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

### MAY 27 1998 

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

AMERICAN COLLOID COMPANY, Plaintiff - Appellant,

v. No. 97-8018 BRUCE BABBITT, Secretary, United States Department of Interior, Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 94-CV-0184-D)

R. Dennis Ickes of Parry, Lawrence, & Ward, Salt La ke City, Utah, for PlaintiffAppellant. David A. Kubichek, Assistant United States Attorney(David D. Freudenthal, United States Attorney for the District of Wyoming, and Nicholas Vassallo, Assistant United States Attorney, on the brief), Ch eyenne, Wyoming, for Defendant-Appellee.

__________________________ Before KELLY , McKAY , and HENRY , Circuit Judges.

__________________________ McKAY , Circuit Judge.

_________________________-2-

In 1990, the U.S. Department of the Interior’s Bure au of Land Management [BLM] determined that two mining claims held by App ellant, American Colloid Company [American Colloid], were null and void ab initio . The basis for the BLM’s decision was the fact that American Colloid’s predecessors-in-interest in the claims had failed to file a stipulation regardi ng the claims which was required by the order of the Secretary of the Interior that opened the lands to mining entry. The statute authorizing the Secretary of the Interi or to require the stipulation states that the Secretary may require that the stip ulation be filed before the vesting of any rights in a claim on subject lands. See 43 U.S.C.§ 154. American Colloid appealed the BLM’s determination to the Dep artment of the Interior Board of Land Appeals [IBLA], and a panel comprisedof two administrative law judges affirmed the BLM’s decision. See American Colloid Co. , 128 I.B.L.A. 257 (1994). American Colloid appealed the IBLA dec ision to the district court. After briefing and oral argument, the district court affirmed the IBLA panel. See Appellant’s App. at 1-13. American Colloid now app eals the district court’s decision to this court. The land encompassing the disputed claims [Bethel N os. 1 and 2] was withdrawn from entry under the general mining laws for the purpose of serving the nation’s reclamation interests. See Appellee’s App. at 1-4. In 1954, the Secretary of the Interior opened the land to entry under the general mining laws.-3-

See Appellant’s App. at 25. The Secretary’s order ope ning the land required claimants to file a stipulation reserving a right o f way to the United States to utilize the land for any future reclamation needs, in addition to performing the other requirements to perfect a claim. See id. The Secretary published a notice of the opening order in the Federal Register. See id. The notice stated that the stipulation had to be filed before any rights to mi ning claims on the land vested.
See id. American Colloid’s predecessors-in-interest in Beth el Nos. 1 and 2 staked the claims in April 1954, after the land was opened by the Secretary. See id. at 26. American Colloid’s predecessors-in-interest ne ver filed the stipulation required by the Secretary’s order opening the land to entry. See Appellee’s App. at 26. In 1988, the BLM determined that the Bethel Nos. 1 and 2 claims were on lands subject to the Secretary’s order requiring th e stipulation, and it notified American Colloid that “[their] rights to hold the . . . claims are subject to . . . evidence that the stipulation requirements of the o rder dated February 26, 1954, were complied with. Absent this evidence, the Beth el Nos. 1 and 2 claims are null and void, ab initio.” Id. at 6. In 1989, a rival claimant filed the require d stipulation on his own behalf. See id. at 11. In 1990 the BLM declared American Colloid’s claims null and void ab initio . See id. at 28. It was not until January of 1994 that American Colloid executed and filed the s tipulation required by the-4-

opening order. See Appellant’s App. at 26. American Colloid contends the district court erred in agreeing with the IBLA that 43 U.S.C. § 154 allowed the BLM to void i ts mining claims. American Colloid also argues that the IBLA decision cannot b e sustained because the “inconsistent opinions” of the IBLA panel violate the Administrative Procedures Act [APA] and the federal regulations governing IBL A decisions. Appellant’s Opening Br. at 9. It also maintains that the porti on of the Secretary’s order requiring the stipulation is void because it violat es the APA’s notice and comment provisions. When reviewing a district court’s decision affirmin g an agency action, we employ the identical standard of review utilized by the district court. See Santa Fe Energy Prods. Co. v. McCutcheon , 90 F.3d 409, 413 (10th Cir. 1996). We do not accord the district court’s determination of th e case any deference. See id. We do give deference to the decisions of the Interi or Board of Land Appeals, and we will set aside an IBLA decision only if it is ar bitrary, capricious, otherwise not in accordance with law, or not supported by substantial evidence. See 5 U.S.C. § 706; Hoyl v. Babbitt , 129 F.3d 1377, 1382 (10th Cir. 1997). “The court ’s function is exhausted where a rational basis is fou nd for the agency action taken.” Sabin v. Butz , 515 F.2d 1061, 1067 (10th Cir. 1975). In reviewing an agency’s interpretation of a statut e that the agency is-5-

charged with administering, we must determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to t he unambiguously expressed intent of Congress. In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the st atute as a whole. But if the statute is silent or ambiguous with resp ect to the specific issue, the question for the court is whether the ag ency’s answer is based on a permissible construction of the statute, that is, whether the agency’s construction is rational and consistent with the statute. However, if a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and mu st be given effect. In interpreting statutes, we begin with the relevan t language. When the terms of a statute are unambiguous, our in quiry is complete, except in rare and exceptional circumstan ces. Aulston v. United States , 915 F.2d 584, 588-89 (10th Cir. 1990) (internal c itations and quotations omitted), cert. denied , 500 U.S. 916 (1991). The statute at issue, 43 U.S.C. § 154, allows for t he location of mining claims in areas previously withdrawn from entry und er the general mining laws. The statute provides, in pertinent part:

Where public lands of the United States have been w ithdrawn for possible use for construction purposes under th e Federal reclamation laws, and are known or believed to be v aluable for minerals and would, if not so withdrawn, be subjectto location and patent under the general mining laws, the Secretary of the Interior, when in his opinion the rights of the United States will not be prejudiced thereby, may, in his discretion, open th e land to location, entry, and patent under the general mining laws, re serving such ways, rights, and easements over or to such lands a s may be prescribed by him . . . and/or the said Secretary may require the-6-

execution of a contract by the intending locator or entryman as a condition precedent to the vesting of any rights in him , when in the opinion of the Secretary same may be necessary for the protection of the irrigation interests. . . . The Secretary may p rescribe the form of such contract which shall be executed and acknowled ged and recorded in the county records and United States lo cal land office by any locator or entryman of such land before any rights in their favor attach thereto . . . . Notice of such reservation or of the nece ssity of executing such prescribed contract shall be filed i n the Bureau of Land Management and in the appropriate local land o ffice, and notations thereof shall be made upon the appropriat e tract books, and any location or entry thereafter made upon or for s uch lands, and any patent therefor shall be subject to the terms of su ch contract and/or to such reserved ways, rights, or easements and such e ntry or patent shall contain a reference thereto. 43 U.S.C. § 154 (emphasis added). The statute clearly states that the Secretary may r equire the filing of the stipulation as a condition precedent to the vesting of any rights in the claimant. The Secretary’s order opening the land at issue to entry states that, pursuant to the Secretary’s authority under section 154, an entryman had to execute and record the stipulation in the county records and the Unite d States Land and Survey Office “before locations [were] made.” Appellant’s App. at 25. We find no ambiguity inherent in the word “before.” American Colloid does not argue that the stipulation was filed prior to the time the cla ims were declared void. American Colloid finally filed the required stipulation almost forty years after the original entry and location of the claims and almos t four years after American Colloid’s claims were declared null and void ab initio because the required-7-

stipulation was missing. The IBLA decision that Am erican Colloid possessed no rights to Bethel Nos. 1 and 2 because the stipulati on was not filed is logical given the unambiguous intent of Congress to grant the Sec retary the power to require the stipulation prior to the vesting of any rights. The language of this statute required no interpretation by the BLM or the IBLA. We see no error in the conclusion that Congress’ intent in enacting sectio n 154 was followed by the BLM in declaring the claims to Bethel Nos. 1 and 2 null and void. American Colloid asserts that the district court erred in affirming the IBLA decision because the concurring opinion of one of the panel members reveals a disagreement between the judges on a material issue of law. American Colloid argues that because there is a disagreement on a material issue of law, the IBLA opinion does not represent the opinion of a majority of judges who agreed upon a “permissible construction” of 43 U.S.C. § 154. App ellant’s Opening Br. at 9. American Colloid contends that the “inconsistent op inions” violate section 706(2)(D) and section 557(c) of the APA, and 43 C.F .R. § 4.2, a regulation governing the decisions of the IBLA. Id. at 9-10. Section 706 of the APA requires a reviewing court t o hold unlawful agency actions which do not follow the “procedure requiredby law.” 5 U.S.C. § 706(2)(D). American Colloid contends that the agen cy decision is not in accordance with the law because the proper procedur e for issuance of a valid-8-

IBLA decision has not been followed, stating: The lower court was required to determine whether the ALJs had agreed upon a clear and unambiguous intent by Congr ess concerning the necessity of the stipulation . . . being executed and recorded prior to locating the mining claims and whether the recording was an essential component to the vesting of possessory rights in the locator

. By issuing two inconsistent opinions concerning the sequence and timing of the recordingof the stipulation, the ALJs expressed disagreement as to the intent of Congress concernin g these salient points. Appellant’s Opening Br. at 9 (emphasis added). Ame rican Colloid contends that the IBLA judges did not reach a majority decision, as required by 43 C.F.R. § 4.2(a). See id. at 10. It maintains that the issue of exactly whe n the stipulation must be filed was a material issue of law before th e panel and that the two opinions leave this issue unresolved. See id. at 9. A brief explanation of mining law terminology is us eful to explaining our conclusion that the IBLA judges’ opinions are not c ontradictory. Before one may obtain any rights in a mining claim, one must “locate” a valuable deposit of a mineral. See 30 U.S.C. §§ 26, 28; Cole v. Ralph , 252 U.S. 286, 295-96 (1920). The term “location,” when used in the general minin g laws, involves more than one act. To perfect a location, one must comply wi th applicable state and federal laws, including physically staking the metes and bo unds of the claim on the ground (monumenting the claim) and filing a notice of the claim pursuant to state and federal law (recording the claim’s geographical location and the person-9-

staking the claim). See 30 U.S.C. §§ 26, 28; Cole , 252 U.S. at 295-96; Creede & Cripple Creek Mining & Milling Co. v. Uinta Tunnel Mining & Transp. Co. , 196 U.S. 337, 345-47 (1905); United States v. Zweifel , 508 F.2d 1150, 1153-54 (10th Cir.), cert. denied , 423 U.S. 829 (1975); Dredge Corp. v. Conn , 733 F.2d 704, 705-06 (9th Cir. 1984). A location cannot be made without a discovery of a valuable mineral deposit. See Cole , 252 U.S. at 296; Zweifel , 508 F.2d at 1154. Until one has completed all of the acts required bystate and federal law, no rights in the mining claim vest in the locator. See Cole , 252 U.S. at 296; Creede & Cripple Creek Mining & Milling Co. , 196 U.S. at 345-47; Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co. , 171 U.S. 55, 67 (1898); Zweifel , 508 F.2d at 1153. American Colloid’s argument that the IBLA panel didnot reach a conclusory decision on a material issue of law in t his case misconstrues what was required of the IBLA panel. The precise issue befo re the panel was whether the BLM could require that the stipulation be filed pri or to the rights to any claim vesting. Both judges concluded that the BLM could require the stipulation as a condition precedent to the vesting of any rights. In describing when the stipulation must be filed, J udge Irwin’s majority decision states: “When BLM publishes an order open ing the lands, as in this case, presumably [the filing of the stipulation] wo uld be done by preparing the-10-

agreement with a description of the land to be located, signing it, recording it with the county recorder and filing it with BLM bef ore locating the claim.” American Colloid Co. , 128 I.B.L.A. at 261. Judge Mullen’s concurring o pinion attempts to “avoid an interpretation of [the] decis ion that could lead to further appeals to this Board and litigation between rival claimants.” Id. at 263. Judge Mullen notes that multiple acts are required to per fect the location of a mining claim. See id. The judge then states: It is also well established that there is no essent ial order in which the several acts required by law [to perfect a location ] must be performed. . . . Congress clearly intended to make the execution of a contract an act that must be completed before the r ight of exclusive possession of the mineral estate is vested in the l ocator. However, by making the execution and recordation of a contract necessary steps for vesting of rights, pursuant to the Act of April 23, 1932, Congress did not make the execution and recordation of a con tract a prerequisite to undertaking any of the other acts n ecessary for the location of a mining claim. To hold otherwise woul d cause a location to be null and void ab initio if the claim ant did any of the other steps necessary to locate a mining claim prio r to execution of the contract. This is the interpretation I wish to dispel. Id. at 264. Judge Irwin’s statement that “presumably” the requi rement of the stipulation would be fulfilled by filing the stipul ation prior to the other acts of location, i.e., “before locating the claim,” does n ot require that the stipulation be filed prior to monumenting or any other act necessary to perfect a location. Id. at 261. Judge Mullen’s opinion does not state that a right cannot vest if the-11-

stipulation is filed prior to the other acts of loc ation. Therefore, the judges’ opinions do not state conflicting requirements for when the stipulation must be filed, as American Colloid contends. Both judges c oncluded that American Colloid’s claims were null and void because the statute is clear that the Secretary could require that the stipulation be filed before any right to Bethel Nos. 1 and 2 could vest and that the Secretary did exercise his discretion to require the stipulation. See id. at 261, 263-64. The fact that one judge wrote separately to clarify part of the opinion does not invalidate the decision. Cf. 43 C.F.R. § 4.2(a) (“The concurrence of a majority of the Board Administrative Judges who con sider an appeal shall be sufficient for a decision.”); Bowman Transp. Inc. v . Arkansas-Best Freight Sys.,
Inc. , 419 U.S. 281, 286 (1974) (“[W]e will uphold a dec ision of less than ideal clarity if the agency’s path may reasonably be disc erned.”); Morris v. Commodity Futures Trading Comm’n , 980 F.2d 1289, 1293-94 (9th Cir. 1992) (Where onl y four of five commissioners participated in a decisi on and one of the three commissioners in the majority concurred only in the result, the fact that only two members of the five-person panel articulated an agr eed-upon rationale for the decision did not violate section 557(c) of the APA. ). Additionally, a reviewing court should give weight to an agency decision whic h is consistent with earlier pronouncements on the subject under review. See Aulston , 915 F.2d at 596;-12-

Webb v. Hodel , 878 F.2d 1252, 1255 (10th Cir. 1989) (“We are obl igated to regard as controlling a reasonable, consistently ap plied interpretation of the government.”). The IBLA decision at issue follows established precedent; several prior IBLA panels have held that 43 U.S.C. § 154 authorized the Secretary of the Interior to require a stipulation as a condition pr ecedent for the vesting of any interest in a mining claim. See Thomas L. Lee , 98 I.B.L.A. 149, 151 (1987); Red Mountain Mining Co. , 85 I.B.L.A. 23, 26 (1985); Frank Zappia , 10 I.B.L.A. 178, 183-84 (1973). American Colloid contends that even though they didnot file the stipulation prior to 1994, any failure to file the stipulation was a defect which they were entitled to “cure.” See Appellant’s Opening Br. at 25-28. The district court held that American Colloid could not cure a d efective mining claim if the claim was void ab initio . See Appellant’s App. at 12. American Colloid’s response to this holding is that the district court ’s decision is erroneous because the claims were not void ab initio . See Appellant’s Opening Br. at 25-26. In affirming the holding that the claims were void ab initio , we also affirm the district court’s decision that the failure to file the stipulation was a condition precedent to any right vesting. American Colloid w as not entitled to cure the defect because they had no location or any other ri ght susceptible to the cure doctrine.-13-

Proper disposition of the appeal before us requires that a distinction be made between a voidable mining claim and one whi ch is null and void ab initio. A claim in the latter category is incapable of giving rise to any rights or obligations. An unperfected or voidable claim, on the other hand, is one as to which a claimant may lose his rights if he fails to do all the law states to be necessary t o have a valid mining claim. * * * The decision [to void the claims] was correct, howe ver, with respect to those claims . . . subject to the 1939 O pening Order requiring the filing of stipulations at the time of the subsequent withdrawal from mining. Claims located on these la nds were properly declared null and void ab initio in the ab sence of evidence of the filing of the stipulation. Fred G. Welker , 99 I.B.L.A. 297, 299 (1987) (internal citations o mitted). American Colloid also raises the defense of laches to the BLM’s decision. This argument fails because the Supreme Court has h eld that the doctrine of laches does not apply to claims concerning the publ ic lands. See United States v. California , 332 U.S. 19, 40, amended by332 U.S. 804 (1947). This circuit has applied the Supreme Court’s holding in United State s v. California , absent allegations of agency misconduct. See Double J. Land & Cattle Co. v. United States Dep’t of the Interior , 91 F.3d 1378, 1381-82 (10th Cir. 1996). American Colloid also alleges that any requirement by the Se cretary to record the stipulation prior to the vesting of a right exceeded the Secret ary’s statutory authority. We hold that the Secretary did not exceed his statutory authority in requiring the stipulation; section 154 explicitly gives the Secre tary the authority to require the-14-

stipulation at his discretion. American Colloid contends that the stipulation requ irement in the opening order cannot support the voiding of their claims be cause the order does not comply with 5 U.S.C. § 553, one of the rule-making provisions of the APA. See Appellant’s Opening Br. at 28. The rule-making req uirements of section 553 do not apply to matters concerning the public lands; t herefore, this argument was properly rejected by the district court. See 5 U.S.C. § 553(a)(2); NLRB v. Wyman-Gordon Co. , 394 U.S. 759, 776 n.1 (1969) (Douglas, J., dissenting) (noting that the public property exception of secti on 553(a)(2) excludes, among others, the BLM and other agencies dealing with pub lic property); Hunter v.
Morton , 529 F.2d 645, 649 (10th Cir. 1976); Story v. Mars h , 732 F.2d 1375, 1384 (8th Cir. 1984); Wilderness Pub. Rights Fund v. Kle ppe , 608 F.2d 1250, 1253 (9th Cir. 1979), cert. denied , 446 U.S. 982 (1980); cf. Duesing v. Udall , 350 F.2d 748, 752 n.4 (D.C. Cir. 1965) (noting that Department of the Interior regulations pertaining to the issuance of oil and gas leases onwildlife refuge lands were related to public property within the meaning of th e predecessor statute to section 553(a)(2)), cert. denied , 383 U.S. 912 (1966); McNeil v. Seaton , 281 F.2d 931, 936 (D.C. Cir. 1960) (regulations pertaining to gra zing privileges on federal ranges promulgated under the Taylor Grazing Act hel d to fall within the public property exemption of the predecessor statute to se ction 553(a)(2)).-15-

We hold that the IBLA decision finding American Col loid’s claims to Bethel Nos. 1 and 2 null and void ab initio was not arbitrary and capricious. The IBLA decision was reached by a process in accordanc e with the law. Therefore, the decision of the district court is AFFIRMED.