Has the federal courts' successive undermining of the APA's presumption of reviewability turned the doctrine into fool's gold?

• Author: Olivers, Colin A.
• Position: Administrative Procedure Act

1. INTRODUCTION II. THE GENERAL MINING ACT OF 1872 A. Mining Under the General Mining Law of 1872 B. Abuses of the Mining Law III. AVAILABILITY OF JUDICIAL REVIEW FOR THIRD PARTIES UNDER THE MINING LAW A. The APA and Preclusion of Judicial Review 1. Preclusion of Judicial Review Prior to Passage of the APA 2. Preclusion of Judicial Review after Passage of the APA 3. Weakening of the Presumption in Favor of Judicial Review 4. Block v. Community Nutrition Institute and Onward B. An Examination of Preclusion of Judicial Review in High Country Citizens Alliance v. Clarke 1. The Court's Treatment of the APA 2. The Court's Application of the Block Factors a. Import of Legislative and Judicial History b. Contemporaneous Judicial Construction and Congressional Acquiescence c. Statutory Scheme as a Whole IV. CONCLUSION I. INTRODUCTION

   In 1992, a private mining company applied for a mining patent (fee title) to 174 acres located in the Gunnison National Forest, atop Mount Emmons directly outside the Town of Crested Butte, Colorado. (1) Facing the prospect of losing access to a popular feature of the town's important tourist economy (2) and the threat of environmental harms that result from hardrock mining, (3) the Town of Crested Butte, Gunnison County, and the High Country Citizens' Alliance (plaintiffs) filed protests with the Bureau of Land Management (BLM). These protests asserted that the mining company had not made a "'discovery of a valuable mineral deposit'" (4) as required by the General Mining Act of 1872 (Mining Law). (5) Under the Mining Law, the requirement that a claim contain a valuable mineral deposit is paramount to a miner's property interest in the land and thus the ability to obtain a patent to the land. The existence of a valuable mineral deposit is dependent on a finding by the Secretary of Interior that the mineral deposit will meet the "marketability test," which "requires the miner to show that the deposit can be extracted, removed, and, marketed at a profit," (6) such that a prudent person would be induced to proceed. (7) Despite the mining company's concession of the "'undisputed fact that development of a molybdenum mine at Mt. Emmons is not feasible due to a chronic and world-wide oversupply of molybdenum that has persisted since the early 1980s,'" (8) the Secretary of the Interior denied the citizens' protest, and granted a patent for 155 of the 174 acres. (9) In exchange for the ownership of 155 acres of the public lands, the mining company paid a token sum of $875 (10)--all that is required by the Mining Law. (11)

   Unhappy with the Secretary of the Interior's decision to deny the administrative protest and proceed with the patent, the plaintiffs sought redress from the federal courts. Utilizing the broad provisions for judicial review provided by the Administrative Procedure Act (APA), (12) the plaintiffs sued the federal government, challenging its decision that a valuable mineral deposit was present within the mining company's claim. (13) In response, the defendants (the federal government, the private mining company, and its parent company) brought motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), asserting that the court lacked subject matter jurisdiction. (14) The district court granted the defendants' motion on the ground that the Mining Law impliedly precluded requests for judicial review of administrative actions when brought by third parties. (15) From this judgment, the plaintiffs appealed to the Tenth Circuit Court of Appeals, which affirmed the district court's rifling. (16) The Tenth Circuit held that "[d]espite the presumption of reviewability, it is fairly discernable here ... that Congress, when it enacted the 1872 Mining Law, intended to preclude judicial review to third parties claiming no property interest in the patented land and to date has not chosen to change this approach." (17)

   The purpose of this Comment is to understand the basis for the Tenth Circuit's decision and to analyze whether the court's rifling ultimately was correct. Part II will provide background on the structure, procedure, and effect of the Mining Law. Part III will explain the federal courts' continued weakening of the APA's presumption in favor of judicial review, culminating in an analysis of the Tenth Circuit's holding in High Country Citizens Alliance v. Clarke (High Country Alliance). (18) Part IV concludes with a consideration of the practical effects of excluding third party review of administrative action in the context of the Mining Law and argues that the federal courts should reinforce the APA's presumption of reviewability of agency action.

2. THE GENERAL MINING ACT OF 1872

   With the passage of the General Mining Act of 1872 (Mining Law), Congress declared that "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase...." (19) At the time, "[t]he Mining Law was part of [a] larger set of land disposal statutes and it was intended to (and did in fact) encourage settlement and economic activity in the American West." (20) The fact that the Mining Law has survived for over 130 years with only minor statutory modifications is therefore surprising. One explanation for the Mining Law's survival might be the "combination of inertia and special interest lobbying." (21) Another explanation might be that "the Mining Law is an institutional response to the incentive problems of public ownership of resources and an effective, evolved mechanism for solving the problem of determining how to use those resources." (22) However the Mining Law is viewed--as "'one of the last remaining American dinosaurs of the old public resource giveaways'" (23) or as providing a necessary incentive for exploration of mineral reserves (24)--it remains an important aspect of public lands management to this day. The combination of unpatented and patented mining claims blanketing the Western States often leads to a patchwork system of privately owned, state owned, and federally owned lands, (25) often leading to land management problems. (26)

   1. Mining Under the General Mining Law of 1872

      The Mining Law is streamlined to get minerals out of the ground for more useful proposes. As mentioned above, the Mining Law opened most of the federal lands to mineral prospecting. (27) On lands open to mining, it is the right of a miner to enter the public land and search for valuable deposits of minerals without notification to, or consent from, the federal government. (28) Once a miner enters the land, a right of perils possessio (29) is obtained, and this right protects the miner from the prospecting of other miners and allows space to work without others infringing upon the claim. (30) The right of perils possessio gives the miner the right to stake his claim to the land, but the miner acquires no property interest in the land. (31) Only upon finding a valuable mineral deposit is the miner's claim converted to an unpatented mining claim--a recognized real property right. (32)

      Upon finding a valuable mineral deposit the miner obtains "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations," (33) and all the minerals found therein "throughout their entire depth." (34) The miner's property interest 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 ... subject to be sold, transferred, mortgaged, taxed, and inherited without infringing any right or title of the United States." (35) The exclusive right to the possession and enjoyment of the land can continue on indefinitely, (36) or, after completing $500 of development work, the miner can chose to apply for a patent to the land and obtain fee title for a nominal sum. (37)

      To obtain a patent the miner/claimant must apply to the local land office. The application must certify that a discovery has been made, (38) specify the boundaries of such claim, and show by affidavit that notice of such application has been posted upon the claim. (39) Upon receipt of a patent application the land office is charged with publishing notice of such application for sixty days. (40) At the same time, the claimant must specify that the required work has been completed, and upon expiration of the sixty days shall affirm that notice has been posted at the claim site throughout. (41) A survey is then conducted and if the government verifies that a discovery of a valuable mineral deposit has been made it issues a patent to both the surface and mineral estates. (42)

      Although a major focus of the Mining Law is passing title to the miner, the Mining Law provides for participation by third parties and competing claimants. The federal regulations implementing the Mining Law provide that

      [A]t any time prior to the issuance of patent, protest may be fried against the patenting of the claim as applied for, upon any ground tending to show that the applicant has failed to comply with the law in any matter essential to a valid entry under the patent proceedings. (43) This administrative protest may be filed by any party. Further, adverse claimants are allowed to file adverse claims with the land office, within the sixty-day publication period, and such adverse claim will stay the proceeding so that a court of competent jurisdiction may consider the validity of the adverse claim. (44) The Mining Law does not, however, expressly provide that third parties have the right to bring claims before courts of competent jurisdiction.

   2. Abuses of the Mining Law

      Although the policy of the Mining Law is to open the lands of the federal government to "exploration and purchase," (45) it is important to note that this principle of free access does not open all lands of mineral character, because this would...