High Country Citizens Alliance v. Clarke

454 F.3d 1177

HIGH COUNTRY CITIZENS ALLIANCE; Town of Crested Butte, Colorado; Board of County Commissioners of the County of Gunnison, Colorado, Plaintiffs-Appellants, v. Kathleen CLARKE, in her official capacity as Director of the U.S. Bureau of Land Management; Ron Wenker, in his official capacity as Colorado BLM Director; United States Bureau of Land Management; Gale Norton, in her official capacity as Secretary of the Interior; United States Department of the Interior; Phelps Dodge Corporation; Mt. Emmons Mining Company, Defendants-Appellees.

No. 05-1085.

United States Court of Appeals, Tenth Circuit.

July 21, 2006.

COPYRIGHT MATERIAL OMITTED

Roger Flynn (and Jeffrey C. Parsons, Western Mining Action Project, Lyons, Colorado, for Plaintiffs-Appellants High Country Citizens' Alliance and the Town of Crested Butte, Laura Magner, Crested Butte, Colorado, for Plaintiff-Appellant Town of Crested Butte, and David Baumgarten and Thomas A. Dill, County Attorney's Office, Gunnison, Colorado, for Plaintiff-Appellant Board of County Commissioners of the County of Gunnison, on the briefs).

Aaron P. Avila (and Todd S. Aagaard, U.S. Department of Justice, Environment and Natural Resources Div., Kelly A Johnson, Acting Assistant Attorney General, William J. Leone, United States Attorney, Roxane J. Perruso, Assistant United States Attorney, and Karen Hawbecker and Kendra Nitta, Office of the Solicitor, Division of Mineral Resources, Department of the Interior, on the brief), Washington, 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 Mount Emmons Mining Company.

Before KELLY, BRISCOE, 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 Management (BLM), Kathleen Clark in her official capacity as BLM Director, Ron Wenker in his official capacity of the Colorado Bureau of Land Management Director, the United States Department of the Interior (collectively, BLM); and private defendants including Mount Emmons Mining Company (MEMCO) and Phelps Dodge Corporation¹ (collectively, MEMCO). The district court entered final judgment pursuant to Fed.R.Civ.P. 54(b) on the two claims involved in this appeal. Aplt.App. 56. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Background

In December 1992, MEMCO filed a mineral patent application with the BLM, pursuant to the General Mining Law of 1872, 30 U.S.C. §§ 21-47, ("1872 Mining Law"). MEMCO sought a patent on approximately 174 acres of public land in the Gunnison National Forest. 30 U.S.C. § 29. MEMCO 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 MEMCO's application. They argued that the mining claims MEMCO 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 Mining Law. None of the Plaintiffs, now or ever, claim a competing property interest in any of the land.

The BLM determined that nine of MEMCO'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 MEMCO a patent for nine of its claims, covering approximately 155 acres. The Plaintiffs filed suit against the BLM and MEMCO twelve days later, seeking declaratory and injunctive relief. In their complaint, the Plaintiffs asserted three claims: (1) the BLM violated the 1872 Mining Law and the Administrative Procedures Act, 5 U.S.C. §§ 701-706 ("APA") by granting MEMCO 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 Management Act ("FLMPA"), 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 May 7, 2004, seeking to restore title in the patented lands to the United States. MEMCO 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 BLM and MEMCO's motions to dismiss for lack of subject matter jurisdiction and denied the Plaintiffs' motion for a preliminary injunction as moot. Aplt.App. 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 Mining 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 APA 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 Mining Law, is a matter of first impression.

Discussion

A. Standard of Review

Because the district court dismissed the Plaintiffs' action for want of 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). We assume the truth of all facts Plaintiffs allege. Georgacarakos, 420 F.3d at 1186.

B. Subject Matter Jurisdiction-Federal Appellees

It is well 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, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). While 28 U.S.C. § 1331 grants the court jurisdiction over all "civil actions arising under the Constitution, laws 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). Waiver of sovereign immunity must be explicit and cannot be implied. Villescas v. Abraham, 311 F.3d 1253, 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, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); City of Albuquerque, 379 F.3d at 907; New Mexico v. Regan, 745 F.2d 1318, 1321 (10th Cir.1984). It provides: "A person suffering a legal wrong because of 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 Mining 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, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). In Block, the Supreme Court clarified its earlier "clear and convincing" standard to overcome the presumption of reviewability established in Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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, 104 S.Ct. 2450. 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. Mich. Acad. of Family Physicians, 476 U.S. 667, 671, 106 S.Ct. 2133, 90 L.Ed.2d 623 (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.1990),...