CHAPTER 3 ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE THE IBLA - CASES AND RECENT DEVELOPMENTS

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 3
ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE THE IBLA - CASES AND RECENT DEVELOPMENTS
David L. Hughes
Administrative Judge
Interior Board of Land Appeals
Arlington, Virginia

David Hughes has served as an administrative judge on the Interior Board of Land Appeals since June 1988. Prior to his appointment, he served the Board in various roles as Chief Counsel, Docket Attorney, and Staff Attorney.

He has taught courses in administrative law at the Bureau of Land Management's National Training Center and at BLM offices all over the country, as well as at the American University in Washington, D.C.

He received his B.A. in English in 1969 from Lehigh University in Bethlehem, Pennsylvania, and his J.D. in 1975 from Georgetown University in Washington, D.C. He served in the U.S. Army from 1969 to 1972.

He is a member of the bars of the Commonwealth of Virginia and the District of Columbia.

NOTE: The opinions expressed in this article are those of Judge Hughes and not necessarily those of the Interior Board of Land Appeals or the Department of the Interior.

Mining claims on split estate lands

The recent case dealing with this issue is Susan J. Kayler, 162 IBLA 245 (2004), decided on July 29, 2004, by Administrative Judge Hemmer, with Administrative Judge Hughes concurring. ¹ The case presents a classic conflict between the old west of open prospecting and the new west of real estate development, thrown in with the exercise of asserted individual miners' rights to use the surface of public lands for recreation.

Appellant Kayler succeeded to ownership of the surface estate in lands in Yavapai County, Arizona, that were originally patented pursuant to the Stock-Raising Homestead Act of 1916 (SRHA), 43 U.S.C. §§ 291 -301 (1970). ² BLM described her land as being used for a residence in a low density residential subdivision called Pleasant County Ranches. As is usual for SHRA patents, ownership of all minerals in the lands was reserved to the United States.

The Roadrunner Prospectors Club, Inc. (Roadrunner) is "a nonprofit Arizona Corporation consisting of a group of enthusiasts that participate in the operation of suction dredges, dry washers, sluice boxes and other hand methods for the recovery of free gold and other heavy metals." Roadrunners is organized and has rules and regulations specifying that its members "prospect and mine in accordance with the approved plan of operation" on mining claims located under the mining laws of the United States. On September 17, 1993, Roadrunner located mining claims for the retained mineral interest on lands the surface estate of which was owned by Kayler. However, some or all of the surface owners were apparently unaware either that they owned split estates or that Roadrunner had located mining claims on the Federal mineral estate underlying their surface.

Roadrunner submitted an application for a mining plan of operations for its mining claims to the Phoenix, Arizona, Field Office, BLM on April 7, 1999. The plan of operations specifies that "on any given day" approximately ten of the club's mining enthusiast members may use a dry washer, a sluice box, a metal detector, and personal vehicles on the mining claims for an otherwise undescribed "operation." Roadrunner also listed the things which, it felt, it did not need to do and attached a list of surface owners, including Kayler. The mining plan itself provided no description or information regarding surface use by any of the listed surface owners. It stated simply: "In order to minimize disturbances to local surface owners, the hours of operation will be limited from 8 am to 6 pm MST." The plan provided no explanation of minerals to be mined, or production anticipated; thus, it was not clearly a prospecting plan or a mining plan. From the club's description of its purpose, the Board inferred that its members meant to prospect for and mine free gold and other heavy metals.

In August 1999, Roadrunner dropped its plan of operations for half of the claims, also dropping its reference to minimizing disturbances to local surface owners by conducting activities only during daytime hours. In August 1999, Roadrunner advised BLM that that it had attempted to contact the surface owners, and provided a sample letter. The letter advised the surface owners that Roadrunner intended to use the surface for club recreational uses and invited them to meet with them to discuss "the use of our claims that are on your property." Roadrunner stressed that it is not a commercial mining business, but a group of individuals interested in mining "on a recreational level" using "small equipment."

Whether BLM demanded any changes by Roadrunner to the mining plan is not reflected in the record; in any event, no changes were made. Instead, BLM proceeded to prepare an environmental assessment (EA) for a 10-year mining plan, identifying the surface owners. The EA did not identify any particular use of or improvement on the surface. In April 2000, BLM sent the EA and a finding of no significant impact (FONSI) to the surface owners (and to local real estate agent Tom Traw) for comment. Protests followed.

Kayler's protest raised various challenges to the authority of BLM to approve such mining operations and to the findings set forth in the EA. She also raised specific and explicit complaints about the uses Roadrunner's members had made on the surface estate including her land:

Unfortunately, due solely to the Roadrunners, we have not had peaceful enjoyment of our property for some time. In the recent past, the Roadrunners have come on the property without permission, refusing to leave until law enforcement was called. Several of their members have been armed with guns and have insisted that we leave our own property under threat of violence. (We have videotapes of these events.) They have chopped down trees for fuel, destroyed cacti, and used our land for their waste.

BLM proceeded, in July 2000, to establish bond and compensation costs. BLM established reclamation costs of $2,404, based on a ratio of consumer price indices for 2000 and 1998. BLM chose not to add additional costs for crop or income loss because it concluded that such loss was unlikely. BLM prepared a final EA and the FONSI on July 17, 2000. The EA identifies the purpose of the plan of operations as "mining," rather than prospecting. (EA at 1.) Roadrunner executed a $2,404 bond, which was accepted by BLM decision dated August 22, 2000. On September 8, 2000, BLM issued a decision approving the mining plan of operations, and it executed a Decision Record for the EA on September 13, 2000, approving the plan of operations.

Surface owner Kayler timely appealed. ³ Finding no evidence that BLM properly implemented the statutory provisions of the SHRA, as amended, 43 U.S.C. § 299(f) (2000), the Board reversed the decisions under appeal.

The Board's holding is well summed up in the following statement:

The 1993 amendments to the SRHA (Publ. L. No. 103-23, 107 Stat. 60, 65) articulate specific rights and obligations attending two competing interests in a split estate: the interests of the mineral estate owner and the surface owner. It is clear that the SRHA meant to ensure that the interests of the mineral estate owner be protected. The 1993 amendments made clear that, if all statutory provisions are met, the Secretary must permit mining under an approved mining plan of operations. Either the surface owner may agree, or the Secretary may agree to mining on its behalf. The amendments left in place the longstanding rule that the surface owner may not veto the right of the qualified miner to "enter" the lands for prospecting purposes or to "reenter and occupy so much of the surface * * * as may be required for all purposes reasonably incident to the mining or removal of the coal or other minerals." 43 U.S.C. § 299(a) (2000) (emphasis added). On the other hand, the amendments clarified that it is incumbent upon the miner, and the Secretary in approving mining, to ensure that the mining operations constitute an entry for prospecting or "purposes reasonably incident" to mining and removal, and that the impacts on surface uses be minimized. 43 U.S.C. § 299(a) and (f) (2000).

Publ. L. No. 103-23 thus reflects a statutory approach to the competing split estate interests that is distinct from the requirements imposed by the National Environmental Policy Act of 1969 (NEPA) and 43 CFR Subpart 3809. Quite simply, the mineral estate owner must be allowed to prospect and mine insofar as it is reasonably incident to obtaining the mineral. The SRHA patent retains the "right to prospect for, mine, and remove the same." 43 U.S.C. § 299(a) (2000); Patent 1006503 (Aug. 18, 1927); Patent 844668 (Jan. 23, 1922). At the same time, the right of the surface owner is protected to the extent that activities by the qualified miner exceed what is reasonably incident to obtaining the mineral.

Susan J. Kayler, 162 IBLA at 256.

The Board directly considered the protections that must be afforded the surface owner under the 1993 amendments, noting that they provide that a miner must prepare a mining plan of operations which "shall include procedures for * * * minimization of damages to crops and tangible improvements of the surface owner and * * * minimization of disruption to grazing or other uses of the land by the surface owner." 43 U.S.C. § 299(f) (2000). It concluded that, "as a bare procedural issue, BLM did not also require compliance with the SRHA, as amended," in that Roadrunner did not include such procedures in its plan of operations and BLM did not require them. The Board noted that the only evidence of any effort on Roadrunner's part to minimize disruption of surface use appears in the April 1999 plan of operations; this was deleted in the later August version. Nor did BLM distribute the mining plan of...