omitted). We
have followed the Supreme Court’s pronouncement in Block,
and have similarly held that “[t]he Quiet Title Act is ‘the
exclusive means’ by which adverse claimants can challenge
the United States’ title to real property,” and that a claimant
“cannot avoid the limitations of the Quiet Title Act” by
“seeking review under the Administrative Procedure Act.”
Alaska v. Babbitt, 182 F.3d 672, 674 (9th Cir. 1999).




 12
    North Dakota’s original complaint did not mention the QTA; but the
district court required it to amend its complaint to bring a QTA claim. Id.
at 278.
36             MCMASTER V. UNITED STATES

    The rule in Block, however, is not without caveat.
Recently, in Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, the Supreme Court held that
the APA also may apply where the QTA “‘is not addressed to
the type of grievance which the plaintiff seeks to assert.’”
132 S. Ct. 2199, 2205 (2012) (citation omitted). The Court
explained that although the QTA “provide[s] the exclusive
means by which adverse claimants [can] challenge the United
States’ title to real property,” id. at 2207 (internal quotation
marks and citation omitted), where the suit does not involve
an adverse claim to title, “then the [QTA] cannot prevent an
APA suit.” Id. at 2205. Since the plaintiff in Patchak did not
claim ownership to the property, but rather, claimed that the
government’s “decision to take land into trust violates a
federal statute—a garden-variety APA claim,” the Court held
that the APA, rather than the QTA, applied. Id. at 2208.

   Despite this caveat, it remains clear that under both
Supreme Court precedent and our precedent that the QTA
provides the exclusive remedy for claims involving adverse
                  MCMASTER V. UNITED STATES                            37

title disputes with the government.13 See Patchak, 132 S. Ct.
at 2207; Block, 461 U.S. at 286; Alaska, 182 F.3d at 674.

    2. Analysis

    Here, the “essence and bottom line,” Patchak,
132 S. Ct. at 2207, of McMaster’s APA claims is a dispute
against the government over the title to the reserved surface
estate of the Oro Grande mining claim.

     This not a case where, for example, the government has
disclaimed its title and the claims are founded on

   13
       McMaster argues that we applied the APA to BLM decisions
regarding mining claim validity in Hoefler v. Babbitt, 139 F.3d 726,
728–29 (9th Cir. 1998) and Dredge Corp. v. Conn., 733 F.2d 704, 707
(9th Cir. 1984). Although it might be argued that the QTA should have
been the exclusive means for relief in these cases because a valid mining
claim has been considered an interest in real property, see Humboldt
Placer Mining Co. v. Best, 293 F.2d 553, 555 (9th Cir. 1961) (holding that
a valid mining claim is an interest in real property), reversed on other
grounds by 371 U.S. 334 (1963); see also United States v. Shumway,
199 F.3d 1093, 1099–1102, 1105 (9th Cir. 1999); Bradford v. Morrison,
212 U.S. 389, 394–95 (1909), we need not resolve this question because
this case does not involve a declaration that a mining claim was invalid.

      In addition, McMaster cites a series of cases in which we applied the
APA to claims to easements on public lands. These cases are inapposite.
They involved challenges to the agency’s decision regarding a special use
permit—i.e., whether the special use permit was wrongfully denied or
whether the conditions on the permit were unreasonable. See McFarland
v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir. 2008); Fitzgerald Living
Trust v. United States, 460 F.3d 1259, 1263–64 (9th Cir. 2006); Skranak
v. Castenada, 425 F.3d 1213, 1218 (9th Cir. 2005). We did not determine
title in any of these cases. Cf. Robinson v. United States, 586 F.3d 683,
688 (9th Cir. 2009) (concluding that “a suit that does not challenge title
but instead concerns the use of land as to which title is not disputed can
sound in tort or contract and not come within the scope of the QTA”).
38             MCMASTER V. UNITED STATES

administrative wrongdoing. See Donnelly v. United States,
850 F.2d 1313, 1317–18 (9th Cir. 1988); Lee v. United States,
809 F.2d 1406, 1409 n.2 (9th Cir. 1987). As in Block, “the
only ‘administrative wrongdoing’ [that McMaster claims is]
the government’s alleged wrongful assertion of title itself.”
Donnelly, 850 F.2d at 1318.

    Since both the Supreme Court’s and our precedents have
held that “the QTA provides the exclusive remedy for title
disputes against the government,” id. at 1318; see also
Patchak, 132 S. Ct. at 2207; Block, 461 U.S. at 286; Alaska,
182 F.3d at 674, McMaster’s APA claims were properly
dismissed under Federal Rule of Civil Procedure 12(b)(6).

C. DJA Claims

   McMaster also argues that the district court erred in
dismissing its three claims seeking relief under the DJA.

     Block’s holding that the QTA is the “exclusive means by
which adverse claimants c[an] challenge the United States’
title to real property,” Block, 461 U.S. at 286, also applies to
DJA claims. In Block, the plaintiff raised a DJA claim, but the
Court determined that only the QTA claims could proceed.
Id. at 278, 292–93.

    Here again, the crux of McMaster’s DJA claims is that
McMaster is entitled to fee-simple ownership of his Oro
Grande mining claim. Thus, McMaster’s DJA claims must
also fail. See Patchak, 132 S. Ct. at 2207; Block, 461 U.S. at
287; Alaska, 182 F.3d at 674; Donnelly, 850 F.2d at 1318.
McMaster’s DJA claims were also properly dismissed under
Federal Rule of Civil Procedure 12(b)(6).
              MCMASTER V. UNITED STATES                    39

                   IV.    CONCLUSION

     We hold that the district court did not err in dismissing
McMaster’s claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). With regard to McMaster’s first QTA
claim, we conclude that the Solicitor’s Opinion is entitled to
at least Skidmore deference, and, thus, McMaster did not have
a “valid existing right” to a fee-simple patent on its Oro
Grande mining claim. In addition, we conclude that
McMaster’s second QTA claim must fail because McMaster
did not plead with particularity the circumstances under
which its title to the structures was acquired. Finally, since
the QTA is the exclusive means for challenging the United
States’ title to real property, we conclude that the district
court also properly dismissed McMaster’s APA and DJA
claims.

   AFFIRMED.
