*1 suspicion to detain or search her. Defen- pat-down
dant did submit to search few
minutes later which led to the However, drugs. taint earli- removed,
er detention and seizure acquiescence
and this was therefore the illegal
fruit of the detention.
Accordingly, we reverse the conviction remand sentence and to the District
Court for such proceedings as be with opinion.
consistent HJELVIK, Craig,
John True
Jr., Plaintiffs-Appellees, BABBITT, Secretary
Bruce of the Inte
rior, Department United States
Interior, Defendant-Appellant.
No. 98-35340.
United of Appeals, States Court
Ninth Circuit.
Argued and Aug. Submitted
Memorandum filed Oct.
Memorandum Withdrawn Dec.
Filed Dec. *2 Hazard, W. United States De-
Katherine
Justice,
D.C.,
Washington,
for
partment of
defendant-appellant.
Montana,
Stanley, Billings,
Peter T.
plaintiffs-appellees.
BRUNETTI,
CANBY,
Before:
O’SCANNLAIN,
Judges.
Circuit
ORDER
sion was based on a
consideration of
factors,”
relevant
Citizens
Preserve
BRUNETTI,
Judge:
Circuit
402, 416,
Volpe,
Park
Overton
401 U.S.
disposition
The memorandum
filed Octo-
91 S.Ct.
OPINION
deposit.
§
mineral
See
22.
30 U.S.C.
appeal involves the review of an
This
to qualify
“[I]n order
as ‘valuable mineral
which
proceeding
administrative
culminat-
deposits”
the discovered
must be
ed in a decision of the Interior Board of of such
person
a character that ‘a
of ordi
(“IBLA”)
Appeals
that four-
Land
nary prudence
justified in
would be
the
unpatented mining
teen1
claims held
expenditure
further
of his labor and
Hjelvik and
appellees,
Craig,
John
True
means,
awith
reasonable
suc
prospect of
Jr.,
null
lack
and void for
of discov-
cess, in developing a valuable mine....’”
ery
deposit.
of valuable mineral
The Unit-
Coleman,
599,
United States v.
390 U.S.
ed States District Court for the district of 602,
1327,
(1968)
88 S.Ct.
Once the establishes (9th Cir.1974); 292 n. 6 United States v. case, prima proof the de facie burden Mines, New IBLA 191 by to refute York 105 volves the claimant who must (1988). can gov Geological evidence the inferences be used preponderance of the Secretary quantity Inte sufficient of similar ernment’s case. Lara v. infer (9th Cir.1987). rior, beyond quality mineralization the actual 820 1542 exposed not have to all where the values of the The claimant does establish areas on required exposed deposits for a val claims owned or con necessary the elements by high “to trolled are and rela discovery, only id but rather needs claimants Free tively the the consistent. United States v. preponderate on issues raised (1983). zor, Moreover, 72 Crawford, 74 IBLA evidence.” United States min exposed where there is evidence of claim, eral on each a series the principal The issue here whether as contiguous claims be considered government sufficient went forward with group determining pru whether a when that the appropriate evidence to establish expend justified dent would be person for the purpose measure of resources on all ing developing resources on mine validity the of contested determining York contiguous of the claims. New 16,840 In their claims was short tons. Mines, IBLA 191. at argument, at brief this court and oral hearing, gov- the claimants have contested the At the initial contest not Barry Burk- they expert could not ernment’s witness IBLA’s determination that hardt, chromite, examiner for the a certified mineral mine short tons that, Service, testified based on amount of resources found the IBLA Forest claims,3 examinations, on sampling at a field of minerals be in on the contested claims, pertinent of the posited and a review profit. Nor have the claimants literature, they he estimated that there existed finding the IBLA that that erred tons of chrom- approximately short preponderate not on issue of did Based on a found on the ite on the contested claims. proper measure of resources James, Instead, by H.L. he they argue report prepared that the claims. deposits in the that the chromite ernment’s did not raise issue estimated were of the claims' mineral re- 3. The IBLA found claimants challenged of chrom- entitled to include has not sources. The piled one to the ite stock claims ruling. determine amount of indicated reserves mining the claimants not equaled entire district enti- short tons. Burkhardt also testified on a rely geologic tled inference to po- deposits mining district are establish a ton reserve. Because deposits “very diform and that are such the claimants failed to rebut this vary irregular,” “randomly scattered and the IBLA did err report size and dimension.” The James established measure of resources also described the mineral as be- validity purpose determining ing “pod like in form.” short tons and that the claims did not contain of suffi- minerals two submitted quantity quality cient to constitute a con- reports prepared Burkhardt which discovery of a mineral. valuable cluded that the cost the claims would the market value of re- exceed report fined chromite. One contained two II. cost assuming estimates: one the government makes a pri- When indicated reserves found on contested exposed ma that no mineral-in- tons) (16,840 claims would be mined claim, place has been located on a all the other that the estimated chrom- *5 showing claimant has the of burden (112,000 ite in the district short of preponderance the evidence that in tons) second, could be mined. The earlier place mineralization exists on the claim. report only analyzed the of profitability Lara, 820 at In 1542. order to meet
mining all the chromite found dis- burden, its the claimant do must more trict. then government’s criticize the testing government’s At the close of the presen- “the government methods as mineral ex evidence, tation of the claimants made aminer duty has no to search discov motion that averring to dismiss ery.” Id. supports Substantial evidence ernment had to a prima failed make finding the IBLA’s that claimants here invalidity. The Administrative failed to offer sufficient to evidence rebut Judge Law took the under motion advise- government’s case that there was no ment and supplemental briefing. ordered mineral-in-place on Siegfriedt No. 3 In in opposition its brief to the to motion claim. dismiss, reply its brief in opposition to the motion to dismiss and post-hearing its
brief, III. expressly argued that the rely claimants not entitled to Substantial evidence supports on the estimated reserves for the entire IBLA’s determination that the claimants mining district order to establish a valid failed to government’s prima rebut discovery because there was no evidence in facie case that there was no of a the record that the additional mineraliza- valuable mineral on the contested tion nearby properly was located claims. We therefore reverse the district or was of quantity sufficient and to quality summary court’s judgement order and af- be considered as part of a group. firm the IBLA’s holding decision the elev- The government also argued that the esti- en claims null and void. mated size the entire district ' REVERSED. speculative reserve too to support a geologic inference of O’SCANNLAIN,
chromite. Judge, Circuit specially concurring: supports Substantial evidence IBLA’s determination so, however, I I concur. do only be- made a prima facie case that resources cause I am forced to the strict standard on the claims totaled of this Court’s review. As the right- Court testimony Hjelvik’s Turning out, Interior can reverse the points we ly (“IBLA”) Border, expert, if James the ALJ recounted Appeals Board of Land re- “arbitrary, capricious, prepared is that Border its decision 112,000 tons, or port figures: con based on three supported by substantial tons, 1,000,000 (citing at tons. He trary Op. law.” Gilmore (9th Cir. Lujan, made no mention 1991)). system of our administra ton IBLA later relied Perhaps figures which the from a might possibly upon benefit in its tive law de novo review and redetermi- the IBLA its upon similar constraint without remand the ALJ. Be- nation Hjelvik’s rendered adminis already review of decisions had found cause ALJ (“ALJs”). judges larger figures speculative, trative law to the analyses, he those ignored I that IBLA conduct acknowledge analysis as to the “only [Border’s] already of cases have de novo review The ALJ then pertinent.” ALJ; nevertheless, a by an been decided “[bjeeause [Hjelvik’s] greater found respect no pays system of review consistency in and more rea- [his] evidence findings of those decisionmakers most approach marketability, the tes- sonable ripe with matter is for abuse. intimate given greater Border is timony Mr. it upon arguments A that relies party credibility than the weight collective have made in the initial opponent and its testimony government’s] [the mineral by entirely may be new sandbagged forum he examiner and information relied if before the IBLA that contentions raised his market- upon forming opinions upon Many them admissible. tribunal deems venture,” the conclud- ability.” “The ALJ will allow the to make close cases *6 ed, both at the close profitable “would be necessarily fatal such a decision without and in 1990.” egregious required triggering the breach remedy by Gilmore for Court fact, Finally, litany findings in his before us be one misstep. no mention at all either the ALJ made such instance. 16,840 22,340 ton but figure, did alia, find, inter that: case, specifically
In this the ALJ stated “made a case for (a) in the “The total inferred reserves of indi- approximately short tons [Hjelvik] milling for area available of mineral cated and inferred reserves tons is of amount of of 20 chromite bearing percent excess having grade a cut-off chromite mineral area these and other immediate percent”; of 20 on that [Hjelvik].” held Based (b) Border, A. Professional “James case, Hjelvik ALJ was concluded aas Engineer with excellent credentials of these amounts “entitled was found have mining engineer, present on claims at being reserves credibility testimony and his greater Furthermore, arguing minimum.” greater the areas given weight issue, used milling transportation than mining, its support H.L. James report by for [the accorded witnesses arguments on what method of ernment]”; and claims, and the could on these be used (c) Mr. “In envisioned the scenario report the James pointed ALJ out that Border, 112,000 tons of inferred ore figure. ton was a source of percent yield would postulates approximate James milling.” after chromite concentration chromite” an quantity of “inferred de review the record this Court to “not metric Were amount to exceed difficulty finding novo, I have little converted, 100,000 would metric tons.” When upholding the deci- claimants and tons. roughly equals sion of the ALJ. we are Sadly, bound standard substantial and I
must therefore honor the decision of the
IB LA. ASSOCIATION,
PACIFIC MARITIME individually
on behalf of itself and its
injured members, Plaintiff-counter-
defendant-Appellant,
LOCAL INTERNATIONAL
LONGSHOREMEN’S AND WARE UNION;
HOUSEMEN’S Local Longshoremen’s
International Union;
Warehousemen’s and Inter Longshoremen’s
national and Ware Union,
housemen’s Local Defen
dants-counter-claimants-Appellees.
No. 98-55453.
United States of Appeals, Court
Ninth Circuit.
Argued and Submitted Oct.
Filed Dec.