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Swanson v. Babbitt

filed: September 3, 1993.

ELMER H. SWANSON; LIVINGSTON SILVER, INC., PLAINTIFFS-APPELLANTS,
v.
BRUCE BABBITT, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR; MIKE ESPY, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, *FN* DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Idaho. D.C. No. CV-78-4045-EJL. Edward J. Lodge, District Judge, Presiding.

Before: Melvin Brunetti, Edward Leavy and Stephen S. Trott, Circuit Judges. Opinion by Judge Trott.

Author: Trott

TROTT, Circuit Judge:

The major issue presented by this case is whether the provisions of the Sawtooth National Recreation Area Act, 16 U.S.C. § 460aa et seq., preclude the issuance of mill site patents, even though the patent applications for those sites were pending at the time of the enactment of the Act. We hold that the provisions of the Sawtooth National Recreation Area Act expressly preclude the issuance of any patents on protected land after the date of the Act's passage. We further hold that a patent right does not vest upon the submission of a patent application if the Secretary of the Interior contests the validity of the patent application and thus delays its issuance.

I

BACKGROUND

This case involves the patenting of mining claims and mill sites under the General Mining Law of 1872, 30 U.S.C. 21 et seq. Under the provisions of the Mining Act, an individual may enter and explore land in the public domain in search of valuable mineral deposits. After minerals are discovered, the claimant may file a "mining claim" with the Bureau of Land Management (BLM), which if approved, entitles the claimant to the right of exclusive possession of that claim, as long as the requirements of the Mining Act are met. Although ownership of a mining claim does not confer fee title to the claimant, the claimant does have the right to extract all minerals from the claim without paying royalties to the United States. In addition, a claimant may file a claim for a "mill site," which is "nonmineral land . . . [which] is used or occupied by the proprietor . . . for mining or milling purposes." 30 U.S.C. § 42(a). A mill site is a tract of land, not to exceed five acres, on which can be placed processing facilities and other structures used to support the extraction of minerals from the claim. A claimant must follow essentially the same process to obtain a mill site as a mining claim.

An individual who possesses a valid mining claim may go through an additional process to obtain a patent, "thereby purchasing from the Federal Government the land and minerals and obtaining ultimate title to them. Patenting, however, is not required, and an unpatented mining claim remains a fully recognized possessory interest." United States v. Locke, 471 U.S. 84, 86, 85 L. Ed. 2d 64, 105 S. Ct. 1785 (1985); 30 U.S.C. § 29. A patented mining claim is one in which the government has passed its title to the claimant, giving him exclusive title to the locatable minerals, and, in most cases, the surface and all resources. At any time prior to the issuance of a patent, the government may challenge the validity of the mining claim and, if successful, the claim will be cancelled with all rights forfeited. Mill sites may also be patented. 30 U.S.C. § 42(a).

In the early 1960's, appellant Elmer Swanson purchased from a silver mining company several patented mining claims, a number of unpatented claims, and a corresponding number of mill sites all located within the state of Idaho. These claims and sites lie within the Challis National Forest, in what is now the Sawtooth National Recreation Area. On April 21, 1967, Swanson applied for patents for the unpatented claims and mill sites. Following the filing of the application for patents, the BLM lodged complaints in 1968 and 1971 contesting the validity of the mill site claims. The BLM maintained the requested mill sites were not being used for mining and milling purposes and that the sites were not laid out in as reasonable and regular a form as practicable.

The Administrative Law Judge (ALJ) hearing the complaint in July 1972 invalidated the unpatented mining claims, but generally sustained the validity of the mill sites. On appeal, the Interior Board of Land Appeals (IBLA)*fn1 affirmed the invalidation of the claims, but reversed the ALJ and concluded the mill sites did occupy more land than was necessary. Before rendering a final decision, the IBLA requested that both sides submit amended mill site plans to conform to the necessary land requirements. Swanson refused to amend the sites, however, and the IBLA adopted the United States Forest Service's recommendations and greatly reduced the size of seven of the mill sites on January 16, 1974. Although this case initially involved both mining claims and mill sites, the only issue before this court is the patentability of these seven mill sites.*fn2

Swanson appealed the IBLA's decision to the district court. On June 3, 1982, the court reversed the IBLA's invalidation of four of the seven mill sites, because it concluded the IBLA did not take into account all necessary uses of the mill site locations when it determined the reasonable size necessary for those sites. The court did uphold the partial invalidation of three of the other mill sites. The IBLA reconsidered its assessment and, on July 14, 1986, determined two of the four remanded claims were invalid. Swanson again appealed to the district court, but before a decision was rendered, the parties reached a settlement agreement on April 4, 1991. The agreement settled a number of the other disputed mining claims between the parties in addition to the mill site claims at issue. In the portion of the settlement relevant to this appeal, Swanson agreed to reduce in size by seventy five feet each of the seven mill site locations at issue in this appeal.

This amaranthine litigation would have mercifully concluded with that settlement agreement were it not for an intervening Act of Congress. On August 22, 1972, Congress enacted the Sawtooth National Recreation Area Act (SNRA), 16 U.S.C. §§ 460aa et seq., which expressly terminated the ability of individuals to establish mining claims and mill sites, and also terminated the ability of existing claimholders to proceed to patent upon claims already located in the Recreation Area. 16 U.S.C. §§ 460aa-9, 460aa-11. Swanson's claims are included entirely within the boundaries of the Recreation Area.

Because Swanson had applied for but had not been issued his patents before the enactment of the SNRA, the district court in 1982 upheld the IBLA's 1974 denial of his patent, stating:

It appears evident that the purpose of [the provisions of the SNRA] was meant to prevent any further patenting of land within the Sawtooth National Recreation Area. The Board's interpretation of the statute establishing the Sawtooth National Recreation Area appears to be well considered and proper. The Court will not reconsider the Board's holding. While the plaintiffs [sic] may well have filed for a patent on his claims before the statute establishing the Sawtooth National Recreation Area was passed, he had not completed the process ...


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