High Country Citizens Alliance v. Clarke

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 21, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

H IG H CO U N TR Y C ITIZEN S
ALLIAN CE; TOW N O F CRESTED
B UTTE, C OLO RA D O ; B OA RD OF
C OU N TY CO M M ISSIO N ER S OF No. 05-1085
TH E COU N TY O F G U N N ISO N,
C OLO RA D O ,

Plaintiffs - Appellants,

v.

KATHLEEN CLARKE, in her official
capacity as Director of the U.S.
B ureau of Land M anagement; RON
W ENKER, in his official capacity as
Colorado BLM Director; UN ITED
STA TES B UR EA U O F LA N D
M A N A G EM EN T; G A LE N O RTON,
in her official capacity as Secretary of
the Interior; UN ITED STATES
DEPARTM ENT OF THE INTERIOR;
PH ELPS D O D G E C OR PO RA TION;
M T. EM M O N S M IN IN G CO M PANY,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D .C . No. 04-M K-749 PAC)

Roger Flynn (and Jeffrey C. Parsons, W estern M ining A ction Project, Lyons,
C olorado, for Plaintiffs-A ppellants High Country Citizens’ Alliance and the Tow n
of Crested Butte, Laura M agner, Crested Butte, Colorado, for Plaintiff-Appellant
Town of Crested Butte, and David Baumgarten and Thomas A . Dill, County
Attorney’s O ffice, Gunnison, Colorado, for Plaintiff - Appellant Board of County
Commissioners of the County of G unnison, on the briefs).

Aaron P. Avila (and Todd S. Aagaard, U.S. Department of Justice, Environment
and Natural Resources D iv., Kelly A Johnson, Acting Assistant Attorney General,
W illiam J. Leone, United States Attorney, Roxane J. Perruso, Assistant United
States A ttorney, and Karen Haw becker and Kendra N itta, Office of the Solicitor,
Division of M ineral Resources, Department of the Interior, on the brief),
W ashington, D.C., for the Federal Defendants - Appellees.

David S. Steefel (and Frank Erisman, on the brief), Holme, Roberts & Owen,
L.L.P., Denver, Colorado, for Defendants - Appellees Phelps Dodge Corporation
and M ount Emmons M ining Company.

Before KELLY, BR ISC OE, Circuit Judges and JOHNSON, * District Judge.

KELLY, Circuit Judge.

High Country Citizens’ Alliance, Town of Crested Butte, Colorado and the

Board of Commissioners of the County of Gunnison, Colorado (collectively,

Plaintiffs) appeal from the district court’s dismissal, for lack of subject matter

jurisdiction, of two claims of their three-claim complaint. Plaintiffs’ complaint

arises out the issuance of a mining patent and names two groups of defendants–

federal defendants including the Bureau of Land M anagement (BLM ), Kathleen

Clark in her official capacity as BLM Director, Ron W enker in his official

*
The Honorable W illiam P. Johnson, District Judge, United States District
Court for the District of New M exico, sitting by designation.

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capacity of the Colorado Bureau of Land M anagement Director, the United States

Department of the Interior (collectively, BLM ); and private defendants including

M ount Emmons M ining Company (M EM CO) and Phelps Dodge Corporation 1

(collectively, M EM CO). The district court entered final judgment pursuant to

Fed. R. Civ. P. 54(b) on the two claims involved in this appeal. A plt. A pp. 56.

W e exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Background

In December 1992, M EM CO filed a mineral patent application with the

BLM , pursuant to the General M ining Law of 1872, 30 U.S.C. §§ 21-47, (“1872

M ining Law”). M EM CO sought a patent on approximately 174 acres of public

land in the Gunnison National Forest. 30 U.S.C. § 29. M EM CO asserted in its

application that these mining claims, located in 1977 (and amended in 1978),

contained valuable deposits of molybdenum.

Plaintiffs filed three separate administrative protests with the BLM ,

objecting to the grant of M EM CO’s application. They argued that the mining

claims M EM CO seeks to patent do not contain the required “discovery of a

valuable mineral deposit” within each claim, and that the issuance of a patent for

the acreage of the claims exceeds that allowed by the 1872 M ining Law. None of

the Plaintiffs, now or ever, claim a competing property interest in any of the land.

1
Phelps D odge is the ultimate parent company of M EM CO.

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 The BLM determined that nine of M EM CO’s claims satisfied patent

requirements. On April 2, 2004, the BLM simultaneously dismissed the

Plaintiffs’ protests in a twelve-page decision, Aplt. Appx. at 61-72, and granted

M EM CO a patent for nine of its claims, covering approximately 155 acres. The

Plaintiffs filed suit against the BLM and M EM CO twelve days later, seeking

declaratory and injunctive relief. In their complaint, the Plaintiffs asserted three

claims: (1) the BLM violated the 1872 M ining Law and the Administrative

Procedures A ct, 5 U .S.C. §§ 701-706 (“APA”) by granting M EM CO the patent,

(2) the BLM violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

by withholding certain documents from Plaintiffs, and (3) the BLM violated the

Federal Land Policy and M anagement Act (“FLM PA ”), 43 U.S.C. §§ 1701-1784,

and the APA by depriving Plaintiffs an opportunity to review the patent

application and failing to provide prompt notice of the denial of the protests and a

statement of reasons for the denial.

Plaintiffs filed a motion for preliminary injunction on M ay 7, 2004, seeking

to restore title in the patented lands to the United States. M EM CO filed a motion

to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). The BLM filed a

similar motion to dismiss with regards to the Plaintiffs’ first and third claims

pursuant to Fed. R. Civ. P. 12(b)(1), and answered the second claim.

On January 12, 2005, the district court granted B LM and M EM CO’s

motions to dismiss for lack of subject matter jurisdiction and denied the

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Plaintiffs’ motion for a preliminary injunction as moot. Aplt. A pp. 39-55, 56.

The district court then entered judgment on the first and third claims in favor of

the various defendants pursuant to Fed. R. Civ. P. 54(b). The district court held

that third parties who claim no ownership interest in the land subject to a mineral

patent cannot challenge the issuance or validity of the patent under the 1872

M ining Law and have no right to relief under the APA . Id. at 43. On appeal, the

Plaintiffs challenge that conclusion. 2 Specifically, the Plaintiffs argue that the

district court erred by (1) ignoring the presumption of reviewability of agency

actions under the APA , (2) holding that aggrieved persons cannot seek judicial

review of BLM patenting decisions, (3) dismissing Plaintiffs’ substantive APA

claim, and (4) dismissing the private defendants from the case. The question of

whether the A PA waives sovereign immunity for Plaintiffs, who claim no adverse

interest in the land, to bring a suit challenging the issuance of a patent under the

1872 M ining Law, is a matter of first impression.

Discussion

A. Standard of Review

Because the district court dismissed the Plaintiffs’ action for want of

2
The Plaintiffs do not challenge the dismissal of their claims under the
FLM PA, and challenge the dismissal of their third claim only to the extent it
alleges A PA violations. They also do not challenge the dismissal of their FOIA
claims against M EM CO. The Plaintiffs’ second claim (FOIA) against the BLM is
still pending in the district court and is not the subject of this appeal.

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subject matter jurisdiction, we review the district court’s grant of the motions to

dismiss de novo. Georgacarakos v. United States, 420 F.3d 1185, 1186 (10th Cir.

2005); Davis ex rel. Davis v. United States, 343 F.3d 1282, 1294 (10th Cir. 2003)

(grant of motion to dismiss under either Fed. R. Civ. P. 12(b)(1) or 12(b)(6) is

reviewed de novo). W e assume the truth of all facts Plaintiffs allege.

Georgacarakos, 420 F.3d at 1186.

B. Subject M atter Jurisdiction-Federal Appellees

It is w ell settled that the Plaintiffs can only sue the BLM to the extent it

waived its sovereign immunity. E.g. United States v. Sherwood, 312 U.S. 584,

586 (1941). W hile 28 U.S.C. § 1331 grants the court jurisdiction over all “civil

actions arising under the Constitution, law s or treaties of the United States,” it

does not independently waive the Government’s sovereign immunity; § 1331 will

only confer subject matter jurisdiction where some other statute provides such a

waiver. City of Albuquerque v. United States Dep’t. of the Interior, 379 F.3d

901, 906-07 (10th Cir. 2004). W aiver of sovereign immunity must be explicit and

cannot be implied. Villescas v. Abraham, 311 F.3d 1254, 1256-57 (10th Cir.

2002).

The APA serves as a limited waiver of sovereign immunity, not a grant of

subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105-07 (1977); City

of Albuquerque, 379 F.3d at 907; New M exico v. Regan, 745 F.2d 1318, 1321

(10th Cir. 1984). It provides: “A person suffering a legal wrong because of

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agency action, or adversely affected or aggrieved by agency action within the

meaning of the relevant statute, is entitled to judicial review thereof.” 5 U.S.C.

§ 702. The APA withdraws that waiver of sovereign immunity, however, when

the relevant statute, in this case the 1872 M ining Law, “precludes judicial

review.” 5 U.S.C. § 701(a)(1). 3 In other words, before the waiver of sovereign

immunity under § 702 of the APA applies, “a party must first clear the hurdle of

§ 701(a).” Heckler v. Chaney, 470 U.S. 821, 828 (1985); Beamon v. Brown, 125

F.3d 965, 966 (6th Cir. 1997) (“Under 5 U.S.C. § 701(a)(1), the APA does not

waive sovereign immunity when statutes preclude judicial review.”). 4

A presumption of reviewability accompanies agency actions under the

APA , but it may be overcome. 5 Block v. Cmty Nutrition Inst., 467 U.S. 340, 349

3
The APA also does not permit review and hence waive sovereign
immunity where the “agency action is comm itted to agency discretion by law.” 5
U.S.C. § 701(a)(2). The parties agree that this exception is not applicable here,
and as such, we do not address it.
4
Unlike the dissent, we view the question of whether the 1872 M ining
Law precludes judicial review against a backdrop of sovereign immunity–if the
review cannot be had under the APA due to § 701(a)(1) or (2), the government
has not waived its sovereign immunity.
5
The dissent takes the court to task for failing to acknowledge the
presumption of judicial review and for holding the government to a lesser
standard in demonstrating that judicial review is precluded. As we discuss, Block
reaffirmed that the government must counter a presumption in favor of judicial
review, but also warned against the use of strong evidentiary formulations (such
as clear and convincing) in deciding the legal question of whether congressional
intent precluding judicial review is fairly discernible. Block, 467 U.S. at 351.
The presumption of judicial review controls where substantial doubt exists about
congressional intent on the preclusion issue, but it is hardly conclusive in other

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(1984). In Block, the Supreme Court clarified its earlier “clear and convincing”

standard to overcome the presumption of review ability established in Abbott

Labs. v. Gardner, 387 U.S. 136, 141 (1967). Specifically, the Court found that

the clear and convincing standard is “not a rigid evidentiary test but a useful

reminder to courts that, where substantial doubt about the congressional intent

exists, the general presumption favoring judicial review of administrative action

is controlling.” Block, 467 U.S. at 351. Two years later, the Supreme Court,

relying on Block, reiterated that “Congress ordinarily intends that there be

judicial review, and emphasized the clarity with which a contrary intent must be

expressed.” Bowen v. M ich. Acad. of Family Physicians, 476 U.S. 667, 671

(1986) (superceded and abrogated on other grounds). The Tenth Circuit, though

characterizing the burden to overcome the presumption as “heavy,” Thomas

Brooks Chartered v. Burnett, 920 F.2d 634, 641 (10th Cir. 1991), has consistently

followed the Block standard. See Rocky M ountain Radar, Inc. v. F.C.C., 158

F.3d 1118, 1121 (10th Cir. 1998).

To overcome the presumption of reviewability, an intent to preclude

judicial review must be “fairly discernible” from the statutory scheme. Ass’n of

circumstances. Id. (“[W]here substantial doubt about the congressional intent
exists, the general presumption favoring judicial review of administrative action
is controlling. That presumption does not control in cases . . . [where] the
congressional intent to preclude judicial review is ‘fairly discernible’ in the detail
of the legislative scheme.”). O ur use of the term “sufficient evidence” in
reviewing this issue is done with full appreciation of satisfying the pertinent legal
standards.

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Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157 (1970). The fact

that a statute does not explicitly provide for judicial review is not outcome

determinative. Id. at 157. Rather, the Supreme Court set forth specific factors for

courts to consider in analyzing whether, absent explicit language or explicit

legislative history, the presumption of reviewability has been overcome: “The

congressional intent necessary to overcome the presumption [of reviewability]

may [ ] be inferred from contemporaneous judicial construction barring review

and the congressional acquiescence in it . . . or from the collective import of

legislative and judicial history behind a particular statute . . . [or] by inferences of

intent drawn from the statutory scheme as a whole.” Block, 467 U.S. at 349

(internal citations omitted).

The Plaintiffs maintain the district court ignored the presumption of

reviewability. Aplt. Br. at 12. 6 W e disagree. The district court cited and applied

the Block factors w hich are pertinent in overcoming such a presumption. Aplt.

Appx. 43-51. Block discusses the presumption and we are unwilling to assume

that the district court missed the predicate and applied the Block factors for no

apparent purpose.

6
W e also disagree with the Plaintiffs’ characterization of the district
court’s order as one based on a search for authorization of a private cause of
action in the 1872 M ining Law. Aplt. Br. at 16. That is too narrow. A plain
reading of the order indicates the district court applied the Block factors to
determine if it was fairly discernable from the statute that Congress intended to
preclude review.

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 The 1872 M ining Law provides that “valuable mineral deposits in lands

belonging to the United States . . . shall be free and open to exploration and

purchase, and the lands in which they are found to occupation and purchase.” 30

U.S.C. § 22. Citizens can locate mining claims by discovering valuable mineral

deposits on lands open to location. 30 U.S.C. §§ 22, 28. The 1872 M ining Law

permits a claim holder to obtain a patent (fee title) to the lands encompassed by

the mining claim he or she holds. 30 U.S.C. § 29. The BLM must determine

whether a patent application complies with all the statutory requirements. Id.

After finding that it has, the BLM ’s issuance of a patent is ministerial. M arathon

Oil Co. v. Lujan, 937 F.2d 498, 501 (10th Cir. 1991).

The 1872 M ining Law provides a mechanism for resolving disputes over

claim ow nership or satisfaction of the patent requirements. The applicant must

give notice to potentially competing claimants and provide the opportunity for

competing claimants to file their adverse claims. 30 U.S.C. §§ 29-30. The law

expressly creates a right of action for adverse claimants. 30 U.S.C. § 30. It also

provides a process for third parties who claim no ownership in the land to file

protests with the BLM , and provide evidence as to why the applicant has not

satisfied the requirements for a patent. 30 U.S.C. § 29. The Plaintiffs agree they

are not adverse claimants.

There is no express grant of judicial review in the 1872 M ining Law to

those who protest unsuccessfully. As such, we look to the Block factors to

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determine whether there is sufficient evidence of congressional intent to preclude

review .

Import of Legislative and Judicial History

Although the Plaintiffs are correct that “[c]ongressional intent in enacting

the 1872 M ining Law was not for the unfettered development of public land,”

Aplt. Br. at 23 (emphasis omitted), the legislative history reveals that security of

title w as integral to and paramount in the passage of the mining laws. After a

thorough review of the legislative history, we conclude that judicial review of a

grant of a patent by a third party (w ith no colorable property interest) conflicts

with what Congress sought to achieve.

Because the 1872 M ining Law essentially served to combine and fine tune

two earlier acts, the Lode Law of 1866 and the Placer Act of 1870, it is necessary

to review the history of that legislation as well. 7 In 1864 during the C ivil W ar,

Congress began the debate over regulation of mining lands. Allowing a

mechanism by which the government could sell the land and generate revenue to

ease the war debt was the initial concern and much debate focused on how much,

if any, to tax the mines. Cong. Globe, 38th Cong., 1st Session, 2557-2559 (1864).

Congress sought not just an immediate solution to the war debt, but an end to the

7
The dissent contends that the legislative history of the Lode Law and
Placer A ct is “irrelevant.” Congress intended that the 1872 M ining Law would
incorporate these statutes, Cong. Globe, 42nd Cong., 2d Session, at 532-34
(1872), and thus w e find the legislative history of these acts extremely relevant to
the analysis.

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problem of vagrancy and lack of development plaguing the mining states. The

solution of fixed interests became clear:

I suppose two thirds of the area of California is w hat is called
mining land. Not an acre of it has been surveyed. It has not
been laid off into sections; it has not been laid off into small
parcels, so that individuals can acquire rights to it. They go
upon it temporarily and perhaps put up cabins; they stay there
as long as they can work with some special advantage; but it is
only a place for a day, or a month, or a season, and then they
wander off to other places; whereas if they could acquire
permanent rights they would make their homes there . . . . They
have had no opportunity to acquire a right to the lands. The
State of California would be twice as strong and twice as
populous today if at an early period provision had been made
w hereby persons seeking rights there could secure permanent
and fixed interests.

Id. at 2557. The development of mining was a critical concern. See id. at 2559

(“I say it is the first interest of the public . . . to have this wealth developed . . . I

do not vote for any enactment that shall discourage the development of this

wealth.”).

Debate between the western senators and the eastern senators grew, as the

eastern senators sought to maximize revenue, while the western senators sought to

maximize development. See Cong. Globe, 38th Cong., 2d Session, at 684-687

(1865); Cong. Globe, 39th Cong., 1st Session, at 301 (1866). The one common

thread was a desire to establish secure and permanent title to the land in the

miners. See Cong. Globe, 38th Cong., 2d Session, at 684-687 (1865). Although

Indiana Senator Julian’s bill was eventually killed by the w estern senators

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concerned about his proposed taxation, permanent fee title in the land was a

priority, even for the eastern senators. The practice of leasing the land “drew into

the mining regions a population of vagrants, gamblers, and ruffians, excluding

sober and intelligent citizens, and making the establishment of civil communities

impossible.” Id. at 685. Senator Julian compared the English system to that of

the United States: “the English miner, having the freehold of the soil, husbands

and improves his property, and follows the vein downward even to the distance of

two thousand feet. The American lessee can only take what he finds near the

surface of the ground.” Id. He continued: “W here there is no security for land

titles, no permanent communities can be established . . . . By denying permanent

ownership in the soil, and thus preventing its improvement, it necessarily keeps

down its value . . . . M en will not lend their capital to mining projects where the

title to the soil is in the Government, and cannot be pledged as security.” Id. at

686. Thus among the disagreements between east and west, the importance of

permanent title was one area where the senators found common ground.

In 1866, Nevada Senator Stew art introduced a bill that would eventually

become the Lode Law of 1866. 8 Its provisions were similar to those of the 1872

M ining Law. Cong. Globe., 39th Cong., 1st Session, at 3225 (1866). Senator

8
A lode is a vein of hard rock minerals, such as gold and copper, contained
within surrounding barren rock. A placer claim acquires deposits of minerals at
or near the surface, such as gold contained in river gravel. Richard W . Harris, A n
Introduction to M ining Law, 7 Nev. Law. 15, 15-16 (1999).

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Stewart proposed this bill as a mechanism for “the G overnment to give title, so

important for permanent prosperity” whose urgency increased “by the

introduction of bills looking to what the miners regard as a general system of

confiscation destroying all confidence in mining titles and by the absolute

necessity of some system guarantying to capitalists security for their investment.”

Id. at 3227 (emphasis supplied). Senator Stewart believed that the Lode Law of

1866 would “give stability to mining titles, invite capital, and greatly increase the

production of the precious metals.” Id. Security of title was a primary purpose of

the 1866 Lode Law: “W e want a law of the character of the bill under

consideration to establish and secure mining titles. W hile these are in doubt a

feeling of insecurity will paralyze all our efforts . . . . Let a just, liberal, and

definite policy be adopted toward the miners. Add to their possession the

absolute right of property, and you will have lain a solid foundation for large and

increasing yields . . . . The feeling of security and independence produced by the

right of property in the soil is the real foundation of our stability . . . .” Id. at

3228.

The Placer Act of 1870 applied the provisions of the Lode Law to the

patenting of lands with placer deposits. Once again, the senators stressed the

importance of acquiring secure title as a prerequisite to making improvements on

the land. Cong. Globe, 41st Cong., 2d Session, at 4403-04 (1870).

The M ining Law of 1872 essentially united the previous mining legislation

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and remedied problems that had developed with the implementation of those laws.

Cong. Globe, 42nd Cong., 2d Session, at 532-34 (1872). Senator Sargent

explained:

W e are inducing miners to purchase their claims, so that large
amounts of money are thereby brought into the Treasury of the
United States, causing the miners to settle themselves
permanently, to improve and establish homes, to go down
deeper in the earth, to dig further into the hills, and in every
way improve their own condition . . . . This bill simply oils the
machinery a little.

Id. at 534. 9 Congress, in passing the 1872 M ining Law , was in search of a more

definite rule because, in part, “the whole region was in litigation.” Id. at 2459.

Essential to this definitiveness was certainty in one’s title by the finality inherent

in the issuance of a patent:

The object of the patent is to give title; it cuts off all uncertain
title; if the person wants to improve a claim he can go and buy
it, and it becomes private property, and it is certainly the best
policy to have any kind of property improved that it shall
become private property. M en think more of a patented claim
than they do of one that is not patented. They will spend
millions in prospecting a patented claim where they will not

9
The dissent suggests these excerpts of legislative history are “selective”
and not in accordance with text and structure of the M ining Law. W e disagree
with the dissent’s characterization of the history reported here as “selective.”
According to the dissent, the legislative history is completely opposite of what
was enacted–provisions that actually increase litigation rather than decrease it.
W hile an interesting theory, the right of action for adverse claimants the M ining
Law provides for, 30 U.S.C. § 30, is consistent with an interest in finality because
it narrows and defines the class of people that could bring an action. The third
party protest procedure, 30 U.S.C. § 29, also reflects this concern–such protests
are made before the patent issues, enabling the issuance of a patent to be final. In
addition, Block directs us to examine the legislative history in our analysis.

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 spend hundreds of dollars to prospect a claim where the title is
uncertain and liable to be disturbed by somebody outside.

Id.

This legislative history reflects a clear concern with the finality of the

patent as a prerequisite to miners being willing to invest the necessary time and

capital to develop the industry.

The Plaintiffs argue that the 1872 M ining Law is not a one-way street

towards patenting, but rather an effort to balance the needs of the mining industry

with those of non-mining users such as homesteaders, railroads and other

interests, presumably the need of the national treasury. Aplt. Br. at 24-25. First,

the interests Plaintiffs identified are not necessarily competing interests to the

mining industry. A prosperous w est as a result of the mining expansion would

simultaneously stimulate the national treasury, the interests of homesteaders and

the railroads. Second, the Plaintiffs’ interests are primarily recreational and

environmental, two interests that were not paramount at the time Congress sought

to develop the economy through mining.

It is beyond doubt that in 1872 Congress was concerned with finality of

title. Permitting a challenge by third parties with no interest in the land would

allow the kind of lengthy litigation over rights that a patent was designed to

avoid. This would no doubt frustrate the purpose of the 1872 M ining Law, as

Congress envisioned it then. W e recognize that over the last 133 years, interests,

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concerns and priorities have shifted. M any have called for the revision and repeal

of this seemingly antiquated law. See e.g. Robert J. Uram, Prospects for M ining

Law Reform, 12 Nat. Resources & Env’t 191 (1998). But that responsibility for

change lies with Congress, not the courts. At its core, the 1872 M ining Law was

about ensuring the settled expectations of the emerging mining corporations. See

e.g., M eyer & Riley, Public Domain, Private Dominion, Sierra Club Books, 46,

52, 56, 78 (1985) (noting that “[p]roviding the[] powerful interests [of the mining

corporations] with security of ownership, protection against popular hostility, and

the opportunity to advance their control at the state level were the compelling

motivations behind the legislation,” and “the 1872 M ining Law creates a

presumption in favor of mining that is difficult– if not impossible– to overcome .

. . [it] is the M agna Carta of mining on public land; its provisions have a status

higher than that of ordinary law ”); Carl J. M ayer, The 1872 M ining Law:

Historical Origins of the Discovery Rule, 53 U. Chi. L. Rev. 624, 648 (1986) (the

impetus for the 1872 M ining Law had everything to do with the mining

corporations).

Next we consider judicial construction of the 1872 M ining Law. It is

essentially undisputed that the cases, both contemporaneous with the 1872 M ining

Law and subsequent to the enactment of the APA , uniformly preclude persons

situated similarly to Plaintiffs, that is, not claiming a property interest in the land,

from judicially contesting the validity of the patent. Although the APA changed

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the landscape of reviewing agency decisions, these cases, while not dispositive,

are nonetheless instructive. As early as 1881, the Supreme Court held that an

issued patent:

not merely operates to pass the title, but is in the nature of an
official declaration by that branch of government to which
the alienation of the public lands, under the law, is intrusted
(sic), that all the requirements preliminary to its issue have
been complied with. The presumptions thus attending it are
not open to rebuttal in an action at law . It is this unassailable
character which gives to it its chief, indeed its only, value, as
a means of quieting its possessor in the enjoyment of the
lands it embraces. If intruders upon them could compel him,
in every suit for possession, to establish the validity of the
action of the Land Department and the correctness of its
ruling upon matters submitted to it, the patent, instead of
being a means of peace and security, would subject his rights
to constant and ruinous litigation.

Smelting Co. v. Kemp, 104 U.S. 636, 640-41 (1881). Absent a challenge to the

BLM ’s jurisdiction, a “patent is unassailable for mere errors of judgment.” Id. at

646. See also Steel v. St. Louis Smelting and Refining Co., 106 U.S. 447, 451

(1882) (the BLM “must consider and pass upon the qualifications of the applicant,

the acts he performed to secure the title, the nature of the land, and whether it is

of the class which is open to sale. Its judgment upon these matters is that of a

special tribunal and is unassailable except by direct proceedings for its annulment

or limitation” based on lack of jurisdiction). 10 The courts w ere also clear that it

10
W e are not persuaded that Smelting Company and Steel should be
dismissed or disregarded because “they involved the distinction between courts of
law and equity.” The dissent completely ignores the extensive language in both
opinions supporting the idea of finality of patent. See Smelting Company, 104

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“does not lie in the mouth of a stranger to the title to complain of the act of the

government with respect to it.” Smelting Co., 104 U.S. at 647; see also Iron

Silver M ining Co. v. Campbell, 135 U.S. 286, 301 (1890) (“W hen [a person] has

once obtained the patent of the United States for his land, he should be only

required to answer persons who have some established claim.”) (emphasis added);

Sparks v. Pierce, 115 U.S. 408, 413 (1885) (“To entitle a party to relief against a

patent of the government, he must show a better right to the land than the

patentee, such as in law should have been respected by the officers of the land

department, and being respected would have given him the patent. It is not

sufficient to show that the patentee ought not to have received the patent. It must

affirmatively appear that the claimant was entitled to it, and that, in consequence

of erroneous rulings of those officers on the facts existing, it was denied to

him.”); W ight v. Dubois, 21 F. 693, 694 (C.C.D. Col. 1884) (in a patent issue,

“when grantor and grantee are satisfied, a stranger has nothing to say”).

The Plaintiffs’ arguments that these cases are irrelevant because they

involved suits between private parties is not persuasive. At its core, the goal– to

invalidate the patent– is the same, and the courts’ resolutions of these questions is

indicative of an emphasis on finality. Nor does the Plaintiffs’ urging that “pre-

APA caselaw is inapplicable” persuade us. Block explicitly directs courts to

U.S. at 644-47 (referring to the “conclusiveness of a patent” as a “doctrine”). W e
think that Block requires us to consider contemporaneous cases.

- 19 -
consider these contemporaneous constructions and the judicial history as a whole,

regardless of shifting and evolving interests. In arguing that the general public’s

interest is paramount, Aplt. Br. 23-24, the Plaintiffs miss the point. W hile they

are correct in their assertion that the Supreme Court has recognized the interest of

the public in making sure the patents conform to law, Cameron v. United States,

252 U.S. 450, 460 (1920), the mechanism Congress established is an

administrative one (through the BLM ), not a judicial one.

In W ight, the court confronted almost the same situation as here. It

rejected an attempt by a party claiming no property interest in the land to

challenge the issuance of a mining patent in the courts and found that the sole

remedy was to file an objection before the Land Department. W ight, 21 F. at

693-94, 696. The court determined that once the Land Department overrules the

protest, there is “no further right or remedy.” Id. at 696. The W ight court,

interpreting the 1872 M ining Law, compared a protestant’s situation to that of an

amicus curiae and held that where the Land Department has rejected the protest,

“the protestant has no further standing to be heard anywhere. The protest cannot

be made the basis of any litigation in the court.” Id.; see also Beals v. Cone, 188

U.S. 184, 187 (1903) (“There is no suggestion in the pleadings that the protestants

were in any way interested in the ground applied for, or that they were acting

other than as good citizens, seeking to prevent a wrong upon the government.

- 20 -
Their standing in the proceeding was in the nature of amici curioe [sic].”); 11 2

Am. Law of M ining §§ 53.04, 53.06 (“the protestant cannot, by filing a protest,

acquire any right or equity in the land which can be made the basis of a suit . . .

to cancel the patent . . . . A protestant who does not allege an interest in himself

stands solely in the position of amicus curiae.”).

Although we have been unable to find, and the parties have not provided, a

case directly on point, analogous situations after the enactment of the APA

provide some insight. On balance, when viewed as a whole and in light of the

legislative history, the modern judicial history also supports our conclusion.

Several cases have indicated that those in the Plaintiffs’ position, who

assert no competing interest in the land, have no right of action to challenge the

issuance of a patent. Discussing land patents, the Ninth Circuit has emphasized

that “a United States patent is protected from easy third-party attack. It is not

sufficient for one challenging a patent to show that the patentee should not have

received the patent; he must also show that he (the challenger) is entitled to it.”

Kale v. United States, 489 F.2d 449, 454 (1973) (internal citations omitted); see

11
Although the dissent correctly notes that Beals presented the question of
whether a protester, who was not a party in the prior proceeding, could invoke res
judicata, the court’s characterization of the protesters as amicus curiae is telling.
The fact that the protesters asserted no interest in the land, and were acting as
“good citizens” led the court to conclude that they were not parties in interest,
and as such, could not invoke res judicata. See Beals, 188 U.S. at 187.

- 21 -
also Leisnoi, Inc. v. United States, 313 F.3d 1181, 1185 (9th Cir. 2002). 12

M oreover, as recently as 1999, the Ninth Circuit relied on Smelting Co. to define

a patent as “an official declaration of title which is, with limited exceptions,

unassailable and not rebuttable.” United States v. Shumway, 199 F.3d 1093, 1096

(9th Cir. 1999). 13

In an action between two private parties challenging the validity of a

patent, the Ninth Circuit, relying on St. Louis Smelting, again came down on the

side of finality:

As a matter of federal law, it is w ell established that the validity
of a deed or patent from the federal government may not be
questioned in a suit brought by a third party against the grantee
or patentee . . . . Simply stated, a plaintiff in such a case has no
cause of action. These holdings are supported by sound reason.
W hen public lands are conveyed to private individuals, a
contractual relationship is created between the Government and
the grantee; the integrity of such transactions could be upset if
a grantee . . . became liable to an am orphous class of third
persons.

Raypath, Inc. v. City of Anchorage, 544 F.2d 1019, 1021 (9th Cir. 1976) (internal

citations omitted).

12
The dissent points out what we readily acknowledge: several cases we
must consider including Kale, Leisnoi and Raypath are not directly on point
because they do not involve the 1872 M ining Law . These cases did however,
involve land patents and land appropriation and are instructive in analyzing the
propriety of third-party involvement.
13
The Plaintiffs argue that Shumway is irrelevant because the patent
discussion is dicta and was not dealing with judicial review under the APA. Aplt.
B r. at 31. We consider it for w hat it is worth–in a case of first impression, we
survey the body of judicial history available, if only for the sake of completeness.

- 22 -
 Although Raypath is not factually identical to the instant action because it

involved a suit between private parties, Aplt. Br. at 30, the effect is really the

same– here, the Plaintiffs attempt to state a claim against the BLM , but the effect

of their victory would be to divest M EM CO of its patent. It cannot be that what

one cannot achieve directly, he is permitted to achieve indirectly, especially when

that end, divestiture of title, w as one of Congress’ primary concerns w hen it

passed the 1872 M ining Law.

The Plaintiffs also suggest that the district court overlooked several cases

allow ing judicial review of patenting decisions under the APA, despite no express

provision in the 1872 M ining law allowing judicial review. Aplt. Br. at 35-41

(citing, e.g., Exxon M obil Corp. v. Norton, 346 F.3d 1244, 1248 (10th Cir. 2003);

Cliffs Synfuel Corp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002); M t.

Emmons M ining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997); see also

Adams v. W itmer, 271 F.3d 29, 34 (9th Cir. 1958)). As we discuss below, cases

must be read against their facts, and these cases generally involve patent

applicants seeking judicial review of the denial of a patent, not strangers to the

title seeking judicial review of the grant of a patent to another. Although the

Plaintiffs suggest that these situations should merge, the former involve mining

claimants asserting property rights, not a potentially unlimited number of third-

parties without such rights seeking to invalidate the property rights of others.

Given an administrative review process for third-party issues, and the long

- 23 -
judicial construction prior to the APA which did not permit judicial review of

such claims, we would be hard pressed to conclude that the APA changed this. 14

In supplemental briefing, the Plaintiffs argue that this circuit’s recent

decision in Southern Utah W ilderness Alliance v. BLM , 425 F.3d 735 (10th Cir.

2005) (“SUW A”), resolves the question before this court. There, several

environmental organizations brought suit against the BLM to enjoin a county road

construction project across BLM land. This court rejected a BLM argument that

the BLM had authority to rule on the counties’ rights of w ay. The argument was

based on Cameron, 252 U.S. 450, which upheld the BLM ’s power to determine

the validity of unpatented mining claims. In so ruling, this court made the

following observation about protests to the issuance of a patent under the 1872

M ining Law :

Furthermore, w hen a private party protests the issuance or
nonissuance of a patent, the BLM has the authority to hold a
hearing and pass on the applicant’s compliance with the
statutory requirements. This determination is binding on courts,
reviewable only in accordance with administrative law or in a
direct action to cancel, modify, or issue the patent . . . . Once
title passes, however, the BLM loses authority over the subject
lands, and the title granted by the patent can be challenged only

14
The dissent urges reliance on South Dakota v. Andrus, 614 F.2d 1190
(8th Cir. 1980), strongly implying that the State (w ithout an ownership interest)
was permitted to assert its rights in a challenge to a patent under the 1872 M ining
Law. In Andrus, the BLM was the party that brought suit, and South Dakota,
which sought to intervene, was permitted to file an amicus brief. Andrus, 614
F.2d at 1192. M oreover, the state’s subsequent action seeking an order
compelling an environmental impact statement did not implicate the finality of a
patent because it dealt with issues prior to the patent’s issuance.

- 24 -
 through the courts.

Id. at 754 (internal citations omitted). The Plaintiffs argue that this language

establishes the jurisdiction of the courts to hear challenges such as the one in the

instant action. W e disagree. The cases relied on by the panel for this

proposition, Smelting Co. and Cameron, do not support any right of review for

those with no claimed interest in the patented land, and in fact, argue against such

a construction. 15

As previously noted, most of the cases on which Plaintiffs rely recognize

review ability of claims by those who assert an interest in the land- either litigants

whose patent application was denied 16 or those asserting a competing claim

(w hose right to review the 1872 M ining Act explicitly recognizes in §30). Aplt.

Br. at 35-41; Aplt. Reply at 12-13 & n.3 (citing, e.g., Babbitt, 117 F.3d 1167;

Brennan v. Udall, 379 F.2d 803 (10th Cir. 1967); Adams, 271 F.2d 29). The

question is not, as the Plaintiffs frame it, whether the court can review B LM

decision making under the APA. See Aplt. Br. at 36. The question, rather, is

whether third parties claiming no interest in the land can challenge the issuance of

a patent. Allowing review of claims by adverse claimants or those whose patent

15
One might point out that Smelting and Cameron were decided before the
APA, yet necessarily relied upon by the Plaintiffs here.
16
W e discuss these two categories together because both involve property
interests in the subject lands. An unpatented mining claim is a fully recognized
possessory interest. United States v. Locke, 471 U.S. 84, 86 (1985).

- 25 -
the BLM denied, addresses a fundamentally different concern than allowing any

and all unrelated third parties to embroil a mineral patent holder in litigation.

Plaintiffs acknowledge this distinction, Aplt. Br. at 37, but argue that these cases

indicate we are to look to the APA for a cause of action, not to the 1872 M ining

Law. That is precisely what we do here; the APA inquiry, however, must turn on

whether congressional intent to preclude review is fairly discernable, bringing the

action outside the APA ’s scope; and as such, the inquiries go hand in hand.

Contemporaneous judicial construction and congressional acquiescence.

Congress has never revised the 1872 M ining Law to evidence disagreement

with the holdings of cases such as Smelting Co., Steel, and W ight, which held that

judicial challenges to patents by third parties were barred. To find that Congress

has acquiesced in a court or agency interpretation, the BLM and M EM CO must

show by “abundant evidence that Congress both contemplated and authorized” the

interpretation at issue. Catron County Bd. of Comm’rs, NM v. United States Fish

and W ildlife, 75 F.3d 1429, 1438 (10th Cir. 1996) (quoting Commodity Futures

Trading Comm’n v. Schor, 478 U.S. 833, 847 (1986)).

Congress has enacted multiple changes to the M ining Law. See e.g., The

M ultiple Use M ining Act of 1955, 30 U.S.C. §§ 601-603, 611-615 (withdrawing

materials like sand, gravel, stone and clay from the purview of the M ining Law );

M ultiple M ineral Development Act of 1954, 30 U.S.C. §§ 521 et seq. (allowing

mining claims and mineral leases to exist on the same land and resolve conflicts

- 26 -
when development occurred under both the 1872 M ining Law and the M ineral

Leasing Act of 1920); The M ineral Leasing Act of 1920, 30 U.S.C. §§ 181 et. seq.

(establishing leasing program for oil, gas, sodium, phosphate, oil shale and

potash); Act of February 12, 1903, 32 Stat. 825 (providing for assessments on oil

mining claims); A ct of January 31, 1901, 31 Stat. 745 (extending mining law s to

saline lands); A ct of June 6, 1900, 31 Stat. 321 (extending mining law s to

Alaska); Act of February 11, 1897, 29 Stat. 526 (extending placer mining law s to

lands containing petroleum).

Despite these many revisions, Congress has not chosen to amend the 1872

M ining Law to provide Plaintiffs with a right of action. W hether Congress has

acquiesced in the judicial interpretations of Smelting Co., Steel, and their progeny

is a difficult and close question. See Catron, 75 F.3d at 1438; Cent. Bank of

Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994). Congressional

silence alone is not enough to prove acquiescence. See e.g., Brow n v. Gardner,

513 U.S. 115, 121 (1994); Schor, 478 U.S. at 846; Girouard v. United States, 328

U.S. 61, 69 (1946); Catron, 75 F.3d at 1438. Silence as to one area, however,

coupled with a myriad of revisions w ithin the same statutory scheme begins to

look like acquiescence. See Johnson v. Transp. Agency, Santa Clara County,

Cal., 480 U.S. 616, 629 n.7 (1987) (“Congress has not amended the statute to

reject our construction, nor have any such amendments even been proposed, and

we therefore may assume that our interpretation was correct.”); see also

- 27 -
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763-64 (1998); Ankenbrandt, 504

U.S. 689, 700-01 (1992). Regardless, we find consideration of the other Block

factors sufficient to evidence an intent to preclude review.

Statutory Scheme as a Whole

The statutory scheme of the 1872 M ining Law is indicative of Congress’

intent to preclude review to those with no adverse claim in the patented land. W e

disagree with the Plaintiffs’ apparent argument that the substantive requirements

for a patent somehow support a right of action for third parties with no interest in

the land. Aplt. Br. 21-23. The substantive requirements have no bearing on what

class of people Congress envisioned being able to challenge an issued patent.

M oreover, the BLM ’s determination of the satisfaction of these requirements

gives rise to a conclusive presumption of satisfaction, see e.g. Creede & Cripple

Creek M ining and M illing Co. v. Uinta Tunnel M ining and Transp. Co., 196 U.S.

337, 353 (1905), a further demonstration of Congress’ concern with finality.

Rather, w e examine the provisions Congress included to resolve disputes.

In 30 U.S.C. § 29, Congress made a limited provision for the role of third parties:

If no adverse claim shall have been filed with the register of the
proper land office at the expiration of the sixty days of
publication, it shall be assumed that the applicant is entitled to
a patent, upon the payment to the proper officer of $5 per acre,
and that no adverse claim exists; and thereafter no objection
from third parties to the issuance of a patent shall be heard,
except it be shown that the applicant has failed to comply with
the terms of sections 21, 22 to 24, 26 to 28, 29, 30, 33 to 48, 50
to 52, 71 to 76 of this title and section 661 of Title 43.

- 28 -
 This “objection” has been defined as a protest. 43 C.F.R. § 3872.1; see

also W ight, 21 F. at 696. Neither the statute, nor the BLM regulations provide

the protestant with rights of appeal. See 30 U.S.C. §§ 29-30; 43 C.F.R. § 3872.1.

The 1872 M ining Law also sets forth a detailed procedure that adverse claimants

must follow and provided that the adverse claimant timely files his claim, the

M ining Law grants the adverse claimant an opportunity to have the claim

adjudicated in a court, prior to the BLM ’s final decision on the patent application.

Plaintiffs could not avail themselves of this procedure. Compare 30 U.S.C. § 30

with 2 Am. Law of M ining, § 53.08 (“A protestant who claims no interest in

himself which would be affected by the issuance of a patent cannot question the

judgment of the manager of the land office . . . in passing upon the application

and his protest and is not entitled to appeal such decision.”).

Together, Sections 29 and 30 provide a mechanism to settle disputes

between the patent applicant and adverse claimants and allow others to bring to

the BLM ’s attention any other reason why the patent should not issue. See

Enterprise M ining Co. v. Rico-A spen Consol. M ining Co., 66 F. 200, 208 (8th

Cir. 1895) (“There is no doubt that the object of these provisions of the act of

congress is to require the conflicting claims of all parties to be adjusted before the

patent issues.”).

The Plaintiffs argue that inclusion of third parties in the statutory scheme is

inconsistent with the conclusion that Congress intended to preclude review . Aplt.

- 29 -
Reply Br. at 17-18. Congress provided for third party participation in the

administrative process, and thus, the Plaintiffs reason, they must be able to avail

themselves of judicial review. W e disagree. Congress, by providing a right of

action for adverse claimants, 28 U.S.C. §§ 29,30, certainly knew how to provide

one for unsuccessful protesters. Rather, the ability of protesters to appear and

bring information before the BLM reflects a Congressional desire to have all

information before the BLM so that, when the BLM renders a decision, and issues

a patent, the patent will be final. The limited role that the protesters play in the

statutory scheme, coupled with congressional interest in finality and security of

title, persuade us that the statutory scheme as a whole suggests an intent to

preclude review. W e acknowledge that APA jurisdiction is not dependent on an

express or implied private right of action in the 1872 M ining Law, but we cannot

ignore how that act functions with the perfectly predictable range of disputes that

might occur under it,

Despite the presumption of reviewability, it is fairly discernable here, after

consideration of all the Block factors, 17 that Congress, when it enacted the 1872

17
The dissent reasons that the facts of Block (with no provision for
consumer involvement in agency proceedings) suggest a contrary result here. The
argument is that because Congress provided for third party involvement in the
agency review process, third parties must have a right of action in the courts.
This correlative does not necessarily follow. Here, the M ining Law expressly
provides for a right of action for adverse claimants, and thus had C ongress
intended to expand the scope of protester involvement beyond the agency stage, it
certainly could have done so.

- 30 -
M ining Law, intended to preclude judicial review to third parties claiming no

property interest in the patented land and to date has not chosen to change this

approach. As such, we find that the Plaintiffs have no federal right of action

against the BLM .

C. 5 U.S.C. § 555(e) Claim

The Plaintiffs also bring suit, alleging substantive violations of the APA.

Specifically, § 555(e) provides:

Prompt notice shall be given of the denial in whole or in part of
a written application, petition, or other request of an interested
person made in connection with an agency proceeding. Except
in affirming a prior denial or when the denial is self-
explanatory, the notice shall be accompanied by a brief
statement of the grounds for denial.

5 U.S.C. § 555(e).

Even if the BLM did violate this notice provision, the Plaintiffs have no remedy.

The purpose of this provision is to allow a reviewing court to assess the agency’s

decision. See Friends of the Bow v. Thompson, 124 F.3d 1210, 1214-15 (10th

C ir. 1997); see also Thompson v. Dep’t of the Treasury, 533 F. Supp. 90, 96 (D .

U tah. 1981). H ere, there is no such right of review available to the Plaintiffs. A s

such, they failed to identify any prejudice suffered or damage incurred that would

entitle them to relief. M oreover, the Plaintiffs cannot challenge the patent under

the 1872 M ining Law, and we will not allow them to do so indirectly. W e find

that the district court properly dismissed this claim.

- 31 -
D. Subject M atter Jurisdiction- M EM CO

The Plaintiffs acknowledge that the 1872 M ining Law provides no private

right of action. See Aplt. Br. at 32, 48. Rather, they argue that the private

Defendants, M EM CO and Phelps D odge Corporation, are necessary parties within

Fed. R. Civ. P. 19(a) because an order declaring the granting of the patents

invalid would destroy or impair their legal entitlements. Because we find the

Plaintiffs have no right of action against the BLM , the district court properly

dismissed the private Defendants.

E. Standing

In light of our jurisdictional ruling, we need not reach the issue of whether

the Plaintiffs have standing under A rticle III.

A FFIR ME D.

- 32 -
No. 05-1085, High Country Citizens’ A lliance, et al. v. Clarke, et al.

BRISCO E, J, dissenting:

I respectfully dissent. This is a Rule 12(b)(6) dismissal, which we review

de novo. The outcome of this case revolves around whether Congress intended

the 1872 M ining Law to preclude judicial review under the APA . The narrow

issue presented is whether the agency has overcome the strong presumption

favoring judicial review of the agency’s action under the APA , where the text of

the 1872 M ining Law expressly provides for participation by protesters in the

agency proceeding.

I. Sovereign immunity is not at issue

Although the majority and the district court frame the controlling issue as

whether the APA waives sovereign immunity for plaintiffs to challenge the

issuance of a patent pursuant to the 1872 M ining Law, sovereign immunity is not

at issue in this case.

According to the district court, “[t]he two exceptions to the waiver of

sovereign immunity under [5 U.S.C.] § 702 are: (1) w hen a statute specifically

precludes judicial review of agency action, or (2) w hen the subject action is

comm itted to the agency’s discretion by law. 5 U.S.C. § 701(a).” Order

01/12/05, at 7. The district court reasons, “[t]hus, if the 1872 M ining Law

precludes Plaintiffs’ claims against Federal Defendants, then the Federal

Defendants are entitled to sovereign immunity.” Order 01/12/05, at 7. The

majority appears to agree with the district court that this case turns on whether the
plaintiffs’ claims are barred by sovereign immunity, mentioning “sovereign

immunity” several times and framing the issue as “whether the APA waives

sovereign immunity for Plaintiffs.” M aj. Op. at 5. 1 Contrary to the district

court’s and the majority’s assertions, sovereign immunity is not at issue.

The district court’s and majority’s analysis conflicts with the APA . See 5

U.S.C. §§ 701(a), 702. According to 5 U.S.C. § 701(a), “[t]his chapter applies,

according to the provisions thereof, except to the extent that -- (1) statutes

preclude judicial review; or (2) agency action is comm itted to agency discretion

by law .” 5 U.S.C. § 701(a). Section 702 waives sovereign immunity “in virtually

all actions for non-monetary relief against a U.S. agency or officer acting in an

official capacity.” Robbins v. U.S. Bureau of Land M gmt., 438 F.3d 1074, 1081

(10th Cir. 2006) (internal quotation marks omitted); Simmat v. U.S. Bureau of

Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). W hile 5 U.S.C. § 702 of the APA

waives sovereign immunity, 5 U.S.C. § 702 includes two exceptions to the waiver

of sovereign immunity: “Nothing herein (1) affects other limitations on judicial

review or the power or duty of the court to dismiss any action or deny relief on

any other appropriate legal or equitable ground; or (2) confers authority to grant

1
The majority also asserts that “Plaintiffs can only sue the BLM to the
extent it waived its sovereign immunity.” M aj. Op. at 6. W ithout explanation,
the majority “view[s] the question of whether the 1872 M ining Law precludes
judicial review against a backdrop of sovereign immunity – if the review cannot
be had under the APA due to § 701(a)(1) or (2), the government has not waived
sovereign immunity.” M aj. Op. at 7 n.4.

-2-
relief if any other statute that grants consent to suit expressly or impliedly forbids

the relief which is sought.” 5 U.S.C. § 702; Robbins, 438 F.3d at 1080;

Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961 (10th Cir. 2004).

Contrary to the district court’s and majority’s assertions, 5 U.S.C. § 701(a)

does not list exceptions to the APA’s waiver of sovereign immunity, which are

actually listed in 5 U.S.C. § 702. 5 U.S.C. § 701(a) lists two instances where the

APA would not apply to agency action, and it does not address the APA ’s waiver

of sovereign immunity. Thus, if the 1872 M ining Law precludes judicial review

under 5 U.S.C. § 701(a), as the district court and majority contend, then the APA

simply does not apply.

II. There is a strong presumption favoring judicial review

The A PA applies to agency action, unless the relevant “statute[] preclude[s]

judicial review.” 5 U.S.C. § 701(a)(1). “The APA confers a general cause of

action upon persons ‘adversely affected or aggrieved by agency action’ . . . , but

withdraws that cause of action to the extent the relevant statute ‘preclude[s]

judicial review.’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984)

(quoting 5 U.S.C. § 702 and 5 U.S.C. § 701(a)(1), respectively).

The majority incorrectly describes the burden of proof to show preclusion

of judicial review pursuant to 5 U.S.C. § 701(a)(1). W ithout imposing the burden

on the agency, the majority observes generally that “[a] presumption of

reviewability accompanies agency actions under the APA , but it may be

-3-
overcome.” M aj. Op. at 7. The majority fails to charge the agency with the

burden to establish preclusion, and it fails to apply the strong presumption

favoring judicial review.

The agency must demonstrate “nonreviewability,” which is the “exception”

because “judicial review of such administrative action is the rule.” Barlow v.

Collins, 397 U.S. 159, 166-67 (1970). M ore specifically, the agency “bears the

heavy burden of overcoming the strong presumption that Congress did not mean

to prohibit all judicial review.” Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)

(emphasis added); Bowen v. M ich. Acad. of Family Physicians, 476 U.S. 667, 670

(1986); M cAlpine v. United States, 112 F.3d 1429, 1432 (10th Cir. 1997).

The majority requires a lower evidentiary showing to establish that judicial

review is precluded. Despite the strong presumption favoring judicial review, the

majority appears to conclude that judicial review is precluded upon a showing of

sufficient evidence. W ithout citation to any authority, the majority suggests that

the B lock inquiry is equivalent to a review for sufficiency of the evidence: “[W ]e

look to the Block factors to determine whether there is sufficient evidence of

congressional intent to preclude review.” M aj. Op. at 10-11; see also id. at 28

(“[W]e find consideration of the other Block factors sufficient to evidence an

intent to preclude review.”). This standard is incorrect.

In contrast to the standard applied by the majority, the agency must show

more than sufficiency of the evidence to show implied preclusion of judicial

-4-
review. The Supreme Court has stated that “only upon a showing of clear and

convincing evidence of a contrary legislative intent should the courts restrict

access to judicial review.” Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)

(internal quotation marks omitted); Block, 467 U.S. at 350-51 (explaining that the

“‘clear and convincing evidence’ standard is not a rigid evidentiary test”). The

majority narrowly construes Block, contending that “[t]he presumption of judicial

review controls where substantial doubt exists about congressional intent on the

preclusion issue, but it is hardly conclusive in other circumstances.” M aj. Op. at

7-8 n.5. Contrary to the majority’s assertion, the Court held that “the

presumption favoring judicial review [is] overcome, whenever the congressional

intent to preclude judicial review is fairly discernible in the statutory scheme.”

Block, 467 U.S. 340, 350-51 (1984) (internal quotations omitted). “[J]udicial

review of final agency action by an aggrieved person w ill not be cut off unless

there is persuasive reason to believe that such was the purpose of Congress.”

W yoming v. United States, 279 F.3d 1214, 1236 (10th Cir. 2002) (internal

quotation marks omitted). Given the strong presumption favoring reviewability,

the Block inquiry requires a more rigorous showing than a mere sufficiency of the

evidence.

III. The agency has not shown implied preclusion of judicial review

I also disagree with the majority’s application of the Block inquiry to the

1872 M ining Law. The BLM asserts three arguments in support of implied

-5-
preclusion: (1) contemporaneous judicial construction and acquiescence; (2)

legislative and judicial history; and (3) statutory scheme. See Block, 467 U.S. at

349. In holding that Congress intended to preclude judicial review , the majority

relies upon the legislative and judicial history and the statutory scheme, but not

the contemporaneous judicial construction and acquiescence. M aj. Op. at 28.

The agency fails to show that Congress intended to preclude judicial review.

A. Legislative and judicial history

Because the legislative history and judicial history conflict with the text of

the M ining Law, the agency fails to show that judicial review is precluded.

Nonetheless, the majority attempts to find preclusion, relying on legislative

history of statutes that preceded the enactment of the M ining Law and legislative

history that conflicts with the text of the M ining Law.

For example, the majority relies upon the legislative history of the Lode

Law of 1866 and the Placer Act of 1870. M aj. Op. at 11. The legislative history

of these earlier statutes is irrelevant in determining whether Congress intended to

preclude judicial review in the 1872 M ining Law, especially where the M ining

Law alone allowed protesters to participate. See 14 Stat. 251, 251-53 (1866); 16

Stat. 217, 217-18 (1870). The majority asserts that the legislative history of the

Lode Law and the Placer Act are “extremely relevant” because “Congress

intended that the 1872 M ining Law would incorporate these statutes,” citing three

pages from the congressional debates concerning the 1872 M ining Law. M aj. Op.

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at 11 n.7 (citing Cong. Globe, 42nd Cong., 2d Session, at 532-34). Although

there are several statements regarding the representatives’ concern that the

passage of the 1872 M ining Law not affect existing rights under the prior statutes,

there is no statement in the congressional debate regarding the “incorporation” of

the Lode Law or the Placer Act into the 1872 M ining Law. See Cong. Globe,

42nd Cong., 2d Session, at 532-34.

M oreover, the text of the M ining Law actually conflicts with the majority’s

selective quotations from the legislative history. In quoting from the legislative

history, the majority emphasizes the finality of the patent and a desire to decrease

litigation. For example, the majority states that “Congress, in passing the 1872

M ining Law, was in search of a more definite rule because, in part, ‘the whole

region was in litigation.’” M aj. Op. at 15 (quoting Cong. Globe, 42nd Cong., 2d

Session, at 2459). The majority concludes that the “legislative history reflects a

clear concern w ith the finality of the patent.” M aj. Op. at 16. From these

statements in the legislative history, the majority concludes that “[p]ermitting a

challenge by third parties with no interest in the land would allow the kind of

lengthy litigation over rights that a patent was designed to avoid.” M aj. Op. at

16. But these quotes from legislative history, which serve as the foundation for

the majority’s ultimate conclusions, conflict with the text and structure of the

M ining Law.

W hile the majority cites scattered comments in the legislative history to

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emphasize the finality of the patent and reflect a desire to decrease litigation, the

text and structure of the M ining Law actually increased litigation. The M ining

Law provides an express cause of action for adverse claimants, who assert

ownership interest over the land and are competing for title. 30 U.S.C. § 30.

Additionally, the M ining Law allows third parties to participate in the agency

proceeding by filing a protest with the BLM to provide evidence as to why the

applicant has not satisfied the requirements for a patent. 30 U.S.C. § 29.

Congress allowed third-party protesters to participate in the administrative

proceeding, even though these third parties claimed no ownership interest in the

land, and even though neither the administrative state nor modern principles of

standing had developed. Thus, Sections 29 and 30 unquestionably increased

litigation over the issuance of a patent by granting adverse claimants a cause of

action and allowing third parties to participate in the administrative proceeding.

In our preclusion analysis, we should give greater weight to the statute’s text, and

little, if any, weight to legislative history that conflicts with it.

Just as legislative history does not establish that Congress intended to

preclude judicial review, neither does judicial history. In considering judicial

history, the majority relies upon cases from the 1880s, but these cases have little,

if any, applicability to the questions presented.

None of the majority’s cases involve preclusion of judicial review as to a

protester’s challenge of the BLM ’s determination. See Beals v. Cone, 188 U.S.

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184, 187 (1903); Sparks v. Pierce, 115 U.S. 408, 413 (1885); Steel v. St. Louis

Smelting & Refining Co., 106 U.S. 447, 451 (1882); Smelting Co. v. Kemp, 104

U.S. 636, 640-41 (1881); W ight v. Dubois, 21 F. 693, 696 (C.C.D. Colo. 1884).

These cases do not support the majority’s conclusion that Congress intended to

preclude judicial review of the BLM ’s decisions in the M ining Law.

Additionally, the majority’s cases are distinguishable because they

concerned the limited concept of standing at the time. See, e.g., Smelting Co.,

104 U.S. at 645-47. For example, the majority quotes W ight for the proposition

that “‘the protestant has no further standing to be heard anywhere. The protest

cannot be made the basis of any litigation in the court.’” M aj. Op. at 20 (quoting

W ight, 21 F. at 696). But the analysis in W ight rested upon the premise that a

protester, in 1884, had no standing to sue in court regarding the issuance of a

patent. W ight, 21 F. at 696. Notably, the court’s decision in W ight did not

concern Congressional intent to preclude judicial review under the M ining Law.

The majority quotes Beals v. Cone, 188 U.S. 184 (1903), for the

proposition that the plaintiffs’ “‘standing in the proceeding was in the nature of

amici curioe [sic]’” because they had no ownership interest. M aj. Op. at 21

(quoting Beals, 188 U.S. at 187). But this statement is quoted out of context. In

Beals, the Court held that the plaintiff could not invoke res judicata because he

was not a party in the prior proceeding, even though he filed a protest. 188 U.S.

at 187. The Court held that the protesters, including plaintiff, could not use res

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judicata because protesters were not parties, and “[t]heir standing in the

proceeding was in the nature of amici curioe [sic].” Id.

M oreover, the Supreme Court’s decisions in Smelting Company and Steel

are distinguishable because they involved the distinction between courts of law

and of equity. See Smelting Co., 104 U.S. at 645-47 (1881); Steel, 106 U.S. at

452-53 (holding that, while the plaintiff could not assail a patent based on a false

and perjured affidavit in an action at law, he could seek relief from a court of

equity if he had an equitable right to the premises). Thus, although the majority

relies upon cases from the 1880s, these cases do not support the majority’s

conclusion.

The majority bolsters its conclusion using modern judicial history, M aj. Op.

at 21-22, but these cases are distinguishable because they did not involve the

M ining Law. For example, the majority relies upon Kale v. United States, 489

F.2d 449 (9th Cir. 1973), M aj. Op. at 21, but Kale did not involve the M ining

Law. Instead, in K ale, a Chickasaw Indian claimed that the agency improperly

denied his allotment petition-application by determining that the land at issue was

previously appropriated pursuant to the Soldier’s Additional Homestead Rights,

43 U.S.C. § 274. Kale, 489 F.2d at 453-54. Similarly, Leisnoi, Inc. v. United

States, 313 F.3d 1181 (9th Cir. 2002), is also cited, but Leisnoi did not involve

the 1872 M ining Law. M aj. Op. at 22. Instead, Leisnoi involved a patent issued

under the Alaska Native Claims Settlement Act and a suit against the United

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States under the Quiet Title Act, 28 U.S.C. § 2409a. 313 F.3d at 1182-83.

W hile the majority cites U nited States v. Shumway, 199 F.3d 1093 (9th Cir.

1999), M aj. Op. at 22, the patent discussion in Shumway was dicta, and it did not

pertain to preclusion of judicial review under the APA . Shumway involved a

patent for mill sites, and the court mentioned that oil, oil shale, gas, and other

minerals were subject to a federal leasing system under 30 U.S.C. § 193, and not

to the M ining Law after 1920. 199 F.3d at 1100.

Finally, the majority cites Raypath, Inc. v. City of Anchorage, 544 F.2d

1019 (9th Cir. 1976) (per curiam), but Raypath is neither a M ining Law case nor

an APA case. Instead, it concerned the issuance of a patent of public lands to the

state, and the statute and deed limited the use of the land to “public purposes.”

Id. at 1021 (citing 43 U.S.C. § 869).

M ore on point to the issue presented is South Dakota v. Andrus, 614 F.2d

1190 (8th Cir. 1980). The majority did not consider Andrus, where the Eighth

Circuit decided the merits of a challenge to a mineral patent under the M ining

Law without determining whether the M ining Law precluded judicial review. Id.

at 1193. In Andrus, South Dakota had no ownership interest in the mining claim.

South Dakota intervened in the agency proceeding, arguing that the Secretary

must prepare an environmental impact statement before issuing a patent. The

Interior Board of Land Appeals set aside the ALJ’s decision on other grounds, but

rejected South Dakota’s argument. Id. at 1192. South Dakota then filed an

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original action in federal district court against the United States Department of

Interior and the patent applicant, seeking an order compelling an environmental

impact statement. The Eighth Circuit ruled on the merits, holding that BLM ’s

patenting decisions do not require environmental impact statements, and without

discussing whether the statute precluded judicial review. Id.

The majority relies upon the legislative and judicial history to conclude that

Congress impliedly precluded judicial review: “Given an administrative review

process for third-party issues, and the long judicial construction prior to the APA

which did not permit judicial review of such claims, we would be hard pressed to

conclude that the APA changed this.” M aj. Op. at 23-24. Yet again, the majority

fails to place the burden on the agency and fails to apply the strong presumption

favoring judicial review. M oreover, the majority overstates the holdings of the

cases cited, and ignores the conflict between the text and structure of the M ining

Law and the legislative history. The legislative history and judicial history do not

establish that Congress intended to preclude judicial review.

B. Statutory scheme as a whole

Nor does the statutory scheme as a whole establish that Congress intended

to preclude judicial review. The majority further concludes that the statutory

scheme is “indicative of Congress’ intent to preclude review to those with no

adverse claim in the patented land,” because of the “limited provision for the role

of third parties” in the patent process. M aj. Op. at 28. It is true that protesters

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did not have a private right of action like adverse parties, but that does not

establish that their claims are precluded from judicial review.

Plaintiffs argue that, because Congress provided for third party

participation in the administrative process, it did not intend to preclude judicial

review. In rejecting this argument, the majority reasons that “Congress, by

providing a right of action for adverse claimants, certainly knew how to provide

one for unsuccessful protesters.” M aj. Op. at 30 (internal citation omitted). In

holding that the M ining Law precludes judicial review, the majority relies upon

Congress’ omission of a right of action in the M ining Law for third parties. For

example, the majority states, “[d]espite these many revisions, Congress has not

chosen to amend the 1872 M ining Law to provide Plaintiffs with a right of

action.” M aj. Op. at 27.

But the test for implied preclusion of judicial review is not whether

Congress provided an express right of action for the plaintiffs. “[A] plaintiff who

lacks a private right of action under the underlying statute can bring suit under the

APA to enforce the statute,” and he need “not rely upon an implied right of action

under any other statute.” Hernandez-Avalos v. Immigration & Naturalization

Serv., 50 F.3d 842, 846 (10th Cir. 1995). Section 1331 confers federal question

jurisdiction “on federal courts to review agency action, regardless of whether the

APA of its own force may serve as a jurisdictional predicate.” Califano v.

Sanders, 430 U.S. 99, 105 (1977); Se. Kan. Cmty. Action Program, Inc. v. Lyng,

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967 F.2d 1452, 1455 n.4 (10th Cir. 1992); W ilder v. Prokop, 846 F.2d 613, 618

(10th Cir. 1988); Labash v. U.S. Dep’t of A rmy, 668 F.2d 1153, 1156 (10th Cir.

1982). Thus, the protesters may challenge BLM ’s action under the APA,

regardless of whether the M ining Law includes an express or implied private right

of action, and we have federal question subject matter jurisdiction.

Nor does congressional silence demonstrate intent to preclude judicial

review. Congress was silent about judicial review for protesters under the M ining

Law, but silence is not determinative. “M ere silence in the statute should not be

read as precluding judicial review under the APA .” Sierra Club v. Peterson, 705

F.2d 1475, 1478-79 (9th Cir. 1983). Contrary to the majority’s analysis,

congressional silence does not support an inference that Congress intended to

preclude judicial review.

Since the third-party protesters w ould not have had standing to file suit in

federal court in the 1880s, it is rather surprising that Congress gave third-party

protesters a participation role in the BLM proceeding. Yet the majority concludes

that “[t]he limited role that the protesters play in the statutory scheme, coupled

with congressional interest in finality and security of title, persuade us that the

statutory scheme as a whole suggests an intent to preclude judicial review .” M aj.

Op. at 30. Of course, the majority reaches this conclusion without first requiring

the agency to overcome the strong presumption of judicial review.

Tellingly, the majority seems to disregard the facts of Block itself. In

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Block, the Supreme Court held that Congress intended to preclude judicial review

for a class of milk consumers because the relevant statute did not allow milk

consumers to participate in the administrative process:

Nowhere in the Act, however, is there an express provision for
participation by consumers in any proceeding. In a complex scheme
of this type, the omission of such a provision is sufficient reason to
believe that Congress intended to foreclose consumer participation in
the regulatory process.

Block, 104 U.S. at 347. Because consumers were not allowed to participate at the

administrative level, the Court concluded that Congress did not intend to rely on

consumers to challenge agency actions. Id. at 346-47. From these facts, the

Court found implied preclusion.

Unlike the milk consumers in Block, Congress expressly allowed

protesters, as a class, to participate in the regulatory process under the M ining

Law, and Congress relied upon third parties to ensure that patent applications

complied with the statute by filing protests with the agency. See 30 U.S.C. § 29.

Because the M ining Law allows protesters to participate in the administrative

process, Congress did not intend to preclude judicial review of protesters as a

class. The majority fails to discuss how this case conforms to Block.

C. Contemporaneous judicial construction and congressional acquiescence

The majority opinion does not rely upon contemporaneous judicial

construction and congressional acquiescence. Congressional intent to preclude

review may be inferred from “contemporaneous judicial construction barring

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review and the congressional acquiescence in it.” Block, 467 U.S. at 349. The

majority correctly describes the burden of showing acquiescence. M aj. Op. at 26.

To show congressional acquiescence, a claimant “bears the burden of showing

abundant evidence that Congress both contemplated and authorized the previous

noncongressional interpretation in which it now acquiesces.” Catron County Bd.

of Comm’rs v. U.S. Fish & W ildlife Servs., 75 F.3d 1429, 1438 (10th Cir. 1996)

(internal quotations omitted). “It is at best treacherous to find in congressional

silence alone the adoption of a controlling rule of law.” Id. (internal quotation

marks omitted). Given this burden, the majority recognizes that the agency falls

short, concluding that the “consideration of the other Block factors sufficient to

evidence an intent to preclude review.” M aj. Op. at 28.

For the reasons stated above, I would conclude that judicial review of the

agency action is not precluded.

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