Free Motion for Summary Judgment - District Court of Federal Claims - federal

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No. 95-650L (Judge Margolis)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ALFRED ALOISI, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT

Lawrence G. McBride FOLEY & LARDNER LLP 3000 K St., N. W., Suite 500 Washington, D.C. 20007-5143 Telephone: (202) 672-5300 Facsimile: (202) 672-5399 Dated: February 6, 2008 Attorney for Plaintiffs

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TABLE OF CONTENTS Page I. II. PLAINTIFFS' MOTION. ....................................................................................................1 STATEMENT OF THE CASE............................................................................................3 A. B. III. Approaching the record in the Case.........................................................................3 Source of the Dispute and the Taking......................................................................3

JURISDICTION AND SUMMARY JUDGMENT IN THE COURT OF FEDERAL CLAIMS. ........................................................................................................11 A. B. Jurisdiction.............................................................................................................11 Summary Judgment. ..............................................................................................12

IV. V.

TEMPORARY TAKINGS ­ THE CASE LAW AND STANDARDS. ...........................13 ANALYSIS OF THE FACTS UNDER THE LEGAL STANDARDS.............................16 A. B. C. D. Plaintiffs have property rights recognized under the Fifth Amendment............................................................................................................16 The first Penn Central factor ­ the character of the government action......................................................................................................................29 The second Penn Central factor ­ the economic impact of the governmental action...............................................................................................35 The third Penn Central factor ­ interference with reasonable, investment-backed expectations. ...........................................................................36

VI.

CONCLUSION..................................................................................................................39

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EXHIBIT INDEX: Plaintiffs' Exhibit Number PE-1 PE-2 PE-3 PE-4 PE-5 PE-6 PE-7 PE-8 PE-9 PE-10 PE-11 PE-12 PE-13 PE-14 PE-15 PE-16 PE-17 PE-18 PE-19 PE-20 Discovery Production Number none none A-1 A-2 A-95 A-81-g A-141 A-149 A-49 none A-190 A-58 A-146 FS-114 A-80 A-189 A-81-s A-114 none none

Document Identification or Description Affidavit of Alfred L. Aloisi Affidavit of Thomas P. Ferrero C. Colcock Jones Report William Elmendorf, Report to A. R. Patterson, of Gold Standard, Inc. (maps omitted) (1932) General Land Office serial register page for Klamath Mine patent application (1930s) Sannes Report on Eddy Gulch for New Cinch Maps with October 1989 supplemental plan (Excerpt from A-149), Moore to Liberty letter (Jan. 26, 1990) Forest Supervisor to Aloisi re forest planning (July 10, 1990) Forest Service Manual §§ 2817.2-2819.3 Letter from Winthrop to Forest Service and SHPO re standards for Arch Study (June 7, 1991) Envelope "Received 2/11/92 at U.S.F.S." (contained August 5, 1991, letter) Maps with April 1, 1992 plan of operations Letter from Fred Aloisi to District Ranger (Oct. 5, 1992) Ferrero to Gutierrez (Forest Service), summary of Eddy Gulch mines mineral values data (Feb. 12, 1999) USFS letter approving Liberty Consolidated Mines, Inc., plan of operations (Aug. 5, 1996) Ferrero, "Reserve Calculations, Eddy Gulch" (August 1998) Ferrero, "Analysis of Metallurgical Data ..." (March 2007) Interior Department Administrative Law Judge's Order Denying Government Motions (May 2, 2007) Mine Equipment and Costs -- Response to Defendant's Interrogatory No. 10 (Sept. 24, 2007)

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TABLE OF AUTHORITIES Page FEDERAL CASES Anderson v. Liberty Lobby, 477 U.S. 242 (1986).................................................................................................................13 Bass Enterprises Production Co. v. United States, 54 Fed. Cl. 400 (2002), aff'd, 381 F.3d 1360 (Fed. Cir. 2004) ....................................... Passim Belk v. Meagher, 104 U.S. 279 (1881).................................................................................................................12 Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963)...........................................................................................................20, 25 Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341 (Fed. Cir. 2001)................................................................................................13 Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002)..........................................................................................13, 15 CCA Associates v. United States, 75 Fed. Cl. 170 (2007) .............................................................................................................35 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).................................................................................................................13 Chrisman v. Miller, 197 U.S. 313 (1905)...........................................................................................................19, 24 Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220 (1904).................................................................................................................12 Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994) ....................................................................................................25 Ferring B.V. v. Barr Labs., Inc., 437 F.3d 1181 (Fed. Cir. 2006)................................................................................................13 First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).................................................................................................................15 Florida Rock Indus. v. United States, 45 Fed. Cl. 21 (1999) ...................................................................................................14, 35, 37

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Holden v. United States, 38 Fed. Cl. 732 (1997) ................................................................................................. 20, 24-25 Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470 (1987).................................................................................................................14 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).................................................................................................................14 Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994)..................................................................................................35 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)...............................................................................................................14 Maritrans Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003)...............................................................................................13 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).................................................................................................................13 Payne v. United States, 31 Fed. Cl. 709 (1994) .............................................................................................................24 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)............................................................................................... 14-15, 35, 39 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).................................................................................................................14 Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004)................................................................................................15 Skaw v. United States, 740 F.2d 922 (Fed. Cir. 1984)..................................................................................................20 Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993)........................................................................................ 15-16, 34 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)..................................................................................................... 14-15, 30 Union Oil Co. v. Smith, 249 U.S. 337 (1919).................................................................................................................20 United States v. Coleman, 390 U.S. 599 (1968)..................................................................................................... 19, 24-25

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United States v. Etcheverry, 230 F.2d 193 (10th Cir. 1956) ............................................................................................12, 24 United States v. Noguiera, 403 F.2d 816 (9th Cir. 1968) ....................................................................................................36 United States v. Rizinelli 182 Fed. 675 (D. Idaho 1910)..................................................................................................36 Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001)........................................................................................ Passim FEDERAL STATUTES 16 U.S.C. § 1536..............................................................................................................................5 28 U.S.C. § 1491(a)(1)...................................................................................................................12 30 U.S.C. § 22 et seq................................................................................................................12, 25 30 U.S.C. §§ 23 and 28 ..................................................................................................................12 30 U.S.C. § 26................................................................................................................................24 30 U.S.C. §§ 35 and 36 ..................................................................................................................16 42 U.S.C. § 4321 et seq..................................................................................................................27 REGULATIONS 36 C.F.R. Part 228..........................................................................................................................26 36 C.F.R. Part 252..........................................................................................................................26 36 C.F.R. § 228.3(a).................................................................................................................28, 36 36 C.F.R. § 228.4(d) ......................................................................................................................27 36 C.F.R. § 228.5 ...........................................................................................................................26 36 C.F.R. § 228.5(a)(5)..................................................................................................................27 36 C.F.R. § 228.5(a)(1)..................................................................................................................26 36 C.F.R. § 228.5(a)(4)..................................................................................................................26 50 C.F.R. 402.14(b)(1)...................................................................................................................32 50 C.F.R. § 402.02 .........................................................................................................................33

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50 C.F.R § 402.14(a)......................................................................................................................32 50 C.F.R § 402.14(b)(1).................................................................................................................32 50 C.F.R. § 402.14(e)...........................................................................................................5, 30, 33 39 Fed. Reg. 31317, col. 1 (Aug. 28, 1974).............................................................................26, 28 57 Fed. Reg. 1796 (Jan. 15, 1992) ...................................................................................................8

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALFRED ALOISI, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 95-650L Hon. Lawrence S. Margolis

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT I. Plaintiffs' Motion. Plaintiffs respectfully move for summary judgment under Rule 56 of the Rules of the Court of Federal Claims ("RCFC"). Plaintiffs seek an order that defendant United States, acting chiefly through the agency of the Forest Service of the U. S. Department of Agriculture ("Forest Service"), be found liable to plaintiffs for an inverse condemnation of their property, and be obligated to pay just compensation for this taking. The taking at issue was temporary, but lasted through a period of roughly four years in which defendant for an extraordinary period, unreasonably, and through actions accomplishing only delay and suggesting lack of good faith, denied plaintiffs the use of their property for its intended purpose, mine development. The actions of defendant's agencies prohibited plaintiffs from exercising their property rights by denying plaintiffs any revenue from the production of gold deposits and the sale of minerals (here gold), during the period of the extraordinary delay and agency neglect of their obligations. This period began with the first biological opinion from the U. S. Fish and Wildlife Service ("FWS") in July 1990 (JA-80) ­ had plaintiffs been timely and properly informed of it, 1

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they could have shortly gone back to work. It lasted at least until the second biological opinion from the FWS in February 1994 (JA-163) ­ as it was only upon timely and proper notice of the second opinion in the second half of March 1994 (JA-167) that defendant restored what legally speaking might be characterized as the status quo as of July 1990. In the intervening period, the agencies' unreasonable, unwarranted and extraordinary delays in maladministration barred any mining on the property, and barred full beneficial use of the property rights they held. The actions of defendant's agencies flew in the face of the reasonable investment-backed expectations of the plaintiffs. The actions of defendant's agencies were purportedly in the service of public use of the property for environmental protection to the exclusion of plaintiffs' rights, even though other agencies of defendant advised the Forest Service that plaintiffs' use could proceed, and did not need to be prohibited or even curtailed in the service of the purported public use the Forest Service sought to the exclusion of plaintiffs' rights. Plaintiffs rely in support of this motion on: (1) the briefing below; (2) the Joint Statement of Facts ("JSOF") filed in this case on January 7, 2008; (3) the Joint Appendix ("JA") filed in this case December 21, 2007; (4) Plaintiffs' Proposed Findings of Uncontroverted Fact submitted with this Motion ("PPFUF"); (5) Plaintiffs' Exhibits ("PEs") attached to this Motion, which include the affidavit of plaintiff Alfred L. Aloisi, attached as Plaintiffs' Exhibit No. 1 to this Motion (cited as "Aloisi PE-1") and the affidavit of Thomas P. Ferrero, attached as Plaintiffs' Exhibit No. 2 to this Motion (cited as "Ferrero PE-2"), who was plaintiff Liberty Mining, Inc.'s consultant with respect to geology and mine permitting; 1 and (6) such other materials as may be

In this filing, Plaintiffs cite the Aloisi and Ferrero affidavits by paragraph number ("Aloisi PE-1:7" being paragraph 7 of the Aloisi Affidavit), and cite their other exhibits by the serial "PE" pagination they bear (e.g., "PE-19-266").

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filed in completing the briefing on this Motion and in response to any dispositive motion defendant may file. Together these materials establish, as a matter of law and based on a combination of jointly agreed facts and plaintiffs' uncontroverted facts, that plaintiffs are entitled to summary judgment in their favor on defendant's liability for a temporary taking. II. Statement of the Case. A. Approaching the record in the Case.

The factual puzzle pieces of this case are lodged in several places, some in the Joint Statement of Facts, some in Plaintiffs' Exhibits and Proposed Findings of Uncontroverted Fact, and some in the Joint Appendix. These sources, by the nature of the filings that support a summary judgment motion, contain some duplication and overlap. Plaintiffs submit the case may be directly approached and understood by starting with the Aloisi Affidavit, proceeding to the Plaintiffs' Proposed Findings of Uncontroverted Fact, then to the Ferrero Affidavit and the distillation of those narratives below. However it is approached, may it please the Court: B. (1.) Source of the Dispute and the Taking. The lost or hidden biological opinion. In November 1989, the Forest Service

approved the first phases of an "all-phase" plan of mining operations submitted by plaintiff Liberty Mining, Inc. ("Liberty") for gold extraction in Eddy Gulch, an area of the Klamath Mountains where earlier claimants and mine operators had once organized the Liberty Mining District and productively mined gold for decades. Liberty continued road and site improvement work authorized by prior Forest Service approvals, and began under the November 1989 approval the extraction of gold-bearing apex and dump deposits, the exposure of additional goldbearing vein along the apex corridor, the hauling of these ores to its mill locations, and the

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acquisition of additional milling equipment (beyond gravity separation mill equipment already in Eddy Gulch). After barely a month of mining operations under the plan approval, Liberty was ordered to stop these mining and mill installation operations (JA-45; PPFUF-23), by a Forest Service January 4, 1990 "Stop Work Order." JA-51. The California State Historic Preservation Office ("SHPO") had advised the Forest Service that the Forest Service's own pre-approval cultural resources study (paid for by Liberty) was inadequate. Instead of questioning or challenging the SHPO's position on this Forest Service land management matter, the Forest Service promptly shut down Liberty's operation. Whether this shutdown was appropriate, Liberty did not fight it, as it was clear the FWS would soon put the Northern Spotted Owl ("the owl") on the endangered species list, and the owl's potential impact on Liberty's plans for Eddy Gulch was more important. Liberty declined to fund a second cultural and archeological resources study ("Arch Study") until the owl situation was clarified. Liberty did not want a completed second Arch Study to be thrown out because Liberty's operations moved or changed to accommodate the owl. Liberty communicated this position to the Forest Service, and the Forest Service understood this was Liberty's position. Aloisi PE-1:27; e.g., JA-82, at 777; JA-88, at 823; PPFUF-45. The FWS had already proposed to list the owl, and the Forest Service told Liberty that the owl situation should be clarified soon. The Forest Service prepared for the listing in advance, as the Forest Service's main event, its timber sales program for 1990, would be at risk if there were no biological opinion establishing what logging could proceed after the listing of the owl. Liberty understood that the Forest Service would consult with FWS under the Endangered Species Act, 16 U.S.C. § 1536, once the owl was formally listed. Liberty did not

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know how or when, or the details of the process, nor did the Forest Service provide it any information in that regard. Unknown to Liberty, the Forest Service initiated its consultation in June 1990, preparing a biological evaluation and transmitting that to initiate formal consultation with the FWS even before the FWS formally listed the owl as threatened. This put Liberty in among all of the 40plus proposed 1990 timber sales for Klamath National Forest. JA-76, at 747. The Forest Service and FWS had tightly cooperated to save as much of the Forest Service's 1990 timber program as could be saved in light of the owl's listing. A little over a month after the consultation request, on July 23, 1990, the FWS delivered back its biological opinions. As the Forest Service acknowledged over a year and half later, this biological opinion "determined that the [Liberty Mine] project could proceed as submitted." JA-111, at 1084. FWS consultation rules require that the agency provide an "applicant," precisely what Liberty was here, with the biological opinion on its project within 45 days. 50 C.F.R. § 402.14(e). Neither the Forest Service nor the FWS complied with that rule. Neither agency even notified Liberty there was a biological opinion. Aloisi PE-1:36. This failure is made uglier by the fact that the Forest Service authorized timber harvesting during the summer of 1990 in Eddy Gulch in a sale area surrounding the same nesting owl pair that the Liberty project supposedly affected, and Aloisi and Ferrero could hear the chainsaws in Eddy Gulch while Liberty was not operating and in the dark about the biological opinion clearing their mining operation. Aloisi PE-1:32; JA-157, at 1298. Over the next year and a half the exchange between Liberty and the Forest Service was this ­ "Have you gotten word on the owl?" "No, we're still awaiting word on the owl." The situation was perfect for anyone in the Forest Service not wanting Liberty to re-start its mining

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operation in Eddy Gulch. Liberty had said it would not pay for the Arch Study needed to go back to work until it got word on the owl and knew what if any operating restrictions might pertain. As long as Liberty did not get word on the owl, Liberty would not do the Arch Study and would never be able to go back to work. The Forest Service's November 1989 approval of Liberty's plan had a "termination" date in it ­ July 31, 1990. JSOF-48. This is a bizarre and counter-productive requirement (Ferrero PE-2:19), unless of course the approval can routinely be extended if the work approved in the plan is not completed; for instance, if for some reason it has not been allowed to proceed at all. Liberty applied in July 1990 to renew its approval; the Forest Service granted the extension in August 1990, through December 31, 1990. Liberty applied in September 1990 to renew the approval again; in November the Forest Service granted the extension through March 31, 1991. Liberty applied in March 1991 to renew the approval a third time; the Forest Service never acted on this renewal request. PPFUFs-72, 73. In March 1991, Liberty received an oral authorization to do some limited work. PPFUF55; Aloisi PE-1:37. At this time, Liberty raised additional money by mortgaging the two private parcels in its property position, and used some of it to pay for the bulk of the needed Arch Study. Aloisi PE-1:39. Within days of the Forest Service's learning that Liberty had funded an "interim" Arch Study (JA-105) and might be resolving the basis for its being stopped, the Forest Service visited the site on July 11 and orally directed Liberty to shut down even the limited work Liberty had been authorized to undertake. PPFUF-61; Aloisi PE-1:40. When Liberty got shut down on July 11, it demanded this new shut-down order be in writing. Months after having stopped work, but still not having received anything in writing, and getting more and more suspicious about how they were being treated, Liberty arranged a meeting

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with the Forest Service. The meeting was, Mr. Aloisi recounts, "bizarre." Aloisi PE-1:43 (meeting content Aloisi PE-1:43-45). Liberty hired a lawyer who called the District Ranger, specifically requesting that the District Ranger check on the status of the biological opinion. Aloisi PE-1:46. Next Liberty got the March 10, 1992 letter from the Forest Service, finally acknowledging there was "word on the owl," namely, the FWS "determined that the [Liberty Mine] project could proceed as submitted." JA-111, at 1084. (2.) Making it worse. Remarkably, the March 1992 letter does not disclose when the

biological opinion was rendered. It continues the violation of federal regulation by not tendering that opinion to Liberty, but it also covers up the fact, still then unknown to Liberty, that the agencies failed for well over a year and a half to comply with their obligations. Another noteworthy feature of the March 1992 letter is that it tells Liberty that the November 1989 approval of the initial mining and milling operations expired March 31, 1991, a year before. Apparently (and retroactively) the work Liberty did under oral authorization between March 31 and getting stopped again July 11, 1991, was under an expired plan. In addition, the March 1992 letter demands what it said was agreed to at the February meeting ­ for Liberty to proceed it must resolve the Forest Service's "confusion" about what Liberty had been approved to do and proposed to do by submitting a new plan of operations. Did Liberty have a choice? Liberty submitted on April 1, 1992 what it regarded as a restatement of its October 1989 all-phase plan of operations (Aloisi PE-1:51; Ferrero PE-2:43, 44). This was the same plan partially approved in November 1989; the same plan where the approved phases of the plan were never completed (since only 1 of the 7 months of work was done before the Arch Study Stop Work Order).

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The Forest Service, however, treated this restatement of the partially-approved 1989 plan as a new plan. How convenient. Critical habitat for the northern spotted owl had been formally designated in January 1992, and the FWS's rule stated, "All presently existing projects and all proposed projects where all Federal, State, and local permitting processes had been completed" would be exempt from the effects of critical habitat designation. JSOF-70, quoting 57 Fed. Reg. 1796 (Jan. 15, 1992). If Liberty were an existing 1989 project it would be exempt, as a new project, critical habitat requirements would apply. If Liberty's March 1991 renewal request extended the approval it sought to renew, then Liberty was still approved in January 1992 (and exempt from critical habitat), as the Forest Service had never acted on Liberty's third renewal request. (Plaintiffs recognize the March 1992 District Ranger's letter pronounces the plan approval to have expired March 31, 1991, but that letter, too, fails even to acknowledge that there was a renewal request pending.) Given that the Forest Service got Liberty to submit a "new" plan, and took the position that the prior approval had expired a year before (without action on the renewal request), the Forest Service set about to undertake a new consultation with the FWS on this new April 1, 1992 plan of operations. (3.) Adding insult to injury. Of course the local Forest Service office did not tell

Liberty that it was reinitiating consultation until after the reinitiation was well launched. PPFUF-73; Aloisi PE-1:52. Liberty still did not know that the biological opinion was over a year and a half old, but it could see another giant stall coming that would prevent action on its plan of operations. So Liberty filed an administrative appeal of the Forest Service decision to reinitiate consultation. PPFUF-76; JA-121. In the course of answering Liberty's appeal filing in the summer of 1992, the Forest Service disclosed to Liberty for the first time that the biological

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opinion was dated July 23, 1990. JA-121, at 1168. Still the Forest Service did not provide the opinion to Liberty. As the appeal was being prepared for the "oral presentation" scheduled for October 1992, and unknown to Liberty, the FWS could not understand why the Forest Service was reinitiating consultation. FWS wrote internally, "reinitiation of consultation not necessary." JA-129. Over a month later, the FWS shared with the Forest Service its draft inter-agency letter replying the Forest Service's request, stating that reinitiation of consultation was not necessary on the Liberty plan. JA-133, at 1216. Even though this was the position of the FWS, the agency whose rules were involved, the Forest Service was not going to take no for an answer from the FWS. Ultimately, the Forest Service prevailed on the FWS to "accept the reinitiation" of consultation, arguing the April 1, 1992 plan was a new plan because the prior approval had terminated, among other grounds. The FWS's point, however, was that the April 1992 plan affected fewer acres than the 1989 plan they had already cleared, so what new or different effects on the owl could be at issue? The Forest Service succeeded in getting the FWS to "accept" the reinitiation of consultation only a few weeks before Liberty's oral presentation on its appeal was scheduled. The Forest Supervisor promptly canceled the "oral" appeal meeting with Liberty and dismissed the appeal as moot, saying the FWS's action accepting reinitiation deprived the agency of authority to undo the prior reinitiation request. From any perspective, the agency worked very hard to make sure it could not provide Liberty any relief from its own actions. Finally, Liberty filed a second level appeal to the Regional Forester. That appeal was dismissed, with the Regional Forester satisfied that no injustice was done because, "Based on the not likely to jeopardize finding, the project was allowed to proceed as submitted." JA-145, at

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1263. This is what the FWS July 1990 biological opinion said should have happened, but this is exactly what did not happen because of the indefensible and extraordinary conduct and delays of the Forest Service in this case. 2 (4.) The bitter irony. The extraordinary lengths to which the Forest Service went to

assure that Liberty could not go back to work, and was stalled on its new plan, might make sense if some legitimate purpose had been served by all these machinations. However, no legitimate purpose can be found in these years of delay. One step after another seemed only to continue the cover-up of the original failure in July 1990 to act properly upon receipt of the FWS's July 1990 biological opinion. Proper action, of course, was to provide Liberty the opinion, and let Liberty implement the opinion's "determin[ation] that the project could proceed as submitted" (JA-111, at 1084), just as the District Office implemented the Evening Star and other cleared projects. None of the stall helped the owl, and none of the operation would have hurt the owl. The Forest Service has never imposed any stipulations or conditions specifically for the purpose of owl protection and preservation in any approval of mining operations in Eddy Gulch. It did not do so in either of the approvals it gave Liberty in 1989. JA-25, 46. Likewise, the plan of operations approval documents for Liberty's lessee Liberty Consolidated Mines, Inc. ("LCM"), contained no such conditions. JA-182 (decision memo); PE-16/A-189 (approval letter and conditions). In 1989, Liberty voluntarily mitigated ­ removed from its plan of operations ­ all work that the Forest Service biologist indicated might affect the owl pair living in SOHA The District Ranger's May 1992 memorandum asking his superiors to reinitiate consultation is highly misleading, and it successfully misled the Regional Forester. It states, "This mine was previously covered in the Biological Opinion rendered on July 23, 1990, and given approval to begin operations." JA-118, at 1145. The second clause suggests Liberty's plan was approved and Liberty operated after the biological opinion. These suggestions are falsehoods. The District Office is hiding the fact the agencies never notified Liberty of the July 1990 opinion (until March 1992), and making it worse with the false suggestion Liberty ever was allowed to "proceed as submitted" after the biological opinion. This is bad faith.
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1024. This area northwest of the Liberty operations was in 1989 and remains the area that might be subject to constraints on Mining Law operations in order to protect the owl under applicable regulations, although 189 acres were harvested in the Evening Star timber sale without apparent ill effects on the same owl pair. Compare the "reinitiation" map (JA-118, at 1146) with the Evening Star sale map (JA-66, at 598). It is not just Liberty's view of the relationship between the owl and Liberty's mine, this is the view of the agency ultimately responsible for protection of the owl, the Fish and Wildlife Service. The July 23, 1990 and February 4, 1994, biological opinions reached the same conclusion, and so did three agency clearances during the second consultation. The April 1, 1992 plan of operations received a June 1992 "Review Team" approval, an August 1992 "Oversight Committee" approval, and a January 1993 "Conservation Group" approval, all without conditions. JA-163, at 1343. Even the Forest Service, in its wrongly timed April 1993 "information letter," determined that Liberty's all-phase plan was "not likely to adversely affect the northern spotted owl and its critical habitat." Id. The stark fact in this case is that the only mitigation needed to assure that the owl would not be adversely affected by Liberty's Eddy Gulch gold mining operation was accomplished informally, without delay, and voluntarily by Liberty in mid-1989 when it mitigated its proposed operations as requested by the Forest Service biologist. III. Jurisdiction and summary judgment in the Court of Federal Claims. A. Jurisdiction.

The Tucker Act grants this Court jurisdiction to adjudicate "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department ...." 28 U.S.C. § 1491(a)(1). The Fifth Amendment to the Constitution

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prohibits the government from taking private property for public use without just compensation. U. S. Const., Amendment V. The private parcels in Eddy Gulch are fully and wholly private property, fully and wholly covered by Fifth Amendment jurisprudence. With respect to the unpatented mining claims, the Act of May 10, 1872, as supplemented and amended, 30 U.S.C. § 22 et seq. ("the Mining Law") declares that "all valuable mineral deposits in lands belonging to the United States, ... shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, ... under regulations prescribed by law." 30 U.S.C. § 22. Once mining claims are located ­their boundaries staked, and notices recorded as provided in 30 U.S.C. §§ 23 (lode claims), 28(staking and maintenance), 35 (placer claims), the case law is settled that the holder of an unpatented mining claim holds property "in the highest sense of the term." Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 226 (1904), quoting Belk v. Meagher, 104 U.S. 279, 283 (1881). As a typical case explains the holdings of Belk v. Meagher and Clipper v. Eli: The law is well settled by innumerable decisions that when a mining claim has been perfected under the law, it is in effect a grant from the United States of the exclusive right of possession to the same. It constitutes property to its fullest extent, and is real property subject to be sold, transferred, mortgaged, taxed, and inherited without infringing any right of the United States. United States v. Etcheverry, 230 F.2d 193, 195 (10th Cir. 1956). A mining claimant holds property rights in public domain lands owned by the United States by accepting the statutory invitation and staking and maintaining a mining claim, and exploring for and discovering mineral deposits subject to the operation of the statute, such as gold. B. Summary Judgment.

Under Rule 56 of the RCFC, the Court will grant summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter 12

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of law." RCFC 56(c). The moving party bears the initial burden of showing the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is met, the non-moving party, to prevail, "must submit conflicting evidence in the form of an affidavit or other admissible evidence." Ferring B.V. v. Barr Labs., Inc., 437 F.3d 1181, 1193 (Fed. Cir. 2006), citing Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1353 (Fed. Cir. 2001). The Court considers all factual questions in the light most favorable to the non-moving party, but if the trier of fact cannot find for the non-moving party, the motion for summary judgment may appropriately be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). IV. Temporary takings ­ the case law and standards. In evaluating inverse condemnation claims, where just compensation is sought under the Fifth Amendment through the Tucker Act, the Federal Circuit follows a two-part test to determine whether the government actions at issue constitute a compensable taking. Maritrans Inc. v. United States, 342 F.3d 1344, 1351 (Fed. Cir. 2003); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir. 2002). First, the plaintiff must first demonstrate that it possesses an interest in real property establishing the right to beneficial use of the land that has been affected by the governmental action at issue. With the necessary interest in or right to use real property established, the plaintiff must demonstrate that a compensable taking occurred, either through the government's physical occupation of the property or by regulation that "goes too far" in prohibiting or interfering with the property owner's rights to use his or her property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 (1982); and Florida Rock Indus. v. United States, 45 Fed. Cl. 13

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21, 26 (1999), citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), which established the "when regulation goes too far" principle in takings jurisprudence. While the courts recognize two forms of regulatory takings, one form, the per se categorical taking where the landowner is denied all use of his or her land, as in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992), does not apply in the temporary taking context. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 330 (2002). The second form of regulatory taking is where some residual right in or use of the property remains notwithstanding the challenged governmental regulatory action (or inaction), and this is the kind of regulatory taking involved in a temporary taking case. See Tahoe-Sierra, 535 U.S. at 330-31. In this class of regulatory takings, there is a three part, case-specific factual inquiry to analyze whether a regulatory taking has occurred. See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). To determine if the regulation amounts to a compensable taking, the Penn Central inquiry examines three factors: (1) the character of the government action; (2) the economic impact of the governmental action on the property; and (3) the interference with the reasonable, investment-backed expectations of the property owner. Penn Central, 438 U.S. at 124; Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470, 495 (1987). Temporary deprivation of a property interest, like permanent deprivation of a property interest, is actionable as a regulatory taking of private property for public use under the Fifth Amendment and the Tucker Act. First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987); see Seiber v. United States, 364 F.3d 1356, 1364 (Fed. Cir. 2004). "Temporary takings are not different in kind from permanent takings." Wyatt v. United States,

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271 F.3d 1090, 1097 n.6 (Fed. Cir. 2001), citing First English, 482 U.S. at 321. A temporary taking may arise when what appears to be a permanent taking is ended or reversed by the government, resulting in a finite start and end to the taking. See Seiber, 364 F.3d at 1364; and Wyatt, 271 F.3d at 1097 n.6. The initial denial of a permit to use property (or the rescission of an issued permit), even when the taking is not permanent and the permit is ultimately granted (or the rescinded permit is eventually reinstated), can constitute an actionable temporary taking claim. See Boise Cascade, 296 F.3d at 1347. Alternatively, a temporary "taking may occur by reason of `extraordinary delay in [the] governmental decisionmaking' process." Seiber, 364 F.3d at 1364, citing Wyatt, 271 F.3d at 1098 and quoting Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993). The Penn Central three-factor analysis is applied to determine whether a government action constitutes a compensable regulatory temporary taking, whether the temporary taking claim is based on extraordinary delay or denial of a permit. See Tahoe-Sierra, 535 U.S. at 330-31; Boise Cascade, 286 F.3d at 1347; Bass Enterprises Production Co. v. United States, 54 Fed. Cl. 400, 402-03 (2002), aff'd, 381 F.3d 1360, 1366 (Fed. Cir. 2004). "[E]xtraordinary delay in permit processing or bad faith on the part of the agency can give rise to a ripe takings claim notwithstanding the failure to deny the permit." Boise Cascade, 296 F.3d at 1347 n.6, citing Wyatt, 271 F.3d at 1097-98. While agency delays need to be unreasonable or "extraordinary," the length of the delay in and of itself is not determinative. See Wyatt, 271 F.3d at 1098. One clear way to establish that agency permitting delay is unreasonable or extraordinary is to show bad faith on the part of the government. Id., citing Tabb Lakes, 10 F.3d at 799; see also Bass Enterprises, 381 F.3d at 1366. The nature of the regulatory permitting process as well as the reasons for the delays are the material inquiries in

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determining extraordinary delay, that is, how disproportionate the delay is to the permitting process from which it arises. See Bass Enterprises, 381 F.3d at 1366-67. We turn to applying these legal standards to the facts of this case. V. Analysis of the facts under the legal standards. A. (1.) Plaintiffs have property rights recognized under the Fifth Amendment. Plaintiffs' unpatented mining claims. The map at JA-188 shows in green the

boundaries of Plaintiffs' property position in Eddy Gulch, including both the unpatented mining claims and the patented private parcels. The claims were staked and these boundaries created by Messrs. Aloisi and Ferrero in 1985. Aloisi PE-1:11; Ferrero PE-2:10. There are four claim groups that Plaintiffs collectively refer to as "the property position." Liberty's predecessor Mr. Patterson, and thereafter Liberty and Aloisi, have recognized that the four property groups should be in unified ownership to facilitate development and gold production from Eddy Gulch. The westernmost claim group holds the ground operated in the past at different times and under different ownerships as the Klamath Mine. It includes the Ohio 84, Dariel, Sunrise and Raindrop lode claims as well as the Sunset placer claim, a 20-acre placer claim largely overlapping the Sunrise lode, and the Buckeye and Yankee association placer claims (160 acres as provided in 30 U.S.C. §§ 35 and 36), that surround the lode claims and the Klamath Mine area. These claims include the Klamath cut, an apex exposure on the west half of the Sunrise claim pre-dating Plaintiffs' involvement in the Gulch, which Liberty expanded in length and defined in width during their 1989 operations, along with further apex exposures along the continuous vein here. East of the Klamath Mine group, across the East Fork of Eddy Gulch (see the map JA188), is the "Union Group" of lode claims: the Union, the Union Extension, the Union Addition 16

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uphill of the other two, and the Big Fish. In addition, the East Fork and Compressor association placer claims hold any mine dumps in the Union Mine area not within the four lode claims. Next to the east is the Mountain Laurel Mine group. At its center is the Mountain Laurel patented parcel (Lot 45A of Mineral Survey No. 3161), mostly east of Compressor Gulch, but with a "tail" or "prong" off its southwest corner. The Mountain Laurel (or "Mt. Laurel" as it is sometimes written) parcel covers the portals and underground workings of the May and MJ Tunnels, access to the extensive historic workings shown on maps Mr. Aloisi acquired from "old-timers" in Eddy Gulch. JA-187. These workings reached the so-called "Litigation Stope," which was the subject of litigation between the operators of the Mountain Laurel Mine and the owners of the Union Group of claims that stopped operations then. The Mountain Laurel private parcel was held under lease-purchase agreement by Aloisi and his associates from the estate of Patterson, and later acquired by Aloisi (JA-115, at 1117), transferred by Aloisi to Energel, Inc. during Liberty's operating period in 1991, mortgaged in 1991 to raise cash to run Liberty, and lost through foreclosure on that note in 1992. JAs-101, 115. The principals of WAZCO acquired the Mountain Laurel parcel from Liberty's mortgage lienholder, and later as LCM (at the same time they defaulted on the Aloisi/Goodman-LCM lease) they ceased paying county taxes on it. It was sold at a Siskiyou County tax lien foreclosure sale after termination of LCM's lease (JA-185), and purchased by a third party. Surrounding the Mountain Laurel parcel are the Banner, Buster, Blue Bell, Specimen and Six O'clock lode claims and the Compressor and Stevens association placer claims. The easternmost group includes the Anna Johnson and Surprise lode claims, site of the Anna Johnson Mine operated by Alex and Ruth Markon (Aloisi PE-1:2, 10), the latter of whom

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leased those and other lode claims to Patterson and Pincombe, and from whom Aloisi and Liberty acquired the lease and later the claims. Aloisi PE-1:2, 7. The focus of the first phases of Liberty's operations approved in 1989 and of some of the subsequent phases of its all-phase plan was the largely exposed and easily accessible apex corridor and the substantial volume of mine dumps at the Klamath Mine site. JA-189, at 1543. The apex corridor ­ running from the east side of the Dariel claim along the length of the Sunrise claim and around the nose of the ridge and then south on to the Raindrop claim (JA-189, at 1543, and JA-188) ­ is the surface outcrop of the vein, varying in width from 6 feet to 35 feet, averaging about 20 feet where fully exposed along that corridor. JA-6. This nearly flat-lying vein dips gradually down to the east and somewhat to the south into the mountain. It was mined behind and below this apex through several tunnels, including the Blacksmith Tunnel, which is plotted on Ferrero's map (JA-189, at 1543) consistent with its 1936 field survey (JA-1). The records display significant assay results from samples from this tunnel (the 1932 Elmendorf Report, PE-4/A-2), consistent with the production reports in the State Mineralogist's Reports for the Klamath Mine. The extent of the underground workings of the Klamath Mine are evident in surface cave-ins and protruding mine timbers near the apex, and in the extensive mine dumps near the Blacksmith Tunnel, and at eight mapped other locations. JA-189, at 1543. While the focus of the approved 1989 mining was on the Klamath Mine area, dump and apex ore had been sampled, valued and targeted on the Union Group, the Mountain Laurel parcel, and the Anna Johnson Mine area, all with comparable gold content and recoveries to the Klamath Mine area deposits. Liberty also had high-grade vein intersections from core drilling under the Six O'clock claim (immediately uphill from the Mountain Laurel parcel) and under the Union group of lode

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claims (near the May tunnel). These vein intersections tied to the underground mine maps (e.g. JA-187), and established high-grade underground mining targets to be developed using the profits from the initial dump and apex operations. (2.) The Core Liberty mining claims were (and are) validated by discovery under the

Mining Law. The mining claims containing within their boundaries the mineral deposits identified to be mined in Liberty's all-phase plan of operations were in 1989-90 "valid" claims, 3 as that phrase is used to mean claims supported by the "discovery" of a "valuable mineral deposit" within the meaning of those words and phrases under the Mining Law. As stated by Department of the Interior in Castle v. Womble, 19 Land Dec. 455, 457 (1895), and endorsed by the Supreme Court in Chrisman v. Miller, 197 U.S. 313, 322 (1905), a claimant has made a discovery of "valuable mineral deposits" when he or she has identified minerals in quantity and quality such that "a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine." A valuable mine, as the Supreme Court later established in United States v. Coleman, 390 U.S. 599, 600 (1968), is one where the "mineral can be `extracted, removed and marketed at a profit' ­ [meeting] the so-called `marketability test.'" There is no question that an unpatented mining claim supported by a "discovery" under this set of standards constitutes a real property interest ­ property in the fullest sense ­ that may not be taken for public use without the provision by the government of just compensation under the Fifth Amendment. See Skaw v. United States, 740 F.2d 922, 935-36 (Fed. Cir. 1984), To be clear, Liberty does not just mean those claims on which mining operations were being conducted at the time of the January 1990 Stop Work Order. First, the Forest Service approval identifies areas in the property position, not specific claims. E.g., JA-26, at 434 (June 1989 plan approval, list of claims involved). Second, the Ferrero economic analysis discussed below includes gold deposits on 15 claims in the property position. Third, whether the claimant has an approved plan of operations is irrelevant to the law of discovery.
3

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quoting Union Oil Co. v. Smith, 249 U.S. 337, 349 (1919); Holden v. United States, 38 Fed. Cl. 732, 735-36 (1997), citing among other cases Best v. Humboldt Placer Mining Co., 371 U.S. 334, 339 (1963). By early 1989, the Liberty principals, Aloisi and Goodman, and their associates, in consultation with their geologist Ferrero, determined that the dump and apex deposits they had identified on the property contained "$40/ton material," that is, dump and apex ore that would yield a gross return of $40 per ton. Aloisi PE-1:16; Ferrero PE-2:24. A fragment of the geology, sampling, and metallurgy regarding the continuous apex corridor across the property position, and the dumps around the historic mine tunnels, is found in JAs 6-9 and 12-14; PE-15/A-80; and JA-192, at 1579-81. They knew they could process these dump and apex deposits by gravity separation, and start that operation immediately using the centrifugal concentration equipment already owned and on site in Eddy Gulch. They also knew that employing a gravity-flotation circuit would increase their recovery of gold from the lower-grade dump deposits left by the earlier operators. Plaintiffs knew there was an underlying fine gold component in the dumps, ignored by the historic operations which milled only high-grade ore containing significant fractions of coarse, free-milling gold. Ferrero PE-2:66. Liberty knew that the flotation milling sequence for these ores, after gravity separation, would best be determined by bulk test runs of the deposits, allowing them to optimize recovery of the fine gold fraction through improvement of the flotation circuit, and Liberty also knew that the optimal milling sequence might involve final carbon-in-pulp vat cyanidation circuit for greatest recovery of the fine gold. Ferrero PE-2:67. The fact that the dump and apex deposits were lower grade than the underground targets was more than offset by the advantage of their minimal mining cost. Recovery of dump and

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apex deposit gold would fund the next stage, the identified underground mining targets identified by high-grade core sample intersections tied to the old underground workings. Ferrero had by then spent the better part of five years mapping and learning the structural geology, recreating the production history, assembling and interpreting the pre-existing sampling and drilling data, and supervising sampling, drilling and feasibility studies for such an operation on the Eddy Gulch property (see Ferrero PE-2:9, 11) (Moore letters at JAs-52, 53, PE-8/A-149 excerpt, JAs-183 (out of chronological order), 60, 63, 68, and 91, and Ferrero PE-2:64. The Forest Service approved bulk test runs through the mill equipment suite they would purchase from Moore in November 1989 (JA-45). This was confirmed in the Forest Service's November 1990 approval extension letter (JA-88, at 822): [Y]ou are approved to do the following: Bulk sample the Klamath Mill dumps. Bulk sample pits at Klamath, Anna Johnson and Incline Ridge [Six O'clock claim above the Mountain Laurel underground workings]. Set up screening, crushing and centrifugal concentrating equipment at Usher Flat. Install a pipeline from Usher Flat to settling ponds at the ET Placer Mine. These tests would yield gold production, and would also yield refinements to their milling system and circuits, and Liberty was ready to erect that mill and run those bulk samples, beginning with the ore it was moving to Usher Flat at the time of the Stop Work Order. In his affidavit and in several narratives, including both JA-190 and PE-15/A-80, and as well on Spreadsheets 1 through 4 of JA-191, at 1569-72, Mr. Ferrero recreates in detail the background sampling and metallurgical data available to Liberty when it determined to begin mining operations. In spreadsheets 5 through 9 of JA-191, at 1573-77, Mr. Ferrero sets out the mining and capital costs reasonably estimated for operating ­ mining with equipment on hand (PE-20, listing equipment on-site and in use, and JA-180, at 1430), and milling with the

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processes described and equipment priced by Liberty's mill equipment supplier and metallurgist. See JA-52 (Mr. Moore's mill equipment quotations / offer to sell). For conservative (if slanted at all, slanted against Liberty) mining and milling costs, Ferrero employed the costs used by Mr. Stebbins, the Forest Service's contractor, in his analysis for the contest case (references to "Stebbins" as throughout JA-191, at 1573-77). The Ferrero Affidavit (PE-2:51) and Narrative (JA-190) and its supporting Spreadsheets then identify the quantity and grade of ore in the several different deposits at the different sites in the claim group that were Liberty's initial targets for the operations Liberty intended during the four-five year period of the temporary taking here, 4 and the recovery rates expected from the various mill equipment and process steps, both those Liberty was approved to undertake in November 1989, and would have moved to in the next phases of its operation. As the Ferrero Affidavit (PE-2:49) and the underlying JA-190 narrative describe, these JA-191 Spreadsheets assess the data available in 1990 to Liberty, and which would have been available to Liberty in 1990 had they been able to complete their initial operations approved in 1989. The data include what was available to Liberty in 1989-90, and what was generated later in the 1990s and during the "mineral examination" and administrative contest sampling from 1998 to 2006. The data are analyzed and expressed through several mine development and milling scenarios, ranging in approach and assumptions from very conservative and negative to reasonable and wholly warranted. Notably, even the most conservative and negative scenario in its resource assumptions on Spreadsheets 5-9 yields a profit at its bottom line.

The Ferrero analysis includes deposits on the Dariel, Sunrise, Raindrop, Union, Union Extension, Big Fish, Banner, Six O'clock, Buster and Anna Johnson lode claims, and all five placer claims (Sunset, Yankee, East Fork, Compressor and Stevens).

4

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The Ferrero Affidavit (PE-2:49) also sets out Liberty's bottom line form the operations Liberty began with the 1989 Forest Service approval and expected to undertake ­ Liberty would have netted $21.9 million had it been allowed to proceed with the operation described in the approved phases, and the next operating phase of the all-phase plan of operations, over the first four-five year period of mining described in Liberty's 1989 mining plan of operations, and analyzed in these economic calculation scenarios. The $21.9 million profit calculation, and the parallel calculations of alternative scenarios yielding different but still profitable outcomes, were documented in these Spreadsheets in the course of discovery in preparing for the hearing in the administrative proceeding and for this case. However, these recent written calculations simply recreate the less formal process undertaken by plaintiffs in 1989-90, with the assistance and advice of Mr. Ferrero, when Liberty decided to begin mining. Liberty had determined to haul the ore to the centrifugal concentrator equipment already on-site, or else to the initial gravity separation/flotation mill location, depending on how quickly it could be erected, for processing. This decision to go mining employed all sampling, metallurgical, geologic and mining cost data available and known to plaintiffs in 1989-90, when they began mining. E.g., JAs-61, 99 and PE-15/A-80. This decision constituted Liberty's determination that it had "a reasonable prospect of success in developing a paying mine" consistent with the "discovery" standard under the Mining Law. Plaintiffs' conclusions then are demonstrated now in the maps, narrative and spreadsheet calculations presented as JA-189-193 (supported by resource data analysis such as PE-15/A-80, as explained further in Ferrero PE-2:50-61, and by metallurgical analysis such as PE-18/A-114, explained further in Ferrero PE-2:62-69). With these reasonable projections that revenues from mining these deposits would exceed the costs of doing so, Liberty and its property position met the

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"marketability test" engrafted by United States v. Coleman, supra, on to the original "prudent person standard" of Castle v. Womble, supra, and Chrisman v. Miller, supra. By the standards of the Mining Law, plaintiffs' mining claims were validated by discovery, and constituted "property to the fullest extent." Etcheverry, 230 F.2d at 195. (3.) Whether the claims were valid or not, plaintiffs had the property right to operate

under the Mining Law and agency standards on "open," non-withdrawn land. Plaintiffs have set out above and in the Ferrero Affidavit, and the exhibits it cites, in abbreviated form for purposes of this summary judgment motion, their case that plaintiffs' property position and the claims supporting it were validated by discovery within the meaning of the Mining Law. (a) This case, however, involves a temporary taking of plaintiffs' property rights in these unpatented mining claims, which are on "open" public domain land. JSOF-4. On open ground, the Mining Law declares, "[t]he locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, ... shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations," among other rights. 30 U.S.C. § 26. In its 1998 motion to stay this case until claim validity was established through the agency contest procedure, defendant relied on Holden v. United States, 38 Fed. Cl. 732, 733-34 (1997), and Payne v. United States, 31 Fed. Cl. 709 (1994), among other cases. Those cases all involved plaintiffs permanent taking causes of action, and land that the United States had closed, or withdrawn, from the operation of the Mining Law. In Holden, a formal land withdrawal order transferred the land to the Navy for use as a weapons training area. In Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963), the United States filed a declaration of taking to use the land in a dam construction project. In Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994), Congress

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withdrew the national forest land from the operation of the Mining Law for public use as a wilderness area. In each of these cases, the public lands were no longer subject to section 1 of the Act of May 10, 1872, 30 U.S.C. § 22 ­ they were no longer "free and open ... to occupation" for mining purposes under the Mining Law. In those cases the claimant, to have rights that survived the Government's withdrawal of the statutory authorization to occupy them for mining purposes, had to establish property rights against the United States that survived the legal change in the land's status under the prudent person and marketability standards of Castle v. Womble, Chrisman v. Miller, and United States v. Coleman. The lands in this case, however, have not been withdrawn from or closed to the operation of the Mining Law. "Open" lands are the legal opposite of withdrawn lands, and the right to operate on claims on open lands is not, by statute or regulation, limited or conditioned only to those who can demonstrate the "validity" of their locations by proving a discovery. (b) The Forest Service's own rules and directive implement this principle. In issuing the Mining Law plan of operations rules in 1974, the Agriculture Department stated: The Forest Service recognizes that prospectors and miners have a statutory right, not mere privilege, under the 1872 mining law and the Act of June 4, 1897, to go upon and use the open public domain lands of the National Forest system for the purposes of mineral exploration, development and production. Exercise of that right may not be unreasonably restricted. (Emphasis added.) 39 Fed. Reg. 31317, col. 1 (Aug. 28, 1974) (emphasis added), explaining what was 36 C.F.R. Part 252 then, and has since been re-designated as 36 C.F.R. Part 228, Subpart A. The instant case involves defendant's denial of this statutory right by unreasonable and improper actions that wholly prevented plaintiffs from exercising these statutory rights at all over a multi-year period. The Forest Service in the quoted basis for its own rules interprets the Mining Law and the Organic Act of the Forest Service ("the Act of June