United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2008 Decided January 23, 2009
No. 07-5281
ORION RESERVES LIMITED PARTNERSHIP,
APPELLEE/CROSS-APPELLANT
v.
KEN SALAZAR, SECRETARY, U.S. DEPARTMENT OF THE
INTERIOR, ET AL.,
APPELLANTS/CROSS-APPELLEES
Consolidated with 07-5290
Appeals from the United States District Court
for the District of Columbia
(No. 04cv00791)
Robert H. Oakley, Attorney, U.S. Department of Justice,
argued the cause for appellants/cross-appellees. With him on
the briefs was Ellen J. Durkee, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Donald L. Morgan argued the cause and filed the briefs
for appellee/cross-appellant.
2
Before: GINSBURG, GARLAND, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: This appeal involves a
challenge by Orion Reserves Limited Partnership (Orion) to a
decision of the Department of the Interior (Interior)
invalidating 156 oil shale mining claims on federal land. The
district court concluded that Interior’s decision was arbitrary
and capricious. We reach the opposite conclusion, which is
compelled by the Supreme Court’s holding in Hickel v. Oil
Shale Corp., 400 U.S. 48 (1970), that when a party
substantially fails to perform the assessment work required by
federal law it loses its claim to mine oil shale.
I.
A.
To encourage mining in the western United States,
Congress enacted the General Mining Law of 1872 (Mining
Law), 30 U.S.C. §§ 22–54 (2000), declaring valuable mineral
deposits in federal lands “open to exploration and purchase,”
id. § 22. The Mining Law provides that citizens may stake, or
“locate,” claims to extract minerals without prior government
permission and without paying royalties to the United States.
Id. § 26. Claimants may also apply for purchase of a deed, or
“patent,” conveying full legal title to the land on which their
claims are located. Id. § 29.
Even without a patent, claimants can maintain their
mining rights indefinitely so long as they comply with
federal, state, and local requirements. Id. §§ 26, 28. Among
these obligations is a duty to perform annual assessment
3
work. The Mining Law requires that “until a patent has been
issued therefor, not less than $100 worth of labor shall be
performed or improvements made during each year.” Id. § 28.
When a claimant fails to perform this annual assessment
work, his claim is “open[ed] to relocation . . . as if no location
of the [mineral deposit] had ever been made.” Id. In other
words, if a claimant does not complete the required annual
labor or improvements, he will lose his rights in the land to a
competing claimant who does. If, however, a claimant who
has failed to perform assessment work later resumes work
before anyone else has staked a competing claim, his original
claim remains intact under a statutory exception known as the
“resumption provision.” Id. After passage of the Mining Law,
Interior promulgated regulations stating that failure to
perform required annual assessment work would “subject a
claim to relocation” unless the claimant “resumed work after
such failure and before relocation.” Nature and Extent of
Mining Claims, 37 Pub. Lands Dec. 757, 759 (1909).
The Mineral Leasing Act of 1920 (Leasing Act), 30
U.S.C. §§ 181–287, authorized Interior to take a more active
role in regulating mining on federal lands. Replacing the
system of location and patent for oil shale (and several other
minerals), the Leasing Act requires new claimaints to lease
mined land from the Secretary of the Interior and to pay the
federal government annual rental fees and royalties to obtain
“the privilege of mining, extracting and disposing of”
valuable minerals. Id. § 241. Of relevance here, claims made
under the Mining Law’s system of location and patent were
preserved under a “savings clause,” provided those claims
were “thereafter maintained in compliance with the laws
under which initiated.” Id. § 193. Interior subsequently
promulgated revised regulations with a preface noting that
regulations associated with the Mining Law no longer apply
to minerals, like oil shale, listed in the Leasing Act, “except
4
as to valid claims” existing at the enactment of the Leasing
Act “and thereafter duly maintained pursuant to the law under
which located.” Nature and Extent of Mining Claims, 49 Pub.
Lands Dec. 58, 58 Note (1923).
B.
This case involves Orion’s attempt to patent 156 oil shale
mining claims in Uintah County, Utah that its original
predecessor-in-interest located between 1917 and 1919 under
the Mining Law. It was not until 1988, however, that another
of Orion’s predecessors filed patent applications for the
claims. In the course of reviewing these applications, the
Bureau of Land Management (BLM), a division of Interior,
challenged two of Orion’s claims, alleging they were invalid
because, among other things, Orion’s predecessors had failed
to perform annual assessment work for significant periods of
time. The parties agreed to put the matter on hold until
Interior finished processing Orion’s other patent applications.
The BLM continued its investigation of Orion’s claims and
discovered a substantial number of years between 1920 and
1970 in which no affidavits, required annually by state law as
a record that assessment work was completed, were filed.
Although work records differ for each of the 156 claims, with
lapses apparently ranging from 18 to 50 years, it was not until
1970 that Orion’s predecessors consistently performed at least
$100 worth of assessment work each year and made the
requisite filings. On this basis, the BLM declared Orion’s 156
oil shale claims void. Crippled Horse Invs., L.P., 3833
(UT932-OA) UMC65858 (Bureau Land Mgmt. Sept. 2, 1999)
(Crippled Horse I).
5
Orion appealed the BLM’s decision to the Interior Board
of Land Appeals (IBLA).1 Orion did not dispute the missing
assessment work records, but argued that it had nevertheless
preserved its claims under longstanding judicial and
departmental interpretations of federal law, requiring only
that Orion resume annual work at some time, which it had
done. The IBLA rejected Orion’s argument and concluded
that Supreme Court precedent requires that claimants
“substantially satisfy” the Mining Law’s annual assessment
work obligation in order to maintain claims under the Leasing
Act’s savings clause. Crippled Horse Invs., L.P., 161 I.B.L.A.
264, 273–74 (2004) (Crippled Horse II). Orion’s ultimate
resumption of work in 1970 could not revive claims forfeited
by its decades-long failure to perform the required annual
assessment labor or improvements. Id. at 277. Orion’s failure
to file work affidavits for numerous years made out a prima
facie case that the work was not performed in those years. Id.
at 274–75. Because Orion did not proffer evidence that
assessment work was in fact done in years for which no
affidavits were filed, the IBLA held that its claims were
invalid. Id. at 277.
Orion brought suit in the United States District Court for
the District of Columbia challenging the IBLA decision under
the Administrative Procedure Act. The district court
bifurcated the case, addressing first the merits of the IBLA
decision and postponing until later Orion’s separate and
contingent claim that Interior failed to process its patent
applications in a timely fashion. On March 31, 2006, the court
granted Orion’s motion for summary judgment, reasoning that
Orion and its predecessors-in-interest were entitled to rely on
1
The IBLA is Interior’s review authority charged with deciding, on
behalf of the Secretary, matters relating to the use and disposition
of public lands and their resources. See 43 C.F.R. § 4.1(b)(3).
6
the resumption exception to maintain their claims because
Interior’s regulations allowed for such a resumption privilege
when Orion resumed annual assessment work in 1970. Orion
Reserves Ltd. P’ship v. Norton, No. 04-0791, slip op. at 8–12
(D.D.C. 2006) (Norton).2
On June 28, 2007, the district court took up the question
whether Interior unreasonably delayed action on Orion’s
patent applications. Orion Reserves Ltd. P’ship v.
Kempthorne, 516 F. Supp. 2d 8 (D.D.C. 2007) (Kempthorne).
The court concluded that “the delay in processing Orion’s
patent applications ha[d] not been unreasonable,” especially
given several administrative and congressional moratoria on
claim processing, the unusually large size of the land at issue,
limited BLM resources, and the complex legal issues
involved. Id. at 14–15. The court remanded the proceedings to
Interior for further action, but ordered the BLM to file
quarterly reports detailing progress made in processing
Orion’s patent applications. Id. at 16–17.
Interior filed a timely notice of appeal and challenges the
district court’s conclusion that Orion’s repeated and extended
failure to perform annual assessment work did not forfeit its
oil shale claims. Orion cross-appeals, arguing that Interior
unreasonably delayed processing its patent applications.
Orion has also lodged a “conditional cross-appeal” asking this
court to consider several alternative grounds for affirmance in
the event we conclude that the district court’s decision on the
merits was in error. See Sea-Land Serv., Inc. v. Dep’t of
Transp., 137 F.3d 640, 649 (D.C. Cir. 1998) (recognizing this
2
The court also held that Orion had waived its argument that the
IBLA’s decision to invalidate the oil shale claims was barred by the
statute of limitations in 28 U.S.C. § 2462 (2000), because it had
failed to make this argument to the agency. Norton, slip op. at 6–7.
7
circuit’s willingness to entertain an otherwise prevailing
party’s conditional cross-appeal seeking affirmance on
alternative grounds).
We have jurisdiction under 28 U.S.C. § 1291 and review
the summary judgment decision de novo. See Stolt-Nielsen
Transp. Group Ltd. v. United States, 534 F.3d 728, 732 (D.C.
Cir. 2008). Upon concluding that the district court’s decision
on the merits was in error, we take up and find wanting each
of Orion’s alternative arguments. We need not reach Orion’s
unreasonable delay claim because we conclude that Orion’s
mining claims are no longer valid and therefore no longer
need patent processing.
II.
The IBLA’s determination that Orion had forfeited its oil
shale mining claims, and the district court’s conclusion that it
had not, turn on undisputed but different facts. The district
court focused on the ultimate resumption of annual
assessment work for each of the claims; the IBLA based its
decision on the lengthy cessation of required assessment work
over the course of several decades. The district court found
the IBLA’s decision arbitrary and capricious because Orion’s
predecessors resumed annual assessment work in 1970, at a
time when Interior’s regulations “allowed for noncompliant
claimants to remedy assessment work performance failures by
resuming work.” Norton, slip op. at 8. It was not until 1993
that Interior removed from its regulations any reference to the
resumption exception and announced that a lapse in
assessment work “causes the interest of the claimant(s) in the
minerals subject to the mining laws to revert back to the
public domain.” 43 C.F.R. § 3851.3(b) (1993). The district
court concluded that, by effectively disavowing the
longstanding resumption exception, Interior’s 1993 regulatory
8
revision was a “change[] to the law” that could only work
prospectively and could not reach back to undermine mining
claims for which Orion’s predecessors had resumed work in
1970. Norton, slip op. at 11. Interior’s application of this
revised regulation to invalidate Orion’s claims was therefore
“impermissibly retroactive.” Id. Consistent with Interior’s
original regulations, the court suggested that Orion should get
the benefit of the Leasing Act’s savings clause, which
preserved the legal status quo for claims first made under the
Mining Law. See id. at 9–10. According to this analysis,
resumption of assessment work prior to any competing claim
was sufficient to maintain Orion’s oil shale claims.
The IBLA, by contrast, focused on the long cessation of
annual assessment work. In doing so, it applied Mining Law
and Leasing Act provisions, as interpreted by the Supreme
Court in Hickel v. Oil Shale Corp., 400 U.S. 48 (1970), to
Orion’s oil shale claims. See Crippled Horse II, 161 I.B.L.A.
at 272–74. The Hickel Court emphasized that the Leasing Act
“completely changed” the legal terrain regarding oil shale
lands. 400 U.S. at 51. The Act put an end to private location
of oil shale mining claims. As a result, claimants no longer
feared other parties’ seeking to displace their idle claims;
meaningful enforcement of the assessment work requirement
could no longer depend on “the private initiative of
relocators.” Id. at 56. Although the Leasing Act’s savings
clause provides that individuals may preserve Mining Law
claims “thereafter maintained in compliance with the laws
under which initiated,” 30 U.S.C. § 193, the Court did not
read the clause merely to preserve the status quo for Mining
Law claims as against competing claims. Recognizing that
unless Interior could directly challenge lapsed Mining Law
claims, “the ‘maintenance’ provision of [the Leasing Act’s
savings clause] becomes largely illusory,” the Court held that
9
the power of enforcement had shifted to the federal
government. Hickel, 400 U.S. at 56–57.
In the context of this new government leasing regime, the
Hickel Court concluded that to preserve a Mining Law claim,
a claimant must substantially comply with the assessment
work requirement. See id. at 56–57. The Court held that
“token assessment work or assessment work that does not
substantially satisfy” the Mining Law’s annual work
requirement “is not adequate to ‘maintain’ the claims” under
the Leasing Act’s savings clause. Id. at 57. To allow
claimants to keep their claims despite long lapses in
assessment work would “defeat the policy that made the
United States, as the prospective recipient of royalties, a
beneficiary of these oil shale claims.” Id.
Hickel’s “substantial compliance” standard governs
Orion’s sustained failure to complete the required annual
assessment work. Applying this standard, the IBLA properly
concluded that Orion’s decades-long lapse in performing
assessment work did not substantially satisfy the statutory
work requirement, regardless of its ultimate resumption of
annual work. See Crippled Horse II, 161 I.B.L.A. at 277; see
also Exxon Mobil Corp. v. Norton, 346 F.3d 1244, 1252 (10th
Cir. 2003) (upholding a finding that gaps in assessment work
throughout much of the period between 1929 and 1974
indicated a lack of substantial compliance with annual work
requirements); Cliffs Synfuel Corp. v. Norton, 291 F.3d 1250,
1261 (10th Cir. 2002) (concluding that there was a clear lack
of substantial compliance when assessment work was not
performed between 1930 and 1977).
The district court’s contrary conclusion is wrong because
it missed the effect of Hickel. The court erroneously applied
Interior’s original regulations to Orion’s claims even though
10
those regulations are inconsistent with the statutory
requirements as explained in Hickel.3 The authority to issue
regulations is not the power to make law, and a regulation
contrary to a statute is void. Manhattan Gen. Equip. Co. v.
Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936) (“A
regulation which . . . operates to create a rule out of harmony
with the statute is a mere nullity.”). Because the Supreme
Court determined that the Mining Law and the Leasing Act
together require “substantial compliance” with assessment
work obligations to maintain oil shale claims, any contrary
directive in Interior’s past regulations offers no protection to a
noncompliant claimholder like Orion.
The district court also mistakenly held that Interior
violated principles of retroactivity when it attempted “to
invalidate [Orion’s] claims for lapses in assessment work that
occurred before either the amended regulation or the Hickel
decision came into existence.” Norton, slip op. at 8. It is true
that, as a general rule, regulations may only be applied
prospectively, but the IBLA relied on Hickel and not on any
of Interior’s regulations. See Crippled Horse II, 161 I.B.L.A.
at 273–74. Supreme Court decisions are given retroactive
effect absent a clear statement from the Court to the contrary.
See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993)
(“When this Court applies a rule of federal law to the parties
3
In order to make its policies “consistent with the law” as
interpreted in Hickel, 37 Fed. Reg. 17,836 (1972), Interior
promulgated regulations in 1972 specifying that failure to perform
annual assessment work would render a mining claim “subject to
cancellation” by the government, 43 C.F.R. § 3851.3(a) (1972). In
1993 Interior further revised its regulations to remove any reference
to the resumption exception and to clarify that a lapse in assessment
work “causes the interest of the claimant(s) in the minerals subject
to the mining laws to revert back to the public domain.” 43 C.F.R.
§ 3851.3(b) (1993).
11
before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect . . . as to all
events, regardless of whether such events predate or postdate
our announcement of the rule.”). There is no suggestion in
Hickel that the decision would have anything other than
retroactive effect.4 The IBLA properly applied Hickel’s
“substantial compliance” standard to invalidate Orion’s oil
shale mining claims.
III.
As part of its conditional cross-appeal, Orion offers
several alternative reasons why we should affirm the district
court’s grant of summary judgment. These include three
separate arguments that the IBLA decision was arbitrary and
capricious or unsupported by substantial evidence. See 5
U.S.C. § 706(2) (2006). “‘The scope of review under the
“arbitrary and capricious” standard is narrow and a court is
not to substitute its judgment for that of the agency.’” Mount
Royal Joint Venture v. Kempthorne, 477 F.3d 745, 753 (D.C.
Cir. 2007) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). We uphold the
IBLA’s determinations so long as the Board “engaged in
reasoned decisionmaking and its decision is adequately
explained and supported by the record.” N.Y. Cross Harbor
R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1181 (D.C. Cir.
2004) (internal quotation marks omitted). Likewise, because
substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Palace Sports & Entm’t, Inc. v. NLRB, 411 F.3d
4
Indeed, the Court indicated in its remand order that the
“substantial compliance” test applied to claims for which
assessment work had lapsed in the early 1930s, long before the
Court’s decision. See Hickel, 400 U.S. at 58.
12
212, 220 (D.C. Cir. 2005) (internal quotation marks omitted),
we reverse an agency’s decision “only when the record is so
compelling that no reasonable factfinder could fail to find to
the contrary,” Highlands Hosp. Corp. v. NLRB, 508 F.3d 28,
31 (D.C. Cir. 2007) (internal quotation marks omitted).
A.
Rather than contest Interior’s evidence that it failed for
many years to perform annual assessment work, Orion argues
that its resumption of work in 1970 was sufficient to maintain
its oil shale claims, notwithstanding Hickel. But Orion
misreads Hickel, which made clear that the Mining Law’s
resumption exception—the linchpin of Orion’s argument—did
not survive the Leasing Act.
Citing to language from two early Supreme Court cases
that applied the maintenance provision of the Leasing Act’s
savings clause, Orion argues that the resumption exception
remains in force. In Wilbur v. Krushnic, 280 U.S. 306 (1930),
the Supreme Court suggested that a lapse in assessment work
does not automatically forfeit a Mining Law claim, but only
renders it subject to loss by relocation. Id. at 317. Noting that
the claimant had only failed to perform assessment work for a
single year and had fully resumed work before anyone
contested its claim, the Court concluded that “no relocation
can be made if work be resumed after default and before such
relocation.” Id. Similarly, in Ickes v. Virginia-Colorado
Development Corp., 295 U.S. 639 (1935), the Court rejected
Interior’s attempt to invalidate mining claims during a
fourteen-month lapse in assessment work. Noting that the
claimant had not only stated its intention to resume work but
also made arrangements to do so, the Court concluded that the
temporary work failure “gave the government no ground of
forfeiture.” Id. at 646.
13
As noted above, the Hickel Court reexamined the annual
assessment work requirement in the context of the new
leasing regime, concluding that the Leasing Act “makes the
United States the beneficiary of all claims invalid for lack of
assessment work.” Hickel, 400 U.S. at 57. Because Hickel
involved mining claims that Interior had cancelled for lack of
assessment work rather than lapsed claims for which a
claimant had resumed work, id. at 50, the Court did not have
occasion to address the Mining Law’s resumption right with
any specificity. Nevertheless, the Court’s holding makes clear
that, regardless of whether assessment work has resumed, the
only relevant inquiry concerns the actual work performed:
[W]e now hold that token assessment work, or
assessment work that does not substantially satisfy the
requirements of 30 U.S.C. § 28, is not adequate to
“maintain” the claims within the meaning of [the savings
clause] of the Leasing Act.
Id. at 57. In practice, the Court noted, this means “compliance
with ‘everything’ under 30 U.S.C. § 28, which taken literally
would mean assessment work of $100 ‘during each year.’” Id.
at 56. Although the Court suggested that not “every default in
assessment work,” however minimal or excusable, will
automatically “cause the claim to be lost,” it concluded that
successful claimants must show “substantial compliance”
with the annual requirement. Id. at 57.
The Mining Law’s resumption exception was thus
replaced by Hickel’s “substantial compliance” test, and
Orion’s reliance on prior cases suggesting a resumption right
that survived the Leasing Act is misplaced. Although the
Hickel Court did not explicitly overrule Krushnic and
Virginia-Colorado, it concluded that those cases reflect “a
14
judicial attitude of fair treatment for claimants who have
substantially completed the assessment work required.” Id. at
52. Significantly, the Court characterized all statements from
those prior cases in conflict with the discussion and holding in
Hickel as “dicta.” Id. at 57. Krushnic and Virginia-Colorado
are best understood to signify no more than that a minor or
brief default in assessment work does not necessarily “cause
the claim to be lost.” Id.
The IBLA was therefore correct to base its decision upon
“the quantum of the actual assessment work performed and
the length of time the claimant failed to meet the annual
assessment work required by the Mining Act,” Crippled
Horse II, 161 I.B.L.A. at 274 (quoting Cliffs Synfuel, 291
F.3d at 1259). That Orion resumed assessment work before
Interior moved to invalidate its claims is not, on the facts of
this case, even relevant. Given evidence of Orion’s decades-
long noncompliance with the annual work requirement, the
IBLA had good reason to invalidate its oil shale claims under
Hickel’s “substantial compliance” test.
B.
Orion also contends that the IBLA erred in failing to
consider its intent to maintain the 156 oil shale claims at
issue. We disagree. Hickel made a showing of intent
irrelevant when a claimant has substantially failed to perform
required assessment work. See 400 U.S. at 57. In an effort to
avoid the force of Hickel, Orion makes much of a subsequent
case, United States v. Locke, 471 U.S. 84 (1985), which
addressed a different statute and a different issue. In the
course of distinguishing an annual filing deadline in the
Federal Land Policy and Management Act (FLPMA), 43
U.S.C. § 1744 (2000), from the Mining Law’s assessment
work requirement, the Locke Court suggested that
15
it was open to the Court to conclude in Hickel that
Congress had intended to make the assessment work
requirement merely an indicium of a claimant’s specific
intent to retain a claim. Full compliance with the
assessment work requirements would establish
conclusively an intent to keep the claim, but less than full
compliance would not by force of law operate to deprive
the claimant of his claim. Instead, less than full
compliance would subject the mine owner to a case-by-
case determination of whether he nonetheless intended to
keep his claim.
Locke, 471 U.S. at 101–02. The thrust of Hickel’s holding
was not altered by Locke, which merely rejected a lower
court’s reliance on Hickel in finding that a December 31 filing
had “substantially complied” with the FLPMA requirement to
file “on or before December 30.” Id. at 100. The Locke Court
emphasized that “[f]ailure to comply fully with the physical
requirement that a certain amount of work be performed each
year is significantly different from the complete failure to file
on time documents that federal law commands be filed.” Id. at
101. The Court noted that although the mining laws at issue in
Hickel “do not clearly provide that a claim will be lost for
failure to meet the assessment work requirements,” id., thus
leaving open the possibility of an “intent” standard for
invalidation, the FLPMA “explicitly provides that failure to
comply with the applicable filing requirements leads
automatically to loss of the claim,” id. at 102. Rather than
offering an authoritative interpretation of Hickel, the Court
was simply rejecting an argument that the FLPMA filing
deadline is susceptible to an intent analysis. Locke did not
disturb the substantial compliance inquiry. Indeed, the Court
specifically noted that only “if an individual complied
substantially but not fully with the requirement” might he
16
“under some circumstances be able to retain possession of his
claim.” Id. at 101. In the absence of substantial compliance,
intent (or any other factor) is irrelevant.
Orion’s claims are invalid because its predecessors did
not substantially comply with the annual assessment work
requirement. Unlike the brief, fourteen-month pause in
assessment work that led the Virginia-Colorado Court to
consider the claimant’s stated intention and preparations to
resume work, 295 U.S. at 643, the decades-long absence of
required annual improvements to Orion’s mining claims did
not “substantially satisfy” the statutory work requirements,
Hickel, 400 U.S. at 57. When a claimant has not substantially
satisfied the annual assessment work requirement, his intent is
immaterial.
C.
Orion also argues that the IBLA improperly inferred
from missing annual assessment work affidavits that Orion
did not perform required work during those years. But Orion
has failed to produce any evidence that assessment work in
fact took place in years when no affidavits were filed. In order
to maintain its mining rights, a claimant must comply with
applicable federal, state, and local requirements. See 30
U.S.C. § 26. Utah law, to which Orion’s claims are subject
because they are located in Utah, requires that a claimowner
who has performed assessment work must, within thirty days,
file an affidavit stating “that the annual assessment work
required to maintain the claim was performed.” UTAH CODE
ANN. § 40-1-6(2)(c) (2008). Although the Utah Supreme
Court held that failure to file a required affidavit does not
result in loss of a mining claim when there is other
compelling evidence that the assessment work had in fact
been performed, Murray Hill Mining & Milling Co. v.
17
Havenor, 66 P. 762, 765 (Utah 1901), the statutorily required
affidavit is considered “prima facie evidence of the facts
stated in the affidavit,” UTAH CODE ANN. § 40-1-6(3).
It was therefore reasonable for the IBLA to conclude that
the absence of affidavits made out “a prima facie case that
none were filed because the work was not performed,”
Crippled Horse II, 161 I.B.L.A. at 274. This approach is
consistent with longstanding department practice. See, e.g.,
United States v. Haskins, 59 I.B.L.A. 1, 102 (1981)
(concluding that a lack of assessment work records
“established a prima facie case that the work had not been
performed”). That Orion filed affidavits for some years, but
not others, strengthens the inference that assessment work
was recorded when it was in fact performed.
To be sure, failure to file affidavits does not conclusively
demonstrate a failure to conduct assessment work, and the
IBLA considered the absence of affidavits to be nothing more
than prima facie evidence, shifting the burden to Orion “to
produce countervailing evidence of assessment work
performed.” Crippled Horse II, 161 I.B.L.A. at 275. Orion
had ample opportunity to produce evidence of work, but it
failed to do so before the IBLA, in the district court, and on
appeal. We determine that the IBLA’s conclusion that Orion
did not substantially comply with the assessment work
requirement was supported by substantial evidence.
IV.
In its motion for summary judgment, Orion argued that
Interior was barred from invalidating its claims by 28 U.S.C.
§ 2462, which provides that a “proceeding for the
enforcement of any civil . . . forfeiture, pecuniary or
otherwise, shall not be entertained unless commenced within
18
five years from the date when the claim first accrued . . . .”
The district court correctly concluded that because Orion
failed to raise this statute of limitations defense during the
administrative proceedings, it had waived this argument.
Norton, slip op. at 6–7; see also Salt Lake Cmty. Action
Program v. Shalala, 11 F.3d 1084, 1087 (D.C. Cir. 1993)
(identifying “the well-settled premise that objections to
agency proceedings must be presented to the agency ‘in order
to raise issues reviewable by the courts’” (quoting United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952))).
Orion now seeks to excuse its failure to raise this defense
before the IBLA by suggesting that the BLM decision was
based on Utah (rather than federal) law. In reality, the BLM
decision was grounded in federal law. The decision identified
relevant provisions of the Mining Law and the Leasing Act,
discussed applicable federal regulations, and cited the
Supreme Court’s decision in Hickel as the legal basis for
Interior’s invalidation of the oil shale claims. See Crippled
Horse I, slip op. at 1–2. Orion’s excuse therefore fails, and its
statute of limitations argument was forfeited.
V.
Finally, Orion argues that Interior’s failure to provide
notice and a hearing prior to invalidating its oil shale claims
violated Orion’s right to due process. According to Orion, the
BLM should have afforded it the opportunity to respond with
documentation as part of an administrative contest
proceeding, and the IBLA should have held an evidentiary
hearing before invalidating Orion’s mining claims. Interior
argues that it followed longstanding department policy and
practice in concluding, with respect to Orion’s claims, that
“no contest pursuant to 43 C.F.R. 4.451-1 or hearing pursuant
19
to 43 C.F.R. 4.415 is necessary where the material facts are
undisputed.” Crippled Horse II, 161 I.B.L.A. at 277; see also
Woods Petroleum Co., 86 I.B.L.A. 46, 55 (1985) (concluding
that the department need only grant a hearing “when there are
significant factual or legal issues remaining to be decided and
the record without a hearing would be insufficient for
resolving them” (quoting Stickelman v. United States, 563
F.2d 413, 417 (9th Cir. 1977))). We give “substantial
deference” to an agency’s interpretation of its own
regulations, “only setting it aside if the plain language of the
regulation or ‘other indications of the [agency’s] intent’
require another interpretation.” Fabi Constr. Co. v. Sec’y of
Labor, 508 F.3d 1077, 1080–81 (D.C. Cir. 2007) (quoting
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994)).
It is the IBLA’s decision and not the BLM’s initial action
that binds the agency and formally extinguished Orion’s
mining claims. See Nat’l Wildlife Fed’n, 145 I.B.L.A. 348,
362 (1998) (noting that the IBLA is “delegated responsibility
to decide for the Department ‘as fully and finally as might the
Secretary’ appeals regarding use and disposition of the public
lands and their resources” (quoting 43 C.F.R. § 4.1 (2005)));
see also Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377
F.3d 1147, 1156 n.5 (10th Cir. 2004) (“The IBLA issues the
DOI’s final and binding decision, not the BLM.”). The IBLA
reviewed the BLM’s determination de novo. Although the
IBLA had discretionary authority to grant an evidentiary
hearing, see 43 C.F.R. § 4.415, Orion failed to request one,
and there is no indication that Orion was foreclosed in any
way from submitting documents or other evidence in its
defense during the IBLA proceedings. See Timothy J.
Bottoms, 150 I.B.L.A. 200, 216 (1999) (finding that due
process was “satisfied without an administrative hearing”
20
when the claimant had adequate “opportunities to submit
documentary and other evidence to BLM and this Board”).
Orion has also failed to identify any evidence that created
a dispute as to material fact requiring resolution through a
formal evidentiary hearing. See KernCo Drilling Co., 71
I.B.L.A. 53, 56 (1983) (“A hearing is necessary only where
there is a material issue of fact requiring resolution through
the introduction of testimony and other evidence. In the
absence of such an issue, no hearing is required.”).5 Although
Orion advanced arguments about the proper inferences that
may be drawn from an absence of work affidavits, it failed to
introduce any evidence suggesting that assessment work was
actually performed in years when no affidavit was filed.
Without a factual conflict, the IBLA had no reason to grant
Orion an evidentiary hearing. See Woods Petroleum, 86
I.B.L.A. at 55 (refusing to grant a hearing when “the dispute
did not involve facts, but involve[d] the proper application
and interpretation of those facts”); see also Codd v. Velger,
429 U.S. 624, 627 (1977) (per curiam) (holding that if a
hearing “mandated by the Due Process Clause is to serve any
useful purpose, there must be some factual dispute”); Conoco
Inc. v. FERC, 90 F.3d 536, 543 n.15 (D.C. Cir. 1996)
(concluding that the APA requires agencies “to hold hearings
only when the disputed issues may not be resolved through an
examination of written submissions” (quoting Envtl. Action v.
FERC, 996 F.2d 401, 413 (D.C. Cir. 1993))). Given Orion’s
5
The IBLA’s interpretation of when an evidentiary hearing is
required is consistent with the regulatory text, 43 C.F.R. § 4.415,
and accords with other department determinations of what due
process requires in similar circumstances, see, e.g., Taylor Energy
Co. Phillips Petroleum, 148 I.B.L.A. 286, 295 (1999) (finding that
IBLA appeal proceedings satisfied due process in circumstances
when “the record does not reflect sufficient factual issues to
warrant a hearing”).
21
failure to identify any meaningful factual dispute, the agency
proceedings provided sufficient process and Orion’s due
process challenge to the IBLA decision fails.
VI.
For the foregoing reasons, the judgment of the district
court is
Reversed.