                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-2362



NEW WEST MATERIALS LLC; JWR, INCORPORATED,

                                              Plaintiffs - Appellants,

           and


CALMAT   COMPANY,    d/b/a    Vulcan   Materials
Company,

                                                             Plaintiff,

           versus


INTERIOR BOARD OF LAND APPEALS; BUREAU OF LAND
MANAGEMENT,

                                               Defendants - Appellees.

--------------------

NATIONAL STONE, SAND & GRAVEL ASSOCIATION,

                                       Amicus Supporting Appellants.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-05-403-TSE-BRP)


Argued:   November 29, 2006                 Decided:   February 8, 2007


Before WILKINSON and DUNCAN, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: R. Timothy McCrum, CROWELL & MORING, L.L.P., Washington,
D.C., for Appellants.     Elizabeth Ann Peterson, UNITED STATES
DEPARTMENT OF JUSTICE, Environment & Natural Resources Division,
Washington, D.C., for Appellees. ON BRIEF: Clifton S. Elgarten,
Daniel W. Wolff, CROWELL & MORING, L.L.P., Washington, D.C., for
Appellant New West Materials, L.L.C.; Thomas P. Mains, Jr., Great
Falls, Virginia, Jerry L. Haggard, Phoenix, Arizona, for Appellant
JWR, Incorporated. Barbara B. Fugate, UNITED STATES DEPARTMENT OF
THE INTERIOR, Office of the Solicitor, Washington, D.C.; Richard R.
Greenfield, UNITED STATES DEPARTMENT OF THE INTERIOR, Office of the
Solicitor, Phoenix, Arizona; Sue Ellen Wooldridge, Assistant
Attorney General, William B. Lazarus, Gregory D. Page, UNITED
STATES DEPARTMENT OF JUSTICE, Environment & Natural Resources
Division, Washington, D.C., for Appellees. Christopher G. Hayes,
Kathleen S. Corr, BJORK, LINDLEY & LITTLE, P.C., Denver, Colorado,
for National Stone, Sand & Gravel Association, Amicus Supporting
Appellants.


Unpublished opinions are not binding precedent in this circuit.




                               -2-
PER CURIAM:

     The central issue in this appeal is the meaning and scope of

a mineral reservation in a patent granted under the Small Tract Act

("STA"). 43 U.S.C. § 682a (1970).* Specifically, the question

before    us   is   whether   sand   and    gravel   are   included    in   the

reservation of "the oil, gas and all other mineral deposits"

contained in a land patent issued pursuant to the STA. The Bureau

of Land Management ("BLM") concluded that sand and gravel fall

within this mineral reservation and issued appellants, New West

Materials ("New West"), a notice of trespass. Appellants appealed

the BLM’s notice to the Interior Board of Land Appeals ("IBLA"),

which affirmed the BLM’s trespass determination. New West and JWR

Inc. then initiated this suit in federal court, seeking review of

the IBLA’s final administrative decision. After considering cross-

motions for summary judgment, the district court affirmed the IBLA.

New West Materials, LLC v. IBLA, 398 F. Supp. 2d 438 (E.D. Va.

2005). For the following reasons, we affirm.


                                      I.

     The district court opinion provides a detailed recitation of

the facts and background in this case. A short summary of the facts

will,    therefore,   suffice   here.      The   Small   Tract   Act   of   1938

     *
      Small Tract Act of 1938, Ch. 317, 52 Stat. 609, amended by
Ch. 270, 68 Stat. 239 (1954), repealed by Federal Land Policy and
Management Act of 1976, Pub. L. No. 94-579, § 702, 90 Stat. 2789.

                                     -3-
authorized the Secretary of the Interior to sell or to lease small,

isolated five acre tracts of public lands to be used for "home,

cabin, camp, health, convalescent, recreational, or business site"

purposes. 52 Stat. 609 (1938). In addition, the STA required the

patents under which land was sold to contain a reservation to the

United   States   of   the    "oil,   gas,      and   other   mineral    deposits,

together with the right to prospect for, mine, and remove the same

under such regulations as the Secretary may prescribe." Id.

       This case involves an eighty-two acre tract of land located

approximately twenty miles outside of downtown Phoenix, Arizona. In

1959, the BLM, an agency of the United States Department of the

Interior ("DOI"), conveyed the land via patent deeds pursuant to

the STA to several private owners in separate parcels approximately

five acres in size.

      Shortly after acquiring the subject-land in August of 2000,

appellant JWR, Inc. ("JWR") leased the land to co-appellant New

West for the express purpose of New West’s extraction of sand and

gravel from the land. In 2001, the BLM discovered that New West was

actively mining sand and gravel on the land.

      On November 1, 2001, the BLM claimed ownership of the sand and

gravel found on the land. The BLM asserted that New West was not

authorized to remove the sand and gravel without the approval of

the DOI. On January 3, 2002, the BLM served New West with a notice

of   trespass   stating      that   New    West   had   "committed      an   act   of

                                          -4-
nonwillful     trespass    by    removing   and   selling   mineral    material

without a valid contract" in violation of 43 C.F.R. § 9239.0-7.

       New West and JWR appealed the notice of trespass to the IBLA

pursuant to 43 C.F.R. § 4.411. On December 2, 2004, the IBLA upheld

the BLM’s trespass determination in a written decision in New West

Materials, 164 IBLA 126 (2004). After the IBLA denied New West’s

motion for reconsideration, appellants sought judicial review of

the Board’s decision pursuant to the Administrative Procedure Act,

5 U.S.C. § 701, in the District Court for the Eastern District of

Virginia.

      In the district court, appellants sought 1) a declaration that

the   United   States,    acting    through   the    BLM,   had   no   ownership

interest in the sand and gravel of the subject lands, and 2) an

injunction enjoining the BLM from asserting a claim of trespass and

resulting damages against New West and JWR. Because the material

facts in the case were essentially undisputed, the parties filed

cross-motions for summary judgment. The district court granted the

government’s motion for summary judgment and denied New West’s

motion. See New West Materials, LLC v. Interior Bd. of Land

Appeals, 398 F. Supp. 2d 438 (E.D. Va. 2005).

      The   district     court   determined   that    because     Congress   had

conferred upon the DOI the authority to implement the STA, the

IBLA’s interpretation of the STA was entitled to deference and must

be upheld if it was reasonable. Ultimately, the court found that

                                      -5-
the IBLA’s interpretation was "based on a permissible construction

of the statute." Id. at 453 (citing Chevron U.S.A., Inc. v. Natural

Resources Def. Council, Inc., 467 U.S. 837, 843 (1984)). The court

concluded that sand and gravel are minerals pursuant to the STA

reservation. This appeal followed.




                                    II.

       We review the district court’s grant of summary judgment de

novo. Francis v. Booz, Allen & Hamilton, 452 F.3d 299, 302 (4th

Cir. 2006). Although we view the evidence in the light most

favorable to the nonmoving party, we review any conclusions of law

de novo. Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 286 (4th

Cir.   2004).   In   particular,   we   review   questions   of   statutory

interpretation de novo. United States v. Abuagla, 336 F.3d 277, 278

(4th Cir. 2003).

       New West contends that the district court erred in affording

deference to the IBLA’s decision. Because we base our decision on

our own interpretation of the statute, there is "no occasion to

defer and no point in asking what kind of deference, or how much"

we should grant in this case. Edelman v. Lynchburg Coll., 535 U.S.

106, 114 (2002). Therefore, we do not reach the question of whether

the IBLA’s decision is owed deference.




                                    -6-
                                   III.

     In interpreting a federal statute, we begin by examining its

plain language. Reid v. Angelone, 369 F.3d 363, 367 (4th Cir.

2004). We must give the relevant terms their "common and ordinary

meaning." Id. If the language is unambiguous, that is the beginning

and end of our inquiry. BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183 (2004) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 534

(2004)). Here, we agree with the district court that the word

mineral is ambiguous, as it is "used in so many senses, dependent

upon the context." New West, 398 F. Supp. 2d at 445 (quoting Watt

v. Western Nuclear, Inc., 462 U.S. 36, 42 (1983)). The term is so

broad that it could encompass virtually all of any conveyance of

land. Western Nuclear, 462 U.S. at 43.

     The Supreme Court has twice considered whether materials such

as sand and gravel are reserved minerals under other federal

statutes administered by the DOI. See BedRoc, 541 U.S. at 184-86;

Western Nuclear, 462 U.S. at 43. In Western Nuclear, the Court

interpreted a reservation of "all the coal and other minerals"

contained in the Stock-Raising Homestead Act of 1916 ("SRHA").

Western Nuclear, 462 U.S. at 60. The Court held that gravel was a

reserved mineral pursuant to the SRHA. Id.

     In BedRoc, the Court distinguished Western Nuclear without

overruling   it.   The   statute   at   issue   in   BedRoc,   the   Pittman

Underground Water Act of 1919 ("Pittman Act"), reserved "all the


                                   -7-
coal and other valuable minerals" to the United States. BedRoc, 541

U.S. at 185. The Court refused to extend the rationale of Western

Nuclear to the Pittman Act because the Court found that the Act’s

plain meaning would not support it. Id. at 186. The Court relied on

Congress’s addition of the modifier "valuable," which was absent in

the SRHA, in holding that sand and gravel were not "valuable

minerals" reserved by the Pittman Act. Id.

      In these cases, the Supreme Court considered 1) the plain

meaning of the reservation at issue, 2) the contemporary legal

sources’ understanding of the meaning of the word mineral, and 3)

the purpose of the mineral reservation in question. Using the

analysis applied by the Supreme Court in both BedRoc and Western

Nuclear and the analysis that the district court correctly applied

in this case, we find that the term mineral, as used in the STA,

encompasses sand and gravel.



                                      A.

      We look first to the plain language of the STA. The plain

language of the STA is instructive as to the intended reach of its

mineral reservation. In the 1954 STA amendments, Congress clarified

the   scope   of   the   Act’s   mineral   reservation   by   including   the

modifier "all." As amended, the relevant portion of section 2 of

the STA reserved to the United States "the oil, gas, and all other

mineral deposits." 43 U.S.C. § 682a, 68 Stat. 239 (1954) (emphasis


                                     -8-
added). In rewriting the language of the STA, Congress reduced any

ambiguity   on   the   question    of    what   mineral   deposits   might    be

included under the reservation. We follow the "canon of statutory

interpretation [which] requires us to presume that the legislature

says in a statute what it means and means what it says." BedRoc,

541 U.S. at 183 (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992)). Applying this canon, we agree with the district

court that the plain meaning of the amendment is clear: "Congress

intended the STA’s mineral reservation to be given the broadest

interpretation possible." New West, 398 F. Supp. 2d at 446.

     Previous    Supreme   Court    opinions     provide   guidance   in     our

interpretation of the term mineral. In Western Nuclear, the Court

held that gravel was a reserved mineral pursuant to the SRHA, while

in BedRoc, the Court held that sand and gravel were not "valuable

minerals" reserved to the United States pursuant to the Pittman

Act. BedRoc, 541 U.S. at 186; Western Nuclear, 462 U.S. at 60.

     The BedRoc plurality distinguished the Pittman Act from the

SRHA by emphasizing the addition of the modifier "valuable" in the

Pittman Act’s reservation. Id. at 184-86. The Pittman Act reserved

"all the coal and other valuable minerals." Id. at 179. The Court

reasoned that the Pittman Act’s reservation of "valuable minerals"

required a narrower interpretation than the reservation of "all the

coal and other minerals" found in the SRHA. BedRoc, 541 U.S. at

183-84.


                                        -9-
       The mineral reservation in the amended STA of "oil, gas, and

all other mineral deposits" and the reservation in section 9 of the

SRHA of "all the coal and other minerals" are strikingly similar.

The Supreme Court interpreted the SRHA’s reservation to include

gravel. Western Nuclear, 462 U.S. at 60. Accordingly, the district

court in this case reasoned that because the modifier "valuable"

was necessary to distinguish the Pittman Act’s reservation from

that of the SRHA, "the absence of the term valuable in the STA’s

mineral reservation compels the conclusion that the Western Nuclear

holding is persuasive, if not, controlling." New West, 398 F. Supp.

2d at 446. We agree. In employing the Court’s same plain language

approach to this case, we find that the plain meaning of the STA’s

reservation commands the most expansive interpretation available

under existing law.



                                     B.

       The excellent and thorough opinion of the district court also

considered the contemporary legal sources’ understanding of the

term mineral at the time of the STA’s passage. New West, 398 F.

Supp. 2d at 447-48; see also BedRoc, 541 U.S. at 184 ("[T]he proper

inquiry focuses on the ordinary meaning of the reservation at the

time   Congress   enacted   it.").    The   district   court   noted   that

contemporaneous judicial decisions, opinions of the Secretary of

the Interior, and IBLA decisions bolstered the idea that the STA’s


                                 -10-
mineral reservation included sand and gravel. We agree with the

district court’s determination that those decisions further support

the conclusion that minerals under the STA were intended to include

sand and gravel. See Dredge Corp. v. Penny, Civ. No. 475 (D. Nev.

1964) (holding that minerals including sand and gravel found on STA

lands   were   not   subject   to   prospecting   until   the   DOI   issued

appropriate rules and regulations), affirmed by Dredge Corp. v.

Penny, 362 F.2d 889 (9th Cir. 1966); Layman v. Ellis, 52 L.D. 714,

718 (1929) (citing publications "wherein sand and gravel [had]

uniformly been classed as a mineral resource").

     The district court found further support for its conclusion in

the Materials Act of 1947. New West, 398 F. Supp 2d at 448-49. The

Materials Act gave the DOI the authority to dispose of minerals,

specifically including sand and gravel, and Congress passed this

act eight years after the STA was originally passed and seven years

before the STA was amended to expand the mineral reservation to

"all other mineral deposits." See Materials Act of 1947, 30 U.S.C.

§ 601. Because the Materials Act passed contemporaneously with the

STA and its amendments expressly granted the DOI authority to

dispose of "mineral materials" such as sand and gravel, we believe

that this Act adds further support to the holding that the mineral

reservation in the STA includes sand and gravel.




                                    -11-
                                           C.

      In considering the purpose of the STA’s mineral reservation,

we find the Supreme Court’s analysis of the SRHA helpful. The Court

found that the primary congressional purpose in reserving the

mineral     estate    under    the    SRHA       was   to    promote    "concurrent

development of both surface and subsurface resources." Western

Nuclear, 462 U.S. at 50. The Western Nuclear Court concluded that

"the determination of whether a particular substance is included in

the surface estate or the mineral estate should be made in light of

the use of the surface estate that Congress contemplated." Id. at

52. In the Court’s view, inclusion of gravel in the surface estate

in   SRHA   lands    would    lead   to    the    illogical    result    of   making

subsurface    development      of    gravel      resources    dependent    on   “the

initiative of persons whose interests were known to lie elsewhere.”

Id. at 56.

      We find Western Nuclear’s reasoning applicable to STA lands.

As the district court explained: "Just as Congress should not have

expected the ranchers and farmers who received grants pursuant to

the SRHA to exploit the subsurface estate, Congress likewise could

not have expected the homeowners or small business owners of five

acre plots to exploit the subsurface estate." New West, 398 F.

Supp. 2d at 449. Congress specified the types of small surface

estates permitted by the STA. These estates included residential

homes, small businesses, recreational sites, and health centers. 43


                                          -12-
U.S.C. § 682a. We cannot infer from any of these intended uses the

possibility that individual owners were permitted to exploit the

minerals underlying their land. This is not to say that some

incidental disruption to the sand and gravel of an estate in order

to build a home, for example, would justify a trespass claim. It is

wholly another matter, however, to sell or lease a group of small

limited purpose parcels of land for full-scale commercial mining.



                               IV.

     The Supreme Court’s prior decisions guide our interpretation

of the STA. After following the Court’s analysis by considering the

language of the statute, the contemporaneous legal sources, and the

congressional purpose of the STA’s mineral reservation, we hold

that the STA’s reservation of the “oil, gas and all other mineral

deposits” encompasses sand and gravel deposits.

                                                          AFFIRMED




                               -13-
