Sims v. Ellis et al

Filing 36

MEMORANDUM ORDER Plaintiff's Motion for Reconsideration (Dkt. 28 ) is DENIED. Signed by Judge Edward J. Lodge. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SANDY HOWARD SIMS,
Case No. 1:12-CV-00505-EJL
Plaintiff,
MEMORANDUM ORDER
v.
STEVEN ELLIS , in his official capacity as
the Director of the Idaho State Office of the
United States Bureau of Land Management,
MIKE POOL, in his official capacity as the
Acting Director of the United States Bureau
of Land Management and KEN SALAZAR,
in his official capacity of Secretary of the
United States Department of Interior,
Defendants.

MEMORANDUM DECISION AND ORDER
Pending before the Court in the above entitled matter is Plaintiff’s Motion for
Reconsideration (Dkt. 28) of the Court’s order granting in part and denying in part
Plaintiff’s Motion for Summary Judgment. (Dkt. 12.) Defendants filed a response
to the motion to reconsider (Dkt. 35). No reply was filed by Plaintiff.1

1 Plaintiff did, however, file a Supplemental Brief in support of his Motion for Reconsideration
(Dkt. 33) and an Affidavit by Plaintiff’s counsel in support of the Motion for Reconsideration
(Dkt. 34), nearly one month after filing his initial Motion for Reconsideration, but before
Defendants’ filed their Opposition to the Motion for Reconsideration (Dkt. 35). The
MEMORANDUM ORDER - 1

Having fully reviewed the record, the Court has determined oral argument
would not assist the decision-making process. The Court will therefore decide the
motion without a hearing.
STANDARD OF REVIEW
Neither the Federal Rules of Civil Procedure nor the Local Rules provide for a
motion to reconsider. However, the Ninth Circuit has stated that motions to
reconsider should be treated as motions to alter or amend under Federal Rule of Civil
Procedure 59(e). Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1419 (9th Cir. 1984). Reconsideration of a final judgment under rule 59(e) is an
“extraordinary remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th
Cir. 2003) (quotation omitted). As a result, the Ninth Circuit has identified three
reasons sufficient to warrant a court’s reconsideration of a prior order: (1) an
intervening change in controlling law; (2) the discovery of new evidence not
previously available; or (3) the need to correct clear or manifest error in law or fact,
to prevent manifest injustice. Id; see also 389 Orange Street Partners v. Arnold,
179 F.3d 656, 665 (9th Cir. 1999) (A motion for reconsideration “should not be
Supplemental Brief and Affidavit were filed without leave of the Court and without citation to any
authority under either the Federal Rules of Civil procedure or the local Rules. Defendants ask
that the Court strike the Supplemental Brief and Affidavit as cumulative and/or improper.
Because there is no prejudice to the Defendants and because the supplemental materials do not
change the Court’s ruling, the Defendants’ request to strike is DENIED. 
MEMORANDUM ORDER - 2

granted, absent highly unusual circumstances, unless the district court is presented
with newly discovered evidence, committed clear error, or there is an intervening
change in the controlling law.).
Plaintiff does not identify the standard or authority upon which he bases his
Motion for Reconsideration. However, because Plaintiff does not suggest there has
been either a change in controlling law or the discovery of any new evidence, the
Court assumes Plaintiff’s motion is based on a need to correct clear error in law or
fact, to prevent manifest injustice.
Plaintiff’s Motion for Reconsideration asks the Court to revisit its conclusions
regarding the interpretation of the General Mining Law of 1972, 30 U.S.C. §§ 22-54
(“Mining Act”), and more specifically, regarding Defendants’ processing of
Plaintiff’s mill sites patent application under 30 U.S.C. § 42. Plaintiff argues that
this Court improperly ordered Defendants to immediately either contest or approve
Plaintiff’s mill sites patent application, and suggests the Court should have instead
required that Defendants immediately approve Plaintiff’s application and issue
patent to the mill sites.
The Court has reviewed the parties’ briefing and concludes the Motion for
Reconsideration generally argues the same position forwarded on Plaintiff’s Motion
for Summary Judgment. A losing party cannot use a Rule 59(e) motion to raise
MEMORANDUM ORDER - 3

arguments or present evidence that could have been raised before the entry of
judgment. Carroll, 342 F.3d at 945. Further, a “rehash of arguments previously
presented affords no basis for a revision of the Court’s order.” Illinois Central Gulf
Railroad Co. v. Tabor Grain Co., 488 F.Supp. 110, 122 (N.D. Ill. 1980); see also
Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D. Ill. 1976) (“whatever may
be the purpose of Rule 59(e) it should not be supposed that it is intended to give an
unhappy litigant one additional chance to sway the judge.”). Although the Court
ultimately rejects Plaintiff’s Motion for Reconsideration as failing to establish any
clear error in the law or manifest injustice, the Court will, for purposes of clarity,
briefly address Plaintiff’s arguments.
ANALYSIS
Plaintiff argues the “principal issue before this Court is not whether the
Defendants have a duty to ‘process’ [Plaintiff’s] application. The issue is whether
Plaintiff has a right to patent.” (Dkt. 29, p. 5.) Plaintiff suggests that his right to
patent exists if the mill sites satisfy the statutory requirements for validity, and that
there is no provision in 30 U.S.C. § 42 that conditions the right of patent on approval
of the agency. Id. Plaintiff is correct that once a valid patent application has been
made, “‘the holder of a valid mining claim has an absolute right to a patent…and the
actions taken by the Secretary of Interior in processing an application for patent by
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such claimant are not discretionary; the issuance of a patent can be compelled by
court order.’” Swanson v. Babbitt, 3 F.3d 1348, 1353 (9th Cir. 1993) (quoting
South Dakota v. Andrus, 614 F.2d 1190, 1193 (8th Cir. 1980)). However, no “right
arises from an invalid claim of any kind. All must conform to the law under which
they are initiated; otherwise they work an unlawful private appropriation in
derogation of the rights of the public.” Id. (citing Cameron v. United States, 252
U.S. 450, 460 (1920)). The right to patent thus does not vest unless the Secretary of
Interior determines that an applicant’s claims are valid. R.T. Vanderbilt Co. v.
Babbitt, 113 F.3d 1061, 1067 (9th Cir. 1997). As long “as the legal title remains in
the Government, it does have power…to determine whether the claim is valid, and,
if it be found invalid, to declare it null and void.” Swanson, 3 F.3d at 1354 (quoting
Cameron, 252 U.S. at 460).
Here, contrary to Plaintiff’s assertions, it is not undisputed that Plaintiff had a
valid patent claim. Indeed, the Government contested the validity of Plaintiff’s
claim by filing a contest proceeding in 2000, claiming that the mill sites were not
used or occupied for purposes reasonably related to Plaintiff’s mining operations,
and requesting that the mill sites be declared null and void. The parties filed a
stipulation in 2002 to stay the administrative proceedings pending negotiations
between Plaintiff and the Forest Service to explore a land exchange which would
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resolve the contest. On June 13, 2006, the parties filed a Joint Stipulation to
Dismiss the Contest without prejudice. The stipulation was expressly conditioned
on the occurrence of the land exchange between Plaintiff and the Forest Service,
stating “[i]n the event that ongoing settlement negotiations are not concluded
successfully, the parties have agreed, consistent with established mining contest law
and procedure, that this contest can then be re-filed by the Contestant.” (Dkt. 1-4.)
Where, as here, the delay in the issuance of a patent application was due to
Defendants’ challenge to the validity of that application, patent rights do not vest
until the resolution of such challenge. Swanson, 3 F.3d at 1354; see also United
States v. Shumway, 199 F.3d 1093, 1102 (9th Cir. 1999) (“Were the Secretary to
have challenged, in good faith, the Shumways’ compliance with the mining laws,
then under our decision in Swanson they would not have a vested right to issuance of
the patent until resolution of the challenge.”). 2

1. Posture of the Case
In its September 16, 2013 Order (hereinafter the “Order”), this Court denied
Defendants’ Motion to Dismiss for lack of subject matter jurisdiction and failure to

2 As the Court previously held, there is no evidence that the Government acted in bad faith in
either filing the initial contest, or delaying in re-filing a new contest after the land exchange fell
through. (Dkt. 26, pp. 23, 26.)

MEMORANDUM ORDER - 6

state a claim. (Dkt. 5) Plaintiff does not challenge this aspect of the Order. The
Order also granted in part and denied in part Plaintiff’s Motion for Summary
Judgment (Dkt. 12). The Court granted Plaintiff’s Motion for Summary Judgment
because it determined the undisputed facts established Defendants had unreasonably
delayed in processing Plaintiff’s mill sites patent application. The Court did not,
however, find that the undisputed facts established validity of the mill sites and
Plaintiff’s right to patent. Instead, as explained in the Order, Plaintiff’s right to
patent has not been confirmed because Defendants failed to completely process
Plaintiff’s application. As such, the legal and secretarial review which is the last
step prior to issuance of valid patent under the Mining Act was not fully completed.
See Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997);
Dkt. 26, pp. 7-11 (reviewing patent application process under the Mining Act).
Moreover, because Defendants contested the validity of Plaintiff’s patent
application, and dismissed the contest without prejudice only because Plaintiff
claimed he was negotiating a land exchange with the Forest Service which would
moot the contest, and with Plaintiff’s explicit agreement that the contest could be
re-filed if he did not, in fact, successfully exchange land with the Forest Service, the
undisputed facts establish that Plaintiff’s rights to patent have not vested. See,
Swanson, 3 F.3d at 1353-54 (the rights to a patent do not vest upon the filing of the
MEMORANDUM ORDER - 7

application if the Secretary contests the validity of patent and thus delays its
issuance.); Independence Mining, 105 F.3d at 508 (“if rights to a patent do not vest
pending challenge to its validity, no rights can vest before the Secretary has decided
whether to contest the patent claim.”).
2. Court’s Jurisdiction
Plaintiff claims the Court correctly determined it had jurisdiction to entertain
Plaintiff’s claim, but that Court was incorrect to determine it could not order
Defendants to issue patent. 3

(Dkt. 29, p. 4.) The Tenth Circuit addressed this

precise issue in Marathon Oil Co. v. Lujan, 937 F.2d 498 (10th Cir. 1991).
Plaintiffs in Marathon Oil filed a patent application for six mining claims in 1986.
By 1989, although they had completed a mineral examination suggesting plaintiffs’
claims were valid, defendants had neither contested the application nor issued
patents. Plaintiffs filed suit, requesting that the court order the defendants to grant
the patents. The district court ruled in plaintiffs’ favor, and ordered defendants to
complete plaintiffs’ application and to issue the patents in thirty days. The Tenth
Circuit reversed in part, finding that though it could order defendants to

3 Plaintiff also claims “if Defendants never decide that the Mill Sites are valid, it necessarily
follows that the Mill Sites are invalid and Plaintiff has no right to patent.” (Dkt. 29, p. 5.) The
Court foreclosed this possibility by ordering Defendants to expeditiously process Plaintiff’s
application and determine whether the mill sites were valid. Defendants immediately followed
the Court’s order and initiated an administrative contest proceeding to challenge the mill sites’
validity. (Dkt. 34-1.)
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expeditiously process plaintiffs’ application, the district court was without authority
to order the defendants to approve the application and to issue the patents. In so
holding, the Court explained:
The Department has not yet determined officially that all conditions to
issuance of the patents have occurred. Thus, the Department has not yet
reached the point when it is left with the purely ministerial act of issuing the
patent. Therefore, the approval of the application should not yet be
compelled by a writ of mandamus. In other words, while the district court
can compel the defendants to exercise their discretion, it cannot dictate how
that discretion is to be exercised.
Id. at 501-502 (citing Ortiz v. United States, 661 F.2d 826, 831(10th Cir. 1981);
Wilbur v. U.S. ex rel. Krushnic, 280 U.S. 306, 319 (1930); Estate of Smith v.
Heckler, 747 F.2d 583, 591 (10th Cir. 1984)).
In this case, Defendants have also not yet determined officially that all
conditions to issuance of the patents have occurred. Defendants have not
completed processing the application and, unlike in Marathon Oil, actually filed a
contest to challenge the validity of Plaintiff’s application. The contest has not been
resolved on the merits.4 Given the procedural posture of this case, the Court had the
authority to order Defendants to expeditiously process Plaintiff’s application, but
was without authority to dictate the result of such processing. Marathon Oil, 937
F.2d at 501.
4 A dismissal without prejudice “is a dismissal that does not ‘operat[e] as an adjudication upon the
merits,’ and thus does not have a res judicata effect.” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 396 (1990) (quoting Fed.R.Civ.Proc. 41).
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Plaintiff also suggests the Court has authority to determine Plaintiff’s right to
patent because “[o]bviously, the Court has the authority to reverse an agency
determination of non-validity on appeal.” (Dkt. 29, p. 5.) It may be true that the
Court has the authority to reverse an agency’s determination of non-validity on
appeal if the agency had made such a decision. That is, unlike in this case, there
would be a complete administrative record and a final agency action for the Court to
review under 5 U.S.C. § 706(2). Where, as here, there is no such final agency
action, and the Court’s review is instead limited to a determination of whether the
agency has unlawfully withheld or unreasonably delayed processing a Mining Act
patent application under 5 U.S.C. § 706(1), the Court can determine the agency has
unreasonably delayed, and can order the agency to act and issue a final decision, but
cannot dictate the result of the agency’s decision. Marathon Oil, 937 F.2d at 501.
3. Defendants’ Delay
Plaintiff makes much of the Congressional deadline imposed in the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub.L.No. 104-134, 110
Stat. 1321 (the “Act”). Section 322(c) of the Act required the Secretary of the
Interior to make a final determination regarding 90 percent of all pending patent
applications within five years of enactment, or by 2001. Although the Court found
the Act was relevant to determining whether Defendants had unreasonably delayed
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in processing Plaintiff’s patent application, it is important to note that Defendants
could not comply with the Act’s deadline because the initial contest was not even
dismissed until 2006. Further, the initial contest was dismissed in 2006 without
prejudice and was contingent on a land exchange between Plaintiff and the Forest
Service that never occurred. Finally, Plaintiff could have obtained a final decision
in this matter long ago had he not sought and obtained dismissal of the initial contest,
or if he had advised Defendants the land exchange was ultimately unsuccessful.
(Dkt. 26, p. 28.) Although the Court held Defendants were ultimately responsible
for monitoring the settlement negotiations and for re-filing the contest in the event
settlement negotiations fell through, Defendants are not alone responsible for the
significant delay in processing Plaintiff’s application.
4. Plaintiff’s Statutory Right
Plaintiff suggests the Court “did not address the numerous Supreme Court
decisions that clearly analyze, and implement the Court’s authority to declare that
Plaintiff does possess the statutory right to patent.” (Dkt. 29, p. 10.) However, the
cases Plaintiff cites were decided under different statutes and are inapposite. For
instance, in Lane v. Hoglund, 244 U.S. 174 (1917), the Court interpreted the
Homestead Statute, which contained an express provision requiring that patent to
land be conveyed after the lapse of two years without contest or protest against the
MEMORANDUM ORDER - 11

validity of such entry.

The Lane Court’s determination that the entrant was

entitled to a patent, and that the Secretary had a duty to issue a patent, is inapplicable
to this case because the Mining Act does not contain a similar provision, and
because controlling precedent establishes that rights to a patent do not vest pending
the Secretary’s validity determination. Shumway, 199 F.3d at 1099-1103;
Independence Mining, 105 F.3d at 506-08; R.T. Vanderbilt Co., 113 F.3d at
1063-64; Swanson, 3 F.3d at 1350.
In Ballinger ex rel. Frost, 216 U.S. 240, 249 (1910), the Court held
mandamus will lie to compel the Secretary of Interior to perform a purely ministerial
duty to execute a patent once the statutory time for a contest had expired and the
Indian allottee’s right to title had become fixed and absolute as dictated by statute.
In this case the applicable statute does not require such a result and Defendants do
not simply have a ministerial duty to issue patent to the mill sites. Instead,
Defendants have the discretionary duty to determine whether a patent application is
valid. Shumway, 199 F.3d at 1103; Marathon Oil, 937 F.2d at 501 (where
Department had not yet officially determined that all conditions to issuance of the
patents had occurred, the Department had not yet reached the point when it was left
with only the purely ministerial act of issuing the patent). Finally, U.S. ex rel.
McAlester-Edwards Coal Co., 262 U.S. 200 (1923), was concerned with preferential
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rights to purchase certain mineral lands of the Choctaw and Chickasaw Indians, and
did not involve validity determinations concerning mill sites under the Mining Act.
In sum, the cases cited by Plaintiff were not decided under the Mining Law, were
based on dissimilar statutory provisions, and are not controlling in this case.
5. Independence Mining and Swanson Cases
Plaintiff claims the principles set forth by the Ninth Circuit in Swanson and
Independence Mining do not apply here because in both cases, a good faith contest
was pending, and in this case, there was no good faith contest pending. (Dkt. 29, p.
8.) Plaintiff’s analysis is unpersuasive. In Independence Mining, contrary to
Plaintiff’s claim, a good faith contest was not pending. Instead, as the Court
explicitly noted, the Secretary had not officially challenged the validity of the
patents, and was in the process of determining the validity of the patents at the time
plaintiff filed suit. Independence Mining, 105 F.3d at 508.
Further, the circumstances of this case can be analogized to Swanson, where a
good faith contest was pending, because here Defendants contested Plaintiff’s
application in good faith and only dismissed the contest with Plaintiff’s agreement
that the contest could be re-filed if the land exchange Plaintiff contemplated fell
through. This case can also be analogized to Independence Mining because, after
dismissing the initial contest without prejudice, Defendants had not yet officially
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re-challenged the validity of the patents at the time Plaintiff filed suit, but were
entitled to do so under the stipulated terms of the Dismissal Order. Moreover,
contrary to Plaintiff’s assumption, the Congressional deadline set forth in the Act
does not dictate that any subsequent contest following the dismissal would be in bad
faith because the initial contest was dismissed in 2006, long after the deadline
expired, without prejudice to Defendants’ right to re-file should settlement
negotiations fail, as they did.
6. Statute of Limitations and Equitable Principles
The Court addressed Plaintiff’s arguments regarding the statute of limitations
set forth in 28 U.S.C. §2462 and equitable principles in the Order and need not
repeat its analysis here. (Dkt. 26, pp. 25-29.)
7. Scope of administrative proceeding
Finally, in his Supplemental Brief in support of Motion for Reconsideration,
Plaintiff suggests that if Defendants are allowed to file a new contest proceeding,
they should be required to re-file the same contest proceeding they filed in 2000.
(Dkt. 33, p. 12.) The scope of the re-filed contest will need to be litigated before the
Administrative Law Judge, and is not appropriately before the Court at this time.

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ORDER
IT IS ORDERED:
1. Plaintiff’s Motion for Reconsideration (Dkt. 28) is DENIED.

DATED: December 30, 2013

_________________________
Edward J. Lodge
United States District Judge

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