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Graves v. Bernhardt

United States District Court, D. Arizona

December 10, 2019

Lyndon P Graves, Sr., Plaintiff,
David Bernhardt, et al., Defendants.


          Michael T. Liburdi United Slates District Judge

         Before 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.[1] 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).

         I. BACKGROUND

         The 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[2] on public land, including the claims at issue in this case.

         Mr. 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”).[3] 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).

         On July 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 operational proposal.

         Forest 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.

         As a 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.)

         A prior 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.

         In 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 follows:

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.)

         Then, 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.”[4] (Doc. 31-1 at 50.) Mr. Graves submitted his proposed plan of operations on June 27, 2018.

         The 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. at 8.)

         In the 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.

         Mr. 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 24, 2011.

         Defendant 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.


         The 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).

         On 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 ...

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