Donald Eno v. Sally Jewell , 798 F.3d 1245 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD E. ENO, No. 13-15166
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-01691-
KJM-JFM
SALLY JEWELL; U.S. DEPARTMENT
OF THE INTERIOR; INTERIOR BOARD
OF LAND APPEALS; U.S. FOREST OPINION
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
March 13, 2015—San Francisco, California
Filed August 27, 2015
Before: M. Margaret McKeown, Mary H. Murguia,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge McKeown
2 ENO V. JEWELL
SUMMARY*
Equal Access to Justice Act
The panel affirmed the district court’s order affirming the
Interior Board of Land Appeals’ denial of an application for
fees under the Equal Access to Justice Act.
EAJA entitles those who prevail on a legal claim against
the U.S. government to an award of fees and costs, but only
if they prevail in adversary adjudications; and specifically
excluded from this category are proceedings “for the purpose
of granting or renewing a license.”
The panel held that a hearing under the Mining Claims
Rights Restoration Act of 1955 did not fall within EAJA’s
definition of an adversary adjudication because such a
hearing was held for the purpose of granting a license.
COUNSEL
Steven J. Lechner (argued), Mountain States Legal
Foundation, Lakewood, Colorado, for Plaintiff-Appellant.
Robert G. Dreher, Acting Assistant Attorney General, Mark
R. Haag, Thekla Hansen-Young, James Maysonett (argued),
and Maggie B. Smith, United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C.; Edward Alan Olsen, Assistant United States Attorney,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ENO V. JEWELL 3
Sacramento, California; Joshua S. Rider and Andrew R.
Varcoe, United States Department of Agriculture,
Washington, D.C.; and Kendra Nitta, United States
Department of the Interior, Washington, D.C., for
Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
The Equal Access to Justice Act (“EAJA”) “departs from
the general rule that each party to a lawsuit pays his or her
own legal fees.” Scarborough v. Principi, 541 U.S. 401, 404
(2004). The EAJA entitles those who prevail on a legal claim
against the U.S. government to an award of fees and costs,
but only if they prevail in adversary adjudications.
Specifically excluded from this category are proceedings “for
the purpose of granting or renewing a license.” 5 U.S.C.
§ 504(b)(1)(C)(i).
Our question is whether a hearing under the relatively
obscure Mining Claims Rights Restoration Act of 1955 (the
“Mining Restoration Act”)1 falls within the EAJA’s definition
of an adversary adjudication. Because such a hearing is held
for the purpose of granting a license, we conclude that it does
not. We affirm the district court’s order affirming the Interior
Board of Land Appeals’ denial of the application for fees
under the EAJA.
1
Although the parties refer to the statute as “MCRRA,” we find this
acronym to be cumbersome and prefer a more descriptive designation.
4 ENO V. JEWELL
BACKGROUND
Donald Eno owns the Hound Dog placer mining claim,
which includes forty acres within the Plumas National Forest
in Plumas County, California. The Hound Dog claim
contains gold and travertine deposits, the latter giving the
area the nickname “Soda Rock.” Unlike lode mining claims,
in which miners blast or tunnel through solid rock, placer
mining claims generally comprise loose deposits of minerals
that are not fixed in rock but can be found in streams, gravel,
or sandy soil. Placer mining is the type popularized by
prospectors during the California Gold Rush. See 30 U.S.C.
§§ 23, 35; United States v. Iron Silver Mining Co., 128 U.S.
673, 678–80 (1888) (noting that deposits in placer claims
“may in most cases be collected by washing or amalgamation
without milling”); What is Placer Gold Mining?, National
Park Service (Aug. 3, 2015), http://www.nps.gov/yuch/learn/
historyculture/placer-mining.htm.
This appeal juxtaposes classic questions of administrative
law against the backdrop of the arcane mining laws that
govern the lands within the Hound Dog claim. A short
history of the federal mining law framework gives necessary
context.
The General Mining Law of 1872, as amended, grants
citizens a right to enter and explore unreserved federal lands
for mining: “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 . . . .”
30 U.S.C. § 22. “Location” of a mining claim is “the act or
series of acts whereby the boundaries of the claim are
marked.” Cole v. Ralph, 252 U.S. 286, 296 (1920); 30 U.S.C.
ENO V. JEWELL 5
§§ 28, 35. A person who locates a claim based on mineral
discovery has “exclusive right of possession and enjoyment
of all the surface included within the lines of their locations”
so long as certain statutory requirements are met. 30 U.S.C.
§ 26; Cole, 252 U.S. at 294–95.
The federal government has broad authority to withdraw
public lands from the operation of the General Mining Law.
See Swanson v. Babbitt, 3 F.3d 1348, 1352 (9th Cir. 1993).
Lands so withdrawn “are no longer considered to be within
the public domain and therefore are not subject to the
statutory rights enumerated in the General Mining Law.”
Kosanke v. U.S. Dep’t of the Interior, 144 F.3d 873, 874
(D.C. Cir. 1998) (citing Oklahoma v. Texas, 258 U.S. 574,
599–602 (1922); Pathfinder Mines Corp. v. Hodel, 811 F.2d
1288, 1291 (9th Cir. 1987)).
The Federal Power Act of 1920, 16 U.S.C. § 818,
withdrew all lands that were or would be “classified” or
“reserved” for power sites from entry or location under the
General Mining Law. See also 43 C.F.R. §§ 2300.0-5,
2320.1. A few decades later, after millions of acres had been
withdrawn under the Federal Power Act, Congress passed the
Mining Restoration Act, 30 U.S.C. §§ 621–625, which
reopened lands classified or reserved for power sites to “entry
for location and patent of mining claims and for mining.”
30 U.S.C. § 621(a); see also S. Rep. No. 84-1150 (1955),
reprinted in 1955 U.S.C.C.A.N. 3006. The Mining
Restoration Act set forth special provisions regarding placer
claims:
The locator of a placer claim under this
chapter, however, shall conduct no mining
operations for a period of sixty days after the
6 ENO V. JEWELL
filing of a notice of location . . . . If the
Secretary of the Interior, within sixty days
from the filing of the notice of location,
notifies the locator . . . of the Secretary’s
intention to hold a public hearing to determine
whether placer mining operations would
substantially interfere with other uses of the
land included within the placer claim, mining
operations on that claim shall be further
suspended until the Secretary has held the
hearing and has issued an appropriate order.
30 U.S.C. § 621(b). The Secretary’s order “shall provide for
one of the following: (1) a complete prohibition of placer
mining; (2) a permission to engage in placer mining upon the
condition that the locator shall, following placer operations,
restore the surface of the claim to the condition in which it
was immediately prior to those operations; or (3) a general
permission to engage in placer mining.” Id.Each of these legal developments has, at some point in
time, affected the status of the lands now included within the
Hound Dog claim. The lands were originally part of the
Delaware 3 placer mining claim, which was located in 1907
under the General Mining Law. In 1993, however, the
Delaware 3 claim was declared abandoned.
Gordon Burton and others located the Hound Dog claim
on August 15, 1996. The lands included in the claim had
been identified in 1927 as Power Site No. 179, and thus were
among those lands that had been withdrawn from mineral
entry under the Federal Power Act and opened again under
the Mining Restoration Act. The day after he located the
Hound Dog claim, Burton filed the notice of location as
ENO V. JEWELL 7
required by the Mining Restoration Act. 30 U.S.C. § 623.
On September 12, 1996, the Bureau of Land Management
notified him that the Secretary intended to hold a hearing
pursuant to 30 U.S.C. § 621(b), based on the U.S. Forest
Service’s objections to placer mining of the claim. Mining
operations were suspended pending the outcome of the
hearing.
In 1997, the U.S. Forest Service sought the withdrawal of
the lands within the Hound Dog claim from mineral entry to
protect the area’s geologic, historical, and cultural properties.
Notice of Proposed Withdrawal and Opportunity for Public
Meeting, 62 Fed. Reg. 48,668 (Sept. 16, 1997). After a
period of notice and comment, the Secretary withdrew the
area “from location and entry under the United States mining
laws” for 50 years, “[s]ubject to valid existing rights.” Public
Land Order No. 7406, 64 Fed. Reg. 47,515 (Aug. 31, 1999).
The order also stated that the area would remain open to
mineral leasing and that the order “does not alter the
applicability of those land laws governing the use of the
National Forest System land under lease, license, or permit,
or governing the disposal of their mineral or vegetative
resources other than under the mining laws.” Id. In 1998,
while this withdrawal was pending, Eno acquired the Hound
Dog claim from Burton and the others who had located it;
Eno then replaced his predecessors in the Mining Restoration
Act proceedings.
The hearing took place before an Administrative Law
Judge (“ALJ”) at the Department of Interior in June 2002.
The U.S. Forest Service argued that placer mining would
substantially interfere with cultural, geologic, historical, and
scenic values of the land, and that these factors outweighed
the economic worth of the land’s mineral reserves. Eno
8 ENO V. JEWELL
countered that the other uses were not substantial and that, in
any event, placer mining operations would not substantially
interfere with them. Eno won. The ALJ granted him general
permission to engage in placer mining. The Interior Board of
Land Appeals (“Board”) eventually affirmed the grant of
general permission to engage in placer mining, although it
departed from the ALJ’s reasoning and conclusions on
several issues.
Citing his success in securing general permission to mine,
Eno applied for an EAJA award of more than $180,000 in
attorneys’ fees and expenses. The EAJA provides for an
award of fees and costs in certain adjudications in which a
party prevails against the government. The case must be an
“adversary adjudication” under 5 U.S.C. § 504(a); the statute
excludes “an adjudication for the purpose of . . . granting or
renewing a license.” 5 U.S.C. § 504(b)(1)(C)(i).
An ALJ denied Eno’s application. In affirming, the
Board held that the Mining Restoration Act hearing was held
for the purpose of granting a license and, alternatively, that it
was not an adjudication “under” 5 U.S.C. § 554. Both
holdings led to the same conclusion: the EAJA does not apply
to this case. The Board did not address whether the
government’s position was substantially justified.
Eno challenged the ruling before the district court, which
affirmed the Board’s decision. The district court construed
the EAJA narrowly as a waiver of sovereign immunity and
reasoned that “any form of permission is a license”—
including the order granting Eno general permission to
engage in placer mining. The district court concluded that the
EAJA does not apply to the Mining Restoration Act hearing
because it was held for the purpose of granting a license.
ENO V. JEWELL 9
ANALYSIS
Eno’s case hinges on whether the Mining Restoration Act
hearing was an “adversary adjudication” that falls within the
EAJA. We review de novo this question of statutory
interpretation. W. Watersheds Project v. Interior Bd. of Land
Appeals, 624 F.3d 983, 986 (9th Cir. 2010).
Congress adopted the EAJA “to eliminate financial
disincentives for those who would defend against unjustified
governmental action and thereby to deter the unreasonable
exercise of Government authority.” Ardestani v. I.N.S., 502
U.S. 129, 138 (1991). The EAJA accomplishes this objective
by enabling a party that prevails in certain types of actions to
recover fees and expenses. Specifically, the EAJA provides
that “[a]n agency that conducts an adversary adjudication
shall award, to a prevailing party other than the United States,
fees and other expenses . . . unless the adjudicative officer of
the agency finds that the position of the agency was
substantially justified or that special circumstances make an
award unjust.” 5 U.S.C. § 504(a)(1).
Critical to this appeal, the EAJA defines “adversary
adjudication” as “an adjudication under section 554 [of the
Administrative Procedure Act (“APA”)] in which the position
of the United States is represented by counsel or otherwise,
but excludes an adjudication . . . for the purpose of granting
or renewing a license.” 5 U.S.C. § 504(b)(1)(C)(i). A
“license” is defined by the APA to “include[] the whole or a
part of an agency permit, certificate, approval, registration,
charter, membership, statutory exemption or other form of
permission.” 5 U.S.C. § 551(8). Like many circuits, we
interpret the term expansively based on our reading that “the
definition of license in the APA is extremely broad.” Air N.
10 ENO V. JEWELL
Am. v. Dep’t of Transp., 937 F.2d 1427, 1437 (9th Cir. 1991);
see also Horn Farms, Inc. v. Johanns, 397 F.3d 472, 478 (7th
Cir. 2005) (“Doubtless [5 U.S.C. § 558] should be read so
that it encompasses all situations in which federal approval is
required to undertake some act . . . .”); Atl. Richfield Co. v.
United States, 774 F.2d 1193, 1200 (D.C. Cir. 1985) (noting
that the definition of “license” is “broad”). For example, we
previously determined that an agency granted a license where
“the absence of agency approval prevented the purported
licensee from engaging in a specific activity.” Ursack, Inc.
v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 961
(9th Cir. 2011); see generally Black’s Law Dictionary (10th
ed. 2014) (defining “license” as “permission, usu. revocable,
to commit some act that would otherwise be unlawful”).
The essence of the order here is a general permission to
conduct placer mining operations, which falls squarely within
the APA’s broad definition of license. The order, as defined
by the statute, is a form of permission. See 30 U.S.C.
§ 621(b). Without the order, Eno had no right to engage in
placer mining within the Hound Dog claim. For this
particular category of lands, the Mining Restoration Act
subjects that right to the Secretary’s approval. To begin, the
Mining Restoration Act mandates that “[t]he owner of any
unpatented mining claim located on land [withdrawn or
reserved for power development or power sites] shall file for
record in the United States district land office of the land
district in which the claim is situated . . . within sixty days of
location . . . a copy of the notice of location of the claim.”
30 U.S.C. § 623. It then conditions the owner’s right to
proceed with placer mining operations on the receipt of the
permission of the Secretary—whether that permission is
granted explicitly (as by an order following a public hearing,
which occurred in this case) or implicitly (as by the
ENO V. JEWELL 11
Secretary’s failure to set a public hearing and expiration of
the sixty-day waiting period). See 30 U.S.C. § 621(b). Once
the Secretary gave notice in this case that a public hearing
would occur, Eno (and his predecessors) could not conduct
placer mining operations. The right to do so came only with
the Secretary’s order following the hearing.2 As the Board’s
order explicitly stated, it affirmed the “granting of general
permission to engage in placer mining.”
Eno’s primary argument presents us with a bit of a
chicken-or-the-egg quandary. We must consider what came
first: Eno’s right to conduct placer mining operations or the
hearing. Eno’s position is that the Mining Restoration Act
hearing was held for the purpose of extinguishing his
statutory right to mine—quite the opposite of granting him a
license. According to Eno, the right to mine accrued to his
predecessors-in-interest by operation of the General Mining
Law, 30 U.S.C. § 22, at the time the Hound Dog claim was
located. That right then vested in Eno upon his acquisition of
the claim. The government, predictably, disagrees.
The disagreement illuminates some peculiar aspects of the
statutory scheme created by the Mining Restoration Act. We
do not quarrel with Eno’s basic assertion that under the
General Mining Law, property interests accrue to one who
“locates, marks, and records his claim.” See Union Oil Co.
v. Smith, 249 U.S. 337, 348–49 (1919) (noting that such a
person has “an exclusive right of possession to the extent of
2
We observed as much in a prior appeal involving Eno and charges of
unauthorized removal of minerals from these lands. See United States v.
Hook, 38 F. App’x 447, 449 (9th Cir. 2002) (“[N]obody had a right to
conduct placer mining operations on the property to remove minerals . . .
not even Eno himself.”).
12 ENO V. JEWELL
his claim as located, with the right to extract the minerals,
even to exhaustion”); United States v. Shumway, 199 F.3d
1093, 1097 (9th Cir. 1999) (discussing the rights and interests
that accrue with each stage of patenting a mining claim under
the General Mining Law). Unfortunately for Eno, however,
the lands at issue were withdrawn from the General Mining
Law and thus fall under the Mining Restoration Act, which
sets forth its own framework. Under that framework, a
locator of a claim may not mine without permission from the
Secretary.
The Board is aware that needing to get permission puts
those who seek to mine on power sites in a difficult position.
In United States Forest Service v. Milender (“Milender II”),
95 Interior Dec. 155, 163 (IBLA 1988), it explained:
[A]ny prospective locator who files a notice
of location prior to completion of exploration
activities runs the risk that he may be unable
to show that the benefits accruing from placer
mining will, in fact, outweigh the detriments.
Most locators would be somewhat reluctant to
proceed with full exploration before locating
the claim since it might make them subject to
topfiling by another locator. But even if they
were protected by pedis possessio in
pre-location prospecting activities, they would
have no assurance that, should they ultimately
make a discovery, mining might nevertheless
be prohibited under 30 U.S.C. § 621(b)
(1982), because the Secretary deemed the
damaging effects of mining outweighed the
benefits of full-scale development.
ENO V. JEWELL 13
Thus, the prospective locator is faced with
the Hobson’s choice of either locating his
claim upon relatively meager showings and
running the risk that, should a hearing be held,
he will be unable to establish the benefits that
might flow from full-scale mining, or of
forgoing the location of the claim until
exploration is completed, thereby running the
risk that, even should he succeed in making a
discovery, it will count for nothing should
placer mining ultimately be prohibited.
Id. at 164–65. Eno, having purchased the Hound Dog claim
after it was located, walked into this scenario midstream. Of
course, we have the benefit of hindsight and know that Eno
avoided the unfortunate outcome forecast in Milender II:
Eno’s showing was sufficient and he won the right to conduct
placer mining operations. But when he acquired the claim,
his mining rights were not so fixed.
Our reasoning is unaffected by Collord v. U.S.
Department of the Interior, 154 F.3d 933, 935 (9th Cir.
1998), in which we held that the EAJA applies to proceedings
adjudicating the validity of mining claims. Due process
required those proceedings to be under § 554 of the APA
because the contest proceeding could result in the loss of the
claimant’s “fully recognized possessory interest” in the claim.
Id. At issue there was whether an existing claim possessed by
the plaintiff could be extinguished. Collord did not involve
the grant of a license; nothing in that case serves as an analog
to the Secretary’s order granting Eno general permission to
mine. Unlike in Collord, a Mining Restoration Act hearing
does not implicate the claimant’s possessory interest, but
rather only the ability to conduct certain activities. Once a
14 ENO V. JEWELL
hearing is noticed, the ability to conduct those operations
does not exist without an order from the Secretary. It follows
that a Mining Restoration Act hearing is held for the purpose
of granting a license.3
Finally, the fact that we strictly construe waivers of
sovereign immunity reinforces our conclusion that the Mining
Restoration Act hearing is not an adversary adjudication.
Because the EAJA makes the United States liable for
attorneys’ fees in certain circumstances, it constitutes a
waiver of immunity that “must be construed strictly in favor
of the sovereign, and not enlarge[d] . . . beyond what the
language requires.” Hardisty v. Astrue, 592 F.3d 1072, 1077
(9th Cir. 2010) (alterations in original) (quoting Ruckelshaus
v. Sierra Club, 463 U.S. 680, 685–86 (1983)). We would run
afoul of this canon of construction if we broadened the
availability of attorneys’ fees to Eno’s Mining Restoration
Act hearing and others like it, without an unambiguous
mandate to do so from the EAJA.4
AFFIRMED.
3
Eno points to another provision of the Mining Restoration Act
mentioning “licensees” and argues that the order in this case could not be
a license, but this does not change our analysis. See 30 U.S.C. § 622(providing that “the United States, its permittees and licensees shall not be
responsible” for loss of a mining claim unless the loss is caused by their
negligence). As the district court correctly explained, there can be more
than one type of “licensee,” and in interpreting the EAJA, we are
concerned here with the APA definition.
4
Because we conclude that the Mining Restoration Act hearing was held
for the purpose of granting a license, we need not consider whether it was
under § 554 of the APA.