[Federal Register Volume 63, Number 210 (Friday, October 30, 1998)]
[Notices]
[Pages 58411-58413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29146]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Notice of the Secretary's Decision to Assume Jurisdiction and
Review United States v. United Mining Corporation, and to Accept Briefs
From Interested Parties
AGENCY: Office of the Secretary, Interior.
ACTION: Notice.
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SUMMARY: Pursuant to a petition and a letter requesting Secretarial
review, the Secretary of the Interior has decided to exercise his
authority as set forth in 43 CFR 4.5 to review United States v. United
Mining Corporation (United Mining), 142 IBLA 339 (1998), a decision
that raises important mining law issues arising under the Building
Stone Act. Of particular importance in this matter is the meaning of
the phrase ``chiefly valuable'' in that statute.
In order to undertake his review, the Secretary will accept briefs
on the issues set forth in the Supplementary Information according to
the schedule and instructions in that portion of this Notice.
Pending conclusion of the Secretary's review of this matter, the
decision of the IBLA is stayed.
[[Page 58412]]
DATES: See Supplementary Information section for the Brief submission
schedule.
ADDRESSES: Briefs from interested parties should be submitted to the
Office of the Solicitor at the United States Department of the
Interior, 1849 C Street, NW., Mail Stop 6352, Washington, DC. 20240.
Briefs should be marked for the attention of Miriam Chapman, Attorney-
Advisor, Division of General Law, Office of the Solicitor.
FOR FURTHER INFORMATION CONTACT:
Karen Maloy Sprecher, Associate Solicitor-Division of General Law,
Office of the Solicitor, United States Department of the Interior, 1849
C Street, NW., Mail Stop 6530, Washington, DC. 20240; telephone 202-
208-4722. Before filing briefs, parties should contact Miriam Chapman,
Attorney-Adviser, Division of General Law, by telephone at 202-208-
5216, for information concerning service of process. Parties that have
already filed briefs and other documents will be contacted regarding
any additional service requirements.
SUPPLEMENTARY INFORMATION: In February 1992, United Mining Corporation
(United Mining) located 14 KB placer claims (placer claims) along
sections of the Big Wood River channel in Idaho and filed location
notices with the Bureau of Land Management (BLM). United Mining
proposed to remove Holystone boulders (large basalt boulders that have
been naturally water-sculpted over time) from the area.
In response to United Mining's demonstrated interest in the
Holystone boulders, BLM performed an environmental assessment of the
proposed removal. BLM's examiners determined that the Holystone
boulders in the Big Wood River area comprised a unique geological
resource and therefore recommended that the placer claims be
invalidated.
On March 8, 1993, United Mining submitted a notice advising the BLM
of its intent to conduct mining on the placer claims. BLM filed a
contest complaint (a complaint contesting United Mining's plan) on
March 11, 1993, which was assigned to Administrative Law Judge Ramon
Child, and BLM issued a March 17, 1993, decision prohibiting mining and
the removal of stone pending the outcome of the contest proceeding.
Judge Child conducted a hearing on April 4 and 5, 1994, in Idaho.
At the hearing, BLM argued that the Holystone boulders in the Big Wood
River area were a great natural wonder with unique geological
attributes. BLM also argued that the land in question was not chiefly
valuable for building stone, but for aesthetic purposes. Therefore, BLM
concluded, mining should not be permitted as the land does not fall
within the purview of the Building Stone Act, 30 U.S.C. 161 (1994)
(Building Stone Act), which provides, in pertinent part: ``any person
authorized to enter lands under the mining laws of the United States
may enter lands that are chiefly valuable for building stone under the
provisions of law in relation to placer mineral claims.''
United Mining moved to dismiss BLM's complaint and presented
evidence of the uncommon nature of the Holystone boulders, the
existence of Holystone boulders of a marketable quality at each claim
and the estimated prices for the Holystone boulders. United Mining
contended that their submission clearly demonstrated that the land was
chiefly valuable for building stone.
In a November 1, 1994, decision, Judge Child first concluded that
the Holystone boulders were building stone within the meaning of the
Building Stone Act, and that the placer claims were subject to that
Act. See 142 IBLA at 352. Since the Holystone boulders were building
stone, there would have to be a determination as to whether the land in
the Big Wood River area was ``chiefly valuable'' for building stone.
Having concluded the Building Stone Act applied, Judge Child proceeded
to consider whether the comparative value of the claimed land for
purposes other than mining (hereafter the comparative value test) was
relevant under the general mining laws. Noting that although the
Department had rejected the use of comparative value in recent
decisions, the Judge determined that early Department decisions,
Supreme Court decisions and Congressional Acts favored the application
of the comparative value test under the 1872 General Mining Law, 30
U.S.C. 22 (1994) (Mining Law). See 142 IBLA at 352. He further
concluded that for any mining claim to be valid, the land must be more
valuable for mining than for other purposes.
Judge Child compared the building stone with the aesthetic and
geological resources of the land in the Big Wood River area. He
rejected United Mining's contention that a lack of evidence of the
value of the land for aesthetic and geological purposes precluded a
finding that the land was more valuable for such purposes. Noting that
it was impossible to place a monetary value on irreplaceable geological
features, Judge Child concluded that the land was more valuable for
geological and aesthetic purposes and therefore not subject to mining
claims under the Building Stone Act. See 142 IBLA at 353.
United Mining appealed Judge Child's decision to the Interior Board
of Land Appeals (IBLA), arguing that the Building Stone Act did not
govern the placer claims. In its decision on appeal, a 6-4 majority of
the IBLA, including a concurring opinion, found the Holystone boulders
subject to the Building Stone Act. 142 IBLA 339 (1998). Finding that
the placer claims were properly located as building stone placer
claims, the IBLA found it unnecessary to revisit whether the
comparative value test applies to claims located under the Mining Law
and vacated that portion of Judge Child's decision. The IBLA then
proceeded to address what the drafters of the Building Stone Act
intended when employing the term ``chiefly valuable.'' The IBLA
determined that the term was used in the context of statutes designed
to dispose of public lands in a manner that ensured land was suitable
for an intended purpose, namely agriculture or mining. The IBLA relied
on Pacific Coast Marble Co. v. Northern Pacific R.R. Co., 25 Interior
Dec. 233, 244-45 (1897) (Pacific Coast), as representative of the
Department's view. Pacific Coast states in part:
That whatever is recognized as a mineral by the standard
authorities on the subject, whether metallic or other substance,
when the same is found on the public lands in quantity and quality
sufficient to render the land more valuable on account thereof than
for agricultural purposes, should be treated as coming within the
purview of the mining laws.
Applying the Pacific Coast standard, the IBLA found that ``[a]n
evaluation strictly on the basis of the land's `aesthetic' and
`geological' worth with no regard to its worth for agricultural
purposes does not comport with the intent of Congress when it enacted
the Building Stone Act, 30 USC 161 (1994), or with the Department's
clearly stated interpretation of that Act since that time.'' 142 IBLA
at 372. The IBLA then concluded that the term ``chiefly valuable''
contemplates a rational comparison of values, and the
measurement of those values must be quantifiable, using units of
measurement applicable to both sides of the equation. Accepting an
unquantifiable statement of value, such as a conclusion that the
land is `unique,' or `priceless,' or `irreplaceable,' for one use
and then demanding a value of the same land quantified in a dollar
amount for the other use would render any decision arbitrary.
Id. at 372-73. The IBLA held that Judge Child's ``chiefly
valuable'' analysis was erroneous because it
[[Page 58413]]
compared an unquantifiable statement of value (that the land was
``unique'' or ``priceless'' or ``irreplaceable'') for one use
(preservation of the land for public purposes) against a value of the
same land quantified in a dollar amount for the other use (building
stone) and reversed that portion of the Judge Child's decision. Id. at
373.
Four dissenting administrative judges noted that the language of
the Building Stone Act, which requires that lands be ``chiefly valuable
for building stone,'' does not preclude taking aesthetic and geological
values into account. 142 IBLA at 379-86. Moreover, in his dissent,
Administrative Judge Arness noted that the lead and concurring
opinions' assumption that the relevant inquiry is made under an
historical understanding that only agricultural and mineral values are
compared was incorrect, as nothing in the statute creates such a
limitation, nor has the Department promulgated regulations to such
effect. Further, Administrative Judge Arness wrote that instead of
making the comparisons required by the Building Stone Act, the majority
imposed a marketability test on the Department and shifted the burden
of persuasion from United Mining to the government. Finally,
Administrative Judge Arness noted that such an approach is inconsistent
with the Building Stone Act and prior Departmental practice. 142 IBLA
383-86.
On April 28, 1998, the Secretary of the Interior (Secretary)
received a Petition dated April 24, 1998, from the Committee for
Idaho's High Desert and the Connecting Point for Public Lands
(Intervenors), requesting that the Secretary render a final decision
overturning the IBLA and reinstating the findings of Judge Child.
Specifically, the Intervenors asked the Secretary to affirm Judge
Child's holding regarding the Mining Law, particularly his affirmation
of the comparative value test for mining claim validity. On May 11,
1998, the Secretary received a letter dated May 7, 1998, authored
jointly by representatives of American Rivers, the Mineral Policy
Center, the National Wildlife Federation and the Sierra Club. These
groups also requested the Secretary's affirmation of the comparative
value test. On June 8, 1998, the National Mining Association filed a
Motion For Leave to File an Amicus Curiae Brief with the Secretary.
Accompanying the motion were the National Mining Association's amicus
brief in opposition to the petition for secretarial review and copies
of two amicus briefs that had been filed by several amici in the United
Mining IBLA proceeding in support of United Mining. The motion and
brief were received on June 10, 1998. The National Mining Association
supports the IBLA decision. By letter dated June 10, 1998, the
Intervenors filed a reply brief.
Recognizing the importance of the issues raised by the IBLA
decision and the differences in the views of the members of the IBLA,
the Secretary has decided to review the IBLA decision pursuant to
regulations which provide:
The authority reserved to the Secretary includes, but is not
limited to:
* * * * *
(2) The authority to review any decision of any employee or
employees of the Department, including any administrative law judge
or board of the Office [of Hearings and Appeals], or to direct any
such employee or employees to reconsider a decision.
43 CFR 4.5 (Bracketed material added.)
To assist him in rendering a decision on this matter, the Secretary
will accept briefs from interested parties. Briefs should address the
following issues: (1) Whether the term ``chiefly valuable'' as used in
the Building Stone Act requires an assessment of comparative values and
whether those values could include values other them agricultural,
e.g., scenic, historic, recreational, and scientific; (2) whether the
Mining Law itself incorporates a requirement that there be an
assessment of comparative values; and (3) assuming issue (1) is
answered in the affirmative, whether the Building Stone Act was meant
to create a new comparative value standard only for building stone, or
whether Congress meant instead to confirm that comparative value was
part of the Mining Law; i.e., was inclusion of ``chiefly valuable'' in
the Building Stone Act meant to incorporate or confirm a pre-existing
rule under the Mining law, or create a new, different rule for building
stone? The Secretary's review of this issue will address the teachings
of other laws, if relevant, e.g., the Mineral Leasing Act, 30 U.S.C.
481, et seq. (1994).
In reviewing the matter, the Secretary will consider the petition
and letters seeking reversal of the IBLA decision, as well as other
briefs that already have been filed in support of the IBLA decision, as
opening briefs on this subject and will accept additional briefs
(including amicus briefs) in opposition to, and in favor of the
petition and letters, from interested parties.
Briefs must be submitted according to the following schedule:
1. Briefs opposed to the petition and letter seeking Secretarial
review (i.e., briefs in support of the IBLA decision) must be received
by December 4, 1998, and my not exceed 50 pages in length;
2. Response briefs by Petitioners (Intervenors) and others opposing
the IBLA decision must be received by January 22, 1999, and are limited
to a length of 25 pages; and
3. Reply briefs from opponents must be received by February 19,
1999, and are also subject to a 25-page limit.
All briefs must be double-spaced and use the times Roman font and
12-point type. No oral argument will be heard on these issues.
BLM, as a party in this matter, will be represented by the Division
of Mineral Resources of the Office of the Solicitor. In order to assure
that appropriate ethical standards are observed, all BLM participation
in this matter will be through the Division of Mineral Resources in
accordance with the provisions of this Notice.
Pending conclusion of the Secretary's review of this matter, the
decision of the IBLA is stayed.
Dated: October 22, 1998.
Edward B. Cohen.
Deputy Solicitor.
[FR Doc. 98-29146 Filed 10-29-98; 8:45 am]
BILLING CODE 4310-10-M
