[Federal Register Volume 63, Number 210 (Friday, October 30, 1998)]
[Notices]
[Pages 58411-58413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29146]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


Notice of the Secretary's Decision to Assume Jurisdiction and 
Review United States v. United Mining Corporation, and to Accept Briefs 
From Interested Parties

AGENCY: Office of the Secretary, Interior.

ACTION: Notice.

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SUMMARY: Pursuant to a petition and a letter requesting Secretarial 
review, the Secretary of the Interior has decided to exercise his 
authority as set forth in 43 CFR 4.5 to review United States v. United 
Mining Corporation (United Mining), 142 IBLA 339 (1998), a decision 
that raises important mining law issues arising under the Building 
Stone Act. Of particular importance in this matter is the meaning of 
the phrase ``chiefly valuable'' in that statute.
    In order to undertake his review, the Secretary will accept briefs 
on the issues set forth in the Supplementary Information according to 
the schedule and instructions in that portion of this Notice.
    Pending conclusion of the Secretary's review of this matter, the 
decision of the IBLA is stayed.


[[Page 58412]]


DATES: See Supplementary Information section for the Brief submission 
schedule.

ADDRESSES: Briefs from interested parties should be submitted to the 
Office of the Solicitor at the United States Department of the 
Interior, 1849 C Street, NW., Mail Stop 6352, Washington, DC. 20240. 
Briefs should be marked for the attention of Miriam Chapman, Attorney-
Advisor, Division of General Law, Office of the Solicitor.

FOR FURTHER INFORMATION CONTACT:
Karen Maloy Sprecher, Associate Solicitor-Division of General Law, 
Office of the Solicitor, United States Department of the Interior, 1849 
C Street, NW., Mail Stop 6530, Washington, DC. 20240; telephone 202-
208-4722. Before filing briefs, parties should contact Miriam Chapman, 
Attorney-Adviser, Division of General Law, by telephone at 202-208-
5216, for information concerning service of process. Parties that have 
already filed briefs and other documents will be contacted regarding 
any additional service requirements.

SUPPLEMENTARY INFORMATION: In February 1992, United Mining Corporation 
(United Mining) located 14 KB placer claims (placer claims) along 
sections of the Big Wood River channel in Idaho and filed location 
notices with the Bureau of Land Management (BLM). United Mining 
proposed to remove Holystone boulders (large basalt boulders that have 
been naturally water-sculpted over time) from the area.
    In response to United Mining's demonstrated interest in the 
Holystone boulders, BLM performed an environmental assessment of the 
proposed removal. BLM's examiners determined that the Holystone 
boulders in the Big Wood River area comprised a unique geological 
resource and therefore recommended that the placer claims be 
invalidated.
    On March 8, 1993, United Mining submitted a notice advising the BLM 
of its intent to conduct mining on the placer claims. BLM filed a 
contest complaint (a complaint contesting United Mining's plan) on 
March 11, 1993, which was assigned to Administrative Law Judge Ramon 
Child, and BLM issued a March 17, 1993, decision prohibiting mining and 
the removal of stone pending the outcome of the contest proceeding.
    Judge Child conducted a hearing on April 4 and 5, 1994, in Idaho. 
At the hearing, BLM argued that the Holystone boulders in the Big Wood 
River area were a great natural wonder with unique geological 
attributes. BLM also argued that the land in question was not chiefly 
valuable for building stone, but for aesthetic purposes. Therefore, BLM 
concluded, mining should not be permitted as the land does not fall 
within the purview of the Building Stone Act, 30 U.S.C. 161 (1994) 
(Building Stone Act), which provides, in pertinent part: ``any person 
authorized to enter lands under the mining laws of the United States 
may enter lands that are chiefly valuable for building stone under the 
provisions of law in relation to placer mineral claims.''
    United Mining moved to dismiss BLM's complaint and presented 
evidence of the uncommon nature of the Holystone boulders, the 
existence of Holystone boulders of a marketable quality at each claim 
and the estimated prices for the Holystone boulders. United Mining 
contended that their submission clearly demonstrated that the land was 
chiefly valuable for building stone.
    In a November 1, 1994, decision, Judge Child first concluded that 
the Holystone boulders were building stone within the meaning of the 
Building Stone Act, and that the placer claims were subject to that 
Act. See 142 IBLA at 352. Since the Holystone boulders were building 
stone, there would have to be a determination as to whether the land in 
the Big Wood River area was ``chiefly valuable'' for building stone. 
Having concluded the Building Stone Act applied, Judge Child proceeded 
to consider whether the comparative value of the claimed land for 
purposes other than mining (hereafter the comparative value test) was 
relevant under the general mining laws. Noting that although the 
Department had rejected the use of comparative value in recent 
decisions, the Judge determined that early Department decisions, 
Supreme Court decisions and Congressional Acts favored the application 
of the comparative value test under the 1872 General Mining Law, 30 
U.S.C. 22 (1994) (Mining Law). See 142 IBLA at 352. He further 
concluded that for any mining claim to be valid, the land must be more 
valuable for mining than for other purposes.
    Judge Child compared the building stone with the aesthetic and 
geological resources of the land in the Big Wood River area. He 
rejected United Mining's contention that a lack of evidence of the 
value of the land for aesthetic and geological purposes precluded a 
finding that the land was more valuable for such purposes. Noting that 
it was impossible to place a monetary value on irreplaceable geological 
features, Judge Child concluded that the land was more valuable for 
geological and aesthetic purposes and therefore not subject to mining 
claims under the Building Stone Act. See 142 IBLA at 353.
    United Mining appealed Judge Child's decision to the Interior Board 
of Land Appeals (IBLA), arguing that the Building Stone Act did not 
govern the placer claims. In its decision on appeal, a 6-4 majority of 
the IBLA, including a concurring opinion, found the Holystone boulders 
subject to the Building Stone Act. 142 IBLA 339 (1998). Finding that 
the placer claims were properly located as building stone placer 
claims, the IBLA found it unnecessary to revisit whether the 
comparative value test applies to claims located under the Mining Law 
and vacated that portion of Judge Child's decision. The IBLA then 
proceeded to address what the drafters of the Building Stone Act 
intended when employing the term ``chiefly valuable.'' The IBLA 
determined that the term was used in the context of statutes designed 
to dispose of public lands in a manner that ensured land was suitable 
for an intended purpose, namely agriculture or mining. The IBLA relied 
on Pacific Coast Marble Co. v. Northern Pacific R.R. Co., 25 Interior 
Dec. 233, 244-45 (1897) (Pacific Coast), as representative of the 
Department's view. Pacific Coast states in part:

    That whatever is recognized as a mineral by the standard 
authorities on the subject, whether metallic or other substance, 
when the same is found on the public lands in quantity and quality 
sufficient to render the land more valuable on account thereof than 
for agricultural purposes, should be treated as coming within the 
purview of the mining laws.

    Applying the Pacific Coast standard, the IBLA found that ``[a]n 
evaluation strictly on the basis of the land's `aesthetic' and 
`geological' worth with no regard to its worth for agricultural 
purposes does not comport with the intent of Congress when it enacted 
the Building Stone Act, 30 USC 161 (1994), or with the Department's 
clearly stated interpretation of that Act since that time.'' 142 IBLA 
at 372. The IBLA then concluded that the term ``chiefly valuable''

    contemplates a rational comparison of values, and the 
measurement of those values must be quantifiable, using units of 
measurement applicable to both sides of the equation. Accepting an 
unquantifiable statement of value, such as a conclusion that the 
land is `unique,' or `priceless,' or `irreplaceable,' for one use 
and then demanding a value of the same land quantified in a dollar 
amount for the other use would render any decision arbitrary.

    Id. at 372-73. The IBLA held that Judge Child's ``chiefly 
valuable'' analysis was erroneous because it

[[Page 58413]]

compared an unquantifiable statement of value (that the land was 
``unique'' or ``priceless'' or ``irreplaceable'') for one use 
(preservation of the land for public purposes) against a value of the 
same land quantified in a dollar amount for the other use (building 
stone) and reversed that portion of the Judge Child's decision. Id. at 
373.
    Four dissenting administrative judges noted that the language of 
the Building Stone Act, which requires that lands be ``chiefly valuable 
for building stone,'' does not preclude taking aesthetic and geological 
values into account. 142 IBLA at 379-86. Moreover, in his dissent, 
Administrative Judge Arness noted that the lead and concurring 
opinions' assumption that the relevant inquiry is made under an 
historical understanding that only agricultural and mineral values are 
compared was incorrect, as nothing in the statute creates such a 
limitation, nor has the Department promulgated regulations to such 
effect. Further, Administrative Judge Arness wrote that instead of 
making the comparisons required by the Building Stone Act, the majority 
imposed a marketability test on the Department and shifted the burden 
of persuasion from United Mining to the government. Finally, 
Administrative Judge Arness noted that such an approach is inconsistent 
with the Building Stone Act and prior Departmental practice. 142 IBLA 
383-86.
    On April 28, 1998, the Secretary of the Interior (Secretary) 
received a Petition dated April 24, 1998, from the Committee for 
Idaho's High Desert and the Connecting Point for Public Lands 
(Intervenors), requesting that the Secretary render a final decision 
overturning the IBLA and reinstating the findings of Judge Child. 
Specifically, the Intervenors asked the Secretary to affirm Judge 
Child's holding regarding the Mining Law, particularly his affirmation 
of the comparative value test for mining claim validity. On May 11, 
1998, the Secretary received a letter dated May 7, 1998, authored 
jointly by representatives of American Rivers, the Mineral Policy 
Center, the National Wildlife Federation and the Sierra Club. These 
groups also requested the Secretary's affirmation of the comparative 
value test. On June 8, 1998, the National Mining Association filed a 
Motion For Leave to File an Amicus Curiae Brief with the Secretary. 
Accompanying the motion were the National Mining Association's amicus 
brief in opposition to the petition for secretarial review and copies 
of two amicus briefs that had been filed by several amici in the United 
Mining IBLA proceeding in support of United Mining. The motion and 
brief were received on June 10, 1998. The National Mining Association 
supports the IBLA decision. By letter dated June 10, 1998, the 
Intervenors filed a reply brief.
    Recognizing the importance of the issues raised by the IBLA 
decision and the differences in the views of the members of the IBLA, 
the Secretary has decided to review the IBLA decision pursuant to 
regulations which provide:

    The authority reserved to the Secretary includes, but is not 
limited to:
* * * * *
    (2) The authority to review any decision of any employee or 
employees of the Department, including any administrative law judge 
or board of the Office [of Hearings and Appeals], or to direct any 
such employee or employees to reconsider a decision.
    43 CFR 4.5 (Bracketed material added.)

    To assist him in rendering a decision on this matter, the Secretary 
will accept briefs from interested parties. Briefs should address the 
following issues: (1) Whether the term ``chiefly valuable'' as used in 
the Building Stone Act requires an assessment of comparative values and 
whether those values could include values other them agricultural, 
e.g., scenic, historic, recreational, and scientific; (2) whether the 
Mining Law itself incorporates a requirement that there be an 
assessment of comparative values; and (3) assuming issue (1) is 
answered in the affirmative, whether the Building Stone Act was meant 
to create a new comparative value standard only for building stone, or 
whether Congress meant instead to confirm that comparative value was 
part of the Mining Law; i.e., was inclusion of ``chiefly valuable'' in 
the Building Stone Act meant to incorporate or confirm a pre-existing 
rule under the Mining law, or create a new, different rule for building 
stone? The Secretary's review of this issue will address the teachings 
of other laws, if relevant, e.g., the Mineral Leasing Act, 30 U.S.C. 
481, et seq. (1994).
    In reviewing the matter, the Secretary will consider the petition 
and letters seeking reversal of the IBLA decision, as well as other 
briefs that already have been filed in support of the IBLA decision, as 
opening briefs on this subject and will accept additional briefs 
(including amicus briefs) in opposition to, and in favor of the 
petition and letters, from interested parties.
    Briefs must be submitted according to the following schedule:
    1. Briefs opposed to the petition and letter seeking Secretarial 
review (i.e., briefs in support of the IBLA decision) must be received 
by December 4, 1998, and my not exceed 50 pages in length;
    2. Response briefs by Petitioners (Intervenors) and others opposing 
the IBLA decision must be received by January 22, 1999, and are limited 
to a length of 25 pages; and
    3. Reply briefs from opponents must be received by February 19, 
1999, and are also subject to a 25-page limit.
    All briefs must be double-spaced and use the times Roman font and 
12-point type. No oral argument will be heard on these issues.
    BLM, as a party in this matter, will be represented by the Division 
of Mineral Resources of the Office of the Solicitor. In order to assure 
that appropriate ethical standards are observed, all BLM participation 
in this matter will be through the Division of Mineral Resources in 
accordance with the provisions of this Notice.
    Pending conclusion of the Secretary's review of this matter, the 
decision of the IBLA is stayed.

    Dated: October 22, 1998.
Edward B. Cohen.
Deputy Solicitor.
[FR Doc. 98-29146 Filed 10-29-98; 8:45 am]
BILLING CODE 4310-10-M