Free Notice (Other) - District Court of Federal Claims - federal

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EXHIBIT A

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United States Deparent of the Interior
OFFICE OF HEARINGS AND APPEALS Inierior Board of LandAppeals 801 N. Quincy SL Suite 300 Arlington, VA 22203

7032353750
UNITED STATES v.

703235 8349 (fax)

WALTER B. FREMA
IBLA 2007-259

Decided May 7, 2008

Interlocutory appeals from an order of Administrative Law Judge Harey C.

Sweitzer holding that he did not have jursdicùon or authority, in a mirug claim
contes'!, to determine me validity of minig claims as of alleged tangs dates.
Contest No. OR-48970A.

Pennssion for interlocutory appeals granted; request for expedited consideration granred; order reversed in par and afrmed in parr; case remanded.
i. Administrative Authority; Generaly--Minig Clalin: Contests--Mil1ng Clai: Deterrrnation ofValidity--Mirug

Clais: Discovery: Generally.-Rules of Practce: Governent Contests

An administrative law judge in a mining claim. comest has the necessai jurisdicton and âuthority to determne the validity of miing claims as of the dates of alleged takigs, "without compensanon) of the clais in violation of the Fih Amendment to the U.S. Constitution.
2. Administrative Authority; Generally--Minl Claims:

Contests--Ming Qaims: Detenation ofVaJdity--Ming

Clai: Discovery: Generally--Rules of Practice: Governent
Contests

The contest complaint properly determines the scope of the issues to be addressed ín a ming claim contest, and
a decision by an administrative law judge holding tht

claim vaditY as of the date of the hearng is not at issue
vvll be cifirmed when the contest complait does not

include such a charge.

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APPEARACES: Richard M. Stephens, Esq., and John M, Groen, Esq., Bellevue, Washington, for Walter B. Freeman; Bradley Grenham, Esq., and Brian J. Perron, Esq., Offce of the Regional Solicitor, U.S. Deparent of the Interior, Portland,
Oregon, for the Bureau of Land Management.

OPINION BY CHIEF ADMINISTRTIVE JUGE HOLT
Walter B, Freeman and the Bureãu of Lad Management (BLM), acting on

behal of the United States, have each filed an interlocutory appe.al from an
August 10, 2007, Order of Adrntrative Law Judge Harvey C. Sweitz~'t (AU

Order), in a minig claim contest (No. OR-48970A) brought by RIM challenging rhe
validity of Freeman's 161 unpatented placer and associa'tion, placer ming clais,

located in surveyed and unsureyed T. 40 S., Rs. 8-10 W., Willamette Meridian Josephine and Cur Counties, Oregon. Judge Sweitzer found first that the

Department of the In tenor has no authority to initiace a contest, and the Offce of Hearings and Appeals (OHA) has no jursmction to resolve such a contest, based
upon a charge of no discovery as of the dates of alleged Fifth Amendment takings.

ludge Sweitzer also found that the complaint filed in a contest defines the issues for
the contest, and that the complaint in ths case does not raise the issue of a discovery

on the date of the hearing.

Judge Sweitzer certfied both his rulings for interlocutory appeal, pursuant to
43 C.F.R. § 4.28. Freeman and BLM have requested our expedited consideration of

their appeals, and, for good cause shown, that request is granted.
Because we find that the Department may initiate a comest and that OHA has the necessar jurisdiction to detennne the vaIidilY of unpatented mining claims as of

alleged takings dates, we reverse that part of the ALl Order. Because we find that the complaini: defines the issues for a contest, we affrm that par of the AU Order.
1. Introducton
Many of the underlying details of

i:ne Ws claims are not cfecdy pertnent to this appeal, and so the 'followig bnef
introduction Will suffce.
Freeman's predece.sors-in-interest locared the 161 unpatented nig clais

Freeman's quest to receive patent and to

from 1940 to the early i 970s on approximately 4,968 acres of Federal land
administered by BLM and the United States Forest SeIvce (USPS), the majority of the lands being par of the Siskiyou National Forest. Freeman later filed, on September 9, 1992, an application (No. OR-48970) seekig patent to 151 ofthe

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161 daims.1 Effective October 1, 1994, Congress placed a moratorium on the processing of parent applications for unpatented minng claims with the enactment of
section 112 of the Depamem of the Inteor and Related Agencies Appropriations

Act of 1995, Pub, 1. No. 103.332, 108 Stat. 2499, 2519 (1994). Freeman states thac
ELM, by letter dated December 14, 1994, notified patent applicants thar because of

the Congressional morarorium it would not process patent applications that had not
yet received the first hil of the fial certficate. BLM has since refused to process

Freeman's application.

On December 17, 1992, Freeman filed a plan of operations (POQ) with the USPS, proposing to sample and mine his claims. Afer several delays by the USF5 and intervening administrative appeals by Freeman, the USFS denied his POO, rejecting his last appeal on October 11, 2000.
On January 22,2001, Freeman fied a lawsuit, Freeman v. United States,

No. 01.39L, ín the U.S. Cour of Federal Claims, alleging that the Unired States had"
by refusing to approve his patent application and by effectively denyíng approval of
his POO, engaged in a tang of his propert righrs under the minng claims withoUt

the paymenr of just compensation, in violation of the Fîfrr Amendment to the

u.s. Constitution. The court issued an order on October 10, 2001, suspending proceedings in the case and remanding the case w the United States Deparem of the Interior "for determination of validity of plaitiffs ming claims." Order,
Freeman v. United States, No. 01-39L (Fed. C1.), Oct. 10¡ 2001 (Ex. 82 attached to BLM Statement of Reasons (BLM SOR)), at 1.

On March 16,2005, BLM, on behalf of USFSJ initiated a contest against the 151 mining clais listed in the patent application and 10 additional claims/ filing a

complaint alleging (1) that rnérs have not been found on any of the mig clais
in suffcient qualities or quantities to constitute a discovery, and that any minerals found thereon could not have been marketed at a profit as of eimer 1994 or 2000;
and (2) the land encompassed by the claims is non-mineral in charcter, BL.V1 has

explained that 1994 and 2000 represent the yeazs when the alleged taings occurred, noting that "the partes conferred and stipulated that the valdity deteiminatlon would cover the dates of the two events Mr. Freeman alleges in his complait before
the Coun of Federal Claims resulted in a takg of his propert. Those tvo dates are

1 Although Freeman fied a patent application, that application has not been
processed by BLM and is not at issue in the contest.

2 BLM brought the contest against Freeman, also nantng Blanche E. Freeman,
R. Tippy, and Roger 'Webb as conteste~s, based on their alleged ownership or assertion of ownersrup in the 161 claims. In responding to the complaint, Freeman
stated that he was the only parry who ovved or assered ownership in the claims,
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October 1994 (date Congress enacted the patent moratorium) and Oerober 2000 (date USFS rejected Freeman's POO) .,,3 BLM Notice of Interlocutory Appeal at 2. As
relief, BLM's Complaint: requested that the mieral entry be cancelled and/or the
claíms be declared null and void.

Afer extensive pre-hearng dic.overy, Judge Sweitzer conducted a 25-day
hearig that ultimately produced over 400 exhibits and 3,400 trnscripi: pages of

testimony. Before the end of the hearig, Judge Sweitzer raised, sua sponce, serlous concern over his junsdiction to determe the vaidity of the claims as of the alleged
takings dates. Order, dated May 3) 2007, at 2. Even though both BLM and Freeman argued that Judge Sweitzer did have such Jurisdicton, Judge Sweitzer subsequenLly

issued the ALJ Order currently at issue.

In the AU Order, Judge Sweitzer ruled that he had no jursdiction to detennne the validity of the mining cla. as of the alleged takings dates, absent a showing that these dares coinòded either with the date of hearing or, if Freeman complied with all the patent requirements, the date of compliance. AL Order at 1, 8,
15. He explained that it was well eSUlblished that, in the cas~ of the filing of a patent
application, the vaHdiry of the applicable claim was properly detemined as of the
date the clait complied with the discovery and other requirements for parent and

as of the date of the heang. ¡d. at 5. He concluded that (the Department has no

authority ro inítiate a comest, and ths office has no jurisdiction to resolve a contest)
based upon the charge that no discovery existed on each minig clal as of (the

alleged iakgS dates inJ 1994 or 2000(.)" Al Order at 13; see id. at 5-6,8.9.
Judge Sweitzer also rued on Freeman's argumenr, opposed by BLM, that

regardless of whether he had jursdiction to determine the valdity of the claims as of
the alleged takings dates in 1994 and 2000, he should decide whether the cl

were vad at the time of the hearing. Judge Sweitzer held that the validity of the
claims at the tie of the hearg was not at issue, since BLM's contest complaint did

not challenge the validity of the claims as of the time of the hearing, and l3LM limted
its case~in-chief to validity as of the alleged takgs dates. AL Order at 4, 14.
In the AW Order, Judge Sweitzer certified for interlocuiory appeal puruam to 43 c'F.R. § 4.28 his ruing that he lackedjursdicton to determine valdity as of the

alleged takigs dates. The judge later issued an Augut 29, 2007, Order, certfyg
hi ruling that validity as of the hearing date was not at issue in the present conte5t
3 Freeman views this agreement less suicty. "At most) Freeman a.greed that the

1994 and 2000 date (sic) would be appropriate for consideration in the mineral
examination process because those dates would likely be usef to the Court of

Federal Claims." Freeman Post-Hearing Reply Brief at 2.
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proceeding. Judge Sweitzer deferred ruling on the vaidity of the claims pendig a final resolution by me Board on the question of jurisdicton.
Freeman and BLM each filed an interlocutory appeal from the AU Order.
BLM challenges the judge's ruing r-egardfng jursdiction to detenne validity as of

the aleged takigs àates, and Freeman chalenges the judge's rulíng regardin

authority to determine validiLy as of the hearig dar~.4 See Stipulated Request m
Modify Briefing Schedwe, dated Sept. 19, 2007, at 1.

We hereby gram pennssion for the interlocutory appeals, since we agree that
Judge Sweitzets two rulings involve controlling questions of law and imedíate

appeals therefrom may materialy advance a final decision. See 43 C.F,R. § 4,28.
II. AnaÕ'sis
A. Jurisdicton to Determine Validity of Claims

The initial issue before the Board is not whether Freemau's 161 mining claIms
are valid. Judge Sweitzer has yet to render any findings or conclusions concerning
claim vaidity. Rather, the present ÍnterloClttory appeals involve whether or not the

Department can initiate a contest and an AU can determine the vaidity of mig
clai as of the date of alleged takigs. We find that the aTIS"er is clearly yes,

A valid mining claim is one tht satisfies applicable statutory and regulatory r~quirements, initially including rhe physical markig on the ground of clai
boundares, the ¡ostig and recording of notices, and the discovery of a valuable

mineral deposit within the claim boundanes, See 30 U.S,c. §§ 21-54 (2000). Al of
these acts, when satisfactoriy accomplished, constitute the ('location" of a minIng
clai and give rise to a property interest held by the claimant. "'Location! is the

inception of the minets title to the public land claied in the location notice or certficate, and it is the date of such 'location' from which the rnets title runs." Mrs.
George G. Wagner, 63 lBLA 146, 149-50 (1982).

4 Despite initially agreeing with BLM that Judge Sweitzer has jursdiction to

determne valic¿ty as of the alleged takigs dates, see Freeman Post-Hearng Brief, dated .Juné 29,2007, at 7, 12, Freeman now asser that the AL lack such jursdiction, see Freeman Starement of Reasons at 12.
5 (((AJ\l valuable mineral deposits in lands belonging i: the United States. . , shall be

free and open r: exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United SLates and those who have
declared their Intention to become such." 30 U.S.C. § 22 (2000).
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Presumptively, no location can be made or exsts unti the discovei of

valuable minerals.6 However, "in the absence of an intervening right it is no
objecton tht the usual and statutory order is revered. In such a case the location

becomes effective from the date of discovery; but in the presence of an intervening right it must remain of no effect," Cole v. Ralph, 252 u.s. 286,296 (1920); see United
States v. Carlile, 67 I,D. 417, 420 (1960) (UDiscovery normally precedes location bur
dicovery may follow location and give vadity to the dal as of the time of

dicovery, provided no rights of thrd partes have intervened."). Vested propert
rights againSt the United States arse only

afer such a discovery. Cole v. Ralph, 252 U.S. ar 296; Davis v, Ne1Jon, 329 F.2d 840,845 (9th eir. 1964) ("(IJt is dear that

under both the mining law and the regulations that a discovery of vauable minera is

the sine qua non of an entr to initiate vested rights against the United States.").
(1) The Deparnents authority co determe claim validity as of any point in
tie has long been recognzed by the court. Until the lands encumbered by mining
claims are conveyed out of

Federa ownership, rhe Secreta may contest th validity

of rho.'le claims so that ''vid claims may be recognized, invalid ones eliminated, and

the rights of the public preserved." Cameron v. United States, 252 u.s. 450, 460
(1920). Even Judge Sweitzer acknowledges that "the Secretar may chalenge the
validity of a minig clai at any pomt in tie so long as title remains in the United
States." ALI Order at 9 (citing Camer-on v. United States, 252 U.S. at 460, and United

SCates v. White, 118 IBLA 266, 308-09, 98 LD. 129, 151-52 (1991)). The Secretar, though BLM and "under the grant of authority to supervse public business on püblic lands, induding mines, has power and authority to intiate a contest. . .. Such

authority is not dependent upon the asserton by the United Stares of some other use for or the exstence of some contemplated public project involving the publi lands in
question," Davis v. Nelson, 329 F.2d at 846. The supe~isIon of that public business
surely encompasses providig assistace to the United Stares in resolvig a takgs
lawsuit that arses out of mineral ennies on public lands.?

Judge Sweitzer cautions, however, that under 43 C.F.R. § 4.451-1, a
Government contest may be brought only "for any cause affectg the legalty or

6 ~'(NJo location of a mining- claim shal be made until the discover of the vein or

lode within the limits of me claim located." 30 U.S.c. § 23 (2000). 7 The Secretarys initiatig a contest to determne clai validity to assist the Court of

Federal Claims in takings litigation agaInst the United States is simar conceptually, even if the relevant dates may be diferent, to the Secreta's initiating a contest to
determe claim validitY to assÌst federal distrct courts in condemnation litigation on
behal of the United States, which assistance has been frely given. See, e.g.) United

State. v. Copple, 81 IBLA 109 (1984); United States v. Pool, 74 IBLA 37 (19B3); United

States v. Connor, 72 IBLA 254 (1983),
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valdity of âly . . . mining claim." He then concludes that the existence of valuable minerals as of alleged takings dates does not afect the legality or validity of the claims at issue, so a contest may not address that question, AU Order at 7. We disagree.
Judge Sweitzer explains his conclusion by stating mat, in the absence of a withdrawal of the land from entr under the minig laws, a claimant may make a
dicovery and vaidate a mig clai afer any such dare, even afer contest

proceedings have begun,B Id. (citing United States v. Foster, 65 J.D. 1,5-6 (1958), affd, Foster v. Seaton, No. 344.58 CD.D.C. Dec. 5, 1958)) afd, 271 F.2d 836 (D.c. Cir. 1959)). That fact, however, does not alter our view that there is nothng in the applicable stacutes, Deparunental regulations, or case law that rescricts mining contests in the manner suggested by Judge Sweitzer.9 A clai that is not supportèd
by a discovery as of the alleged takngs dates would be invalid at that tie under the

miiung laws, and the Governent can surely bring a contest on that basIs pursuant to 43 C.F,R. § 4.451-1. An AU, as the delegate of the Secretary for purposes of
detennining clai validity, may certainly adjudicate vadity as of such dates.1o

a Judge Sweitzer, however, fais to mention the other necessity for validation of a
preViously located claim: the absence of intervning rights. By intiatig a mining

claim contest, the Deparent is asserting the Unites States' competig propert interest againt that: of th claimant. If the claiant does nor prove a discovery
durg the contest hearg, then the claimants entie location fals before the superior Interest of the United States, regardless of the date for which vaidity has been challenged, See Gwiltm v. Donnellan, 115 U.S. 45, 50 (1885) (lllf the title to the discovery fails, so must me location which rests upon it."). Assumng the lands remain open to entr under the mining law, the unsuccessful claimant then "has the
same seams as anyone seekig to make a mining location." United Sta.tes v. Carlie,

67 LD. at 423j accord United States v. Bartels, 6 IBLA 124 (1972). 9 The Board has upheld ntimerous contest decisions in which the contestat's

complaint alleged invalidity only as of a date years pnor to the date of the heanng.
See, e.g.) United States v. Clear Gravel Enterprises) Inc., 2 IBLA 287 (1971); United States v. Stewart, 1 IBLA 161 (1970) (Board affirmed decision invalidating claims

based upon a lack of dicovery as of a date year prior to the hearing, and rejecting
daiants assertion that validity should be determed as of the date of filing the

contest complait). The Board also has affnned a contest dedsion invalidating a daim as of a date stipulated by the partes that was years before the hearig. United
States v. Bartlett. 2 IBLA 275 (1971).

10 In the instat case, if Judge Sweitzer were to rule that Freeman failed to prove a
discovery as of the takigs dates, then Freeman's locations would faiL. But, if the

lands remain open to miera entry, Freeman would sti be free. to relocate the
(continued...)
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Accordingly, we .fd that the Secretary, though BLM. has the authority to bnng a comest to determÙle the validity of mining claims as of the dates of alleged takings, and that Judge Sweitzer has jurisdiction and authority to adjudicate such a contest.
B. Scope of the Contest
Freeman has appealed,Judge Sweitzets ruling that the vadity of

the claims as

of the heaiing date was not at issue before him because such a charge was not induded in BL1's contest complaint.
(2) This Board has held That adjudication of a mining claim contest is properly confned to the issues identified by the contest complaint, or which were,
raised at the hearing and not objected to by the claimt. United States 'V. McEl';vaine,

26 IBLA 20) 24-27 (1976); United Stare v. Northweòt Mine & Milling Inc., 11 ffLA

271, 274 (1973). These decisions are consistent wir:h (he regulations governg
contests, which requie that a contest complaint include, among other things, ''(aJ statement in clear and condse language of che Earn constiniring me grounds of

(a) (4), In addition, "issues not raised in a complaint may not be raised later by the contestant unless the administrtive law judge permits
contest." 43 C.F,R. § 4.450-4

the complaint to be amended after due notice to the ocher pares and an opportunity
to object." 43 C.F.R. § 4.4S0-4(b).

BLM's contest complaint stated the followin specific chrges:

1. Minerals have not been found on any of

suffcient qualities or quantities to constimte a discovery. Any minerals could not have been marketed at a profit as of either 1994 or2000.

the 161 mining claims in

chacter.

2. The lands encompassed by the 161 rnng claims are non-mineral in

It is clear that BLM's contest complaint aleged the absence of a discovery only

as of the asserted takings dates in 1994 and 2000, consistent Wiil the agreement
between BLM and Freeman, M there Were no amendments to the complaint

proposed by BLM or approved by Judge Sweitzer,11 it would have been error for
10 C.. ,continued)

claims, as would be ine case even if Judge SweÌtzer specifically ruled that there was
no discovery as of the date of the hearng.

11 In additionJ as noted by Judge SWeitzer, "(c)onslsrenr with that allegation's

(continued...)

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Judge Sweitzer to proceed unUaterally and decide the contest on the issue of

of the claims as of the date of the hearing. Harold Ladd Pierce, 3 IBLA 29, 39-41

vaidity

(1971).12 Accordigly, we conclude that Judge Sweitzer properly held that the validity of the 16 i claIms as of the hearing date "VS not at issue beèause the contest complaint did not include such a charge.
Therefore, pursuant to the authority delegated to the Board of Land Appeals

by the Secretary of the Interor, 43 C.P.R. § 4,1, we grt permission for the interlocutory appeal from the A1 Order and grant appellants' request for expedited consideration, The AU Order is reversed in par and affirmed in pan, and the case is
remanded to Judge Sweitzer for furter acton consisten~ with this decision.

I concur:

~~C;~
11...connnue ) ( . d

Bruce R. Harris Deputy Chief Admstrative Judge

language, the Contesrants case-in-chief focused exclusively on whether a discovery

12 "S. h . db
under the act of July 23, 1955." 31BLA at 39.

existed in October 1994 and in October 2000." AI Order at 14.
inee no new c arges were Incorporate y amendment and no new issues were

stipulated, it was error far me hearing examiner to proceed will and decide the
conteSt on his unlatera detennination, anounced at me hearing over contestee's

objecton, that the issue was whether the material on the claims is a common varety

. 174 IBLA 298