John McKown, IV v. United States , 613 F. App'x 656 ( 2015 )

FILED
NOT FOR PUBLICATION
AUG 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. MCKOWN, IV, No. 13-16099
Plaintiff - Appellant, D.C. No. 1:09-cv-00810-SKO
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Submitted July 8, 2015**
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
John H. McKown IV appeals the finding by the Interior Board of Land
Appeals (IBLA) that three unpatented mining claims, White Cap Nos. 1, 2, and 3,
to which he asserts an interest, are invalid for lack of discovery of a valuable
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
mining deposit. The district court affirmed the IBLA’s decision on these
Administrative Procedure Act (APA) claims. McKown also brought four separate,
non-APA claims in district court, which were dismissed with prejudice; McKown
argues that these claims should be dismissed without prejudice in the event the
APA claims are valid. We have jurisdiction under 28 U.S.C. 1291, and we affirm.
“In reviewing decisions of the IBLA, this court exercises a limited standard
of review.” Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir. 1999). Under this
standard, an agency’s factual conclusions should be supported by “substantial
evidence,” which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (internal citations omitted). If the IBLA’s
decision “considered the relevant factors and articulated a rational connection
between the facts found and the choice made,” then the decision must be affirmed.
Pac. Coast Fed’n of Fishermen’s Ass’ns. v. Blank, 693 F.3d 1084, 1091 (9th Cir.
2012).
Where a mining claim is located on land withdrawn from mineral entry
under the Wilderness Act, the claimant must prove discovery of a valuable mineral
deposit at the time of a withdrawal, see Wilderness Soc’y v. Dombeck, 168 F.3d
367, 375 (9th Cir. 1999), and at the time of the contest hearing, see Hjelvik, 198
F.3d at 1074. “[T]o qualify as valuable mineral deposits, the discovered deposits
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must be of such a character 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.” United States v. Coleman, 390 U.S. 599,
602 (1968) (internal quotation marks omitted). The government’s evidence
demonstrated “that there were no exposed minerals on White Cap Nos. 2-3 and that
the cost to mine the exposed quartz outcrop on White Cap No. 1 would exceed the
resale value of the silicon produced from the quartz, both when Congress removed
the land from mineral entry in 1994 and at the time of the hearing.” This evidence
is sufficient to support the IBLA's conclusion that none of McKown's claims
contained valuable mineral deposits. See Hjelvik, 198 F.3d at 1074.
Additionally, the legal description of the lands that Congress designated as
part of the Kiavah Wilderness, and the official map that Congress used to designate
the boundaries of the Kiavah Wilderness, provided substantial evidence for the
IBLA to find that McKown’s claims were included within the Kiavah Wilderness.
The IBLA also had substantial evidence to conclude that the Forest Service had
allowed McKown to use “motorized vehicles and contemporary equipment to
access the claims and to collect samples.”
Finally, substantial evidence supported the IBLA’s conclusion that the
Forest Service did not prevent McKown from taking core samples, as substantial
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evidence instead supports the conclusion that the lack of core samples was
McKown’s fault as he failed to file the necessary paperwork with the Forest
Service in order to drill and take core samples.
Lastly, the district court did not abuse its discretion by ordering McKown’s
non-APA claims dismissed with prejudice. On appeal, McKown makes clear that
he only seeks reinstatement of such claims if we reverse the district court’s ruling
on his APA claims. We affirmed the district court's dismissal of the APA claims,
and therefore affirm the district court's dismissal of McKown's complaint.
AFFIRMED
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