High Country Citizens Alliance v. Clarke

(SEC) prepared which are not in accor- tors cite no relevant authority ] in support generally accepted accounting with contention, dance of their unpersuad- and we are principles presumed will be to be mislead- by light ed it in analysis of our regarding inaccurate, ing despite footnote or other the relationship auditors have with a com- disclosures, unless the has other- [SEC] pany’s financial statements. added). provided.”) (emphasis wise Because we find that Investors failed to argue require Investors that to a show- 18(a) adequately plead claim, their Section ing that Grant Thornton did not form its we affirm ground. on that express We no opinion based on its audits —the first ex- opinion as to the limitations issue. ample given impermissibly inject a —would AFFIRMED. 18(a). scienter element into Section To be 18(a) sure, no require- Section has scienter 78r(a); §

ment. See 15 In re U.S.C.

Suprema Specialties, Litig., Inc. Sec. 283; Webster,

F.3d Stone & F.3d at Inv.,

193; Magna F.2d at But it argue

no answer to that the lack aof 18(a) requirement

scienter in Section ex- sufficiently spec- cuses Investors’ failure to HIGH COUNTRY ALLI CITIZENS ify why the reasons opin- Grant Thornton’s ANCE; Butte, Town of Crested Col misleading ion was false or in the context orado; County Board of Commis of its stated basis. See U.S.C. 78u- County Gunnison, sioners of the 4(b)(1). Colorado, Plaintiffs-Appellants, much Investors also make of the distinc- tion “misleading” between “false” and CLARKE, Kathleen They argue “[l]iability statements. in her official ca pacity under section 18 is not limited to state- as Director of the U.S. Bureau ‘false’; rather, technically ments are Management; Wenker, Land Ron liability extends to all statements capacity in his official as Colorado ‘misleading respect material Director; BLM United States Bureau ” Aplt. fact.’ Reply Br. at 14. To the Management; Norton, of Land Gale quantifiable extent there is a difference capacity Secretary in her official terms, between two we are unmoved Interior; Depart United States by Investors argument because it does Interior; Dodge Phelps ment of the nothing to alter our conclusion that Corporation; Mt. Emmons adequately failed to specify the reason or Company, Defendants-Appellees. why reasons Grant Thornton’s opin- audit No. 05-1085. ion misleading. argue Investors further Appeals, SAC United States Court allegations contains sufficient that Grant Tenth Circuit.

Thornton alleged- “caused to be made” the July ly misleading false and statements con- tained in 1999 by financial statements aid- preparation in their and providing

them with an unqualified opinion as re- 78m(a)(2).

quired Aplt. added).

Reply (emphasis Br. at 7-9 Inves-

son, Plaintiffs) (collectively, Colorado ap- peal dismissal, from the district court’s subject jurisdiction, lack of matter of two claims of their three-claim complaint. complaint Plaintiffs’ arises out the issuance mining of a patent and names two groups of defendants —federal defendants includ- ing the Bureau of Management Land (and Parsons, Roger Flynn Jeffrey C. (BLM), Kathleen Clark in her official ca- Project, Lyons, Western Action pacity Director, as BLM Ron in Wenker Colorado, Plaintiffs-Appellants High for capacity his official of the Colorado Bureau Country Alliance and the Citizens’ Town Director, of Land Management the United Butte, Laura Magner, Crested Crested (collec- Department States of the Interior Butte, Colorado, Plaintiff-Appellant for BLM); tively, private in- Butte, defendants Town of David Baum- Crested Dill, cluding Mount Mining Company Emmons garten County and Thomas A. Attor- (MEMCO) Office, Gunnison, Colorado, ney’s Phelps Dodge Corpora- for MEMCO). Plaintiff-Appellant County (collectively, Board of Com- tion The district Gunnison, missioners of the County of on court judgment pursuant entered final briefs). 54(b) Fed.R.Civ.P. on the two claims in- in appeal. volved this ApltApp. 56. We (and P. Aagaard, Aaron Avila Todd S. jurisdiction pursuant exercise to 28 U.S.C. Justice, Department of Environment and affirm. Div., and Natural AKelly Resources John- son, General, Acting Attorney Assistant Background Leone, J. Attorney, William United States Perruso, Roxane J. Assistant United December min- MEMCO filed a Attorney, States and Karen Hawbecker BLM, patent application eral pur- Nitta, Solicitor, and Kendra Office of the suant to the General Law of Resources, Division of Mineral Depart- (“1872 Law”). 21-47, §§ Interior, brief), ment of the on the Wash- sought patent approximate- MEMCO D.C., ington, for the Federal Defendants- ly public acres of land the Gunnison Appellees. National Forest. 30 U.S.C. 29. MEM- (and Erisman, David S. Frank CO application Steefel asserted its that these brief), Holme, Owen, (and on the claims, Roberts & mining located in 1977 amend- L.L.P., Denver, Colorado, for Defendants- 1978), deposits ed contained valuable Appellees Phelps Dodge Corporation and molybdenum. Mining Company.

Mount Emmons separate Plaintiffs filed three adminis- BLM, protests objecting trative with the KELLY, BRISCOE, Before Circuit grant application. MEMCO’s JOHNSON,* Judges Judge. District They argued that mining claims MEM- KELLY, Judge. Circuit CO seeks to not contain patent do Alliance, required “discovery of a valuable mineral High Country Citizens’ Town Butte, claim, deposit” within each and that Crested Colorado and the Board County acreage Commissioners of Gunni- issuance of a for the * Johnson, Dodge Phelps parent compa- The Honorable William P. District is the ultimate Judge, United States District Court for the ny of MEMCO. Mexico, sitting by designation. District of New jurisdic- subject lack of matter by the dismiss for

claims exceeds that allowed Plaintiffs, None of the now or Mining Law. and denied the Plaintiffs’ motion for tion ever, competing property claim a interest injunction Aplt.App. preliminary as moot. of the land. 39-55, The district court then entered and third claims in judgment on the first that nine of

The BLM determined pursuant favor of the various defendants patent require- MEMCO’s claims satisfied 54(b). The district court Fed.R.CivP. April On the BLM simul- ments. that third who claim no own- taneously protests the Plaintiffs’ held dismissed decision, Aplt. Appx. subject twelve-page ership in a interest in the land to a 61-72, granted MEMCO cannot the issu- mineral claims, covering approximately nine of its validity ance or under the against 155 acres. The Plaintiffs filed suit have no 1872 Law and later, days the BLM and MEMCO twelve ap- under the APA. Id. at 43. On relief injunctive seeking declaratory and relief. peal, challenge the Plaintiffs that conclu- asserted complaint, In their the Plaintiffs argue Plaintiffs Specifically, sion.2 (1) the BLM violated the three claims: (1) ignoring that the district court erred and the Administrative 1872 reviewability agency presumption Act, §§ Procedures U.S.C. (2) APA, holding actions under the (“APA”) by granting patent, MEMCO the aggrieved persons cannot seek re- (2) violated the Freedom of In- the BLM (3) decisions, BLM patenting view of dis- (“FOIA”), § formation Act 5 U.S.C. claim, APA missing Plaintiffs’ substantive by withholding certain documents from (4) dismissing private defendants (3) Plaintiffs, and the BLM violated question from the case. The of whether Policy Management Act Federal Land APA sovereign immunity waives 1701-1784, (“FLMPA”), §§ 43 U.S.C. Plaintiffs, who claim no adverse interest in by depriving oppor- APA land, bring challenging a suit tunity to patent application review the a patent issuance of under the 1872 failing provide prompt notice Law, impression. is a matter of first protests denial of the and a statement of reasons for the denial. Discussion preliminary Plaintiffs filed a motion for A. Review Standard of 7, 2004, injunction May seeking to re- patented store title lands to the Because the district court dismissed the United States. filed a motion to subject MEMCO Plaintiffs’ action for want of matter pursuant dismiss all claims to Fed.R.CivP. jurisdiction, we review district court’s 12(b)(6). BLM filed similar motion grant of the novo. motions dismiss de regards to dismiss with to the Plaintiffs’ States, Georgacarakos v. United F.3d pursuant first third claims to Fed. (10th Cir.2005); Davis ex rel. 12(b)(1), R.Civ.P. and answered the second States, Davis v. United 343 F.3d claim. (10th Cir.2003) (grant of motion to 12(b)(1) 12, 2005, dismiss under either Fed.R.Civ.P. January

On the district court 12(b)(6) novo). granted BLM and MEMCO’s motions to is reviewed de We as- challenge against 2. The Plaintiffs do not the dismissal claims MEMCO. The Plaintiffs' sec- FLMPA, (FOIA) of their claims under the and chal- against ond claim the BLM is still lenge only the dismissal of their third claim pending and is in the district court not alleges They the extent it APA also violations. subject appeal. of this do the dismissal of their FOIA Cir.1984). allege. sume the truth of all facts Plaintiffs 745 F.2d It 420 F.3d at Georgacarakos, provides: person “A suffering legal wrong action, agency because of or ad- Subject B. Jurisdiction-Federal Matter versely aggrieved by affected or Appellees action within the meaning of the relevant statute, is entitled to It Plain is well settled there- § of.” 5 U.S.C. APA only tiffs can sue the BLM to the extent it withdraws sovereign immunity. sovereign its waiver of E.g. immunity, waived Unit howev- Sherwood, er, 584, 586, statute, ed States v. when the relevant this case L.Ed. 61 S.Ct. While “precludes 701(a)(1).3 § grants jurisdic § the court review.” 5 U.S.C. In other words, all arising tion over “civil actions under the before the waiver of sovereign im- Constitution, munity § laws or treaties of the United under 702 of APA applies, “a States,” it independently does not party waive must first clear the hurdle of 701(a).” sovereign immunity; the Government’s Heckler v. Chaney, 470 U.S. only subject ju 1331 will confer matter 84 L.Ed.2d 714 (1985); Brown, risdiction pro where some other statute Beamon v. (6th Cir.1997) (“Under City

vides such a waiver. Albuquerque 966 of Interior, 701(a)(1), Dep’t. § v. United States 379 the APA does not waive sover- of 901, (10th Cir.2004). F.3d 906-07 eign immunity Waiver ju- when statutes preclude review.”).4 sovereign immunity of must be explicit and dicial Abraham, implied. cannot be Villescas v. A presumption reviewability of ac Cir.2002). companies APA, agency actions under the The APA a may serves as limited waiver but it Cmty overcome.5 Block v. Inst., sovereign immunity, grant 340, 349, of not a of sub Nutrition 467 U.S. 104 (1984). ject jurisdiction. matter v. Sand S.Ct. 81 L.Ed.2d 270 Califano ers, 99, 105-07, Block, 51 the Supreme Court clarified its ear (1977); City L.Ed.2d 192 Albuquerque, lier “clear convincing” and standard to of 907; 379 F.3d at New Regan, Mexico v. overcome the presumption reviewability of permit against strong 3. The APA also does not review and also warned the use of eviden- (such sovereign immunity hence waive tiary where the formulations as clear and convinc “agency action ing) deciding legal is committed to discre- question of whether 701(a)(2). by par- tion law.” 5 U.S.C. congressional precluding judicial intent re agree exception applicable Block, ties that this is not fairly view is discernible. 467 U.S. at here, such, we as do not address it. presumption 104 S.Ct. 2450. The judicial review controls where substantial dissent, question 4. Unlike the congressional view the doubt exists about intent on the issue, precludes judi- whether the 1872 preclusion hardly but it is conclusive in against backdrop sovereign ("[W]here cial review other circumstances. Id. substan immunity the review cannot be had under congressional doubt tial about intent ex —if 701(a)(1) (2), ists, govern- the APAdue to or general favoring judicial presumption sovereign immunity. ment has not waived its controlling. review of action is administrative presumption That does not control in cases failing congressional pre 5. The dissent takes the court to ... [where] task intent to acknowledge judicial presumption judicial 'fairly clude review is discernible' in scheme.”). holding government legislative review and for to a the detail of the Our demonstrating judicial lesser standard in re use of the term "sufficient evidence” in discuss, precluded. viewing apprecia review is As we Block this issue is done with full government satisfying pertinent legal reaffirmed that the must counter tion of stan review, presumption in favor of but dards. Gardner, may from con reviewability] be inferred [ ] in Abbott Labs. established barring temporaneous L.Ed.2d construction S.Ct. U.S. acquiescence found congressional the Court and the Specifically, convincing import standard ... from the collective that the clear in it a useful evidentiary test but rigid judicial history “not a behind legislative and that, to courts where substantial reminder ... inferences particular [or] statute intent ex congressional about statutory doubt as from the scheme intent drawn ju ists, favoring general presumption Block, 349, 104 S.Ct. a whole.” U.S. action is of administrative omitted). dicial review (internal citations Block, 351, 104 467 U.S. at controlling.” maintain the district court The Plaintiffs later, Supreme years 2450. Two S.Ct. reviewability. ignored presumption Block, Court, reiterated that relying Br. 12.6 The dis- Aplt. disagree. We ordinarily intends that there be “Congress court cited and the Block applied trict review, clarity emphasized pertinent overcoming are factors which contrary be ex intent must with which Aplt. Appx. 43-51. presumption. such Fami Bowen v. Mich. Acad. pressed.” presumption discusses the and we Block 667, 671, 106 ly Physicians, 476 unwilling to assume that the district (1986) (superceded 90 L.Ed.2d predicate applied court missed the abrogated grounds). on other apparent purpose. for no Block factors Circuit, characterizing the though Tenth provides The 1872 presumption to overcome the burden deposits belong- in lands “valuable mineral “heavy,” Thomas Brooks Chartered ... free ing to the United States shall be (10th Cir.1990), Burnett, F.2d purchase, and open exploration to and consistently followed the Block stan has they lands in which are found to occu- Radar, Inc. v. Rocky dard. See Mountain § 22. pation purchase.” 30 U.S.C. Cir.1998). (10th F.C.C., 1118, 1121 158 F.3d mining by can locate claims dis- Citizens presumption To overcome covering deposits valuable mineral reviewability, preclude an intent to §§ open lands location. 30 U.S.C. “fairly discernible” from review must be Mining permits The 1872 Law a claim statutory ’n Data Pro scheme. Ass of (fee title) holder to obtain a cessing Orgs., Camp, Inc. v. Serv. by mining claim he encompassed lands 827, 25 L.Ed.2d 184 § or she holds. 30 U.S.C. 29. The BLM (1970). The fact that a statute does not patent applica- whether a must determine is not explicitly provide for statutory re- complies tion with all the Id. at outcome determinative. has, finding that it quirements. Id. After Rather, Supreme Court set S.Ct. 827. is ministe- the BLM’s issuance of to consider specific forth factors for courts Lujan, rial. Marathon Oil Co. whether, explicit lan analyzing absent Cir.1991). 498, 501 history, guage explicit legislative provides a mecha- The 1872 reviewability presumption of has been over claim resolving disputes intent nism for congressional overcome: “The nec re- essary presumption ownership to overcome the or satisfaction [of reading disagree the order indicates the district 6. We also with the Plaintiffs’ charac- terization of the district court’s order as one the Block applied factors to determine if court pri- authorization of a based on search for fairly it was discernable from the statute vate cause of action in the 1872 Law. preclude intended to review. Aplt. plain A Br. 16. That is too narrow. give Allowing no- lands. a mechanism applicant must which quirements. potentially competing claimants government tice could sell the land and competing opportunity provide generate revenue to ease the war debt was claims. 30 to file their adverse claimants the initial concern and much fo- debate expressly §§ 29-30. The law cre- U.S.C. much, any, cused on how if to tax the right of action for adverse claim- ates Globe, Cong. Cong., mines. 38th 1st Ses- provides It also ants. 30 U.S.C. sion, Congress sought claim no process for third who just an immediate solution to the war ownership protests in the land to file debt, problem vagran- but end to the BLM, why provide evidence as cy and lack of development plaguing the require- has not satisfied the applicant mining states. solution of fixed inter- patent. ments for a 29. The ests became clear: they are not claim- agree adverse I suppose two thirds of the area of Cali- ants. fornia is what mining called land. express grant judi is no

There surveyed. Not an acre of it has It been cial review the 1872 sections; has not been laid off into it has unsuccessfully. protest those who As parcels, not been laid off into small so such, to the Block factors to deter we look can acquire rights individuals to it. mine whether there is sufficient evidence They go it temporarily per- congressional intent review. cabins; haps put up they stay there as long they can special as work with some Import Legislative and Judicial Histo- advantage; only but it is a place for a ry month, season, day, or a or a and then Although the Plaintiffs are correct that places; wander off to other where- “[c]ongressional enacting intent in if they acquire permanent could not for the unfettered Law was rights they would make their homes land,” Br. at development public Aplt. They opportunity there.... have had no omitted), (emphasis legislative his acquire to the lands. The tory security reveals that of title was inte State of California would be twice as gral paramount passage to and strong populous today and twice as if at mining thorough laws. After a early period provision had been made history, legislative of we conclude whereby persons seeking rights there grant patent by review of a of a fixed inter- permanent could secure and (with party property no colorable ests. interest) Congress conflicts with what development mining at of Id. 2557. The sought to achieve. (“I was a critical concern. See id. Because Law essential- ... say public it is the first interest of the and tune ly served to combine fine two ... I developed to have this wealth do not acts, earlier the Lode Law of 1866 and the for enactment that shall discour- vote necessary Placer Act of it is to re- wealth.”). of age development this history legislation view the of that as well.7 War, Debate between the western senators during the Civil east- began regulation mining grew, over of and the eastern senators as the the debate Globe, Session, Cong. Cong., legislative 42nd 2d at 532- 7. The dissent contends that the his- (1872), legislative tory Law and Placer Act is "irrel- and thus find of the Lode history extremely evant.” intended that of these acts relevant statutes, analysis. incorporate Law would these revenue, provisions Law of 1866.8 Its the Lode sought to maximize ern senators to max- to those of the 1872 sought senators were similar while the western Globe, Globe., Cong. Cong. Cong., See 38th 39th 1st Ses development. imize Law. Session, (1865); (1866). sion, pro at 684-687 Cong., 2d at 3225 Senator Stewart Session, Globe, Cong., Cong. 39th 1st “the as a mechanism for posed this bill (1866). common thread was a title, The one for give important so Government permanent and desire to establish secure in prosperity” urgency whose permanent Cong. to the land in the miners. See title “by the introduction of bills look creased Globe, Session, 2d at 684-687 Cong., 38th regard general as a ing to what the miners Julian’s Although Indiana Senator destroying all confi system of confiscation by western eventually was killed bill the absolute mining titles and dence proposed his senators concerned about necessity system guarantying to some taxation, title in the land permanent fee capitalists security their investment.” for even for the eastern sena- priority, (emphasis supplied). Id. at 3227 Senator practice leasing the land tors. The Law of believed that the Lode Stewart mining regions population “drew into the titles, “give stability mining 1866 would ruffians, ex- vagrants, gamblers, and pro capital, greatly and increase the invite citizens, cluding intelligent sober Id. precious duction of the metals.” Secu of civil commu- making the establishment rity primary purpose of title was impossible.” nities Id. at 685. Senator 1866 Lode Law: “We want a law of the English system to compared Julian character of the bill under consideration English “the that of the United States: mining and secure titles. While establish soil, miner, having freehold of the hus- feeling insecurity are in doubt a these improves property, his and fol- bands and just, all our efforts.... Let a paralyze will to the dis- lows the vein downward even liberal, policy adopted be to and definite The American tance of two thousand feet. possession the miners. Add to their ward only what finds near the lessee can take he you will right property, the absolute ground.” He continued: surface of the Id. large have lain a solid foundation titles, security for land “Where there is no increasing yields.... feeling of securi can estab- permanent no communities be ty independence produced by By denying permanent .... owner- lished property in the soil is the real founda soil, ship preventing and thus its stability....” tion of our Id. at 3228. necessarily keeps it down its improvement, applied pro- Act The Placer capital their value.... Men will lend patenting the Lode Law to the visions of mining the title to the soil projects where placer deposits. again, Once lands Government, and cannot importance the senators stressed the security.” Id. at 686. Thus pledged as to acquiring prerequisite secure title as among disagreements between east Cong. making improvements on land. west, importance permanent Globe, Session, Cong., at 4403-04 41st 2d title was one area where senators (1870). ground. found common essentially unit- Mining The Law of 1872 Nevada Senator Stewart intro- mining legislation eventually previous

duced a that would become ed the bill minerals, surface, gold grav- in river 8. A lode is a vein hard rock such such as contained Harris, gold copper, within sur- as contained to el. Richard W. An Introduction rounding placer Law, (1999). rock. A claim ac- barren Mining 7 Nev. Law. 15-16 quires deposits at or near the of minerals developed prerequisite being willing that had to miners to in- problems remedied of those laws. implementation necessary with vest the time and capital to de- Globe, Session, Cong., 42nd 2d Cong. velop industry. (1872). Sargent explained: Senator argue that the 1872 Min- purchase inducing are miners We one-way Law is not a street towards claims, large so that amounts of their patenting, but rather effort to balance thereby money brought into the the needs of the mining industry with States, Treasury causing of the United those of non-mining users such as home- perma- the miners to settle themselves steaders, interests, railroads and other homes, nently, improve and establish presumably the need of the national trea- earth, go deeper dig down First, sury. Aplt. atBr. 24-25. the inter- hills, every in way further into the necessarily ests Plaintiffs identified are not their own condition.... This improve competing mining interests to the indus- machinery simply bill oils the a little. try. prosperous A west as a result of the Congress, in passing Id. 534.9 mining expansion simultaneously would Law, Mining was search of a more stimulate the national treasury, the inter- because, rule “the part, definite whole ests homesteaders and the railroads. region litigation.” was Id. at 2459. Es- Second, the Plaintiffs’ pri- interests are certainty to this sential definitiveness was environmental, marily recreational and two finality in one’s title inherent in the paramount interests were not at the of a patent: issuance time sought develop the econ- object title; give of the is to omy through mining. title; it cuts off all uncertain if per- It beyond doubt that in 1872 Congress improve go

son wants to a claim he can finality was concerned with of title. Per- it, buy private and it prop- becomes mitting challenge by erty, certainly policy and it is the best property improved have kind of no interest in the land would allow the it shall private property. become Men lengthy litigation rights kind of over that a think a patented they more of claim than designed to avoid. This would patented. They do of one that is not purpose no doubt frustrate the spend prospecting pat- will millions envisioned it ented claim where not spend will recognize then. We that over the last 133 prospect hundreds dollars to a claim interests, years, priorities concerns and where the title is uncertain and liable to Many have shifted. have called for the by somebody be disturbed outside. repeal seemingly antiq- revision and of this Id. Uram, e.g. uated law. See Robert J. Pros- legislative history pects Reform, This 12 Nat. reflects a clear finality concern with the as a Resources & Env’t 191 But that suggests excerpts legis- 9. The dissent these tion for adverse claimants the for, history provides lative are "selective” and not in accor- is consistent finality dance with text and structure of the with an interest in because it narrows disagree people Law. We with the dissent’s charac- and defines the class of that could history reported bring party protest pro- terization of the here as "se- an action. The third dissent, cedure, 29, According legisla- lective.” the also reflects this con- history completely opposite protests pat- tive is of what cern—such are made before the issues, provisions actually enabling that in- ent the issuance of a enacted — addition, litigation crease rather than decrease it. be final. Block directs us to interesting theory, legislative history analysis. While an of ac- examine the in our lands, public under the alienation of the lies with Con change responsibility (sic), law, that all the core, is intrusted At not the courts. its gress, to its issue ensuring requirements preliminary the set Law was about Mining emerging mining complied presump- been with. of the have expectations tled Meyer Riley, open it not e.g., attending & tions thus are corporations. See Dominion, Domain, Sierra action at law. It is this Private rebuttal Public (1985) 56, Books, 46, 52, (noting gives to it character which Club unassailable value, interests powerful chief, only, a “[p]roviding the[] that indeed its as its security mining corporations] possessor its quieting [of means against popular ownership, protection it If enjoyment of the lands embraces. to advance hostility, opportunity him, and the compel them could intruders at the state level were their control every possession, suit for to establish legisla compelling motivations behind validity of the action of the Land tion,” creates a Mining and “the 1872 Law its Department and the correctness of that mining is presumption favor it, ruling upon matters submitted not overcome impossible difficult—if being a means of patent, instead —to mining Magna ... is the Carta [it] subject peace security, would his land; a status public provisions its have litigation. ruinous rights to constant and law”); ordinary that of Carl J. higher than 636, 640- Smelting Kemp, Co. Mayer, Mining The 1872 Law: Historical 41, chal- 26 L.Ed. 875 Absent a Rule, Discovery 53 U. Chi. Origins of jurisdiction, “patent a lenge to the BLM’s (1986) (the impetus for the L.Rev. judg- for mere errors of is unassailable everything had to do also ment.” Id. at 104 U.S. 636. See mining corporations). with the Smelting Refining Steel St. Louis Co., U.S. judicial construc Next we consider (1882) (the BLM “must consider L.Ed. 226 It is essen tion of the 1872 Law. pass upon qualifications of the cases, con tially undisputed both applicant, performed the acts he secure with the 1872 temporaneous land, title, the nature of the and wheth- of the subsequent to the enactment APA, open it class which is to sale. uniformly persons situated er is Plaintiffs, is, judgment upon these matters is that of similarly claiming not Its land, judi unassailable ex- special interest in the from tribunal and is property cially contesting validity patent. cept by proceedings direct for its annul- Although changed landscape juris- the APA limitation” lack of ment or based on decisions, cases, diction).10 reviewing agency these The courts were also clear nonetheless in dispositive, stranger not while it “does not lie in the mouth of early Supreme structive. As as of the act of the complain to the title to patent: held that an issued Court respect Smelting to it.” government with Co., 647; title, see also Iron Silver merely pass but U.S. operates Campbell, an official Co. v. U.S. the nature of declaration (1890) (“When 34 L.Ed. 155 government that branch of to which Company, Smelting Smelting Com- See finality patent. persuaded We are not pany Steel (referring be dismissed or disre- should at 644-47 to the "conclusive- garded "they "doctrine”). involved the distinction because patent” We think ness of equity.” The dis- between courts of law and requires contempo- that Block us to consider completely ignores sent the extensive lan- raneous cases. guage opinions supporting the idea of in both (1920), person] patent has once obtained 64 L.Ed. [a the mecha- land, he the United States his should nism established is an adminis- only required to persons answer who BLM), (through judi- trative one not a claim.”) (emphasis have some established cial one. Pierce, added); Sparks v. 115 U.S. In Wight, the court confronted almost (1885) (“To L.Ed. 6 S.Ct. the same situation rejected as here. It party against entitle a to relief attempt by a party claiming no property government, he must show a better interest in the land to the issu- right patentee, to the land than the such as mining ance of a patent in the courts and respected law should have been by the remedy found the sole was to file an officers of the land department, being objection before the Land Department. respected given would him pat- have Wight, 693-94, 21 F. 696. The court It is not ent. sufficient to show that the determined that once the Land Depart- patentee ought not to have received the ment overrules the protest, there is “no patent. affirmatively It must appear that remedy.” further Id. at 696. The it, that, the claimant was entitled to court, Wight interpreting the consequence of rulings erroneous of those Law, compared a protestant’s situation to officers on the existing, facts it was denied that of an amicus curiae and held that him.”); Dubois, Wight 21 F. where the Land Department rejected has (C.C.D.Col.1884) (in issue, “when protest, protestant “the has no further grantor grantee satisfied, standing anywhere. to be heard pro- stranger nothing say”). has test cannot be made any litiga- the basis of arguments The Plaintiffs’ these Id.; tion in the court.” see also Beals v. cases are irrelevant they because involved Cone, 184, 187, 23 S.Ct. private parties persua- suits between is not (1903) (“There L.Ed. 435 no suggestion is core, goal sive. At its invalidate —to in the pleadings protestants that the were same, and the courts’ —is any way ground interested in the ap- questions resolutions of these is indicative for, plied they or that acting were other emphasis of an finality. Nor does the citizens, good than as seeking prevent urging Plaintiffs’ “pre-APA caselaw is wrong upon government. Their stand- inapplicable” persuade explicitly us. Block ing in proceeding was in the nature of directs courts to consider these contempo- [sic].”);11 amici curioe Am. Law of Min- raneous constructions and the his- (“the 53.04, cannot, §§ ing protestant 53.06 whole, tory regardless as of shifting and by filing acquire any a protest, right or evolving interests. In arguing that equity in the land which can be made the general public’s paramount, interest ... basis of a suit to cancel patent.... 23-24, Aplt. Br. the Plaintiffs miss the protestant A allege who does not an inter- point. they While are correct in their est in solely position himself stands in the Supreme assertion that the Court has rec- curiae.”). of amicus ognized the public interest of the in mak- law, patents Although find, sure the conform to Cam- we have been unable to States,

eron United parties provided, 40 and the not have a case Although land, correctly protesters the dissent notes that no asserted interest in the presented question Beals acting "good of whether a and were as citizens” led the protester, party prior who was not a court to conclude were interest, such, proceeding, judicata, could invoke res and as could not invoke res Beals, protesters judicata. court's characterization See 188 U.S. at telling. amicus curiae is The fact that of action. These a case has no cause analogous situations af- directly point, on reason. holdings supported sound provide APA the enactment of the ter conveyed balance, pri- lands are public When when viewed as insight. On some individuals, relation- vate a contractual legislative histo- light and in a whole the Government ship is created between judicial history sup- also ry, the modern integrity of such grantee; and the our conclusion. ports grantee if a upset transactions could be that those have indicated Several cases amorphous class ... became liable to no position, Plaintiffs’ who assert persons. of third land, have no competing interest Anchorage, 544 Raypath, City Inc. v. the issuance of right of action Cir.1976) (internal (9th 1019, F.2d Discussing patents, a land patent. omitted). citations emphasized that “a Unit- Ninth Circuit has easy patent protected is from ed States factually Although Raypath is not iden- for third-party attack. It is not sufficient it in- tical to the instant action because to show that the challenging patent one private parties, Aplt. volved a suit between pat- not have received the patentee 30, should really Br. at the effect is the same— (the ent; that he chal- he must also show here, a claim attempt the Plaintiffs state it.” v. lenger) is entitled to Kale United BLM, of their against the but effect (1973) (internal States, 489 F.2d victory would be to divest MEMCO its Leisnoi, omitted); Inc. v. see also citations patent. It cannot be that one cannot what (9th States, United 313 F.3d directly, permitted he to achieve achieve Cir.2002).12 Moreover, recently as as end, dives- indirectly, especially when that Smelting relied on Co. to the Ninth Circuit title, Congress’ pri- one of titure of “an define a official declaration mary passed concerns when it the 1872 is, exceptions, of title which with limited Mining Law. unassailable and not rebuttable.” United suggest that the dis also Shumway, 199 F.3d

States v. trict court overlooked several cases allow Cir.1999).13 (9th patenting decisions review of private

In an action between two APA, despite express provi no under validity patent, of a challenging the allowing judi sion in the 1872 law Circuit, relying on Louis Ninth St. Smelt- (citing, e.g., Br. at Aplt. cial review. on the side of finali- ing, again Norton, came down Corp. Exxon Mobil v. 346 F.3d ty: (10th Cir.2003); Synfuel Cliffs (10th Norton, law, Corp. it is well v. 291 F.3d As matter of federal Cir.2002); Mt. Emmons validity that the of a deed or Co.

established Babbitt, 1167, 1170 may 117 F.3d Cir. government from the federal Witmer, 1997); questioned brought by in a suit see also Adams (9th Cir.1958)). As we discuss be party against grantee paten- low, facts, stated, against their Simply plaintiff in such cases must be read tee.... Shumway points readily argue that is irrel- 12. The dissent out what we 13. The Plaintiffs acknowledge: cases we must consider several discussion is dicta evant because the Kale, including Raypath are not Leisnoi dealing judicial review un- and was not directly point because do not involve Aplt. We it der the APA. Br. consider Law. These cases did howev- impres- for what it is worth—in case of first er, patents appropria- involve land and land sion, survey body judicial history analyzing pro- tion and are instructive in available, completeness. only the sake of if priety third-party involvement. Furthermore, generally patent these cases involve private when a party pro- judicial applicants seeking review of the tests the issuance or nonissuance of a patent, strangers denial of a to the title patent, the BLM has the authority to grant seeking review hearing pass hold a on the appli- patent Although to another. the Plaintiffs compliance cant’s with the statutory re- suggest situations these should quirements. This determination merge, mining the former involve claim- courts, binding on only in reviewable ac- asserting property rights, po- ants not a cordance with in administrative law or tentially third-parties unlimited number of cancel, direct action modify, or issue rights seeking without such to invalidate patent.... Once passes, title howev- property rights others. an Given er, the BLM authority loses over the process administrative review for third- subject lands, granted and the title by issues, party long and the con- patent can challenged only prior struction to the APA which did not through the courts. claims, permit review of such (internal omitted). Id. at 754 citations The pressed would be hard to conclude that the argue Plaintiffs that this language estab- APA changed this.14 jurisdiction lishes the of the courts to hear supplemental briefing, In the Plaintiffs challenges such as the one in the instant argue that this circuit’s recent decision in action. disagree. We The cases relied on Southern Utah Wilderness Alliance v. by panel proposition, this Smelting BLM, (10th Cir.2005) 425 F.3d 735 Cameron, Co. and support any do not right (“SUWA”), question resolves the before of review for those with no claimed inter- There, this court. several environmental land, patented fact, est argue and in organizations brought against suit against such a construction.15 enjoin county BLM to road construction noted, previously As most of the cases project across BLM land. This court re on which rely recognize Plaintiffs reviewa- jected a BLM argument that-the BLM had bility by of claims those who assert an authority rights to rule on the counties’ interest in the litigants land —either whose way. argument The was based Camer patent application was denied16 or those on, 252 U.S. 40 S.Ct. 64 L.Ed. (whose claim asserting competing upheld which power BLM’s to review the 1872 Act explicitly validity patented determine the of un min 30). 35-41; § recognizes Aplt. Br. at ruling, claims. so this court made Aplt. Reply (citing, e.g., 12-13 & n. 3 following observation protests about Babbitt, 1167; Udall, of a issuance under the F.3d Brennan v. (10th Adams, Cir.1967); Law: 379 F.2d 803 urges finality 14. The dissent reliance on South Dakota of a because it dealt with issues Andrus, 1980), prior patent's issuance. 614 F.2d 1190 Cir. (without strongly implying that the State might point Smelting 15. One out that interest) ownership permitted was to assert its APA, yet Cameron were decided before the rights challenge in a to a under the necessarily relied the Plaintiffs here. Andrus, Law. In the BLM was suit, Dakota, party brought and South categories together 16. We discuss these two intervene, sought permitted which property because both involve interests Andrus, file an amicus brief. 614 F.2d at subject unpatented mining lands. An claim is Moreover, subsequent the state's ac fully recognized possessory United interest. seeking compelling Locke, tion an order an environ States v. impact implicate mental statement did not 85 L.Ed.2d 64 §§ 521 not, Act of 29). Development as the question is The F.2d and mineral it, (allowing mining court can claims seq. et frame whether under the and re- making exist on the same land BLM decision leases to question, Br. at 36. Aplt. development occurred APA. See solve conflicts when claiming rather, is whether Law and the under both the 1872 can land 1920); no interest Miner- Act of Leasing Mineral Allowing review patent. issuance of 1920, §§ 181 Leasing al Act of 30 U.S.C. claimants or those by adverse claims leasing program for seq. (establishing et. denied, addresses the BLM whose oil, sodium, and phosphate, oil shale gas, than al- fundamentally different concern 12, 1903, February 32 Act of Stat. potash); third lowing any and all unrelated min- on oil (providing 825 assessments in liti- patent holder a mineral to embroil 31, 1901, claims); January 31 Act of ing this dis- acknowledge gation. to saline (extending mining 745 laws Stat. tinction, 37, argue that Aplt. Br. at but 6, 1900, lands); Act of June 31 Stat. 321 to the we are to look these cases indicate Alaska); Act of (extending mining laws to action, to the 1872 APA for cause 11, 1897, (extending 526 February 29 Stat. we do precisely Law. That is what Mining containing pe- placer mining laws to lands however, must here; inquiry, APA troleum). intent congressional turn on whether revisions, discernable, many fairly Despite these Con review is the APA’s bringing the action outside has not chosen to amend 1872 gress such, hand inquiries go scope; and as Mining provide Law to Plaintiffs with in hand. Congress of action. has Whether judicial interpretations acquiesced construction Contemporaneous Co., Smelting progeny v. and their Steel congressional acquiescence. Catron, question. a difficult and close See revised the 1872 Congress has never 1438; Denver v. 75 F.3d at Cent. Bank of disagreement Law to evidence Denver, Bank 511 U.S. First Interstate Co., Smelting holdings of cases such as 164, 1439, 119 114 S.Ct. 128 L.Ed.2d Steel, held that Wight, which (1994). Congressional silence alone is not by parties were challenges patents e.g., enough prove acquiescence. See Congress has ac barred. To find Gardner, 115, 121, v. 513 115 Brown U.S. agency interpreta in a court quiesced (1994); Schor, 552, L.Ed.2d 462 S.Ct. 130 tion, BLM and MEMCO must show 3245; 846, 106 S.Ct. Girouard 478 U.S. “abundant evidence both States, 61, 69, 328 U.S. 66 S.Ct. United and authorized” the inter contemplated 826, (1946); Catron, 90 L.Ed. 1084 pretation County at issue. Catron Bd. of Comm’rs, area, however, Fish and NM v. United States at 1438. Silence as to one (10th Cir.1996) 1429, 1438 Wildlife, 75 F.3d coupled myriad with a of revisions within Trading (quoting Commodity Futures statutory begins to look the same scheme Schor, 478 U.S. 106 Comm’n Transp. acquiescence. like See Johnson v. (1986)). 3245, 92 L.Ed.2d 675 Cal., County, Agency, Santa Clara 629 n. 107 S.Ct. U.S. multiple changes enacted has (1987) (“Congress has not L.Ed.2d e.g., Multiple Law. See reject our con amended the statute to §§ Mining Act of 601- Use struction, amendments nor have such (withdrawing materials like may therefore sand, proposed, even been clay pur- from the gravel, stone Law); interpretation that our was cor- Multiple Mineral assume view the Indus., rect.”); “objection” Inc. v. This Burlington see also has been defined as a Ellerth, 742, 763-64, 118 S.Ct. 3872.1; protest. 43 C.F.R. see also (1998); 2257, 141 Anken L.Ed.2d Wight, statute, F. at Neither the brandt, 700-01, nor the regulations provide BLM the prot- Regardless, 119 L.Ed.2d estant with rights appeal. See 30 other we find consideration Block 29-30; §§ U.S.C. C.F.R. 3872.1. The factors sufficient evidence an intent to also Mining Law sets forth a detailed preclude review. procedure that adverse must fol- claimants provided low the adverse claimant as a Statutory Scheme Whole timely claim, files his statutory scheme of the 1872 Min grants opportuni- adverse claimant an Congress’ intent to is indicative ty adjudicated court, to have the claim in a preclude to with no review those adverse to prior the BLM’s final on decision the claim in patented disagree the land. We patent application. Plaintiffs could not with apparent argument the Plaintiffs’ avail of this procedure. themselves Com- requirements the patent substantive for a § 30 pare U.S.C. 30 with 2 Am. of a support right somehow of action for third (“A Mining, § protestant 53.08 who claims parties Aplt. with no interest in land. the no interest in himself which would be af- Br. requirements 21-23. The substantive by fected of patent the issuance a cannot bearing have no on what of people class question judgment manager the of the of Congress being envisioned to chal able ... upon the land in passing office the lenge Moreover, an patent. issued the protest his application and and is not enti- BLM’s determination of the satisfaction of decision.”). appeal tled to such requirements gives these rise to a conclu satisfaction, sive presumption e.g. of see Together, provide Sections and 30 Creede & Creek Cripple Mill mechanism disputes to settle between the Co. v. Uinta Tunnel applicant and adverse claimants Co., 353, 337, Transp. and allow to bring others to the BLM’s 266, (1905), 49 L.Ed. 501 a further demon any why attention reason the other Congress’ stration of finality. concern with Enterprise Mining should not issue. See Rather, provisions examine the Con- Co., v. Rico-Aspen Co. Consol. gress to disputes. included resolve Cir.1895) (“There 200, (8th F. is no pro- U.S.C. limited made a object of of provisions doubt the these vision for the role of third parties: require the act of is to the con- congress If no claim adverse shall have been filed flicting parties adjusted all claims of to be with register proper the of the land issues.”). before the expiration office at sixty days of the argue The Plaintiffs inclusion of publication, of it shall be assumed that parties statutory third scheme is applicant patent, is entitled to inconsistent with the that Con- conclusion payment proper officer preclude Aplt. gress intended to review. acre, per of and that claim no adverse $5 Reply provided Br. at 17-18. exists; objection and thereafter no from third admin- party participation for of a patent issuance thus, process, Plaintiffs istrative heard, shall except be it be shown that reason, they must be able to avail them- applicant has comply failed to with disagree. of selves review. We 22 to terms of sections 26 to 28, 29, 30, Congress, by right action providing 50 to to 76 of claimants, 29,30, §§ this title and section Title 661 of for adverse U.S.C. self-explanatory, is the notice certainly how to one for denial provide knew Rather, the abili- protesters. unsuccessful accompanied a brief state- shall infor- ty protesters appear bring grounds denial. ment mation the BLM reflects a Con- before 555(e). all information desire have gressional that, so when the BLM before the BLM Even if BLM violate this did decision, patent, renders a and issues no have provision, notice final. limited role that patent will be remedy. purpose provision this statutory protesters play reviewing court to assess the allow scheme, coupled congressional inter- agency’s decision. See Friends the Bow title, finality security per- est Thompson, statutory scheme as a suade us that Cir.1997); Thompson Dep’t see also an intent to re- suggests whole (D.Utah. Treasury, F.Supp. jurisdic- that APA acknowledge view. We 1981). Here, is no express there such dependent tion is not right of action implied private such, available As Plaintiffs. ignore but we cannot how identify prejudice failed to suf perfectly pre- that act functions with the damage incurred enti fered or that would disputes might occur range dictable Moreover, tle them to relief. the Plaintiffs it, under cannot the under the 1872 of Despite presumption the reviewabili- Law, will not allow them to Mining and we here, fairly it is con- ty, discernable after indirectly. find do so We that the district factors,17 of all the Block sideration properly court dismissed this claim. Congress, it when enacted preclude judicial review intended Subject D. Matter Jurisdiction —MEM- claiming property to third no inter- parties CO in patented est the land and date has change approach. As chosen this acknowledge The Plaintiffs that the 1872 such, Plaintiffs no we find the have provides private right Law no BLM. right against federal of action Rather, Aplt. Br. at 48. action. See Defendants, argue private 555(e) § 5C. U.S.C. Claim Dodge Corporation, and Phelps MEMCO suit, bring alleging The Plaintiffs also necessary parties within Fed.R.Civ.P. Specifi- of the APA. substantive violations 19(a) declaring because an order 555(e) § cally, provides: de- granting patents invalid would Prompt given notice shall deni- impair legal or stroy their entitlements. part al in or in appli- whole of written have, we Because find no cation, request or petition, other BLM, the dis- right against of action in person made connection interested properly private court dismissed the trict agency proceeding. Except with an prior or affirming denial when Defendants. Here, necessarily facts follow. dissent reasons that the of Block correlative does not (with provision for provides right no consumer involvement expressly for a contrary agency proceedings) suggest claimants, re- action for adverse and thus had argument sult here. The is that because Con- expand scope intended gress provided party for third involvement beyond agency protester involvement agency process, must stage, certainly it could have done so. have action in courts. This jority Standing appears

E. agree the district court this case turns on whether the jurisdictional In light ruling, of our plaintiffs’ by claims are barred sovereign not reach of whether need the issue immunity, mentioning “sovereign immuni- under standing Plaintiffs have Article III. ty” several framing times and the issue as AFFIRMED. “whether the APA sovereign waives immu- BRISCOE, nity J, dissenting: Maj. for Plaintiffs.” Op. at 1180.1 Contrary to the district court’s and the I respectfully dissent. This is a Rule assertions, majority’s sovereign immunity 12(b)(6) dismissal, which we review de not at is issue. this novo. The outcome of case revolves around whether intended majority’s The district analy- court’s and preclude Law to re- sis conflicts with the APA. See 5 U.S.C. view under the APA. narrow issue 701(a), §§ According to 5 U.S.C. presented agency is whether the has over- 701(a), chapter applies, according “[t]his ju- come the strong presumption favoring thereof, provisions except to the agency’s dicial review of the action under (1) extent statutes that — APA, where the text the 1872 Min- (2) review; or agency action is committed expressly partic- for provides agency discretion law.” 5 U.S.C. ipation by protesters agency pro- 701(a). Section 702 waives sovereign ceeding. immunity “in virtually for all actions non- monetary against relief immunity

I. Sovereign not at issue acting capacity.” officer an official Rob- Although majority and the district Mgmt., bins U.S. Bureau Land controlling court frame the issue as wheth- (10th Cir.2006) (internal F.3d APA sovereign immunity er the waives omitted); quotation marks Simmat v. U.S. plaintiffs to issuance a Prisons, 1225, Bureau 413 F.3d 1233 pursuant 1872 to the (10th Cir.2005). § 5 U.S.C. While 702 of sovereign at immunity is not issue in this APA sovereign immunity, waives 5 case. § exceptions 702 two U.S.C. includes to court, According to the district “[t]he sovereign immunity: the waiver of “Noth- exceptions two of sovereign waiver (1) ing herein affects other limitations on (1) immunity § under 702 are: [5 U.S.C.] judicial duty or power review or the specifically precludes judi- when statute any deny court to dismiss action or relief (2) action, agency cial review of or when any appropriate legal equitable other or subject action is committed to the (2) authority or ground; grant confers to agency’s law. discretion 5 U.S.C. any if that grants relief other statute con- 701(a).” 01/12/05, § at 7. Order The dis- impliedly to suit expressly sent or forbids reasons, “[t]hus, court if trict sought.” the relief which is precludes Law Plaintiffs’ claims 702; Robbins, 1080; § Defendants, Neigh- at against 438 F.3d Federal then the Fed- Dev., Norton, v. eral Defendants are to bors Rational Inc. 379 sovereign entitled (10th Cir.2004). 01/12/05, 956, immunity.” at 7. Order The ma- F.3d 961 majority precludes against judicial backdrop 1. The also asserts "Plaintiffs can review only sovereign sue immunity the BLM to the extent it waived its the review cannot —if 701(a)(1) sovereign immunity.” Maj. Op. § at be had to under the APA due (2), explanation, majority government sovereign Without waived "view[s] has not question immunity.” Maj. Op. of whether the 1872 n. 4. 1181 1194 coming strong presumption ma- that Con to the district court’s and

Contrary 701(a) assertions, § judicial 5 not jority’s gress prohibit U.S.C. does did mean to all Bachowski, to APA’s waiver of exceptions not list 421 Dunlop v. review.” sovereign immunity, actually 1851, which 95 44 L.Ed.2d 377 701(a) § § in 5 listed 702. 5 U.S.C. (1975) U.S.C. added); (emphasis Bowen Mich. the APA lists two instances where would Physicians, 476 U.S. Family Acad. of action, and it not apply agency to does (1986); 90 623 106 S.Ct. L.Ed.2d im- sovereign address the APA’s waiver of States, McAlpine United Thus, if the munity. Cir.1997). judicial under U.S.C. precludes review majority requires lower evidentia- 701(a), majority § the district court and ry showing judicial establish re- contend, simply the APA does not then precluded. Despite the strong view is apply. review, presumption favoring majority appears to conclude that presumption II. is a strong There fa- precluded upon showing is of suf- review voring judicial review evidence. Without citation to ficient action, applies agency The APA un authority, majority suggests that the preclude[s] ju less relevant “statute[ ] inquiry equivalent is to a review for Block 701(a)(1). § “The dicial review.” U.S.C. sufficiency of look the evidence: “[W]e general APA cause of action confers to determine the Block factors whether persons ‘adversely ag affected or congression- evidence there is sufficient ..., grieved by agency action’ but with preclude Maj. Op. al intent review.” draws that cause action to extent (“[W]e 1182-83; see id. at also find ‘precluded] judicial the relevant statute ” the other consideration of Block factors Inst., Cmty. review.’ Block v. Nutrition sufficient to evidence intent review.”). This standard incorrect. (1984) (quoting L.Ed.2d U.S.C. 701(a)(1),respectively). and 5 U.S.C. applied by In contrast to the standard majority, must show more majority incorrectly describes the sufficiency than of the evidence to show of proof preclusion judi- burden to show implied preclusion of review. The pursuant cial U.S.C. 701(a)(1). “only upon Supreme Court has stated that imposing the burden Without showing of agency, majority gen- convincing on the the observes clear evidence erally contrary presumption legislative “[a] reviewabili- intent should the ty accompanies agency judicial actions the under courts restrict access review.” APA, may Maj. Op. Gardner, but it overcome.” Labs. v. Abbott 387 U.S. majority (inter at 1181. the charge (1967) The fails 1507, 18 87 S.Ct. L.Ed.2d 681 agency pre- with the burden to establish Block, omitted); quotation nal marks 467 clusion, it the apply strong fails to 350-51, (explaining U.S. S.Ct. 2450 “ judicial presumption favoring review. the and convincing ‘clear evidence’ test”). rigid evidentiary standard is not a agency

The must demonstrate “nonre- Block, majority narrowly The construes viewability,” is “exception” which the be- judi contending presumption “[t]he “judicial cause review of such administra- Collins, cial review controls substantial where action rule.” tive is the Barlow congressional exists intent on 159, 166-67, doubt about 90 S.Ct. (1970). issue, hardly but it specifically, preclusion L.Ed.2d the the is con More Maj. the in other heavy Op. “bears burden of over- clusive circumstances.” Contrary majority’s legislative history n. 5. to the Law and at 1181 that conflicts assertion, pre that “the Court held the text of Mining with Law. favoring judicial review sumption [is] over For example, majority upon relies come, congressional whenever the intent to legislative history of the Lode Law judicial preclude fairly review discerni 1866 and the Placer Act of 1870. Maj. Op. Block, statutory ble scheme.” 467 at 1183. legislative history of these 340, 350-51, 81 earlier is irrelevant statutes determin- (1984) (internal quotations L.Ed.2d Congress whether intended to omitted). of final agen “[J]udicial review judicial the 1872 Mining person cy aggrieved action will not especially Mining where the Law alone persuasive

be cut off unless there is reason protesters allowed participate. See 14 that such the purpose believe (1866); Stat. 16 Stat. 217- States, Congress.” Wyoming v. United majority asserts that the Cir.2002) (inter legislative history of the Lode Law omitted). quotation nal marks Given the “extremely Placer Act are relevant” be- favoring strong presumption reviewability, cause “Congress intended that the 1872 inquiry requires rigorous a more Block incorporate Law would these stat- than a showing sufficiency mere of the utes,” citing pages three from the congres- evidence. concerning sional debates Maj. Law. Op. Cong. at 1183 n. 7 (citing The agency implied III. has not shown 532-34). Globe, Session, Cong., 42nd 2d preclusion judicial review Although there are several statements re- disagree majority’s I appli- also garding representatives’ concern that cation of the Block inquiry passage 1872 Mining Law not argu- Law. The BLM three asserts existing rights prior affect under the stat- (1) support implied preclusion: ments in utes, congres- there is no statement judicial contemporaneous construction and regarding sional debate the “incorpo- (2) acquiescence; legislative and ration” of the Lode Law or the Placer Act (3) history; statutory scheme. See into the Cong. Law. See Block, 467 U.S. at S.Ct. 2450. In Globe, Session, 42nd 2d Cong., at 532-34. holding pre- intended to Moreover, of the Mining the text judicial review, majority clude relies actually the majority’s conflicts with selec- legislative history quotations history. legislative tive from the statutory scheme, and the not the con- but quoting legislative from history, temporaneous construction and ac- majority emphasizes finality pat- quiescence. Maj. Op. agen- at 1190. The and a litigation. ent desire to decrease cy fails show that intended to majority For example, the states that judicial review. “Congress, passing Mining in Legislative A. judicial history Law, was in a search of more definite rule because, in part, region ‘the whole in history judi- the was legislative Because ” litigation.’ Maj. Op. at 1185 history (quoting cial conflict text with the of the Globe, Cong. Session, Cong., 42nd 2d at Mining the fails to show that 2459). Nonetheless, precluded. majority review is The concludes that the majority “legislative a attempts preclusion, history the to find reflects clear concern history relying legislative finality patent.” Maj. the Op. statutes with of the that the preceded Mining enactment the at 1185. From in the these statements

1196 little, any, applica- if majority the but these cases have history, concludes legislative presented. the par bility questions to challenge by a third “[p]ermitting that land would with no interest in the ties pre- majority’s cases involve None the over lengthy litigation allow the kind as protester’s clusion of review to a designed to rights that BLM’s of the determination. But Maj. Op. at these avoid.” Cone, 184, 187, 23 Beals v. 188 See U.S. history, which legislative from quotes 275, (1903); Sparks L.Ed. 435 S.Ct. 47 majority’s serve as the foundation for 413, 102, Pierce, 408, 115 6 29 S.Ct. U.S. conclusions, conflict with the text ultimate (1885); L.Ed. 428 Steel v. St. Louis Smelt- Mining Law. and structure of Co., 1 106 Refining & U.S. (1882); Smelting L.Ed. 226 S.Ct. majority com- While the cites scattered 640-41, Kemp, Co. v. U.S. empha- legislative history in to ments Dubois, (1881); 21 F. Wight L.Ed. finality and reflect size (C.C.D.Colo.1884). 693, 696 These cases the text litigation, a desire to decrease support majority’s not conclusion do actually and structure of the preclude judicial to intended litigation. increased BLM’s in the Min- review the decisions action provides express cause of for ing Law. claimants, ownership adverse who assert competing the land and are interest over Additionally, majority’s cases Additionally, for title. 30 U.S.C. they distinguishable because concerned parties Law allows third to time. concept standing limited at the agency proceeding by Co., in the participate See, e.g., Smelting at 645-47. U.S. provide to filing protest with BLM example, majority Wight quotes For “ why evidence to has not applicant proposition protestant for the ‘the patent. requirements satisfied the for standing any no heard has further § 29. allowed third- made the protest where. The cannot be ” party protesters participate in the ad- Maj. litigation basis of the court.’ though 696). proceeding, ministrative even Wight, F. Op. (quoting at 1187 parties ownership these third claimed no Wight analysis But the rested land, though interest in the even nei- had no premise protester, that a ther the administrative state nor modern in court standing regarding sue standing developed. principles of had Wight, at 696. patent. issuance F. Thus, unquestionably Sections 29 Notably, did Wight the court’s decision litigation increased over the issuance pre Congressional not concern intent claimants a by granting adverse clude review under allowing cause of action and Law. pro- in the administrative participate Cone, 188 majority quotes Beals v. ceeding. preclusion analysis, In our (1903), L.Ed. 435 give should to the stat- greater weight proposition plaintiffs’ “ little, text, if any, weight leg-

ute’s ‘standing proceeding was in the ” it. history islative conflicts with [sic]’ nature of amici curioe because ownership Maj. Op. no interest. legislative history Just as does es- had Beals, 188 at 23 (quoting tablish that intended to 1187 U.S. 275). review, judicial quoted But is neither does histo- S.Ct. this statement Beals, held ry. considering judicial history, In out of In the Court the context. majority 1880s, plaintiff judi- could not res upon relies cases from the that the invoke

1197 party majority because he not a in the the cata While cites United States v. (9th though Shumway, Cir.1999), 199 F.3d prior proceeding, even he filed 1093 Maj. at atOp. patent 188 23 275. the discussion in protest. S.Ct. dicta, Shumiuay was it protesters, pertain the includ- did not The Court held that preclusion review under plaintiff, judicata not use res the ing could Shumway patent APA. involved not mill protesters parties, were because sites, oil, and the court mentioned that oil standing proceeding inwas “[t]heir shale, and other gas, subject minerals were nature of amici curioe Id. [sic].” the leasing system federal under 30 Moreover, Supreme the Court’s deci- § and not the Mining U.S.C. Law in Smelting Company sions and Steel after 1920. F.3d at 1100. distinguishable they because involved the the Finally, majority Raypath, cites Inc. courts of distinction between law and (9th City Anchorage, 544 F.2d 1019 Co., Smelting See 645- equity. U.S. at Cir.1976) curiam), (per Raypath but is nei- (1881); Steel, 452-53, 1 106 U.S. at ther a nor an APA Law case case. that, (holding while plaintiff the Instead, it concerned the issuance of a not patent could assail a based on a false state, public lands to the and the law, perjured in an affidavit action at statute and deed the use of limited the equity could seek relief from a court of he “public purposes.” land to Id. at 1021 equitable right if had an premis- he the 869). § (citing 43 U.S.C. es). Thus, although majority relies point presented More on to the issue 1880s, from do upon cases these cases Andrus, Dakota v. South F.2d 1190 support majority’s not conclusion. (8th Cir.1980). majority The did not con- majority bolsters its conclusion us- Andrus, Eighth sider where the Circuit judicial history, Maj. Op. modern ing decided merits of a to a - 88, but cases are distinguish- these mineral under not Min- able because did involve the determining without whether the Mining majority Law. For relies example, precluded review. Id. at States, Kale v. United Andrus, South Dakota had no (9th Cir.1973), Maj. Op. at Kale but ownership mining interest claim. Instead, not did involve the Law. Dakota South intervened Kale, Chickasaw Indian claimed that proceeding, arguing Secretary denied agency improperly his allotment an prepare impact must environmental petition-application determining a patent. before issuing statement land at previously appropri- issue was Appeals Interior Board of Land set aside pursuant ated to the Soldier’s Additional grounds, decision on other ALJ’s but Kale, Rights, Homestead 43 U.S.C. 274. rejected argument. Id. South Dakota’s Leisnoi, Similarly, F.2d at 453-54. filed an original 1192. South Dakota then States, v. United Inc. F.3d 1181 against action in federal district court Cir.2002), cited, is also but Department Leisnoi did of Interior United States Op. at Maj. seeking involve the 1872 Law. an patent applicant, order Instead, impact compelling Leisnoi involved environmental state- Eighth ruled on issued under the Alaska Native Claims ment. The Circuit merits, against holding patenting Act a suit Unit- deci- Settlement BLM’s Act, Quiet require impact ed States under the Title 28 sions do not environmental statements, discussing 2409a. F.3d at and without wheth- U.S.C. 1182-83. omitted). holding nal that the judicial citation precluded review. er the statute review, judicial the precludes Mining Id. upon Congress’ omission of majority relies legislative the majority upon The relies right Mining for of action that judicial history to conclude Con- majority example, third For parties. precluded judicial review: gress impliedly revisions, states, many “[djespite these process an review administrative “Given Congress not to amend has chosen issues, judicial third-party long for provide Law to Plaintiffs APA prior to the which did construction claims, right Maj. Op. action.” at 1190. judicial of such permit review not to conclude that pressed would be hard implied preclusion But test for Maj. changed Op. APA this.” judicial Congress review is not whether to again, majority Yet fails 1188-89. of action for the provided express right an agency fails to place the burden on the plaintiff lacks a plaintiffs. pri who “[A] ju- strong favoring apply presumption right underlying vate of action under the Moreover, majority review. dicial to bring statute can suit under APA cited, of the holdings overstates cases statute,” rely “not enforce the and he need ignores the the text conflict between right action under implied of the Law and the and structure v. Im other statute.” Hernandez-Avalos history. legislative history legislative Serv., migration 50 F.3d & Naturalization judicial history do not establish that (10th Cir.1995). 1331 con Section judicial Congress intended to re- “on question jurisdiction fers feder federal view. action, al regard courts review own less of whether APA of its force Statutory as a B. scheme whole may jurisdictional predicate.” as a serve statutory Nor does the scheme as Sanders, Califano Congress whole establish that intended (1977); 51 L.Ed.2d Se. Kan. preclude judicial majority review. Cmty. Program, Lyng, Action Inc. v. statutory that further concludes (10th Cir.1992); n. 4 F.2d Wil Congress’ scheme is “indicative of intent Prokop, der v. 846 F.2d no preclude review to those with adverse Cir.1988); Dep’t Army, Labash v. U.S. land,” patented claim in the because (10th Cir.1982). Thus, F.2d the role provision “limited for of third protesters may challenge BLM’s action parties” Maj. process. Op. APA, regardless under of whether the protesters It is true did not express Law includes an or implied private of action right have like adverse private action, have right of and we federal parties, but not does establish question subject jurisdiction. matter are precluded their claims from review. congressional Nor does silence demon- preclude judicial intent strate review. argue that, because was silent about review provided party for participation protesters under the but it not in- process, the administrative did determinative. si- silence is “Mere preclude judicial review. In re- tend lence in the statute not be read as should jecting argument, majority this rea- precluding under the APA.” “Congress, by providing sons Peterson, claimants, Sierra Club certainly of action for adverse (9th Cir.1983). Contrary provide one for knew how unsuccessful - (inter- protesters.” Maj. Op. majority’s analysis, congressional at 1191 92 silence support patent applications an inference that Con- that complied does not with the preclude judicial to review. gress intended by filing protests agency. statute with the See 30 U.S.C. Because the third-party protesters would Since the in protesters participate allows to the federal standing not have had to file suit in process, Congress administrative did 1880s, surprising in it is rather court the judicial preclude intend to pro- review of Congress gave third-party protesters class. majority role in the testers as a fails to participation proceed- BLM ing. majority Yet concludes that discuss how this case Block. conforms to play role that protesters limited “[t]he statutory scheme, coupled

in the con- Contemporaneous C. judicial con- security interest gressional finality and congressional acqui- struction and title, statutory us that persuade escence a whole intent to suggests scheme as an majority opinion does not rely upon preclude judicial Maj. Op. review.” judicial contemporaneous construction - course, majority 1191 92. Of reaches congressional acquiescence. Congression- requiring this conclusion without first preclude al may intent in- review agency strong to overcome the presump- “contemporaneous ferred from tion of review. barring construction review and the con- majority disre- Tellingly, seems to Block, gressional acquiescence in it.” Block, gard the facts Block itself. U.S. at majority S.Ct. 2450. The Congress Court Supreme held that correctly showing describes burden of preclude judicial intended to for a Maj. acquiescence. Op. at 1190. To show class of milk consumers because the rele- congressional acquiescence, a claimant vant did not milk statute allow consumers “bears the burden of showing abundant pro- participate administrative Congress evidence that both contemplated cess: previous noncongres- and authorized the Act, however, in the Nowhere there sional interpretation which it now ac- express provision for participation quiesces.” County Bd. Catron Comm’rs in any consumers In a com- proceeding. Servs., & v. U.S. Fish Wildlife plex type, scheme this the omission of (10th Cir.1996) (internal quota- such a provision is sufficient reason to omitted). “It tions is at treacherous best believe intended fore- congressional to find in silence alone the participation regu- close consumer adoption controlling of a rule of Id. law.” latory process. (internal omitted). marks quotation Given Block, 467 U.S. at burden, majority recognizes this Because consumers were not allowed short, agency falls concluding that level, participate the administrative of the other “consideration Block factors Court concluded that did not sufficient to evidence an intent to rely on intend to consumers to Maj. Op. at 1191. review.” 346-47, agency actions. Id. at facts, 2450. From these found above, Court For stated I would the reasons implied preclusion. review of conclude Block, precluded. action is not

Unlike the milk consumers in Congress expressly protesters, allowed class, participate regulatory

process under the Mining and Con-

gress relied ensure

Case Details

Case Name: High Country Citizens Alliance v. Clarke

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 21, 2006

Citation: 454 F.3d 1177

Docket Number: 05-1085

Court Abbreviation: 10th Cir.