Earthworks v. U.S. Department of the Interior

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EARTHWORKS, et al., :
:
Plaintiffs, : Civil Action No.: 09-1972 (RC)
:
v. : Re Document Nos.: 114, 118, 126, 129
: 159
U.S. DEPARTMENT OF THE INTERIOR, :
et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION
A coalition of environmental groups (“Plaintiffs”) challenges two mining-related rules
issued by the Bureau of Land Management (“BLM”), part of the U.S. Department of the Interior
(“Interior”). Plaintiffs allege that the rules were not promulgated in compliance with various
statutory authorities, including the General Mining Law of 1872 (“The Mining Law”), 30 U.S.C.
§§ 22–47; the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701
et seq.; the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; and the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553, 701–06.
Currently pending before the Court are the parties’ cross-motions for summary judgment.
For the reasons below, the Court denies Plaintiffs’ motion and grants Defendants’ motions.
II. BACKGROUND
A. Statutory Background
1. The General Mining Law of 1872
The Mining Law allows citizens to explore unappropriated public lands and, without any
prior government permission or paying any royalties, stake (or “locate”) a mining claim. 30
U.S.C. § 22; United States v. Locke, 471 U.S. 84, 86 (1985). After discovering a valuable
mineral deposit and satisfying certain minimal procedures (including paying a location fee),
claimants obtain an “unpatented” mining claim and have the exclusive right to possess the land
for mining purposes. See 30 U.S.C. § 26; see also Best v. Humboldt Placer Mining Co., 371
U.S. 334, 336 (1963). Valid mining claims are “a unique form of property,” Best, 371 U.S. at
335, describable as “fully recognized possessory interest[s],” Locke, 471 U.S. at 86. But ultimate
title to the claimed land remains with the United States unless the mining claimant takes the
further step of filing for fee title, called a “patent.” See id.; Best, 371 U.S. at 336. Claimants can
obtain a patent by submitting an application to the Secretary of the Interior and complying with
further requirements, including paying a nominal per-acre fee. 30 U.S.C. § 29; Locke, 471 U.S.
at 86. 1 “Even without a patent, claimants can maintain their mining rights indefinitely so long as
they comply with federal, state, and local requirements.” Orion Rsrvs. Ltd. P’ship v. Salazar,
553 F.3d 697, 699 (D.C. Cir. 2009). These requirements include paying annual claim
maintenance fees. See 30 U.S.C. § 28f(a); 43 C.F.R. §§ 3834–3835.
1
Effective October 1, 1994, Congress imposed a moratorium on new patent applications,
and “[u] ntil the moratorium is lifted or otherwise expires, the BLM will not accept any new
patent applications.” Patents, Bureau of Land Mgmt., https://www.blm.gov/programs/energy-
and-minerals/mining-and-minerals/locatable-minerals/patents.
2
As implemented, the claim system tolerates a degree of uncertainty (or, at least, the
language used to describe the legal status of a claim is not always precise). Formally speaking, a
claim is valid against the United States only if there is a valuable mineral deposit within the
limits of the claim. See 30 U.S.C. § 23 (providing that “no location of a mining claim shall be
made until the discovery of the vein or lode within the limits of the claim located”); Best, 371
U.S. at 336 (unpatented mining claims are “valid against the United States if there has been a
discovery of mineral within the limits of the claim, if the lands are still mineral, and if other
statutory requirements have been met”). “If valid, it gives to the claimant certain exclusive
possessory rights . . . . But no right arises from an invalid claim of any kind.” Cameron v.
United States, 252 U.S. 450, 460 (1920) (emphases added); see also Cole v. Ralph, 252 U.S. 286,
296 (1920) (“Location is the act or series of acts whereby the boundaries of the claim are
marked . . . but it confers no right in the absence of discovery, both being essential to a valid
claim.”).
In practice, however, the BLM does not immediately confirm the validity of a claim but
instead treats it as presumptively valid. See W. Shoshone Def. Project, 160 IBLA 32, 56 (2003)
(“BLM generally does not determine the validity of the affected mining claims before approving
a plan of operations.” 2); see also 4 George Cameron Coggins & Robert L. Glicksman, Public
Natural Resources Law § 42:9 (2d ed. 2020) (reporting that “the Interior Department historically
has not challenged any but the most egregious claims”); Mark Squillace, The Enduring Vitality
of the General Mining Law of 1872, 18 Env’t. L. Rep. 10,261, 10,266 (1988) (noting that the
government “rarely considers the validity of an unpatented mining claim”). As a matter of both
2
Approval of a “plan of operations” is generally required “before beginning operations
greater than casual use,” 43 C.F.R. § 3809.11, though certain smaller-scale activities require only
a “notice of operations,” id. § 3809.21.
3
law and practice, validity proceedings are largely discretionary. See 43 C.F.R. § 4.451-1 (“The
Government may initiate contests for any cause affecting the legality or validity of any entry or
settlement or mining claim.” (emphasis added)); see also Swanson v. Babbitt, 3 F.3d 1348, 1350
(9th Cir. 1993) (“At any time prior to the issuance of a patent, the government may challenge the
validity of the mining claim and, if successful, the claim will be cancelled with all rights
forfeited.”). Validity examinations generally take place only when a claimant applies for a
patent, 3 see 43 C.F.R. § 3862.1-1(a); seeks to conduct operations on lands that have since been
withdrawn from the public domain, 4 see id. §§ 3809.11, 3809.100; engages in obvious abuse
amounting to trespass, see, e.g., United States v. Goldfield Deep Mines Co. of Nev., 644 F.2d
1307, 1308 & n.2 (9th Cir. 1981) (government challenged claim after operator cut trees, dug
roads, and used heavy equipment, all while implausibly maintaining that platinum and other
valuable minerals could be extracted using “secret methods”); or operates on land in which the
government has an interest, see, e.g., Ickes v. Underwood, 141 F.2d 546, 546 (D.C. Cir. 1944)
(government challenged claim as part of effort to secure land for construction of Grand Coulee
Dam).
3
Of course, in light of the current congressional moratorium, these kinds of claim
investigations no longer occur. But even when patenting was available, relatively few patent
applications were actually filed. See Squillace, supra, at 10,266 (“The reason for this dearth of
patent applications is uncertain, but it probably stems in substantial part from a healthy fear on
the part of claimants that the government . . . will strictly scrutinize any claim for which a patent
is sought. The patent applicant may thus wind up with a legal declaration that his claim is
invalid rather than gain fee title to the land.”).
4
Land can be withdrawn—that is, reserved for nonmining purposes—in various ways.
For example, the Secretary of the Interior can withdraw land under the FLPMA, see 43 U.S.C.
§ 1714, and the President can do so via a proclamation under the Antiquities Act, see 54 U.S.C.
§ 320301. “Where the Government subsequently withdraws the land from mineral entry and
location, permission to prospect is thereby revoked and only claims then supported by a
discovery are protected from the withdrawal.” United States v. Boucher, 147 IBLA 236, 243
(1999) (quoting United States v. Niece, 77 IBLA 205, 207 (1983)).
4
Facing such a challenge, a claimant has certain procedural rights. See Cameron, 252 U.S.
at 460 (noting that the government “has no power to strike down any claim arbitrarily, but so
long as the legal title remains in the government it does have power, after proper notice and upon
adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it
null and void”). Additionally, a claimant may have rights against rival claimants prior to
discovery under the old mining doctrine of pedis possessio. See Union Oil Co. of Cal. v. Smith,
249 U.S. 337, 346–47 (1919) (explaining that “a miner may hold the place in which he may be
working against all others having no better right, and while he remains in possession, diligently
working towards discovery is entitled—at least for a reasonable time—to be protected against
forcible, fraudulent, and clandestine intrusions upon his possession”); 5 Nancy Saint-Paul,
West’s Federal Administrative Practice § 5856 (2020) (“Even before discovering a valuable
mineral deposit on federal lands, a prospector can acquire a species of inchoate property right
under the mining law doctrine of pedis possessio, meaning ‘foot possession’ or actual
possession.”). But ultimately, “[p]rior to validity proceedings, unpatented claims amount to a
potential property interest, since it is the discovery of a valuable mineral deposit and satisfaction
of statutory and regulatory requirements that bestows possessory rights.” Freeman v. U.S. Dep’t
of Interior, 83 F. Supp. 3d 173, 178 n.6 (D.D.C. 2015), aff’d, 650 F. App’x 6 (D.C. Cir. 2016)
(per curiam); see also Foster v. Seaton, 271 F.2d 836, 838 (D.C. Cir. 1959) (per curiam) (“One
who has located a claim upon the public domain has, prior to the discovery of valuable minerals,
only ‘taken the initial steps in seeking a gratuity from the Government.’” (quoting Ickes, 141
F.2d at 549)).
The Mining Law also allows the location and patent of lands for a “mill site.” 30 U.S.C.
§ 42(a). These sites must be located on nonmineral lands and cannot be contiguous to a mine or
5
lode, but they can be used for mining or milling activities in connection with a claim (such as
milling, chemical processing, and waste dumping). Id.; see also 43 C.F.R. § 3832.31 (noting that
a mill site can be used “for activities reasonably incident to mineral development on, or
production from, the unpatented or patented lode or placer claim with which it is associated”).
No mill site location “shall exceed five acres.” 30 U.S.C. § 42(a).
2. The Federal Land Policy and Management Act
In 1976, after a “broad[] inquiry into the proper management of the public lands in the
modern era,” Congress passed the FLPMA. Locke, 471 U.S. at 87; see also Rocky Mountain Oil
& Gas Ass’n v. Watt, 696 F.2d 734, 738 (10th Cir. 1982) (noting that “[t]he national policy
declared in the FLPMA stands in marked contrast to the many older public land statutes that
provided for the wholesale disposition of the public lands”). The FLPMA supersedes or
supplements the Mining Law in certain ways. For example, it requires the Secretary, “[i]n
managing the public lands,” to “take any action necessary to prevent unnecessary or undue
degradation,” 43 U.S.C. § 1732(b), and encourages the “harmonious and coordinated
management of the various resources without permanent impairment of the productivity of the
land and the quality of the environment,” id. § 1702(c). As relevant here, it also “declares that it
is the policy of the United States that . . . the United States receive fair market value of the use of
the public lands and their resources unless otherwise provided for by statute.” Id. § 1701(a)(9).
3. National Environmental Policy Act
NEPA represents “a broad national commitment to protecting and promoting
environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989)
(citing 42 U.S.C. § 4331). Among other things, it requires any federal agency proposing a
“major Federal action[] significantly affecting the quality of the human environment” to prepare
6
“a detailed statement”—commonly referred to as an Environmental Impact Statement (“EIS”)—
that analyzes the potential impacts of the proposed action and possible alternatives. 42 U.S.C.
§ 4332(C). Sometimes, it is not clear whether a given agency action requires an EIS. In these
circumstances (that is, “if the agency’s proposed action neither is categorically excluded from the
requirement to produce an EIS nor would clearly require the production of an EIS”), an agency
can prepare “a more limited document, an Environmental Assessment.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 757 (2004). If, after completing an Environmental Assessment (“EA”), an
agency concludes that a full-blown EIS is not necessary, it must issue a “finding of no significant
impact,” which, as the name implies, “briefly presents the reasons why the proposed agency
action will not have a significant impact on the human environment.” Id. at 757–58.
4. APA’s Notice-and-Comment Procedures
The APA, which applies to all federal agencies, provides the general procedures for
agency rulemaking. For so-called “notice-and-comment” rulemaking, the APA requires that an
agency publish notice of a proposed rule, 5 U.S.C.§ 553(b), and give the public adequate
“opportunity to participate in the rule making” through written comments and other submissions.
Id. § 553(c). Once the comment period has closed, the APA directs the agency to consider the
“relevant matter presented” and incorporate into the adopted rule a “concise general statement”
of its “basis and purpose.” Id. “Given the strictures of notice-and-comment rulemaking, an
agency’s proposed rule and its final rule may differ only insofar as the latter is a ‘logical
outgrowth’ of the former.” Env’t Integrity Project v. E.P.A., 425 F.3d 992, 996 (D.C. Cir. 2005).
In other words, an agency cannot “pull a surprise switcheroo” and adopt a final rule that differs
in an unforeseeable way from the proposed one. Id.
7
 B. Case Background
1. Parties
Plaintiffs in the case are five environmental interest organizations: Earthworks, High
Country Citizens’ Alliance, Great Basin Resource Watch, Save the Scenic Santa Ritas, and the
Western Shoshone Defense Project. Compl. ¶ 1, ECF No. 1. Essentially, they ask the Court to
enjoin and declare invalid portions of two rules issued by the BLM and Interior. Id. ¶¶ 1, 3.
They name the Department of Agriculture and United States Forest Service as additional
defendants (along with BLM and Interior, “Federal Defendants”), seeking to enjoin those
agencies’ “adoption of, and reliance upon,” the allegedly invalid portions of the two rules. Id.
¶ 4. After the case was filed, additional parties successfully moved to intervene as defendants:
the State of Alaska, see Order Granting Mot. to Intervene, ECF No. 42, and various mining
companies and associations (“the Mining Defendants”), see Orders Granting Mots. to Intervene,
ECF Nos. 22, 41. 5
2. Challenged rules
a. The 2008 Rule
One of the rules at issue is an Interim Final Rule entitled “Mining Claims Under the
General Mining Laws,” 73 Fed. Reg. 73,789-02 (Dec. 4, 2008) [hereinafter 2008 Mining Claim
Rule or 2008 Rule]. The BLM and Interior promulgated the 2008 Rule in direct response to the
court’s decision in Mineral Policy Center v. Norton (MPC), 292 F. Supp. 2d 30 (D.D.C. 2003). 6
5
The Mining Defendants are: Barrick North America Holding Corporation, ABX
Financeco Inc., the National Mining Association, Round Mountain Gold Corporation, Northwest
Mining Association, and the Alaska Miners Association, Inc.
6
Incidentally, two of the plaintiffs here were also plaintiffs in MPC. Compl. ¶ 74.
8
In MPC, the plaintiffs challenged an earlier generation of BLM regulations governing
mining claims, alleging that they violated the FLPMA and NEPA. MPC, 292 F. Supp. 2d at 40–
41. As relevant here, the plaintiffs argued that the regulations failed to implement the FLPMA’s
mandate that the United States “receive fair market value” for the use of public lands “unless
otherwise provided for by statute.” Id. at 49 (quoting 43 U.S.C. § 1701(a)(9)). They recognized
that the Mining Law implicated section 1701(a)(9)’s “carve out” provision (the “unless otherwise
provided for by statute” language). See id. at 50. But the plaintiffs contended that “the Mining
Law does not vest operators on unclaimed or invalidly claimed land with legal rights against the
United States.” Id. Thus, they argued, “such persons are not affected by § 1701(a)(9)’s ‘carve
out’ provision, and are therefore subject to the general fair market value requirement.” Id.
Using language disputed in this case, Judge Kennedy agreed with the plaintiffs:
The court concludes that . . . if there is no valid claim and the claimant is doing
more than engaging in initial exploration activities on lands open to location, the
claimant’s activity is not explicitly protected by the Mining Law or FLPMA. Thus,
the activity does not fall within the carve-out provision set forth in § 1701(a)(9).
Id. As a result:
Operations neither conducted pursuant to valid mining claims nor
otherwise explicitly protected by FLPMA or the Mining Law (i.e., exploration
activities, ingress and egress, and limited utilization of mill sites) must be
evaluated in light of Congress’s expressed policy goal for the United States to
‘receive fair market value of the use of the public lands and their resources.’
Id. at 51 (quoting 43 U.S.C. § 1701(a)(9)). Judge Kennedy then remanded the regulations to
Interior so that it could “give[] proper effect” to this goal. Id.
In response, the BLM promulgated the 2008 Rule. The rule first explained that, after
seeking public comment, the BLM had concluded that “no mining operations amounting to more
than initial exploration activities occur on unclaimed Federal lands under the Mining Law.” 73
Fed. Reg. at 73,790. “Consequently,” the rule continued, “the BLM has determined that there is
9
no use of the surface of invalidly claimed or unclaimed lands for mining purposes, amounting to
more than initial exploration activities, for which BLM must consider charging fair market
value.” Id. The rule also stated that “[t]he court’s decision in Mineral Policy Center did not
address the use of lands on which mining claims of unknown validity exist.” Id. at 73,791
(alteration in original) (citation omitted). It acknowledged that “the BLM does not routinely
undertake validity examinations for all mining claims located under the Mining Law” and
mentioned the “budgetary and other practical reasons” why it does not do so. Id. And it
reasoned that this practice was consistent with the Mining Law and the FLPMA:
Because Congress authorizes mining claimants to locate mining claims under
the Mining Law and maintain them by making annual payments to the BLM while the
validity of the claims is unknown or undetermined, the BLM has concluded that it
may not apply FLPMA’s fair market value policy to approved mining operations that
occur on mining claims of unknown validity.
Id. at 73,791–92. Essentially, then, the agency took no concrete action in response to the court’s
order in MPC: it concluded that there were no operations conducted on unclaimed land or invalid
claims and thus no need to consider whether the United States was receiving fair market value
for those activities. It simply clarified that the only payments required were the annual claim
maintenance fees mandated by 30 U.S.C. § 28f(a), claim location fees, and service charges for
other mining claim transactions. 73 Fed. Reg. at 73,791.
b. The 2003 Rule
The second rule at issue is a Final Rule entitled “Locating, Recording, and Maintaining
Mining Claims or Sites,” 68 Fed. Reg. 61,046-01 (Oct. 24, 2003) [hereinafter 2003 Mill Site
Rule, 2003 Final Rule, or 2003 Rule]. Among the provisions promulgated by the 2003 Rule was
the specific regulation challenged here, 43 C.F.R. § 3832.32, which clarified the amount of land
that could be included in each mill site. As mentioned above, the Mining Law allows claimants
10
to locate and patent nonmineral lands called “mill sites” in connection with mining claims. 30
U.S.C. § 42(a). But there is a long-running debate on how much land can be claimed under this
provision. The relevant section of the statute explains only that “no location . . . shall exceed
five acres”; it does not specify how many separate locations can be claimed. Id.
In 1997, the Solicitor of the Department of the Interior issued an opinion clarifying that
an applicant can claim only up to five mill site acres per mining claim. See U.S. Dep’t of the
Interior, Off. of the Solicitor, M-36988, Limitations on Patenting Millsites Under the Mining
Law of 1872, at 2 (Nov. 7, 1997) [hereinafter 1997 Opinion]; see also 68 Fed. Reg. at 61,054. In
1999, Interior published a corresponding Proposed Rule that sought to limit the amount of mill
site acreage that could be located per claim and prevent claimants from subdividing their claims
to obtain rights to more mill sites. See Locating, Recording, and Maintaining Mining Claims or
Sites, 64 Fed. Reg. 47,023-01, 47,037 (Aug. 27, 1999) [hereinafter 1999 Proposed Rule]; see
also 68 Fed. Reg. at 61,054.
After a turnover in administrations, however, Interior changed course. A Deputy
Solicitor issued a new opinion expressing the view that (1) the 1997 Opinion’s interpretation was
inconsistent with the statutory text, which did not limit the number of mill sites that could be
located per mining claim; (2) the Supreme Court had interpreted similarly worded provisions in
the Mining Law as imposing no limit on the number of lode and placer claims a claimant could
locate and patent; (3) restricting the number of mill sites per mining claim was contrary to the
Mining Law’s goal of promoting mineral development; and (4) the 1997 Opinion departed from
Interior’s prior interpretation of the Mining Law, which had long treated the statute as limiting
the size of mill sites rather than the number of mill sites per mining claim. See U.S. Dep’t of the
Interior, Off. of the Solicitor, M-37010, Mill Site Location and Patenting Under the 1872 Mining
11
Law 2–4 (Oct. 7, 2003) [hereinafter 2003 Opinion]; see also 68 Fed. Reg. at 61,054. The 2003
Opinion also noted that, although the statute did not cap the number of mill sites per mining
claim, it did limit the acreage a claimant could use for mill site purposes to that which is “used or
occupied . . . for mining or milling purposes.” 2003 Opinion 4 (quoting 30 U.S.C. § 42). In
other words, Interior could curb “excessive mill sites by challenging the validity of mill sites that
claimants do not actually need for mining or milling purposes.” Id.
Shortly afterward, Interior published the 2003 Final Rule. It recounted the above history
and then announced that, “instead of changing the Department’s past prevalent practice and
interpretation of the mill site provision, BLM has decided to withdraw the proposed amendment
to the mill site regulations and continue its prevailing practice and interpretation that the
Department followed for a half century before the 1997 Opinion.” 68 Fed. Reg. at 61,054. The
resulting regulation clarified that a claimant was not limited to a single five-acre mill site (or two
or more mill sites so long as the aggregate was no larger than five acres) but instead “may locate
more than one mill site per mining claim” if no individual mill site was larger than five acres and
the total amount of acreage was “reasonably necessary to be used or occupied for efficient and
reasonably compact mining or milling operations.” 43 C.F.R. § 3832.32.
3. Claims and current posture
In their complaint, Plaintiffs alleged four claims: (1) the 2008 Mining Claim Rule and
related policies violate the Mining Law and the FLPMA by improperly restricting the application
of the FLMPA’s fair market valuation mandate, (2) the 2003 Mill Site Rule and related policies
violate the Mining Law by allowing excessive mill site acreage, (3) the 2003 Rule and the 2008
Rule violate NEPA by not adequately providing for review and public comment, and (4) the
2003 Mill Site Rule violates the notice-and-comment requirements of the APA by departing
12
radically from the 1999 Proposed Rule. See Compl. ¶¶ 151–64. Currently pending before the
Court are the parties’ cross-motions for summary judgment. 7 See Pls.’ Mot. for Summ. J. &
Mem. in Supp. (“Pls.’ MSJ”), ECF No. 114; Defs.’ Resp. to Pls.’ Mot. for Summ. J. & Cross-
Mot. for Summ. J. (“Gov’t’s XMSJ”), ECF No. 118; Mem. in Supp. of Intervenor-Defs.’ Cross-
Mot. for Summ. J. & in Opp’n to Pls.’ Mot. for Summ. J. (“Mining Defs.’ XMSJ”), ECF No.
124; Intervenor-Def. State of Alaska’s Resp. to Pls.’ Mot. for Summ. J. & Cross-Mot. for Summ.
J., ECF No. 126.
III. LEGAL STANDARD
A court must grant summary judgment when the pleadings and evidence show that “there
is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In cases involving review of agency action under the APA,
however, Rule 56 “does not apply because of the limited role of a court in reviewing the
administrative record.” Select Specialty Hosp.-Akron, LLC v. Sebelius, 820 F. Supp. 2d 13, 21
(D.D.C. 2011) (citations omitted). In this context, summary judgment instead “serves as a
mechanism for deciding, as a matter of law, whether the agency action is supported by the
administrative record and is otherwise consistent with the APA standard of review.” Id.
Under the APA, a court must “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or
“without observance of procedure required by law,” id. § 706(2)(D). That said, the scope of the
7
Shortly after the case was reassigned to the undersigned judge, Plaintiffs filed a request
for oral argument. See ECF No. 159. Because the Court can resolve the motion on the existing
record (which includes a transcript of the oral argument before the previously assigned judge),
that motion will be denied as a matter of the Court’s discretion. See Local Civ. R. 78.1.
13
court’s review is narrow, and a court must not “substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Indeed, an agency’s decision is presumed to be valid. See Am. Radio Relay League, Inc.
v. F.C.C., 617 F.2d 875, 879 (D.C. Cir. 1980).
When a plaintiff challenges an agency’s formal interpretation of a statute it is charged
with administering, the familiar two-step procedure of Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984) applies. First, the court must determine
“whether Congress has directly spoken to the precise question at issue.” Id. at 842. “If the intent
of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.” Id. at 842–43. But if the court
concludes that the statute is either silent or ambiguous, then it must proceed to the second step
and determine whether the agency’s interpretation is “based on a permissible construction of the
statute.” Id. at 843. In practice, “[t]he analysis of disputed agency action under Chevron Step
Two and arbitrary and capricious review is often the same.” Pharm. Rsch. & Mfrs. of Am. v.
F.T.C., 790 F.3d 198, 209 (D.C. Cir. 2015) (internal quotation marks and citation omitted); see
also Arent v. Shalala, 70 F.3d 610, 616 n.6 (D.C. Cir. 1995) (“[W]hether an agency action is
‘manifestly contrary to the statute’ is important both under Chevron and under State Farm.”
(quoting Chevron, 467 U.S. at 844)).
Finally, when plaintiffs challenge an agency rule in the abstract, rather than a particular
application of that rule, they face a “heavy burden.” Rust v. Sullivan, 500 U.S. 173, 183 (1991).
“To prevail in such a facial challenge, [a plaintiff] ‘must establish that no set of circumstances
exists under which the [regulation] would be valid.’” Reno v. Flores, 507 U.S. 292, 301 (1993)
(second alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
14
“That is true as to both . . . constitutional challenges and . . . statutory challenge[s].” Id.
(citations omitted); see also Sherley v. Sebelius, 644 F.3d 388, 397 (D.C. Cir. 2011). In other
words, “it is not enough for the plaintiff[] to show the [challenged regulations] could be applied
unlawfully.” Sherley, 644 F.3d at 397. 8
IV. ANALYSIS
A. Standing
Plaintiffs must establish constitutional and prudential standing for each claim they bring.
See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352–53 (2006). To establish constitutional
standing, plaintiffs must show (1) that they have suffered an “injury in fact” that is “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical”; (2) that the injury is
“fairly traceable to the challenged action of the defendant”; and (3) that it is “likely” rather than
just “speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up) (citations omitted). To establish prudential
standing, the interests plaintiffs seek to protect must fall within the “zone of interests to be
protected or regulated by the statute . . . in question.” Bennett v. Spear, 520 U.S. 154, 175
(1997). Under the zone-of-interests test, courts ask “whether this particular class of persons has
8
Using Salerno’s “no set of circumstances” test to evaluate a facial statutory challenge to
an agency regulation is arguably in tension with Chevron, and courts have struggled to reconcile
the standards. See Stuart Buck, Salerno vs. Chevron: What to do About Statutory Challenges, 55
Admin. L. Rev. 427, 429 (2003) (“Chevron allows the court to overturn the agency’s decision if
the regulation is either 1) directly contradicted by the statute or 2) unreasonable. But the Salerno
standard seems to require that the agency’s regulation be upheld if even one set of circumstances
existed in which the regulation was consistent with the statute.”). Nevertheless, the applicability
of the Salerno test in these circumstances now seems relatively clear, at least in the D.C. Circuit.
See Sherley, 644 F.3d at 397 n.** (D.C. Cir. 2011); see also Chamber of Commerce v. N.L.R.B.,
118 F. Supp. 3d 171, 184 (D.D.C. 2015). But see Sherley, 644 F.3d at 404 n.7 (Henderson, J.,
dissenting) (“Whether Salerno’s ‘no set of circumstances’ approach is properly applied in the
absence of a constitutional challenge is not altogether settled in our Circuit.”).
15
a right to sue under this substantive statute.” Lexmark Int’l., Inc. v. Static Control Components,
Inc., 572 U.S. 118, 127 (2014) (internal quotation marks and alteration omitted). As Judge
Silberman has observed, in an APA cause of action, “[t]his particular type of prudential
standing”—that is, the zone-of-interest analysis, or what is sometimes called “statutory
standing”—“is thus typically tied to at least two statutes—the organic statute underlying a
complaint and the APA itself.” Ass’n of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667, 676
(D.C. Cir. 2013) (Silberman, J., concurring). Finally, when an organization sues on behalf of its
members, it must establish “representational” or “associational” standing. That requires showing
that “its members would otherwise have standing to sue in their own right, the interests at stake
are germane to the organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v.
Laidlaw Env’t Servs., Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)).
Plaintiffs have demonstrated all the required varieties of standing—constitutional,
prudential, associational—necessary for their four claims. They plausibly argue both injury and
causation: they explain, with supporting declarations, that their members reside in the western
United States and regularly use and enjoy the public lands that will be affected by the challenged
rules, and that the challenged rules unlawfully permit excessive and environmentally harmful
development of these areas. When these kinds of arguments are adequately and specifically
supported, as they are here, they have long been recognized as sufficient. See id. at 183
(“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the
affected area and are persons for whom the aesthetic and recreational values of the area will be
lessened by the challenged activity.” (internal quotation marks omitted) (citation omitted)); Ctr.
16
for Food Safety v. Salazar, 898 F. Supp. 2d 130, 140 (D.D.C. 2012) (finding injury and causation
when plaintiffs provided a “substantial discussion” of the aesthetic and recreational interests of
their members and “how such interests will be impaired by the Agency’s policy”).
Federal Defendants nevertheless assert that Plaintiffs’ injuries are traceable not to the
challenged rulemakings themselves but instead to the agencies’ subsequent consideration and
approval of specific mining proposals and operations. Gov’t’s XMSJ at 10 (noting that “neither
of the challenged regulations governs approval of mining proposals or otherwise authorizes any
surface disturbance of federal lands”). Of course nobody is harmed by rulemaking in the
abstract; Plaintiffs’ claim is that they are harmed by the downstream operations permitted by the
rules. The probable effects of a rule can be sufficient to establish standing. See, e.g., Ctr. for
Biological Diversity v. E.P.A., 861 F.3d 174, 184–85 (D.C. Cir. 2017) (holding that plaintiff
organization had standing to challenge EPA approval of pesticide because there was a substantial
probability that the pesticide’s use would harm its members’ aesthetic and recreational interests).
Plaintiffs have demonstrated redressability too: as they say, “[a]n order from this Court
declaring that the Rules violate the 1872 Mining Law, FLPMA, NEPA, and the APA would, as
repeatedly stated by the Intervenors, result in substantial changes in how these mining operations
would be regulated—resulting in less ‘rights to mine.’” Pls.’ Reply at 3, ECF No. 130.
Whether or not Plaintiffs have prudential standing requires more discussion. There is no
doubt that Plaintiffs’ NEPA claims fall within that act’s protective scope. See Mountain States
Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996) (concluding that “plaintiffs
whose members use [a particular area] for [recreational] purposes [such] as hiking are plainly
within the zone of interests protected by NEPA”). But their claims alleging Mining Law
violations present a closer question. Federal Defendants contend that, because “Congress
17
intended the Mining Law to protect miners who assert their mining interests,” nonminers like
Plaintiffs necessarily fall outside the Mining Law’s zone of interests. Gov’t XMSJ at 20. They
point to a recent Ninth Circuit decision concluding that environmentalists were not within the
Mining Law’s zone of interests because the law meant to protect only economic interests—not
environmental or historical interests. See Gov’t Defs.’ Further Notice of Suppl. Authority, ECF
No. 149 (citing Havasupai Tribe v. Provencio, 906 F.3d 1155 (9th Cir. 2018)).
The zone-of-interests test “is not meant to be especially demanding” because it exists
against a backdrop of “Congress’s ‘evident intent’ when enacting the APA ‘to make agency
action presumptively reviewable.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399
(1987)). There is no requirement that Congress meant “to benefit the would-be plaintiff.” Id.
(quoting Clarke, 479 U.S. at 399). Instead, the interest the plaintiff asserts must merely be
“arguably within the zone of interests to be protected or regulated by the statute” he claims was
violated. Id. at 224 (quoting Ass’n of Data Processing Svc. Orgs., Inc. v. Camp, 397 U.S. 150,
153 (1970)). The word “arguably” means that “the benefit of any doubt goes to the plaintiff.”
Id. at 225. A suit will thus fail the zone-of-interests test “only when a plaintiff’s ‘interests are so
marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S.
at 399).
The Court holds that Plaintiffs clear prudential standing’s low bar. To be sure, the
“obvious intent” of the Mining Law “was to reward and encourage the discovery of minerals that
are valuable in an economic sense.” United States v. Coleman, 390 U.S. 599, 602 (1968). But
the law allowed for relatively unsupervised development only if certain statutory criteria were
18
satisfied; violations of those criteria would “work an unlawful private appropriation in
derogation of the rights of the public.” Cameron, 252 U.S. at 460. In other words, the Mining
Law struck a balance—albeit an asymmetrical one—between miners’ interest in development
and “the rights of the public.” Plaintiffs are members of the public who claim harm from the
government’s overly generous interpretations of a statute regulating the use of public lands.
Their interest is not so marginally related to the balance the Mining Law struck that one could
not reasonably assume Congress wanted to permit their suit. See Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians, 567 U.S. at 227 (“If the Government had violated a statute
specifically addressing how federal land can be used, no one would doubt that a neighboring
landowner would have prudential standing to bring suit to enforce the statute’s limits.”). Given
the benefit of the doubt, Plaintiffs’ interests fit within the Mining Law’s zone of interests. See id.
at 224–28 (holding that landowner could challenge proposed use of neighboring land because his
economic, environmental, and aesthetic interests fell within the zone of interests of a statute that
had the purpose of acquiring land for Native American tribes’ economic development).
Even if Plaintiffs do not fall within the ambit of the Mining Law’s zone of interests, the
Court finds in the alternative that they at least have prudential standing for their first claim,
which is based on the FLPMA. The Havasupai Tribe court dealt with environmentalists’ claim
that the Forest Service failed to account for several costs in determining that a mine could be
operated at a profit and thereby recognizing that its owner had “valid existing rights” exempt
from a withdrawal of public lands from mining claims. 906 F.3d at 1161, 1166. The court first
concluded that the plaintiffs’ aesthetic and recreational interests were outside the Mining Law’s
zone of interests. Id. at 1166. But then, observing that the plaintiffs had also argued that the
Forest Service’s action violated the FLPMA, it found that the FLPMA was in fact the source of
19
the plaintiffs’ claim. Id. at 1166–67. The court explained that the FLPMA gave Interior
authority to withdraw federal lands for certain purposes “subject to valid existing rights.” Id. at
1166 (citations omitted). So although the agency looked to the Mining Act in making its valid
existing rights determination, its decision “affect[ed] whether activities on federal land can be
limited under the FLPMA.” Id. at 1166. Because the plaintiffs had thus properly alleged an
FLPMA violation, and because the FLPMA encompassed aesthetic and recreational interests, the
plaintiffs had prudential standing. Id. at 1167.
So too for Plaintiffs’ first claim. 9 That claim challenges the 2008 Rule for failing to
comply with the FLPMA’s policy that the federal government receive fair market value for use
of public lands. See Compl. ¶¶ 151–54; Pls.’ MSJ at 13–21. It requires some analysis of the
Mining Law and how that law interacts with the FLPMA, but it ultimately comes down to
whether the 2008 Rule violated the FLPMA’s fair market value policy. Plaintiffs’ aesthetic and
recreational interests fall within the FLPMA’s zone of interests, so they have prudential standing
for the first claim. See Havasupai Tribe, 906 F.3d at 1166–67; see also Desert Citizens Against
Pollution v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000) (holding that environmentalists’
aesthetic and recreational interests were within the FLPMA’s zone of interests). 10
9
The same would not be true of Plaintiffs’ second claim, which alleges only that the
2003 Rule violated the Mining Law. See Compl. ¶¶ 155–57.
10
Federal Defendants’ sole challenge to Plaintiffs’ associational standing is that none of
“their members’ interests fall within the zone of interests of the Mining Law.” See Gov’t XMSJ
at 13. Having rejected that argument, the Court notes that there is little doubt Plaintiffs satisfy
the other two elements of associational standing: Plaintiffs are environmentalist organizations
with a clear interest in federal land use, and the lawsuit does not require the participation of
Plaintiffs’ individual members. See Ctr. for Biological Diversity, 861 F.3d at 182.
20
B. Merits
The Court will consider the challenges to each rule in turn.
1. 2008 Rule
a. Is the 2008 Rule a reasonable construction of the Mining Law
and the FLMPA in light of MPC?
The essential question is whether it was unreasonable for the BLM to conclude in
promulgating the 2008 Rule that there were no meaningful operations on invalidly claimed or
unclaimed lands and therefore no need for the BLM to seriously consider whether to charge fair
market value for those activities.11 Of course, in resolving this question, the Court is not writing
on a blank slate. MPC addressed these issues, and Judge Kennedy’s order was not appealed. It
therefore remains good law. See Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995) (“[I]t is
for the court of first instance to determine the question of the validity of the law, and until its
decision is reversed for error by orderly review, either by itself or by a higher court, its orders
based on its decision are to be respected.” (citation omitted)). But MPC’s terminology, which
was echoed in the 2008 Rule, has caused confusion. As discussed above, MPC establishes that
the BLM is required to at least consider charging fair market value for operations on what it
variously called “unclaimed,” “invalidly claimed,” and “inadequately claimed” public land. 292
F. Supp. 2d at 50. What these terms refer to, exactly, is at the heart of the dispute.
Plaintiffs’ key contention is that these references encompass lands that have been claimed
by mining operators but have not been perfected or verified through agency validity proceedings.
According to Plaintiffs, until the claims are independently confirmed as containing valuable
11
To the extent that the standard of review is governed by Salerno rather than Chevron,
the Court believes that framing the question this way is consistent with Salerno’s “no set of
circumstances” test for facial challenges. If the BLM failed to take proper account of the
FLPMA’s mandate in promulgating the 2008 rule, then the BLM failed to take account of the
mandate in every relevant circumstance.
21
mineral deposits, a claim does not fall within the protective scope of the Mining Law. As a
result, Plaintiffs say, the BLM is required to at least consider charging fair market value for
operations on claims where the discovery of valuable mineral deposits has not been established
and confirmed. See Pls.’ MSJ at 18. In other words, it is not permissible for the agency, not
knowing if a claim is valid, to treat the claim as if it were valid under the Mining Law and
therefore immune from the FLPMA’s fair market provision. Id. 12
Interior and the BLM characterize this argument as a “novel theory that there are phases
in the development of a mining claim where the Mining Law does not apply.” Gov’t’s XMSJ at
27 (emphasis omitted). In their view, the Mining Law and related regulations create a “cradle to
grave” framework, id. at 27, and that engaging in prediscovery activities like exploration is “a
statutorily-granted right under the Mining Law,” id. at 28 (citing 30 U.S.C. §§ 22, 28). They also
reject the idea that “mining operations on mining claims of unknown validity” are not subject to
and governed by the Mining Law. Id. at 27. The Mining Defendants largely echo these
arguments. They emphasize “a long-established BLM practice of permitting mining operations
on mining claims without requiring formal claim validity exams.” Mining Defs.’ XMSJ at 23.
12
In a supplementary filing, Plaintiffs also cite for support Center for Biological
Diversity v. U.S. Fish & Wildlife Service, 409 F. Supp. 3d 738, 763 (D. Ariz. 2019). See Pls.’
Notice of Suppl. Authority, ECF No. 153. The Court agrees with Defendants that the case is of
limited relevance here. See Gov’t Defs.’ Resp. to Pls.’ Notice of Suppl. Authority at 2–3, ECF
No. 155; Mining Defs.’ Resp. to Pls.’ Notice of Suppl. Authority at 4–5, ECF No. 154.
Although that case examined the Mining Law, it dealt with a site-specific application of Forest
Service regulations and a statute unique to the Forest Service, the Organic Act. See Ctr. for
Biological Diversity, 409 F. Supp. 3d at 748–49. It did not discuss the 2008 Rule (a regulation
governing the payment of fees to the BLM) or the FLPMA (the intersection of which with the
Mining Law forms the core of this dispute), nor did it address whether the Forest Service had
properly promulgated the regulations at issue. In addition, the Center for Biological Diversity
court’s footnote suggesting that the mill site provision of the Mining Act limits mill site area to
five acres per mining claim is nothing more than background information—in other words, dicta.
See 409 F. Supp. 3d at 763 n.13.
22
And they question whether Congress meant to alter this practice through the FLPMA or whether
Judge Kennedy intended to do so in MPC. See id. at 22–28.
MPC never referred to claims of “unknown validity.” Rather, as mentioned, the opinion
focused on operations not conducted on “valid” claims, which could include operations on
“unclaimed,” “invalidly claimed,” or “inadequately claimed” land. See 292 F. Supp. 2d at 50.
Its operative language relied on the valid/invalid distinction: “Operations neither conducted
pursuant to valid mining claims nor otherwise explicitly protected by FLPMA or the Mining
Law (i.e., exploration activities, ingress and egress, and limited utilization of mill sites) must be
evaluated in light of Congress’s expressed policy goal for the United States to ‘receive fair
market value of the use of the public lands and their resources.’” Id. at 51 (emphasis added)
(quoting 43 U.S.C. § 1701(a)(9)). Of course, as Plaintiffs stress, MPC also followed statements
of the Supreme Court in emphasizing that a claim is invalid in the absence of discovery. See id.
at 47–48 (explaining that “before perfecting a valid mining claim [through discovery and
fulfilling related administrative requirements], . . . [a claimant] has no property rights against the
United States”); see also Best, 371 U.S. at 336 (unpatented mining claims are “valid against the
United States if there has been a discovery of mineral within the limits of the claim”); Cameron,
252 U.S. at 460 (stating that “no right arises from an invalid claim of any kind”). 13
13
The Supreme Court has also observed, somewhat cryptically, that “it has come to be
generally recognized that while discovery is the indispensable fact and the marking and
recording of the claim dependent upon it, yet the order of time in which these acts occur is not
essential to the acquisition from the United States of the exclusive right of possession of the
discovered minerals or the obtaining of a patent therefor.” Union Oil Co., 249 U.S. at 347; see
also Creede & Cripple Creek Mining & Milling Co. v. Uinta Tunnel Mining & Transp. Co., 196
U.S. 337, 354 (1905) (“[I]t is not a vital fact that there was a discovery of mineral before the
commencement of any of the steps required to perfect a location . . . .”). This language could be
read to imply that, contra the statutory text and subsequent judicial statements, a prediscovery
claim is actually “valid” against the United States in some sense. Cf. 30 U.S.C. § 23 (providing
that “no location of a mining claim shall be made until the discovery of the vein or lode within
23
But crucially for present purposes, MPC says nothing about the practical process of
determining whether a claim is valid, whether the government has an affirmative obligation to do
so, or when such an obligation, if it exists, might attach. These all strike the Court as analytically
distinct from the abstract question of whether a claim, in the absence of discovery, is technically
valid or not. As discussed above, the Mining Law, its implementing regulations, and related case
law have never required Interior or BLM to verify the validity of a claim by independently
confirming discovery. Additionally, as the Supreme Court has also recognized, a claim of
unknown or undetermined validity is not a legal nullity. An operator on a claim of unknown
validity can have rights against rival claimants under the doctrine of pedis possessio, and the
government cannot find such a claim invalid without a degree of process. See Cameron, 252
U.S. at 460 (noting that the government “does have power, after proper notice and upon adequate
hearing, to determine whether the claim is valid”). That implies that while a claim may in fact be
invalid (e.g., because, after a reasonably thorough claim investigation process, it has been shown
to lack a valuable discovery), it is nonetheless treated as a de facto valid claim until proven
otherwise. Nothing in MPC challenged this practice or suggested it was impermissible.
the limits of the claim located” (emphasis added)); Locke, 471 U.S. at 86 (“‘Discovery’ of a
mineral deposit, followed by the minimal procedures required to formally ‘locate’ the deposit,
gives an individual the right of exclusive possession of the land for mining purposes.” (emphasis
added)); Best, 371 U.S. at 335 (“A mining claim on public lands is a possessory interest in land
that is ‘mineral in character’ and as respects which discovery ‘within the limits of the claim’ has
been made.” (emphasis added)); Foster v. Seaton, 271 F.2d 836, 838 (D.C. Cir. 1959) (“One who
has located a claim upon the public domain has, prior to the discovery of valuable minerals, only
‘taken the initial steps in seeking a gratuity from the Government.’” (emphasis added) (quoting
Ickes, 141 F.2d at 549)); Am. Colloid Co. v. Babbitt, 145 F.3d 1152, 1156 (10th Cir. 1998)
(“Before one may obtain any rights in a mining claim, one must ‘locate’ a valuable deposit of a
mineral.”). Less radically, it could mean that a claimant need not establish (e.g., in a patent
application or validation proceeding) that discovery actually predated the recording of a claim.
But even on this less extreme view, Union Oil seemed to have recognized that a claim would not
be subject to immediate validation proceedings.
24
Even if MPC meant to address, sub silentio, claims of unknown validity, MPC’s
instructions to Interior on remand were narrow. It held only that Interior, in promulgating the
earlier regulations, “was not cognizant of its statutory obligation to attempt to ‘receive fair
market value of the use of public lands and their resources,’ and did not balance its competing
priorities with that obligation [in] mind.” MPC, 292 F. Supp. 2d at 51. Accordingly, the
regulations were “remanded to Interior, so that Congress’s policy goal, as set forth in
§ 1701(a)(9), may be given proper effect.” Id.
Interior and BLM adequately discharged this obligation. The 2008 Rule considered the
various kinds of problematic operations specifically mentioned by MPC—those on “unclaimed,”
“invalidly claimed,” or “inadequately claimed” land—and sought to identify how it could apply a
fair market value policy to each of them. See 73 Fed. Reg. at 73,791. It explained that, even
after seeking examples via public comment, “[t]he BLM is not aware of any mining operations
taking place on ‘invalidly claimed’ public lands (i.e., public lands where BLM has determined
that the claims or sites are invalid) or unclaimed public lands (i.e., lands where there are no
mining claims or mill sites).” Id. And it determined that Congress had decided how to
implement the FLPMA’s fair market policy mandate when it required claimants to pay annual
maintenance fees. Id. at 73,792.
Plaintiffs’ alternative interpretation would require reading MPC to have quietly upended
the current claim system under the Mining Law. As the BLM recognized in its Advanced Notice
of Proposed Rulemaking issued in response to MPC, Surface Management, 72 Fed. Reg. 8,139-
01 (Feb. 23, 2007), there are over 250,000 active mining claims on public lands, and a full
validity determination costs between $12,000 and $80,000. Id. at 8,141. As a result,
“[c]onducting validity determinations for all 250,000 mining claims would exceed the BLM’s
25
annual operating budget many times over.” Id. The Court will not strain to read either MPC or
the FLPMA as silently working such a fundamental change to longstanding practice under the
Mining Law. 14
b. Did the promulgation of the 2008 Rule violate NEPA?
In promulgating the 2008 Rule, the BLM determined that the rule was
a regulation of an administrative, financial, legal, technical, or procedural nature.
Therefore, it is categorically excluded from environmental review under Section
102(2)(C) of the National Environmental Policy Act, pursuant to 516
Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the interim final
rule does not meet any of the 10 criteria for exceptions to categorical exclusions
listed in 516 DM, Chapter 2, Appendix 2.
73 Fed. Reg. at 73,792. As a result, it concluded that neither an EIS or EA was required before
publishing the rule. Id. at 73,792–93.
Under NEPA, agencies identify classes of actions that “normally do not have a significant
effect on the human environment.” 40 C.F.R. § 1501.4(a). Agency actions under these so-called
“categorical exclusions” (CEs) are exempt from NEPA’s requirement of preparing an EA or an
EIS. Id. “[T]raditional arbitrary-and-capricious review is sufficient where the question is
whether [an agency] properly invoked a CE.” Nat’l Tr. for Hist. Pres. in the U.S. v. Dole, 828
F.2d 776, 781 (D.C. Cir. 1987). “[T]he agency’s interpretation of the scope of one of its own
CE’s is ‘given controlling weight unless plainly erroneous or inconsistent with the terms used in
the regulation.’” Back Country Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89, 99 (D.D.C.
2006) (quoting Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999)); see
also Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 18 n.11 (D.D.C. 1999) (noting that NEPA does
14
It should be noted that the FLPMA explains that, except for certain exceptions not
relevant here, “no provision of this section or any other section of this Act shall in any way
amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress.” 43 U.S.C. § 1732(b).
26
not require “a full-blown statement of reasons for invoking a categorical exclusion”).
Nevertheless, even when an action is covered by a CE, the presence of certain “extraordinary
circumstances” will require analysis under NEPA. 40 C.F.R. § 1501.4(b); 43 C.F.R.
§§ 46.205(c), 46.215.
Plaintiffs largely argue that BLM’s use of a CE was inappropriate here because the 2008
Rule “will undoubtedly have on-the-ground effects” since it “allows mining projects to be
approved that otherwise may or would not occur, or would occur in a different manner.” Pls.’
MSJ at 34. But the 2008 Rule did not make any substantive changes to the existing practice
under BLM regulations—it simply clarified, consistent with existing practice, when certain fees
associated with mining claims and mill sites must be paid. While the Court, for the purposes of
standing, is required to adopt Plaintiffs’ views of the merits and assume that the 2008 Rule
violated the FLPMA, the BLM was not required to adopt Plaintiffs’ reading of MPC when
considering whether a CE applied. It was not arbitrary for the BLM to conclude that the 2008
Rule worked no substantive change in any rule or requirement and likewise did not constitute
extraordinary circumstances.
2. 2003 Rule
a. Is the 2003 Rule a reasonable construction of the Mining Law?
As with the APA challenge to the 2008 Rule, this dispute reduces to whether the 2003
Mill Site Rule’s determination that a claimant may locate more than one mill site per mining
claim is consistent with the statute, 30 U.S.C. § 42(a). 15 The statutory language is quite sparse: it
15
To repeat, insofar as the standard of review is governed by Salerno rather than
Chevron, the Court believes this framing is similarly consistent with Salerno’s “no set of
circumstances” test for facial challenges. If the Plaintiffs’ position is correct, any allowance for
multiple mill sites per claim is inconsistent with the statute. The BLM and Interior argue that
“even the 1999 proposed rule—which Plaintiffs favor—would have permitted locating more than
27
gives proprietors of veins and lodes the right to use and occupy lands for mining or milling
purposes, clarifies that the lands must be nonmineral in character and not contiguous or adjacent
to the vein or lode, and specifies that “no location made on or after May 10, 1872, of such
nonadjacent land shall exceed five acres.” Id. It is completely silent on the number of mill sites
that can be located per claim. Put in Chevron terms: Congress has not “directly spoken to the
precise question at issue.” 467 U.S. at 842.
Plaintiffs disagree. They advocate a one-mill-site-per-claim rule by relying on several
extra-statutory materials, most prominently a Public Land Law Review Commission Report
called One Third of the Nation’s Land: A Report to the President and to the Congress by the
Public Land Law Review Commission (June 1970), which assumed such a limitation. See Pls.’
MSJ at 23–28. They also argue that Congress, in enacting the Mining Law, was primarily
concerned with the development of mineral lands so it is implausible to read the statute as
allowing the extensive development of acquisition of nonmineral lands like mill sites. Id. at 26–
28. And more generally, they suggest that Congress would not have limited the size of each mill
site without also limiting the number of mill sites; beyond requiring additional administrative
hurdles, two five-acre mill sites (allowed) seems equivalent to a single ten-acre site (not
allowed). See id. at 22.
Although Plaintiffs’ arguments carry some weight, they hardly establish an unambiguous
congressional intent to limit the number of mill sites per mining claim. If Congress wanted to
one mill site per mining claim (for example, two 2.5 acre mill sites), so long as the miner did not
locate more than 5 acres of mill site per 20 acres of mining claim.” Gov’t’s XMSJ at 18. “Thus,
even assuming that Plaintiffs’ preferred interpretation was correct, the regulation adopted by the
BLM with the 2003 Rule would still not be invalid every time someone located more than one
mill site per mining claim.” Id. But the Court fails to see why Plaintiffs’ preference for an
earlier rule would prevent them from arguing that both violate the Mining Law.
28
impose such a restriction, it could have said so expressly. See Goldring v. District of Columbia,
416 F.3d 70, 77 (D.C. Cir. 2005) (explaining that a court’s “job one” in determining Congress’s
intent is “to read the statute, read the statute, read the statute”). But while the statute limits the
size of mill sites at five acres, it does not place a similar restriction on the number of mill sites a
claimant can locate. See 30 U.S.C. § 42(a). That omission is particularly glaring in light of the
fact that the Mining Law’s predecessor, the Lode Law of 1866, not only capped the size of lode
claims at “200 feet in length along the vein” but also limited the number of claims that a miner
could locate and patent to one per lode. See Ch. 262, sec. 4, 14 Stat. 251, 252 (providing that
“no person may make more than one location on the same lode”); see also 2003 Opinion 13–19
(recounting the Mining Law’s legislative history). Indeed, the Supreme Court has held that the
Mining Law’s placer claim provision—which is worded similarly to the mill site provision—did
not prohibit a claimant from patenting more than one such claim. See St. Louis Smelting & Ref.
Co. v. Kemp, 104 U.S. 636, 648, 651 (1881); see also 30 U.S.C. § 35 (providing that “no [placer]
location shall include more than twenty acres for each individual claimant”). Consequently, the
Court cannot say that Congress meant the Mining Law to include a one-mill-site-per-claim rule.
That brings the Court to Chevron Step Two, which provides that a court “must give effect
to an agency’s regulation containing a reasonable interpretation of an ambiguous statute.”
Christensen v. Harris County, 529 U.S. 576, 586–87 (2000). In other words, the Court is
required to uphold the 2003 Rule if it is based on a “permissible construction” of the mill site
provision. Chevron, 467 U.S. at 843.
The 2003 Rule does permissibly construe the statute. There is no language in the statute
contradicting the BLM’s reading. And the BLM thoroughly justified its interpretation as
consistent with the statute by drawing on the statutory text, Supreme Court precedent, its view of
29
the congressional policy behind the Mining Law, and longstanding BLM practice. See 68 Fed.
Reg. at 61,054–55; 2003 Opinion 2–4; see also Northpoint Tech., Ltd. v. F.C.C., 412 F.3d 145,
151 (D.C. Cir. 2005) (“A ‘reasonable’ explanation of how an agency’s interpretation serves the
statute’s objectives is the stuff of which a ‘permissible’ construction is made.”). Faced with a
statute that leaves open the question of whether the number of mill sites should be limited, it is
not the Court’s place to second-guess how the BLM should strike a balance between the
competing policy concerns underlying the Mining Law. See Chevron, 467 U.S. at 864 (“[P]olicy
arguments are more properly addressed to legislators or administrators, not to judges.”). Even if
the BLM’s interpretation may not be the only plausible one (or, for that matter, the most natural
one), this Court must defer to it because it is a permissible one. See id. at 843 n.11 (“The court
need not conclude that the agency construction was the only one it permissibly could have
adopted to uphold the construction, or even the reading the court would have reached if the
question initially had arisen in a judicial proceeding.”).
Plaintiffs stress that the 2003 Rule represented a complete about-face from the 1997
Opinion and the 1999 Proposed Rule. 16 See Pls.’ MSJ at 22. But that is of no matter. As long as
an agency explains itself, it can change its view of an ambiguous statute’s meaning without
forfeiting Chevron deference. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 981 (2005) (“Agency inconsistency is not a basis for declining to analyze the agency’s
interpretation under the Chevron framework.”). Indeed, “the whole point of Chevron is to leave
16
The Court notes that, even under the 1999 Proposed Rule, multiple mill sites could be
located per claim, though they were limited in aggregate size. 64 Fed. Reg. at 47,037 (“You may
locate more than one mill site, so long as you do not locate more than an aggregate of 5 acres of
mill site land for each 20-acre parcel of patented or unpatented placer or lode mining claims
associated with that mill site land, regardless of the number of lode or placer claims located in
the 20-acre parcel.”).
30
the discretion provided by the ambiguities of a statute with the implementing agency.” Smiley v.
Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996). As mentioned, the BLM carefully explained its
decision to reverse course from the 1999 Proposed Rule and impose no cap on the number of
mill sites a claimant could locate. See 68 Fed. Reg. at 61,054–55; see also generally 2003
Opinion. The agency’s change of heart thus does not deprive it of Chevron deference.
b. Did the 2003 Rule violate NEPA?
In publishing the 2003 Rule, BLM reported: “We have conducted an environmental
assessment and have concluded that this rule would not have a significant impact on the quality
of the human environment under [NEPA] and therefore an Environmental Impact Statement is
not required.” 68 Fed. Reg. at 61,063. Keeping in mind that NEPA imposes procedural rather
than substantive requirements, see Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989), the
question is whether the BLM’s EA considered all the relevant factors and rationally concluded
that the final 2003 Rule would not cause a significant impact warranting an EIS. That is because
“a court’s role in reviewing an agency’s decision not to prepare an EIS is a limited one, designed
primarily to ensure that no arguably significant consequences have been ignored.” Mayo v.
Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017) (cleaned up) (quoting Myersville Citizens for a Rural
Cmty., Inc. v. F.E.R.C., 783 F.3d 1301, 1322 (D.C. Cir. 2015)). Plaintiffs’ primary contention is
that the BLM violated NEPA because its EA ignored the impacts that would result from
claimants’ ability to use more land for mill sites under the 2003 Rule compared to the regime
articulated in the 1997 Opinion and 1999 Proposed Rule. See Pls.’ MSJ at 35.
The problem for Plaintiffs is that the policy expressed in the 1997 Opinion and the 1999
Proposed Rule was never implemented. When the BLM issued the 2003 Opinion and Final
Rule, it “ha[d] not applied the 1997 Opinion to any patent application or plan of operations.”
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2003 Opinion 39; see also 68 Fed. Reg. at 61,055. 17 In practice and by regulation, then, the
BLM had maintained the same interpretation that it held prior to the 1997 Opinion. See 68 Fed.
Reg. at 61,054–55. The 2003 Rule merely codified the BLM’s prevailing practice; it effected no
change in the status quo on the ground. 18 See Bureau of Land Mgmt., Dep’t of the Interior,
Environmental Assessment for the Final Rule to Revise 43 C.F.R. Parts 3710, 3730, 3810, 3820,
3830, 3840, and 3850, at 5 (2003) [hereinafter 2003 Rule EA] (“[T]his amended rule does not
change BLM’s practice regarding mill site locations.”). 19 Because all the 2003 Rule did was
maintain the status quo, it was not a major federal action significantly affecting the environment.
17
The BLM tried once to deny a proposed plan of operations based on the 1997 Opinion,
but Congress stepped in with a pair of laws that rebuffed the BLM’s attempt. See 68 Fed. Reg. at
61,055. One prohibited the BLM from relying on the 1997 Opinion to reject patent applications
and plans of operations submitted prior to the law’s enactment. Pub. L. No. 106-31, § 3006, 113
Stat. 57, 90–91 (1999). The other essentially prohibited the BLM from spending appropriated
funds to deny applications based on the 1997 Opinion for fiscal years 2000 and 2001. See Pub.
L. No. 106-113, § 337(a), 113 Stat. 1501, 1501A-199 (1999). It should be noted that the latter
law also stated that neither statute should be “construed as an explicit or tacit adoption,
ratification, endorsement, approval, rejection or disapproval” of the 1997 Opinion. Id. § 337(b).
18
That the BLM never implemented the 1997 Opinion distinguishes this case from one
Plaintiffs cite in a notice of supplementary authority, American Wild Horse Preservation
Campaign v. Perdue, 873 F.3d 914 (D.C. Cir. 2017). See Pls.’ Notice of Suppl. Authority, ECF
No. 140. In that case, the United States Forest Service had at some point inadvertently expanded
the boundaries of a wild horse territory from about 236,000 acres to 258,000 acres. See Am.
Wild Horse Pres. Campaign, 873 F.3d at 920–22. The Forest Service managed the extra land for
twenty years but eventually realized its mistake and proposed a return to the territory’s original
boundaries. Id. at 921–22. It determined an EIS was unnecessary because it was merely
“correct[ing] a boundary established for administrative convenience” so its action would have
“‘no effect’ on the ground.” Id. at 931 (alteration in original). The D.C. Circuit held that the
Forest Service violated NEPA. Id. It reasoned that the Forest Service did not acknowledge its
“departure from past practice” and had ignored the obvious impact that the change would have
on the wild horse population in the area, seeing as the Forest Service had managed the extra
acreage for two decades. Id. at 930–31. Here, by contrast, the BLM recognized that it reversed
the 1997 Opinion and also pointed out that it had never “applied the 1997 Opinion to any patent
application or plan of operations.” 2003 Opinion at 39, 41. It thus did not silently reverse its on-
the-ground practice like the Forest Service did in American Wild Horse Preservation Campaign.
19
The 2003 Rule EA is available in the administrative record at MIL007585–93.
32
See Fund for Animals, Inc. v. Thomas, 127 F.3d 80, 84 (D.C. Cir. 1997); Comm. for Auto Resp.
(C.A.R.) v. Solomon, 603 F.2d 992, 1003 (D.C. Cir. 1979); All. for Bio-Integrity v. Shalala, 116
F. Supp. 2d 166, 174 (D.D.C. 2000). It thus did not require an EIS.
Plaintiffs also argue that the BLM’s EA inadequately evaluated the alternative approach
offered by the 1997 Opinion and 1999 Proposed Rule. Pls.’ MSJ at 37. An EA must “[b]riefly
discuss” alternatives and “the environmental impacts of the proposed action and alternatives.”
40 C.F.R. § 1501.5(c)(2); accord Myersville Citizens, 783 F.3d at 1323. But that discussion
“need not be as rigorous as the consideration of alternatives in an EIS.” Myersville Citizens, 783
F.3d at 1323 (collecting cases).
The BLM’s EA identified the 1997 Opinion’s position as an alternative but rejected it
after a brief examination. See 2003 Rule EA at 7. In addition to reiterating the 2003 Opinion’s
textual and purposive arguments against the 1997 Opinion, the EA said that the 1997 Opinion’s
position would not necessarily result in a lesser environmental impact. Id. For one thing, the EA
explained, a limit on the number of mill sites per mining claim would likely lead to claimants
“subdivid[ing] their maximum-sized mining claims into many smaller claims to obtain the
number of mill sites they need.” Id. For another thing, the EA also stated that the “ultimate
impacts from mining would likely not change” because mining operators could gain the use of
federal land for mill sites through other means, including “land exchanges and permits or leases.”
Id. It nevertheless acknowledged that “[o]btaining the necessary land might take longer.” Id.
Although imperfect, that discussion was sufficient to satisfy NEPA. The EA neglected to
mention that the 1999 Proposed Rule included a provision limiting operators’ ability to subdivide
their claims to acquire more mill sites. See 64 Fed. Reg. at 47,028 (“This rule proposes to
prevent claimants from circumventing the limitation on the number of millsite acres a claimant
33
may locate . . . by limiting the millsite acreage you may locate to 5 acres per associated 20 acre
parcel of lode or placer claim lands.”). That provision undermines the EA’s first justification for
dismissing the alternative. But the EA’s second justification is reasonable and can independently
sustain the BLM’s conclusion that the “ultimate impacts from mining would likely not change”
under the alternative. Even the 1997 Opinion recognized that mining operators would still be
able to get land for mill sites using land exchanges and permits or leases. See 1997 Opinion 2–3.
And while those means (unlike mill site patent applications) are subject to the BLM’s
discretionary approval, id. at 3, it is speculative to say whether such a discretionary regime
would necessarily lead to less total environmental impact, cf. Nat’l Wildlife Fed’n v. F.E.R.C.,
912 F.2d 1471, 1478 (D.C. Cir. 1990) (explaining that “an EIS need not delve into the possible
effects of a hypothetical project, but need only focus on the impact of the particular proposal at
issue and other pending or recently approved proposals that might be connected to or act
cumulatively with the proposal at issue”). The Court therefore cannot conclude that the BLM’s
consideration of the 1997 Opinion’s alternative was inadequate.
Finally, the Court rejects Plaintiffs’ last argument that the BLM violated NEPA by not
giving the public an opportunity to comment on the EA. See Pls.’ MSJ at 38–39. While the
BLM “must, to the extent practicable, provide for public notification and public involvement
when an [EA] is being prepared,” it is not required to publish a proposed EA for comment as it is
when preparing an EIS. 43 C.F.R. § 46.305(a)–(b); see also id. § 46.435(a) (requiring public
comment for a draft EIS). An agency has “significant discretion in determining when public
comment is required with respect to EAs.” Theodore Roosevelt Conservation P’ship v. Salazar,
616 F.3d 497, 519 (D.C. Cir. 2010) (quoting TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir.
2006)).
34
The BLM did not abuse its discretion. Even though it did not invite comments on the
EA, the public still provided feedback on the merits and drawbacks of the conflicting
interpretations of the mill site statute in response to the 1999 Proposed Rule. See 68 Fed. Reg. at
61,054 (mentioning that the BLM received 49 comments addressing the mill site provisions of
the 1999 Proposed Rule); see also Theodore Roosevelt Conservation P’ship, 616 F.3d at 519–20
(holding that, despite not publishing EAs for comment, the BLM sufficiently permitted public
input by posting public notice of two proposed drilling projects). The Court finds that the BLM
engaged the public as much as it needed to.
In sum, the 2003 Final Rule did not violate NEPA.
c. Did the promulgation of the 2003 Rule violate the APA’s
notice-and comment requirements?
The BLM published both the 1999 Proposed Rule and the 2003 Final Rule in the Federal
Register. See 64 Fed. Reg. at 47,023; 68 Fed. Reg. at 61,046. It also accepted comment on the
proposed rule. See 64 Fed. Reg. at 47,023. Nevertheless, Plaintiffs argue that the BLM did not
provide interested parties sufficient notice that it would abandon its proposal to limit the acreage
of mill sites permitted in connection with a mining claim. Pls.’ MSJ at 39–40. Defendants
counter that the BLM was allowed to change its mind because the public could have anticipated
that it might not follow through with its proposal. Gov’t’s XMSJ at 37–39; Mining Defs.’ XMSJ
at 38–40.
An agency “is not required to adopt a final rule that is identical to the proposed rule.” Ne.
Md. Waste Disposal Auth. v. E.P.A., 358 F.3d 936, 951 (D.C. Cir. 2004) (per curiam). On the
contrary, “[a]gencies are free—indeed, they are encouraged—to modify proposed rules as a
result of the comments they receive.” Id. Public input is, after all, one of the purposes of the
APA’s notice-and-comment scheme. See Int’l Union, United Mine Workers of Am. v. Mine
35
Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). A final rule may thus depart
from an earlier proposal—and still maintain compliance with the APA’s notice requirements—as
long as it is a “logical outgrowth” of the proposed rule. Ne. Md. Waste Disposal Auth., 358 F.3d
at 951–52. That means that “interested parties ‘should have anticipated’ that the change was
possible, and thus reasonably should have filed their comments on the subject during the notice-
and-comment period.” Id. (quoting City of Waukesha v. E.P.A., 320 F.3d 228, 245 (D.C. Cir.
2003) (per curiam)).
The 2003 Rule easily satisfies the logical outgrowth test. The 1999 Proposed Rule
floated a shift from the BLM’s longstanding interpretation of the mill site statute. See 64 Fed.
Reg. at 47,028 (“[T]his rule proposes to make it clear that you may not locate more than an
aggregate of 5 acres of mill site land for each associated placer or lode mining claim.”).
Interested parties undoubtedly could have anticipated that the agency might choose instead to
maintain its prevailing practice following public comment. See Am. Iron & Steel Inst. v. E.P.A.,
886 F.2d 390, 400 (D.C. Cir. 1989) (“[A] simple retreat to the status quo ante can properly be
viewed as a ‘logical outgrowth’ of the proposed rule.”). In fact, they clearly did anticipate the
possibility of the BLM staying the course: the agency received “49 adverse comments” regarding
the 1999 Proposed Rule’s mill site provisions. See 68 Fed. Reg. at 61,048; see also id. at
61,055–56.
This case is similar to Arizona Public Service Co. v. E.P.A., 211 F.3d 1280 (D.C. Cir.
2000). In that case, the EPA had proposed a rule that would have treated Indian tribes like states
and required them to provide for judicial review of pollution permitting decisions under the
Clean Air Act. Id. at 1298. But then the EPA backtracked. Its final rule exempted tribal
permitting programs from the judicial review requirement. Id. The court rejected the plaintiffs’
36
logical outgrowth challenge. It explained, “[i]n first proposing that tribes would have to meet the
‘same requirements’ as states, EPA effectively raised the question as to whether this made
sense.” Id. at 1299. In doing so, the EPA “raised a highly visible and controversial issue and
elicited responses from both tribal and industry commenters.” Id. at 1299–300. As a result, the
court concluded, “any reasonable party should have understood that EPA might reach the
opposite conclusion after considering public comments.” Id. at 1300.
So too with the BLM’s mill site rule. The BLM asked the public in its 1999 Proposed
Rule whether adopting limits on the number of mill sites allowed per mining claim was a good
idea. Nearly fifty commenters responded in the negative. Accordingly, the BLM pulled the mill
site limit from its final rule. That rule was not “wholly unrelated or surprisingly distant” from
BLM’s initial proposal. See id. at 1299. Nor was the situation one “where the proposed rule
gave no indication that the agency was considering a different approach, and the final rule
revealed that the agency had completely changed its position.” See CSX Transp., Inc. v. Surface
Transp. Bd., 584 F.3d 1076, 1081 (D.C. Cir. 2009). Rather, any reasonable party should have
foreseen the possibility that the BLM would simply decline to adopt its 1999 proposal to codify
the 1997 Opinion and instead retain its previous position. “One logical outgrowth of a proposal
is surely . . . to refrain from taking the proposed step.” Am. Iron & Steel Inst., 886 F.2d at 400.
The 2003 Rule complied with the APA’s notice-and-comment requirements.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is denied, and
Defendants’ motions for summary judgment are granted. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: October 26, 2020. RUDOLPH CONTRERAS
United States District Judge
37