Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00039-BAF

Document 99

Filed 08/11/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WALTER B. FREEMAN, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-39L Honorable Bohdan A. Futey

JOINT STATUS REPORT By Order filed July 10, 2008, the Court directed the parties to file a joint status report by August 11, 2008, reporting "as to the probability of a settlement concerning the conditions requested by plaintiff on the further stay of proceedings in this case." Plaintiff seeks to have Defendant pay for his annual maintenance fees for his mining claims as a condition for this Court to continue to stay the proceedings before it while the case is on remand to the Department of the Interior to determine the validity of his mining claims. Plaintiff has been paying maintenance fees on all 161 mining claims at issue in this case. On July 21, 2008, plaintiff filed a motion before the Office of Hearings and Appeals to amend his answer to instead admit the contest charge of invalidity as to 50 of the mining claims. If the administrative law judge grants plaintiff's motion, Bureau of Land Management (BLM) will refund the maintenance fees for these 50 mining claims as of the date the claims are declared invalid. The parties conferred on July 22, 2008, to discuss options concerning settlement of plaintiff's requested stay conditions. The parties discussed the legal framework concerning mining claim maintenance fees because any payment, waiver, or refund of these fees by the United States would have to comply with the applicable laws and regulations.

Case 1:01-cv-00039-BAF

Document 99

Filed 08/11/2008

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The Mining Law requires mining claimants to pay an annual fee to continue to hold their mining claims. 30 U.S.C. § 28f. Congress specifically provided that a mining claimant's failure to pay the required annual maintenance fees by the due date conclusively constitutes a forfeiture of the mining claims, and the mining claims for which the fees were not paid are void by operation of law. Id. § 28i. With respect to maintenance fees that plaintiff has already paid, counsel for the United States explained that, under BLM regulations, the United States has the authority to refund maintenance fees if the mining claim was void at the time the claimant paid the fees. 43 C.F.R. § 3830.22(a)(2). However, there has been no final agency action determining that the mining claims at issue here are void, and BLM regulations specifically require payment of maintenance fees while an administrative contest proceeding is pending. Id. § 3835.11(e). With respect to prospective maintenance fee payments,1 counsel for plaintiff suggested that settlement of plaintiff's conditions on the further stay of proceedings in this case could occur if plaintiff agrees to continue to pay the maintenance fees by the deadline as required by the statute, and the United States agrees thereafter to reimburse plaintiff in the amount of the fee payment. Plaintiff would further agree to return any monies reimbursed by the United States if the mining claims are ultimately determined to be valid but this Court determines that there was no taking.

To continue to maintain these mining claims, plaintiff will need to continue to pay annual maintenance fees of $125 per mining claim. Because the statutory September 1 deadline this year falls on a day when BLM's offices are officially closed, BLM regulations allow mining claimants to file their maintenance fees on or before September 2, 2008 (the next business day that BLM's offices are open) and still be considered to have been timely filed for the 2008-2009 maintenance year. 43 C.F.R. § 1822.14. -2-

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Case 1:01-cv-00039-BAF

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Filed 08/11/2008

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In regard to the preceding two paragraphs, Plaintiff does not agree with the Defendant's characterization of the law relative to the pending motion. Plaintiff is seeking a payment from the Government to alleviate the economic burden caused by the stay of this litigation. The measure of the out of pocket economic burden is in terms of the maintenance fees on claims that Plaintiff alleges has been taken. Plaintiff is not seeking a refund of maintenance fees under any regulatory authority other than the power of the Court to alleviate the burden to the Plaintiff in this administrative process. While the condition is measured in terms of maintenance fees, Plaintiff is not asserting some right to a reimbursement separate from the condition causing the burden. In regard to prospective maintenance fees, Plaintiff has proposed continuing to pay them with the Government paying Plaintiff an equivalent amount as a condition of a stay of this litigation. If the administrative process concludes that Plaintiff's mining claims are valid, and the Court declares that they have not been taken, then Plaintiff could be required to repay all of the Government's payments to him. While the Defendant claims there is no legal authority for reimbursement of maintenance fees, Plaintiff contends that the Court retains the power to impose conditions to balance the hardships associated with the equitable relief creating the hardships, namely the stay in this case. Counsel for the United States had previously considered this idea, but there is no legal authority for the United States to reimburse a mining claimant for maintenance fee payments. For the reasons set forth in Defendant's submissions (Docket Nos. 86 and 88) on Plaintiff's pending motion, and referred to again in this status report, Defendant contends that neither statute nor regulation authorizes it to pay or refund Mr. Freeman's annual maintenance fees

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Case 1:01-cv-00039-BAF

Document 99

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under the circumstances before this Court. Defendant does, however, have the authority to refund -- as mentioned above -- maintenance fees for 50 mining claims for which Mr. Freeman has asked the administrative law judge to deem invalid. Respectfully, Defendant also asserts that this Court's limited equitable authority does not permit it under these circumstances to require the United States to pay or refund Mr. Freeman's annual maintenance fees. Id. Counsel for both parties expressed a willingness to consider solutions, but none could be determined as of this date. As a further note, on July 28, 2008, the plaintiff and the Department of the Interior concluded their briefing in the administrative contest proceeding before the Office of Hearings and Appeals. The matter is now before Administrative Law Judge Harvey Sweitzer for a decision. Dated: August 11, 2008 Respectfully submitted,

s/Richard Meritt Stephens RICHARD MERITT STEPHENS Groen Stephens & Klinge LLP 11100 N.E. 8th Street Suite 750 Bellevue, WA 98004 Phone: (425) 453-6206 Fax: (425) 453-6224 [email protected] Attorney for the Plaintiff

s/Terry M. Petrie TERRY M. PETRIE Trial Attorney Environment & Natural Resources Division Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Phone: (303) 844-1369 Fax: (303) 844-1350 [email protected] Attorney for Defendant

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Case 1:01-cv-00039-BAF

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Filed 08/11/2008

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CERTIFICATE OF SERVICE I certify that copies of the foregoing "JOINT STATUS REPORT" was served upon counsel for Walter B. Freeman by electronic filing with the United States Court of Federal Claims and for counsel for the Siskiyou Project and Mineral Policy Center by regular mail, postage prepaid, properly addressed this 11th day of August, 2008, to:

Richard M. Stephens, Esq. Groen Stephens & Klinge, LLP 11100 NE 8th Street Suite 750 Bellevue, WA 98004 [email protected] Attorney for Walter B. Freeman (By electronic filing) Roger Flynn, Esq. WESTERN MINING ACTION PROJECT P.O. Box 349 412 High Street Lyons, CO 80540 Attorney for the Siskiyou Project and Mineral Policy Center (By mail)

s/Terry M. Petrie TERRY M. PETRIE