United States Department of the Interior
Office of Hearings and Appeals
Interior Board of Land Appeals
801 N. Quincy St., Suite 300
Arlington, VA 22203
ROBERT O’DAY
IBLA 2012-186 Decided June 13, 2013
Appeal from a letter of the Colorado State Office, Bureau of Land
Management, stating that a certain unpatented mining claim complied with all
Federal laws and regulations as to the recordation of that mining claim.
Appeal Dismissed.
1. Mining Claims: Generally--Mining Claims: Title
The Board has long held that it is inappropriate for BLM to
engage in disputes over the right of possession of rival
claimants at the request of one of the claimants. Such
disputes are more appropriately resolved by an appropriate
local judicial forum, not by BLM or this Board.
2. Appeals: Standing
To have standing to appeal, a person must both be a party
to the case and have an adversely affected, legally
cognizable interest. When a letter from BLM does not
result in an adverse effect on any interest of a person, that
person does not have standing to appeal the letter.
APPEARANCES: Robert O’Day, Snowflake, Arizona, pro se; Danielle DiMauro, Esq.,
Office of the Regional Solicitor, U.S. Department of the Interior, Lakewood, Colorado,
for the Bureau of Land Management.
OPINION BY CHIEF ADMINISTRATIVE JUDGE H. BARRY HOLT
Robert O’Day has appealed from a letter dated April 19, 2012 (April 19 Letter)
from the Colorado State Office, Bureau of Land Management (BLM), stating, inter
alia, that the Oro Boro Placer Miners Association unpatented mining claim complied
with all Federal laws and regulations as to the recordation of that mining claim.
On December 12, 2011, BLM received a certificate of location filed by several
individuals purporting to locate the Oro Boro claim. The claim was located in the
SE¼ of the NE¼, and in the NE¼ of the SE¼, sec. 11, T. 11 S., R. 80 W., 6th
Principal Meridian, in Lake County, Colorado.1 BLM assigned serial number
CMC 282392 to this claim.
On March 29, 2012, BLM received a certification of location filed by several
other individuals, including appellant, purporting to locate the Two Bit Gulch Placer
unpatented mining claim. This claim appears to overlap completely, and is described
at the same location, as the Oro Boro claim. BLM assigned serial number
CMC 283089 to the Two Bit claim.
On April 15, 2012, BLM received a letter from appellant requesting that BLM
review its records regarding both claims to determine which of them was valid. BLM
responded with the April 19 Letter, therein refusing to make such a determination at
appellant’s request and stating that the locators of the Oro Boro claim complied with
applicable laws and regulations. Appellant subsequently filed the instant appeal.
Counsel for BLM has filed a motion to dismiss. BLM argues that the April 19
Letter did not constitute a final appealable decision because it did not take or prohibit
any action, nor did it adjudicate the rights or obligations of either appellant or the
locators of the Oro Boro claim; therefore, appellant was barred from appealing the
letter. Answer at 3. Alternatively, BLM argues that appellant was not a party to the
case because he did not participate in any process leading to the April 19 Letter and
he is not adversely affected by the letter. Id. at 4.
The Board has recently described what constitutes an appealable decision:
A “decision” is generally held to take or prohibit some action that
affects a person having or seeking some right, title, or interest in public
lands or resources. See, e.g., GEO-Energy Partners-1983 LTD., 170 IBLA
99, 119 (2006), aff’d, 551 F. Supp. 2d 1210 (D. Nev. 2008), aff’d,
613 F.3d 946 (9th Cir. 2010).
An amended certificate of location was filed on Apr. 18, 2012.
Uranium Watch & Living Rivers, 182 IBLA 311, 314 (2012). Likewise, an appeal may
be taken from “a decision adjudicating the rights of the parties in a given factual
context.” Blackwood & Nichols, 139 IBLA 227, 229 (1997). BLM claims the April 19
Letter “simply explained BLM’s practice with respect to disputes between private
parties under state law.”
In the instant case, BLM could have provided a mere informational response
about the status of the Oro Boro claim, and such a response would not constitute an
appealable final decision. See Uranium Watch & Living Rivers, 182 IBLA at 315. BLM
also could have simply informed appellant that it had no basis to adjudicate the
rights of the locators of the Oro Boro claim based on appellant’s request. See id.
(rejecting an appeals framework in which persons could “fabricate appealable
decisions merely by submitting information requests to BLM and filing an appeal
whenever BLM responds”).
However, BLM went further, expressly stating: “The owners of the Oro Boro
Placer Miners Association placer mining claim (CMC 282392) have complied with all
Federal laws and regulations as to the recordation of the mining claim.” April 19
Letter at 1. BLM does not abstractly state, for instance, that the locators filed the right
forms or provided requested information. Instead, BLM goes so far as to state that the
recordation of this particular mining claim complied with all Federal laws and
regulations, clearly implying that the Oro Boro claim is procedurally valid.
[1] BLM has a well-established policy against responding to third party
assertions that a mining claimant has failed to file documents with the local recording
office. See BLM Manual 3833.74. Consistent with that policy, the Board has long held
that it is inappropriate for BLM to engage in disputes over the right of possession of
rival claimants at the request of one of the claimants. See, e.g., Sandra Memmott (On
Reconsideration), 93 IBLA 113, 114-15 (1986), and cases cited. Such disputes are
properly resolved by an appropriate local judicial forum, not by BLM or this Board.
See, e.g., Recon Mining Co., Inc., 167 IBLA 103, 109 (2005).
In this case, BLM’s response to appellant comes perilously close to such inappropriate engagement.
[2] But, even assuming arguendo that BLM’s overbroad statement in the
April 19 Letter was a final, appealable decision, we conclude that appellant has not
demonstrated that he has standing to appeal. To have standing to appeal, a person
must both be a party to the case and have an adversely affected, legally cognizable
interest. 43 C.F.R. § 4.410(a); David Glynn, 182 IBLA 70, 72 (2012). “The burden
falls upon the appellant to make colorable allegations of an adverse effect, supported
by specific facts set forth in an affidavit, declaration, or other statement of an affected
individual, that are sufficient to establish a causal relationship between the approved
action and the injury alleged.” Powder River Basin Res. Council, 180 IBLA 32, 44
(2010), and cases cited.
Here, we find that BLM’s April 19 Letter did not result in an adverse effect on
any interest of appellant, nor has appellant even asserted such an effect. The letter
does not invalidate his Two Bit claim or restrict his access to the land.
We note that BLM’s April 19 Letter asserted that BLM “cannot enforce county
recordation requirements for new mining claims.” April 19 Letter. Even though that
is strictly true, BLM is obligated to enforce the recordation requirements of the Federal
Land Policy and Management Act of 1976 (FLPMA). See 43 U.S.C. § 1744 (2006).
These requirements include filing various documents with the local recording office
and copies with BLM. See 43 U.S.C. § 1744(a)(1), (b) (2006). Failure to comply with
those requirements is “deemed conclusively to constitute an abandonment of the
mining claim” by operation of law. 43 U.S.C. § 1744(c) (2006); see Ted Dilday,
56 IBLA 337, 341 (1981). BLM nonetheless has a long history of addressing, on its
own initiative, the question of whether a claimant has complied with those FLPMA
requirements. See, e.g., David J. Bartoli, 147 IBLA 284, 287 (1999); Hi-Tech Synfuels
Corp., Inc., 144 IBLA 26, 27-28 (1998); U.S. v. Myrtle Hix, 136 IBLA 377, 381 (1996);
Joseph L. Frankmore, 101 IBLA 202, 203-04 (1988); Enfield Res., 101 IBLA 120, 123
(1988).
In this case, however, because appellant was not adversely affected by BLM’s
April 19 Letter, and because neither BLM nor the Board is the proper forum for a
dispute over the right of possession as between rival claimants, we dismiss appellant’s
appeal.
Accordingly, pursuant to the authority delegated to the Board of Land Appeals
by the Secretary of the Interior, 43 C.F.R. § 4.1, the appeal is dismissed.
James F. Roberts
Administrative Judge
I concur:
H. Barry Holt
Chief Administrative Judge
