* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 14 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOHN R. HUGHES; DORIS JEAN HUGHES, his wife; PAUL R. CLARK, individually; HUGHES & CLARK, a Partnership,

Plaintiffs-Appellants,

OSCAR MCLIND; J. O. SAWYER; ONA SAWYER,

Plaintiffs,

v. MWCA, INC., an Idaho Corporation; UNITED STATES OF AMERICA; ROBERT G. SMITH; VAUGHN SOWARDS; DENNIS R. GARCIA; JOSEPH A. GARCIA; MICHAEL J. GARCIA; FABIAN A. GARCIA,

Defendants-Appellees. No. 00-2443 (D.C. No. CIV-98-846 JC/WWD)

(D. N.M.)

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiffs John R. Hughes, Doris Jean Hughes, Paul R. Clark, and Hughes & Clark appeal the district court’s entry of summary judgment in favor of defendants. We exercise jurisdiction pursuant to 2 8 U.S.C. § 1291 and we affirm. BACKGROUND This case arises from a dispute over the ownership rights to a deposit of scoria on Red Hill, a parcel of property located inRio Arriba County, New Mexico. Plaintiffs own a surface estate in Red Hil l as successors in interest of United States patents issued under the Stock Raisin g Homestead Act of 1916, 43 U.S.C. § 299 (SRHA), which reserve “coal and othe r minerals” and access to the reserved minerals to the United States. Scoria is a form of volcanic cinder which, by the 1 970s, had became commercially valuable for use in landscaping and as gas barbeque briquets. MWCA and the United States (through the Bureau of L and Management) entered into contracts allowing MWCA to mine the scoria dep osit beginning in 1988. The-3-

individual defendants allegedly assisted with MWCA ’s access to the excavation

area. Plaintiffs sued, seeking quiet title, ejectment, re stitution, and damages for trespass and conversion. The district court enter ed summary judgment in favor of defendants and subsequently denied plaintiffs’ motion for reconsideration. This appeal followed. DISCUSSION On appeal, plaintiffs argue that the district courterred as a matter of law in ruling that the Red Hill scoria and the right of ac cess to the scoria were reserved to the United States under the SRHA patents. They a lso contest the court’s determination that the United States properly sold the scoria to MWCA. Plaintiffs assert that under the general mining laws, the scor ia should have been located, not sold, and that they are holders of valid location claims. “We review the district court’s grant . . . of summary judgment de novo, ap plying the same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted).
A. SRHA Claims Plaintiffs’ assertion that the SRHA land patents entitle them to the scoria and to the access to the scoria has been put to rest by the Supreme Court in Watt v. Western Nuclear, Inc. , 462 U.S. 36 (1983). In that case, the plaintiff, a-4-

successor in interest under an SRHA patent, obtaine d the lands in question as a source of gravel for road paving purposes. The Bur eau of Land Management challenged the plaintiff’s extraction of gravel on the basis that the United States, as owner of the retained mineral estate, had the so le right to the gravel. In ruling against the surface estate owner, the Court held that the meaning of the term “mineral,” as used in the SRHA, is so i mprecise that it must be interpreted in light of Congress’s purpose in sever ing the surface estate from the mineral estate. See id. at 42-47. Congress intended to facilitate the concurrent development of both surface and subsurface resources. While Congress expected that homesteaders would use the surface of SRHA lands for stockraisin g and raising crops, it sought to ensure that valuable subsurface resources would remain subject to disposition by the United States, under the general mining laws or otherwise, to persons interested in exploiting them. It did not wish to entrust the development of subsurface resources to ranchers and farmers. Id. at 47. The SRHA “was designed to supply a method for the joint use . . . by the entryman of the surface thereof and the person who shall acquire from the United States the right to prospect, enter, extract and re move all minerals that may underlie such lands.” Id. at 50 (quotation omitted). In light of this understanding, the Court “interpret[ed] the mineral reservation in the Act to include substances that are mineral in character ( i.e ., that are inorganic), that can1 Caliche is a crust of calcium carbonate that forms on stony soil in arid

regions. -5- be used for commercial purposes, and that there is no reason to suppose were intended to be included in the surface estate.” Id. at 53. There is no question that the scoria in this case m eets the Court’s definition of minerals reserved to the United States under the SRHA. It is mineral in character and may be used for commercial purposes. Furthermore, there is no indication that Congress intended scoria to be incl uded in the surface estate. Contrary to plaintiffs’ argument, the case of Poverty Flats Land & Cattle Co. v. United States , 788 F.2d 676 (10th Cir. 1986) does not affect the Western Nuclear holding. Poverty Flats involved the ownership rights to caliche 1 on lands patented under the now-repealed Taylor Grazing Act, not the SRHA. Id. at 677-78. Unlike the mineral reservation clause required by the SRHA, the scope of such a clause in a Taylor Grazing Act conveyance is discretionary and not dictated by statute. Id. at 678. The Tenth Circuit, therefore, looked to the parties’ understanding to resolve a dispute over wh ether caliche was included in the mineral reservation. The value of the mineral at the time of the patent was relevant to that determination. Id. at 683. It has no bearing, however, on the meaning of an SRHA mineral reservation clause.2 Location of a mining claim requires staking the corners of the claim,

posting notice on the property, and recording the c laim under the appropriate state laws. See 43 C.F.R. § 3831.1. -6- The district court correctly determined that the land patents neither conferred rights to the scoria nor granted plaintif fs exclusive access to the scoria. B. Claims under the mining laws and regulations Plaintiffs also assert entitlement to the scoria un der general mining laws and regulations. The General Mining Law of 1872 pr ovides that, with certain exceptions: [A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in whichthey are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law. . . . 30 U.S.C. § 22. Depending on the type of mineral i nvolved, private parties may acquire mineral deposits in one of three ways: by location of a mining claim, 2by lease, or by purchase. See 43 C.F.R. § 3812.1; see also George C. Coggins & Robert L. Glicksman, 3 Public Natural Resources Law , J-1 to J-4 (2001). Typically, hardrock minerals, such as gold, silver , copper, and lead, are acquired by locating a mining claim. Regulations relating t o locatable minerals are set out in 43 C.F.R., Part 3800. Other federally owned min erals can be acquired only by-7-

leasing under the Mineral Leasing Act of 1920, 30 U .S.C. § 181 and the regulations in 43 C.F.R., Part 3100. These leasabl e minerals include oil and gas. The third category of minerals is acquired by purch ase from the United States (through the Bureau of Land Management or th e Forest Service) under the Materials Act of 1947, 30 U.S.C. § 601. In 1955, C ongress enacted the Surface Uses Act which removed deposits of common mineral m aterials from the location method and made them available for purchase under the Materials Act. See Poverty Flats, 788 F.2d at 680. The statute provides that: No deposit of common varieties of sand, stone, grav el, pumice, pumicite, or cinders and no deposit of petrified wo od shall be deemed a valuable mineral deposit within the meanin g of the mining laws of the United States so as to give effective v alidity to any mining claim hereafter located under such mining laws: Provided, however , That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. “Common variet ies” . . . does not include deposits of such materials which are valuab le because the deposit has some property giving it distinct and sp ecial value. . . . 30 U.S.C. § 611. The sale of minerals is covered i n 43 C.F.R., Part 3600. Without dispute, common varieties of scoria are gen erally sold pursuant to § 611. Plaintiffs, however, contend that scoria un derlying an SRHA estate should be classified as a locatable material, on the theory that § 611 applies only to public lands: that is, lands entirely owned by the government, and not to the split estate resulting from an SRHA patent. Plaintiff’s proposition finds little support3 The Interior Board of Land Appeals has determined i n adjudications and by

regulation that the term “public lands” includes mi neral deposits reserved under the SRHA. Adjudications include Texaco, Inc. , 59 IBLA 155 (1981) (included in Gower Federal Service database on Westlaw) and Mobil Oil Corp ., 79 IBLA 76 (1984) (analyzing contractual rights of SRHA surfac e owner and purchaser of materials under the Materials Act). In 43 C.F.R., Part 3600 the Secretary of Interior has granted broad authority to the Bureau of Land Management for the disposal of common mineral materials. If an agency’s statutory interpretation is conducted under an express or implied delegation, this court accepts a “‘reasonable interpretation made by the administrator of [the] agency.’” Sac & Fox Nation of Mo. v. Norton , 240 F.3d 1250, 1261(10th Cir. 2001) (quoting Chevron, U.S.A., Inc. v. NRDC , 467 U.S. 837, 844 (1984))

4 Plaintiffs also asserted a 1953 mining claim. It i s uncontested, however, that the earlier claim is invalid for failure to fi le a certificate of location with the Bureau of Land Management. -8- in the law, 3 and, in any event, has no applicability to the facts of this case. There is an express SRHA provision stating that reserved minerals are “subject to disposal by the United States in accordance with th e . . . mineral land laws in force at the time of such disposal.” 43 U.S.C. § 299; see also 43 C.F.R. § 3814.1(a) (incorporating the SRHA statutory langu age). Because plaintiffs’ claims were located after the effective date of the Surface Use Act, they are of no legal significance. 4 As a final argument, plaintiffs assert that there i s a factual dispute on whether the particular scoria at issue is excluded from the salable mineral category because it has “some property giving it d istinct and special value.” 30 U.S.C. § 611. A review of the record shows thatplaintiffs provided no-9-

evidence that the Red Hill scoria has a special val ue. Accordingly, summary judgment was the appropriate disposition of this is sue. CONCLUSION The district court correctly analyzed and disposed of plaintiffs’ claims. Therefore, we AFFIRM the judgment of the district court.

Entered for the Court

Michael R. Murphy Circuit Judge