United States District Court, D. Arizona
Michael T. Liburdi United Slates District Judge
the Court are three motions. The first and second, filed by
Defendants Secretary of the Interior David Bernhardt,
Secretary of Agriculture Sonny Perdue, Vicki Christiansen,
Amy DePestel, and the United States Department of the
Interior (collectively the “Defendants”) (Doc.
30), move for dismissal and for summary judgment. The third,
filed by Plaintiff Lyndon P. Graves, Sr. (Doc. 44), moves for
partial summary judgment. For the reasons that follow, the Court
grants Defendants' Motion to Dismiss in part (part of
Doc. 30); grants Defendants' Motion for Summary Judgment
(part of Doc. 30); and denies Plaintiffs' Motion for
Partial Summary Judgment (Doc. 44).
United States Forest Service (the “Forest
Service”), a division of the Department of Agriculture,
exercises administrative supervision over the Tonto National
Forest. The Bureau of Land Management (“BLM”), a
division of the United States Department of the Interior,
administers mining claims on public land, including the claims at
issue in this case.
Graves asserts an interest in two mining claims in the Tonto
National Forest: Spanish Queen # 2 and Spanish Queen # 3
(collectively the “Spanish Queen Claims” or the
“Claims”). Mr. Graves contends that, on or about
February 4, 2010, he discovered gold deposits on the Spanish
Queen Claims. On February 4, 2010, Mr. Graves obtained a
report from a spectrographer indicating the presence of gold
and silver in samples provided from the Claims. Mr. Graves
physically posted and dated a notice at the Claim sites on
March 24, 2011. See 43 C.F.R. § 3832.11(c)(3).
2, 2015, Mr. Graves submitted to the Forest Service an
initial notice of intent to conduct mining activity on the
Spanish Queen Claims. The notice of intent described proposed
activity as consisting of one to four persons working on the
Claim at any given time with two overhead cable systems for
transporting raw ore to a nearby unimproved parking area.
Dump trucks would then remove the ore. Due to the nature of
the proposed on-site activity, on July 14, 2015, a Forest
Service administrator in Globe, Arizona, sent an email to Mr.
Graves requesting that he submit a formal plan of operations.
The administrator offered an in-person meeting and to visit
the site in order to “work through [Mr. Graves's]
proposal.” (Doc. 31-1 at 40.) Presumably, as a result
of this exchange of information, Mr. Graves provided a new
notice of intent on July 27, 2015; however, according to
Forest Service officials, it still lacked required detail.
Mr. Graves exchanged additional emails with Forest Service
officials providing additional information about his
Service officials sought further clarification from Mr.
Graves by email on August 12, 2015. Mr. Graves was invited to
a meeting to review the status of his proposal and answer
additional questions. The Forest Service states that it did
not hear from Mr. Graves again until later in 2017, after he
directly contacted the White House for assistance developing
his gold deposit claims.
result of Mr. Graves's contact with the White House, an
official with the United States Department of Agriculture in
Washington, D.C., exchanged a series of letters with Mr.
Graves to offer his assistance with the Spanish Queen Claims.
In a letter dated February 6, 2018, the official explained to
Mr. Graves that, “based on the activities [he] proposed
in 2015, [he would] need to remain involved with the Forest
Service and the regulations to move [his] proposal
forward.” (Doc. 31-1 at 36.) The letter further said
that, “[t]he level of surface disturbance [that his]
activities will probably cause will determine the type of
documents [he] will have to file with the Tonto National
Forest.” (Id.) The letter also indicated that
a plan of operations would be necessary if his proposed
activities “are likely to cause a significant
disturbance of surface resources.” (Id.) The
letter encouraged Mr. Graves to contact the Phoenix-based
Tonto National Forest mineral manager “to discuss [his]
plans and activity levels.” (Id.)
letter, dated November 14, 2017, addressed another issue that
was previously flagged by the Arizona-based Forest Service
staff. The Department of Agriculture official noted that Mr.
Graves's proposed mining activity would be conducted in
areas that have been withdrawn from public entry for mineral
exploration and extraction. The letter stated, “you
have rights to access, explore, and develop only those
portions of your claims that are outside the withdrawal
boundary.” The letter attached the master title plat
for the area withdrawn from mineral exploration, which
includes the Spanish Queen claim sites.
February and March 2018, Mr. Graves engaged in a telephonic
and email conversation with the mineral manager to discuss
his plan to explore the Claims. Mr. Graves provided a revised
notice of intent that included a description of
ground-penetrating radar surveys proposed for two separate
parts of the Spanish Queen Claims. On March 23, 2018, an
official with the Forest Service notified Mr. Graves as
Your proposal does not require digging or removal of
vegetation; therefore, pursuant to 36 C.F.R. 228.4(a), I have
determined that significant surface disturbance is not
anticipated to result from your proposed activities as
described. I acknowledge your [notice of intent] and no plan
of operations or reclamation performance bond are required
for these mining related activities.
(Doc. 33-1 at 47.)
on May 26, 2018, Mr. Graves sent an email to the Forest
Service official proposing a change of plans. He indicated
that he “had additional thoughts about the development
of the claims” and now wanted to dig a test hole with
either a pick and shovel or a motorized auger. (Doc. 31-1 at
51.) The Forest Service official responded to Mr. Graves on
the next day, indicating once again that, “[w]hat [he]
want[s] to do is a surface disturbance and ultimately will
require a plan of operations with a bond (per 36 CFR 228.4)
and we will have to do some form of
NEPA.” (Doc. 31-1 at 50.) Mr. Graves submitted
his proposed plan of operations on June 27, 2018.
NEPA review confirmed that parts of Mr. Graves's Spanish
Queen Claims are within an area that the federal government
had long ago withdrawn from mineral entry. (Doc. 31-2 at
32-36.) On September 4, 2018, a Forest Service official
advised Mr. Graves of this discovery and told him that, based
on the withdrawal, they could no longer proceed with his
proposed plan of operations. Mr. Graves was advised to
consult with “a professional lands person to get an
opinion on the boundaries of the valid portions of [his]
claim so that [he] can appropriately work that in the
future.” (Id. at 5.) A follow-up letter was
sent by the Forest Service to Mr. Graves on September 26,
2018. The letter told Mr. Graves that he had the option
“to relocate [his] proposed operations outside of the
withdrawn area” and that the Forest Service “will
continue to process [his] plan according to our
regulations.” The letter recommended that he
“consult a professional land [person] or mining
attorney regarding the location and boundaries of [his]
claim(s), as any portion of [his] claim within a withdrawn
area would be void ab initio.” (Id.
course of the NEPA review and inquiry over the areas that
were withdrawn from mineral entry, on or about September 20,
2018, Defendant DePestel, a BLM employee, reviewed Mr.
Graves's file. This review included Mr. Graves's
notices of claim for Spanish Queen Claims that were filed
with BLM's Phoenix, Arizona office on June 21, 2011. The
law requires that a separate document, a notice of
certificate of location, be submitted to the local BLM office
within 90 days after the claim is located. See 43
U.S.C. § 1744(b); 43 C.F.R. § 3833.11(a)
(“You must record in the proper BLM State Office a copy
of the notice or certificate of location that you recorded or
will record in the local recording office by the 90th day
after the date of location.”). Pursuant to this
regulation, Mr. Graves located his claims on March 24, 2011
when he posted his notice of location on the claim sites.
See 43 C.F.R. § 3832.11. Based on the date of
location, he was required to file a notice of certificate of
location with BLM no later than June 22, 2011.
Graves submitted the notice of location for the Claims by fax
transmission from an office supply store in Las Vegas,
Nevada. The fax transmission cover sheet bears Graves's
handwritten date “6/21/2011” and the note
“PLEASE GET THESE LOGGED IN FOR TODAY! TIME IS
RIGHT AT 90 DAYS THANK YOU!” Mr. Graves included his
credit card number in the notation for payment of fees
associated with his Claims. The BLM-applied receipt stamps on
the fax cover sheet and the notices of location all indicate
that BLM received the documents on June 24, 2011. BLM also
processed Mr. Graves's credit card transaction on June
DePestel analyzed Mr. Graves's file, including the fax
transmittal sheet, the notices, the handwritten instructions,
the BLM date stamps, and the credit card transaction detail.
She noticed that there was no machine-generated fax
transmission information on the cover sheet or on any of the
faxed documents. She queried whether June 21, 2011, fell on a
Friday, “thinking the document possibly arrive[d] late
in the afternoon on a Friday and was not stamped until
Monday.” (Doc. 32-1 at 32.) That day, the 21st,
however, was a Tuesday. Based on the information that she did
have - the BLM date stamps and the credit card transaction
detail - she concluded that the notices were filed on June
24, 2011, which is the 92nd day and, under 43 C.F.R. §
3833.11(a), two days late. The legal penalty for an untimely
notice is that the claims are deemed forfeited. See
43 U.S.C. § 1744(c); 43 C.F.R. § 3833.1(a).
Accordingly, on November 5, 2018, BLM notified Mr. Graves in
writing that his Claims had been forfeited due to the
untimely filing of the notices of certificate of location.
November 5, 2018 BLM decision, declaring that the untimely
notices of location of claim resulted in forfeiture of the
Spanish Queen Claims, was a final agency decision under the
Administrative Procedure Act (“APA”). Mr. Graves
filed a timely appeal of the BLM's decision with the
Interior Board of Land Appeals (“IBLA”). On March
14, 2019, IBLA issued its decision affirming the BLM's
action that declared the Claims forfeited. Lyndon P.
Graves, Sr. 194 IBLA 118 (2019).
April 14, 2019, Mr. Graves initiated the instant action in
this Court. On May 6, 2019, Mr. Graves filed an Amended
Complaint and Request for Injunction (the “Amended
Complaint”) that asserts five causes of action. The
first cause of action alleges that all of the Defendants
conspired to prevent him “from exercising his legal
rights to explore and mine on public lands.” (Doc. 9 at
12.) The second cause of action is an administrative appeal
from the BLM's decision that Mr. Graves's Claims were
forfeited. (Id. at 12-13.) The third cause of action
is an administrative appeal from ...