Free Motion to Lift Stay - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

WALTER B. FREEMAN, Plaintiff, vs. UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 01-39L Honorable Bohdan A. Futey

REVISED MOTION FOR RELIEF FROM SUSPENSION OF PROCEEDINGS OR, IN THE ALTERNATIVE, FOR CONDITIONS

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Table of Contents INTRODUCTION ..................................................................................................................... 1 STATEMENT OF QUESTIONS INVOLVED ......................................................................... 1 STATEMENT OF THE CASE.................................................................................................. 2 A. B. C. D. History of This Case .................................................................................................. 2 History of This Case Before the OHA....................................................................... 4 Nature of the OHA .................................................................................................. 10 The Significance of the Delay to Freeman .............................................................. 13

ARGUMENT ........................................................................................................................... 14 I. HAVING GIVEN THE DEPARTMENT OF THE INTERIOR THE OPPORTUNITY TO DETERMINE THE VALIDITY OF FREEMAN'S CLAIMS IN THE FIRST INSTANCE AND IN LIGHT OF ITS REFUSAL TO DO SO, THE COURT SHOULD END THE SUSPENSION OF THE PROCEEDINGS ...........................................................................................................14 IN THE ALTERNATIVE, THE COURT SHOULD CONDITION THE CONTINUATION OF THE SUSPENSION OF PROCEEDINGS UPON THE GOVERNMENT REIMBURSING FREEMAN ..........................................................19

II.

CONCLUSION ........................................................................................................................ 22

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Table of Exhibits Exhibit 1 Declaration of Richard M. Stephens in Support of Motion for Relief from Suspension or Imposition of Conditions Exhibit A Exhibit B Complaint filed in the OHA, United States v. Freeman August 10, 2007 Order of Judge Sweitzer in United States v. Freeman May 3, 2007, Order, Notice of Telephonic Conference issued by Judge Sweitzer in United States v. Freeman November 19, 1981 Order in United States v. Story May 2, 2007 Order in United States v. Aloisi September 20, 2007 Order by the Interior Board of Land Appeals in United States v. Freeman

Exhibit C

Exhibit D Exhibit E Exhibit F

Exhibit 2

Declaration of Walter B. Freeman

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Table of Authorities Cases Bell v. Tsintolas Realty Co., 430 F.2d at 482 (D.C.Cir.1970) ........................................................................................... 20 BTU Empire Corp., 172 IBLA 206 (2007)........................................................................................................... 11 Burghart v. Fish's Restaurant, Inc., 865 F.2d 1162 (10th Cir. 1989)............................................................................................. 20 Clark County v. Nevada Pacific Company, Inc., 172 IBLA 316 (2007)........................................................................................................... 11 Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................................. 20 Cole v. Ruidoso Mun. Schools, 43 F.3d 1373 (10th Cir. 1994)............................................................................................... 20 Combined Metals Reduction Co., 170 IBLA 56 (2006) ............................................................................................................ 11 Federal Power Commission v. Interstate Natural Gas Co., 336 U.S. 577 (1949) ............................................................................................................. 20 Gold v. Johns--Mansville Sale Corp., 723 F.2d 1068 (3rd Cir. 1983)............................................................................................... 19 Guardians Association v. Civil Service Com'n of City of New York, 463 U.S. 582 (1983) ....................................................................................................... 18, 19 Isaly Co. v. Kraft, Inc., 622 F. Supp. 62 (D.C. Fla. 1985) ........................................................................................ 21 Jones v. United States, 121 F.3d 1327 (9th Cir. 1997).............................................................................................. 13 Kerr v. Department of Game, 542 P.2d 467 (Wash. App. 1976)........................................................................................... 3

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Landis v. North American Co., 299 U.S. 248 (1936). ............................................................................................................ 19 Las Vegas Mining Facility, Inc., 166 IBLA 306 (2005)........................................................................................................... 12 Merit Energy Co. v. Minerals Management Service, 172 IBLA 137 (2007)........................................................................................................... 11 National Mass Media Telecommunication Systems, Inc., 152 F.3d 1178 (9th Cir. 1998)............................................................................................... 21 Pacific Live Stock Co. v. Lewis, 241 U.S. 440 (1916) ............................................................................................................. 20 Sierra Club, Angeles Chapter, Santa Clarita Group, 156 IBLA 144 (2002)........................................................................................................... 12 Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984)....................................................................................... passim St. Paul Fire and Marine Insurance Co. v. United States, 24 Cl. Ct. 513 (1991) ........................................................................................................... 19 United States v. 237,500 Acres of Land, 236 F. Supp. 44 (S.D. Cal. 1964)......................................................................................... 17 United States v. Aloisi, CACA 41272................................................................................................................. passim United States v. Eno, 171 IBLA 69 (2007)............................................................................................................. 11 United States v. Hicks, 162 IBLA 73 (2004)............................................................................................................. 12 United States v. J. Dennis Stacey, 171 IBLA 170 (2007)........................................................................................................... 11 United States v. Knipe, 170 IBLA 161 (2006)........................................................................................................... 11 United States v. Martinek, 166 IBLA 347 (2005)........................................................................................................... 12

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United States v. Mendoza, 464 U.S. 154 (1984) ............................................................................................................. 16 United States v. Miller, 165 IBLA 342 (2005)........................................................................................................... 12 United States v. Pass Minerals. Inc., 168 IBLA 115 (2006)........................................................................................................... 12 United States v. Pitkin Iron Corp., 170 IBLA 352 (2006)........................................................................................................... 11 United States v. Story, Idaho 15674.................................................................................................................. 6, 7, 15 United States v. Thompson, 168 IBLA 64 (2006)............................................................................................................. 11 United States v. W. Pac. R. R. Co., 352 U.S. 59 (1956) ................................................................................................................. 3 Statutes 30 U.S.C. § 28f......................................................................................................................... 13 30 U.S.C. § 1201 et seq............................................................................................................ 10 43 U.S.C. § 1601 et seq............................................................................................................ 10

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INTRODUCTION Plaintiff, Walter Freeman (Freeman), brought this case under the Tucker Act seeking compensation for the taking of his unpatented mining claims under the Fifth Amendment. This Court suspended proceedings in this action for a determination by the Department of the Interior (DOI) as to the validity of Freeman's mining claims. See Order, dated October 10, 2001. The Bureau of Land Management (BLM), a bureau within the DOI, evaluated Freeman's mining claims and instituted a contest proceeding in the DOI's Office of Hearings and Appeals (OHA). See Complaint, attached to the accompanying Declaration of Richard M. Stephens (Stephens Decl.) as Exhibit A. After five weeks of hearing before Administrative Law Judge (ALJ) Harvey Sweitzer, Judge Sweitzer ruled that he did not have jurisdiction to determine the validity of Freeman's claims as of the dates indicated in the Government's OHA complaint, 1994 and 2000. See Stephens Decl., Exh. B. These were dates when or close to when the Government may have taken Freeman's mining claims. Given that Judge Sweitzer has decided that he cannot make a determination of claim validity in this case, Freeman requests that the Court lift the suspension of these proceedings and set this case for trial. Counsel for Freeman is ready for trial on the validity of his claims to proceed imminently. If the suspension is not ended, Freeman requests that it continue only upon conditions to protect Freeman from some of the burden of delay. STATEMENT OF QUESTIONS INVOLVED 1. proceedings. Whether the Court should grant relief from the prior suspension of

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In the alternative, whether the Court should continue suspension of the

proceedings upon the Government reimbursing Freeman for the costs of delay. STATEMENT OF THE CASE A. History of This Case This case seeks compensation for a Fifth Amendment taking of Freeman's interests relating to 161 unpatented mining claims. See Complaint. In 1992, Freeman and others filed with BLM an application for a mineral patent. This application was never completely processed. See Declaration of Walter B. Freeman, dated March 6, 2003, at ¶ 9. In 1992, Freeman also filed with the Forest Service a Plan of Operations to mine his claims. Id. at ¶ 11. Eight years later, the Forest Service rejected his Plan of Operations which precipitated the filing of this action seeking compensation for the regulatory taking of his mining claims. Id. at ¶ 12. On October 10, 2001, the Court entered an order suspending these proceedings: 1. The proceedings in this case are suspended until further order of this court. 2. This case is remanded to the United States Department of the Interior for determination of the validity of plaintiff's mining claims. Order, dated October 10, 2001. Thereafter, the Government indicated that it would take 3 years to prepare a mineral report evaluating Freeman's mining claims. See Joint Status Report, dated January 24, 2003. Believing that the Government's plan to take 3 years would result in unnecessary and unfair delay, Freeman filed a Motion for Relief from Suspension of Proceedings and Appointment of

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Special Master on March 25, 2003. The Government vigorously opposed Freeman's motion. That motion was denied by this Court's order dated May 8, 2003. In that order, this Court ruled that a determination of validity of the mining claims is not a jurisdictional prerequisite to the claim filed in the Court of Federal Claims. When considering Skaw v. United States, 740 F.2d 932, 938 (Fed. Cir. 1984), it is apparent that this Court does have jurisdiction to determine whether Freeman possessed valid mining claims. Nevertheless, this Court held that under the flexibility of the "sound discretion of the court," the doctrine of primary jurisdiction called for first giving the Department of the Interior the opportunity to determine the validity of Freeman's claims. Order, dated May 8, 2003, at 3 (quoting Kerr v. Department of Game, 542 P.2d 467, 468-69 (Wash. App. 1976)). "Lacking a rigid formula to guide its application, the doctrine's utility is discerned on a case by case basis." Order, dated May 8, 2003, at 4 (quoting United States v. W. Pac. R. R. Co., 352 U.S. 59, 63 (1956)). This Court specifically noted two prongs of the doctrine. The first is the desire for some level of uniformity "achieved by allowing the agency to initially analyze the matter." Order, dated May 8, 2003, at 4 (emphasis added) (quoting W. Pac. R.R. Co., at 64). The second is the recognition of the agency's expertise and specialized competence. Id. In support of his earlier motion, Freeman had relied on Skaw, 740 F.2d at 938, for the proposition that the Court can and should determine the validity of mining claims alleged to have been taken where a determination by the DOI would involve unnecessary delay. This Court noted some distinguishing characteristics between the facts in Skaw and the situation Freeman was in at the time he filed his motion. Order, dated May 8, 2003, at 4. The Federal Circuit remanded the determination of claim validity to the Court where BLM "declined to

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address the precise question on a prior reference by the court." Order, dated May 8, 2003, at 4 (quoting Skaw, 740 F.2d at 398). Unlike the facts discussed in Skaw, plaintiff's case has only been remanded to BLM once and BLM has not "declined to address the question." Order, dated May 8, 2003, at 4.1 On that basis, this Court decided not to grant Freeman's motion and allowed the determination of the validity of Freeman's claims by DOI to proceed. B. History of This Case Before the OHA After the BLM completed its review of Freeman's mining claims, the Government instituted contest proceedings on March 6, 2005 by filing a complaint in the OHA, alleging: Minerals have not been found on any of the 161 mining claims in sufficient qualities or quantities to constitute a discovery. Any minerals could not have been marketed at a profit as of either 1994 or 2000. Stephens Decl., Exhibit A, at 2. The relief the complaint sought was that "the mineral entry be cancelled" and "the placer and association placer claims be declared null and void." Id. Freeman and the Government had agreed during the course of the mineral examination that BLM should evaluate the validity of his claims during the 1994 and 2000 timeframes because they were years, or at least close in time to years, in which Freeman's mining claims may have been taken. However, Freeman never agreed that a complaint filed with the OHA could result in the determination that his claims were presently null and void based on a determination of validity as of 1994 or 2000.

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The reference to BLM is a technical oversight. Freeman's case was remanded to the DOI, which used the BLM to initially evaluate Freeman's claims. A determination that any of his claims are invalid can only be made through the contest procedures within the OHA, rather than the BLM.

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The contest proceedings continued with extensive discovery from September of 2006 through February of 2007. The hearing before ALJ Sweitzer began on March 14, 2007 and, after five weeks of (interrupted) testimony, the hearing concluded on June 1, 2007. Stephens Decl. On May 3, 2007, before the hearing concluded, Judge Sweitzer issued a Notice of Telephonic Conference which raised the issue as to whether the OHA even has jurisdiction to determine the validity of Freeman's mining claims as of certain dates indicated in the Government's complaint, namely 1994 and 2000. Stephens Decl., Exh. C. For ease of reference the two orders which are attached to this Notice are attached separately to the Declaration of Richard Stephens as Exhibits D and E. Judge Sweitzer's inquiry was prompted by the May 2, 2007 ruling of Judge Holt, a fellow ALJ, in the OHA case of United States v. Aloisi, CACA 41272. Stephens Decl., Exh. E. Judge Holt ruled that ALJs did not have jurisdiction to determine the validity of claims as of a date in the past even when the past date related to the potential date of taking relevant to a matter pending in the Court of Federal Claims. Aloisi, like Freeman, involved takings claims filed in the Court of Federal Claims with a suspension of proceedings for determination of mining claim validity by the DOI. Judge Holt noted that the Government in Aloisi failed to identify any particular dates on which the Government alleged the claims were invalid and "[u]nder well established precedent, the allegations would require that the validity be determined as of the date of the hearing." Stephens Decl., Exh. E, at 3. However, Judge Holt went further and ruled "even if the complaint had explicitly sought to declare the claims void on the dates asked for in the

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Government's motion, this office would not have the authority to make such a determination." Id. The Government has cited no authority for a contest to determine the validity of mining claims for use in a pending civil action. Nor has the Government explained how such a determination would discharge an administrative responsibility. Because the determination requested by the Government will not discharge an administrative responsibility, it amounts to a request for an advisory opinion. Under long-established precedent, this office lacks authority to render such opinions. Id. at 4. Judge Holt also ruled: I have also considered the general principle that "[t]he Department of the Interior is ... entrusted with the function of making the initial determination ... as to the validity of claims against mineral lands." Nevertheless, where the validity determination is incident or ancillary to its own jurisdiction, the federal courts have made the initial determination. Because a validity determination appears to be ancillary to the Aloisi Group's takings claim, I respectively suggest that the Court of Federal Claims may be the appropriate forum for determining the validity of the claims...." Id. at 5 (emphasis added). Judge Holt's decision is consistent with an earlier case in which the Court of Claims had remanded to the DOI the determination of the validity of mining claims for the purpose of handling a takings claim, United States v. Story, Idaho 15674. Judge Sweitzer referred to this case when raising the jurisdictional issue to the parties. See Exh. D to Stephens Decl. In that case, Judge Mesch ruled that he did not have authority to determine the validity of mining claims as of the time of an alleged taking for purposes of the Court of Claims. "[T]he Court

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of Claims granted a request of the Government to stay the proceedings pending an administrative determination of the validity of the mining claims." Id. at 2. I am not functioning in this proceeding in the nature of a special master for the Court of Claims, and I have no basis to specifically determine the validity of the claims as of the time of the alleged taking. My sole function, in the present posture of the case, is to determine the validity of the claims as of the dates preceding the date of the alleged taking and as of the present time. Such determinations may or may not be relevant to the proceeding in the Court of Claims. Id. at 3-4 (emphasis added). The mining claimants in Story appealed the decision that their claims were invalid to the IBLA.2 Specifically, they argued that an administrative decision that their claims were abandoned could not be made because the government had taken the mining claims and that issue was pending in the Court of Claims. Skaw, 63 IBLA 235 (1982). The IBLA specifically referred to the Court of Claims litigation. Id. at 238. Nevertheless, the IBLA affirmed that the claims were abandoned without addressing whether the claims were valid at the time of the alleged taking. That decision, of course, begs the question that the Court of Claims needed to know. Briefing before Judge Sweitzer in the Freeman case on the issues as to jurisdiction or authority ensued during the summer of 2007. Freeman and the BLM urged him to find that he had jurisdiction to decide whether Freeman's mining claims were valid as of the dates 1994 and 2000. Additionally, Freeman urged Judge Sweitzer to rule on the present validity of Freeman's claims because the Government's complaint sought relief declaring the mining

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The OHA case known as United States v. Story before Judge Mesch is the same matter that was pending in the IBLA as Skaw and in this Court under the name Skaw v. United States.

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claims to be presently null and void. On August 10, 2007, Judge Sweitzer ruled in a manner consistent with every ALJ to have reviewed the issue, namely, Judges Holt and Mesch. Judge Sweitzer ruled that he did not have authority to determine the validity of Freeman's mining claims as of the dates requested by the BLM in its complaint filed with the OHA. Stephens Decl., Exh. B. He ruled that the OHA could not determine the validity of Freeman's claims as of 1994 or 2000 even with a request by the Court of Federal Claims for the validity of the mining claims to be determined. Judge Sweitzer ruled that he had no jurisdiction because his role is limited to determining the validity of mining claims as of the present, i.e., the date of the hearing, subject to limited exceptions.3 Judge Sweitzer noted that one theoretical basis for considering the validity of Freeman's claims as of 1994 and 2000 would be if those years happened to coincide with the date Freeman complied with patent requirements. If that were the case, one of the exceptions to the rule that jurisdiction is limited to him evaluating only present validity could be applicable. The Government's position is that those facts do not exist. Concerning these rulings, I am mindful that the United States Court of Federal Claims has suspended the civil action pending validity determination by the Department respecting the subject mining claims. ... Before a proper validity determination can be made by this office, there must be a showing that one of the alleged takings dates coincides with the dates of patent requirements compliance, if any, or BLM must amend its Complaint or file a new Complaint challenging validity as of the applicable critical date(s) under the mining laws. ... If BLM does not wish to pursue this course of action but desires a validity determination as of the dates of the alleged takings and neither of
Judge Sweitzer recognized there are situations where OHA determines validity as of historical dates, but only when the historical dates relate either to present validity or the need for some present action. For instance, validity as of the date of mineral patent application is considered when determining whether the particular mineral patent application should issue. When there is a withdrawal of land from mineral entry, mining claims must be valid as of the date of the withdrawal in order to be presently valid.
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those dates coincides with the date of patent requirements compliance, if any, then I see no alternative but to respectively suggest that the Court of Federal Claims is the appropriate forum for such a determination. Exh. B at 15 (emphasis added). In regard to Freeman's request as to present validity, Judge Sweitzer ruled that he could not determine present validity in this case because the Government's complaint focused on 1994 and 2000. Id. Judge Sweitzer granted the Government's request that the decision on jurisdiction be certified for an interlocutory appeal. Id. at 15. On August 30, 2007, the Government filed an interlocutory appeal with the Interior Board of Land Appeals (IBLA) along with a stipulated request that the appeal be expedited. Freeman then requested that his issue, whether present validity was at issue in the Government's complaint, also be certified for an interlocutory appeal. The request was granted and Freeman filed his interlocutory appeal with the IBLA on September 6. 2007. Stephens Decl. On September 12, 2007, the IBLA adopted the parties' stipulated briefing schedule. It also ruled: Contestant has also requested that the Board grant expedited review status to this appeal. The Board hesitates to grant that request until the matter is fully briefed. ... The request to expedite review of this appeal is taken under advisement. Stephens Decl., Exh. F. Briefing before the IBLA on the issue was completed on October 18, 2007. Stephens Decl.

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To date, there has been no ruling on whether the interlocutory appeal before the IBLA will be expedited or what timeframe an expedited appeal involves even if it were granted. Nor has there been a final ruling on the interlocutory appeals. Stephens Decl. C. Nature of the OHA The IBLA is an appellate body within the OHA of the DOI that hears a wide variety of disputes with or within the DOI. OHA handles administrative appeals from decisions of the DOI's bureaus and offices, primarily decisions of contracting officers throughout the Department and programmatic decisions of bureaus such as the Bureau of Indian Affairs, BLM, Minerals Management Services regarding the leasing of minerals, including gas and oil deposits, and Office of Surface Mining Reclamation and Enforcement. The IBLA, under the direction of a Chief Administrative Judge and Deputy Chief Administrative Judge, exercises jurisdiction over appeals from decisions rendered by Departmental officials relating to (a) the use and disposition of public lands and their resources and the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf; (b) land selections under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq.; and (c) surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. Reviewing IBLA decisions within the last five years evidences that the IBLA is extremely overworked and/or under-funded to be able to resolve appeals on a timely basis. In reviewing mineral-related decisions from the IBLA in the last several years, it appears that the

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range of timeframes for the IBLA to issue a decision in such cases ranges between two years to over five years. Consider the following list: 1. Clark County v. Nevada Pacific Company, Inc., 172 IBLA 316 (2007) (appeal

of February 22, 2005 decision issued 2 years and 7 months later on September 27, 2007); 2. BTU Empire Corp., 172 IBLA 206 (2007) (appeal of July 21, 2005 decision

issued over 2 years later on August 28, 2007); 3. Merit Energy Co. v. Minerals Management Service, 172 IBLA 137 (2007)

(appeal of decision dated May 27, 2004 issued 3 years and 3 months later on August 3, 2007); 4. United States v. J. Dennis Stacey, 171 IBLA 170 (2007) (appeal of decision

dated March 29, 2004 issued 3 years later on March 28, 2007); 5. United States v. Eno, 171 IBLA 69 (2007) (appeal of decision dated December

4, 2003 issued over 3 years later on February 13, 2007); 6. United States v. Pitkin Iron Corp., 170 IBLA 352 (2006) (appeal of May 3,

2004 decision issued 2 years and 6 months later on November 29, 2004); 7. United States v. Knipe, 170 IBLA 161 (2006) (appeal of May 29, 2003

decision issued 3 years and 4 months later on September 25, 2006); 8. Combined Metals Reduction Co., 170 IBLA 56 (2006) (appeal of June 16,

2003 decision issued 3 years and 3 months later on September 7, 2006); 10. United States v. Thompson, 168 IBLA 64 (2006) (appeal of May 24, 2002

decision issued 3 years and 10 months later on March 16, 2006);

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11.

United States v. Pass Minerals. Inc., 168 IBLA 115 (2006) (appeal of May 8,

2003 decision issued 3 years and 10 months later on March 16, 2006); 12. United States v. Martinek, 166 IBLA 347 (2005) (appeal of February 14, 2000

decision issued 5 years and 7 months later on September 13, 2005); 13. Las Vegas Mining Facility, Inc., 166 IBLA 306 (2005) (appeal of July 22,

2002 decision issued 3 years and 1 month later on August 25, 2005); 14. United States v. Miller, 165 IBLA 342 (2005) (appeal of July 31, 2002

decision issued 2 years and 10 months later on May 9, 2005); 15. United States v. Hicks, 162 IBLA 73 (2004) (appeal of December 6, 1999

decision issued 3 years and 6 months later on June 29, 2004). In the past five years, for those cases where the IBLA actually expedited review, it still took well over a year to issue a decision in appeals in which it had granted an "expedited" status. See United States v. Miller, 165 IBLA 342, 354 (2005) (expedited appeal from July 31, 2003 decision issued a year and 10 months later on May 9, 2005); Sierra Club, Angeles Chapter, Santa Clarita Group, 156 IBLA 144, 147 (2002) (expedited appeal from August 1, 2000 decision issued a year and 5 months later on January 8, 2002). While these ranges for timeframes for IBLA to issue decisions in mineral contest cases do not dictate when a decision in the pending interlocutory appeal will issue, they do demonstrate that this body is stretched so thinly it cannot issue decisions quickly. In fact, the five months since briefing has been completed in the interlocutory appeals has not even been sufficient time for IBLA to decide whether to expedite the appeals, let alone issue a decision. Stephens Decl.

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D.

The Significance of the Delay to Freeman Delay severely impacts Freeman. As time goes by, people's memories fade. Some of

the facts relevant to Freeman's takings claim will require testimony about events in the early 1990s. As time goes by, people die. Freeman's metallurgical engineer, Howard Davis, died within the course of the BLM undertaking the examination process. Declaration of Walter B. Freeman, dated March 24, 2008. Unlike large corporate mining interests, Freeman as an individual has no one other than himself to spread the costs of delay. Unlike a corporation which exists beyond the life of any individual, Freeman is in a position where any relief he receives as a result of this litigation loses its usefulness in having fewer years to use any relief awarded. Moreover, every September 1, Mr. Freeman is required to pay a $125 maintenance fee for each of his 161 claims. For the claims in this litigation, that represents a payment of $20,125 per year. The fee increased from $100 per claim to $125 in 2005. Freeman has made these payments every year since the requirement was imposed in the early 1990s. Since the date his complaint was filed in this Court, he has paid $124,775. See id. Because the Forest Service has denied his Plan of Operations, Freeman is unable to obtain any economic return on his claims. However, if he fails to pay this $20,125 each year, he loses his claims. 30 U.S.C. § 28f; Jones v. United States, 121 F.3d 1327 (9th Cir. 1997). The longer his day in Court is delayed, the greater the burden on him. Hence, this motion is filed to alleviate the burden by having this Court resolve all the issues in this case because the DOI agency charged with hearing mineral contests has ruled (on three occasions) that it has no jurisdiction to decide the validity of mining claims in these circumstances.

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ARGUMENT I HAVING GIVEN THE DEPARTMENT OF THE INTERIOR THE OPPORTUNITY TO DETERMINE THE VALIDITY OF FREEMAN'S CLAIMS IN THE FIRST INSTANCE AND IN LIGHT OF ITS REFUSAL TO DO SO, THE COURT SHOULD END THE SUSPENSION OF THE PROCEEDINGS In deciding the prior motion by Freeman to lift the stay and appoint a special master, this Court ruled that it did have jurisdiction over Freeman's claims, but that the doctrine of primary jurisdiction called for giving the DOI the first attempt to determine the validity of Freeman's claims. Order, dated May 8, 2003. The Government (and Freeman) believes this Court needs to know whether Freeman's claims were valid as of the date they were taken. Of course, there is no date certain as to when they were taken. Three judges within the OHA have ruled they have no jurisdiction to decide the validity of mining claims as of any historical dates when claims may have been taken. These rulings applied even in cases where this Court or its predecessor, the Court of Claims, suspended takings claims to allow the DOI to first determine the validity of the mining claims. As indicated in this Court's prior order regarding primary jurisdiction, the DOI must be given the first opportunity to answer the question as to mining claim validity. The ALJ assigned to that task has ruled that he cannot. As this Court recognized, the doctrine of primary jurisdiction is not "a doctrine of futility." Order, dated May 8, 2003, at 4 (quoting Skaw, 740 F.2d 938). Given that Judge Sweitzer has ruled that he does not have jurisdiction to determine the validity of Freeman's claims as of dates in the past, that Judge Holt had issued a similar

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(unappealed) order in Aloisi, and Judge Mesch did the same in Story, this Court should accept the rulings of these judges and recognize that the OHA procedures for deciding mineral contests will not result in a determination of mining claim validity as of any date upon which the taking may have occurred. Apparently, every Judge in the OHA who has been confronted with a remand from the Court of Federal Claims (or its predecessor) to determine the validity of mining claims as of historical dates of potential takings has ruled its procedures give him no authority to do so. There is no need to wait an indefinite period of time for resolution of the current appeal before the IBLA. The Government's strategy in regard to Freeman has always been delay. The estimate of three years to evaluate Freeman's mining claims has stretched so far to almost 7. The fact that the Government filed no appeal in Aloisi to the determination that the OHA had no jurisdiction is telling. Aloisi was issued just 3 months earlier than the same ruling in Freeman's case and strongly indicates that the Government recognizes the correctness of the ALJs' rulings, or that it simply wants different procedural rules to apply to Freeman than apply to Aloisi. If the Government were not involved, Freeman would be able to use nonmutual offensive collateral estoppel against the government in its attempt to obtain review of a ruling in Freeman when it chose not to appeal the same issue in Story in the 1980s and in Aloisi just three months earlier.4 Nevertheless, while the hard and fast rules of estoppel may not be appropriate, the fact that the Government seeks review of an issue it previously lost, twice, should affect how the Court in its discretion decides whether to continue the suspension of proceedings.

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Nevertheless, this case in its present context leaves Freeman as the only mining claimant who will experience significant delay in having his case decided because an appeal was filed only in his case. There is an inherent unfairness in attempting to have one procedural rule apply to Freeman while it does not apply to Aloisi when those cases were decided by their respective ALJ's approximately 3 months apart from each other. However, despite the unfairness of having different rules for different parties, the Federal Circuit's decision in Skaw v. United States, 740 F.2d 932, demonstrates now why the Court should end the suspension of proceedings and determine all issues relevant to the taking claim, rather than wait for an appeal of indefinite duration. The plaintiff in Skaw was the holder of unpatented mining claims who had never applied for a patent. Id. at 934. When the plaintiff believed his rights had been taken, he filed a takings claim in the Court of Claims. The Court referred the question of claim validity to the Secretary of the Interior. BLM then instituted a mining contest proceeding. After 3 years of litigating that issue, the mining contest was dismissed because BLM determined that the claims had been abandoned. Id. at 935. The Court of Claims then lifted its stay and granted summary judgment to the Government on the ground that the claims were invalid for lack of a valid discovery. The Federal Circuit reversed. Critically, the federal government asked the Federal Circuit to "instruct the Claims Court to again refer the questions of validity and location of the claims to Interior, in compliance with the doctrine of primary jurisdiction." Id. at 938. The Court of

Offensive use of non-mutual collateral estoppel has not been adopted in cases involving the federal government. See United States v. Mendoza, 464 U.S. 154 (1984).

4

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Appeals rejected the request because "[w]e do not think that the doctrine of primary jurisdiction requires a court to refer a question to an agency where, as here, the agency has declined to decide the precise question on a prior reference by the court." Id. It is highly probable that a second referral to Interior would result only in further delaying the trial in the Claims Court, and increasing the expense to both parties. Furthermore, the parties agree that the Claims Court is competent to decide the question, just as district courts frequently do in condemnation cases. See e.g., United States v. 237,500 Acres of Land, 236 F. Supp. 44 (S.D. Cal. 1964). 740 F.2d at 938. Here, given three judges' rulings that they cannot answer the question of validity of claims as of any date other than the present, even when requested by the Court of Federal Claims, and in the absence of any judge ruling to the contrary, makes it highly probable that the IBLA will eventually rule consistently with the decisions in this case and the two prior cases. The Court should not make Freeman wait for the conclusion of an interlocutory appeal before the IBLA given its current workload. In Skaw, the Court noted that a three-year delay justified not referring the validity question back to the DOI. Fairness to the plaintiffs is also a consideration which militates strongly against the adoption of the government's suggestion. Proceedings in the court were suspended for nearly 3 years as a result of the 1979 reference, and plaintiffs' right to a trial has been delayed for more than 5 years. They should not be made to suffer another prolonged delay, when there is no real justification for a second resort to an administrative proceeding. Therefore, the Claims Court should proceed expeditiously to resolve these and other issues remanded in this decision.

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740 F.2d at 938. Since a 3 year delay was sufficient deprivation of fairness sufficient to prevent referring the validity question to DOI, surely the 7 year delay Freeman has already experienced since Freeman filed his complaint in this Court and the prospect of future delay is sufficient to cause the Court to determine the validity of Freeman's claims rather than wait for a decision from the IBLA which may be still years from materializing. Timing in mining, as in most business endeavors, is critical. Before Judge Sweitzer, the Government estimated the cost of mining and processing Freeman's ore would be about $6 per pound of nickel produced and compared that to a price which it calculated around $3 per pound of nickel. Stephens Decl. Much of the testimony in the hearing before Judge Sweitzer involved Freeman's dispute with the $6 per pound cost estimate. But it was undisputed that the price of nickel at the time of the hearing was greater than $20 per pound, evidencing that even when one uses the Government's inflated cost figures, a reasonably prudent person today would develop these claims. The longer this case is delayed during a time period when Freeman could have reaped a much greater financial benefit, the greater the potential liability to the Government and the greater impact to Freeman. Delay serves only the Government if Freeman dies waiting for resolution of his claims. The Federal Circuit in Skaw recognized the prejudice in delay even before the mandatory annual maintenance fees for holding mining claims. It is unfair and unnecessary to retain Freeman in a slow process for determining simply whether the OHA even has jurisdiction to answer the questions as to claim validity when he must now pay more than $20,000 per year just to maintain his claims. Even in the absence of the monetary burden, the lapse of years can never be regained. "[J]ustice delayed will be justice denied." Guardians

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Association v. Civil Service Com'n of City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). The validity of Freeman's claims can and should be determined by the Court of Federal Claims, just as this Court is currently doing in the case of Aloisi v. United States and the Court of Claims did in Skaw. II IN THE ALTERNATIVE, THE COURT SHOULD CONDITION THE CONTINUATION OF THE SUSPENSION OF PROCEEDINGS UPON THE GOVERNMENT REIMBURSING FREEMAN The burden of delay falls disproportionately on Freeman, yet there is nothing in place to compensate him for the delay. Typically, a stay of proceedings may not be issued unless there is a showing of avoidance of some hardship or inequity. See St. Paul Fire and Marine Insurance Co. v. United States, 24 Cl. Ct. 513 (1991) and Gold v. Johns--Mansville Sale Corp., 723 F.2d 1068, 1075-76 (3rd Cir. 1983), both citing Landis v. North American Co., 299 U.S. 248, 255 (1936). In determining whether a stay should be entered, the Court must consider the reasonableness of the length of the stay. Id. at 255-56. Presumably, when the Court issued its suspension order in October of 2001, it had no idea that seven years would elapse with no resolution of the validity of Freeman's claims. Hindsight is 20/20. But now, it appears that the Government's appeal has put Freeman into another season of delay which adds further expense to him. Since a stay cannot be issued where it would impose hardship, then surely a stay should not be continued when there is hardship and there has already been a ruling that the

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OHA will not determine the validity of Freeman's claims as of any date other than the present. If the Court does not grant relief from suspension, the Court should condition the continued suspension in a manner which alleviates at least some of the burden imposed on Freeman. As an adjunct to the principle of balancing hardships, there is a long history of courts creating conditions to a stay to protect the party who may be impacted by the stay. The Supreme Court has admonished that courts should "guard against depriving the processes of justice of their suppleness of adaptation to varying conditions." Landis v. North American Co., 299 U.S. 248, 256 (1936). Coextensive with a district court's inherent power to stay proceedings is the power to craft a stay that balances the hardships to the parties. Id. at 255 (noting concern regarding a stay causing "even a fair possibility ... [of] damage to some one else."); see also Clinton v. Jones, 520 U.S. 681, 707 (1997) (noting that "burdens [to the parties] are appropriate matters for the District Court to evaluate in its management of the case."); see e.g., Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 454-55 (1916); Federal Power Commission v. Interstate Natural Gas Co., 336 U.S. 577 (1949). For instance, courts have conditioned a stay of the eviction of a tenant pending appeal as long as the tenant pays rent during the appeal period. See, e.g., Burghart v. Fish's Restaurant, Inc., 865 F.2d 1162 (10th Cir. 1989). Parties who wish to stay discovery may be required to pay for the related costs of prior discovery. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373 (10th Cir. 1994); Bell v. Tsintolas Realty Co., 430 F.2d at 482 (D.C.Cir.1970) ("[w]e have little doubt that ... [a court] may fashion an equitable remedy to avoid placing

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one party at a severe disadvantage during the period of litigation"); In re National Mass Media Telecommunication Systems, Inc., 152 F.3d 1178, 1179 (9th Cir. 1998). In addition to protecting parties burdened by the delay with some payment, Courts also protect the parties for the costs they have incurred if the stay was inappropriate. See, e.g., Isaly Co. v. Kraft, Inc., 622 F. Supp. 62, 63 (D.C. Fla. 1985) (stay granted subject to posting of bond "should it be determined that this stay was improvidently granted."). Freeman did not request this suspension and has in the past requested that the suspension be lifted. He has been forced into an expensive process which he always contended he should not be in, only to find that the decision maker, Judge Sweitzer, rules that this extensive and expensive process he was forced into has no jurisdiction to decide the issues that need resolution. While there is no need for a bond, there is a need for a court order identifying what its obligations will be if the IBLA agrees with its fellow OHA judges that jurisdiction is lacking for them to determine the validity of Freeman's claims as requested in the Government's complaint. In the present case, and if suspension of this case is not lifted, this Court should condition continuation of the suspension in a manner which alleviates some of the burden occasioned by delay. Since the order of suspension was issued, Freeman has paid $108,675 in maintenance fees. These fees are paid each year to the BLM. This amount does not include the $16,100 Freeman paid after he filed his complaint, but shortly before the Court entered its order. The Court should order the following conditions if the suspension is to be continued.

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1. If the suspension remains in effect, the Government shall pay Freeman the amount he has paid in maintenance fees for the claims at issue in this case since this matter was remanded to the DOI in October of 2001, currently totaling $108,675 and shall pay Freeman the same amount he pays in future maintenance fees within 30 days of payment until the suspension of this case is finally lifted.5 2. Additionally, if the IBLA rules that the OHA does not have jurisdiction to decide the merits of the Government's complaint filed with the IBLA, the Government shall reimburse Freeman for all expenses he has incurred and reasonable attorneys' fees for time spent in the OHA process. These conditions, of course, do not completely alleviate the burden to Freeman in having years of his life fly by, expert witnesses die during this process, and the likelihood of fading memories. Yet, these conditions alleviate part of the burden experienced by Freeman being forced through a process which he contended he should never have been in. CONCLUSION Freeman respectfully requests that the Court end the suspension of proceedings and determine the validity of his mining claims in the context of the resolution of this case, without waiting for a decision from the IBLA confirming the consistent position of every one of the ALJs who have ever considered this issue. In the alternative, if the suspension of proceedings is to continue, Freeman requests that it be conditioned upon reimbursement of the maintenance fees he has been required to pay to maintain these claims and, if the IBLA rules that the OHA does not have jurisdiction to decide whether Freeman's claims were valid as of 1994 or 2000 as alleged in the Government's complaint filed with the OHA, then the Government should reimburse
5

In regard to future fees, it may appear simpler to waive them or excuse paying them. Freeman cannot run the risk of losing his claims if he does not pay based an order from this Court and the Court's order is reversed on appeal. Hence, Freeman proposes paying the fees and the Government paying him an identical amount as a condition of continuation of the suspension.

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Freeman for the costs he has incurred as well as reasonable attorneys' fees for time spent in the OHA process. RESPECTFULLY SUBMITTED this 29th day of April, 2008.

By:

/s/ Richard M. Stephens Richard M. Stephens Attorneys for Walter B. Freeman GROEN STEPHENS & KLINGE LLP 11100 NE 8th Street, Suite 750 Bellevue, WA 98004 Telephone (425) 453-6206 Fax (425) 453-6224

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Revised Motion for Relief From Suspension of Proceedings or, in the Alternative, for Conditions was served upon counsel for Defendant United States by electronic filing with the United States Court of Federal Claims using the CM/ECF system, and for counsel for the Siskiyou Project and Mineral Policy Center by regular mail, postage prepaid and properly addressed this 29th day of April, 2008, at Bellevue, Washington, to the following persons: Attorney for the United States: Terry M. Petrie Environment & Natural Resources Division U.S. Department of Justice 1961 Stout St., 8th Floor Denver, CO 80294 Attorney for Siskiyou Project and Mineral Policy Center: Roger Flynn, Esq. Western Mining Action Project P.O. Box 349 412 High St. Lyons, CO 80540

/s/ Richard M. Stephens

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