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American Colloid Co. v. Babbitt

ELR Citation: 28 ELR 21178
Nos. 97-8018, 145 F.3d 1152/(10th Cir., 05/27/1998)

The court upholds a U.S. Department of Interior Board of Land Appeals (IBLA) determination that a company's failure to file a stipulation of entry rendered its mining claims null and void ab initio. When the Secretary of the Interior opened certain lands to mining claims in 1954, he required that a stipulation of entry be filed reserving a right-of-way in the lands to the United States for any future reclamation needs. The company's predecessor-in-interest never filed a stipulation of entry, and neither did the company until four years after its claims were declared null and void. The court first holds that the Bureau of Land Management (BLM) and the IBLA followed Congress' intent in declaring the claims null and void. The statute clearly states that the Secretary may require the filing of the stipulation as a condition precedent to the vesting of any rights in the claimant. Thus, the IBLA decision that the company possessed no rights in the mining claims because the stipulation was not filed is logical given the unambiguous intent of Congress.

The court then rejects the company's argument that the district court erred in affirming the IBLA decision because the concurring opinion of one of the panel members reveals a disagreement between the judges on a material issue of law, thereby creating inconsistent opinions in violation of the Administrative Procedure Act (APA). The precise issue before the panel was whether BLM could require that the stipulation be filed prior to the rights to any claim vesting. And both judges concluded that BLM could require the stipulation as a condition precedent to the vesting of any rights. The court also holds that the company was not entitled to cure the defect of failing to file the stipulation. Because the claims were void ab initio, the company had no claims susceptible to the cure doctrine. In addition, neither the defense of laches nor the APA's 5 U.S.C. §553 rulemaking requirement applies to claims concerning public lands.

Counsel for Plaintiff
R. Dennis lckes
Parry, Lawrence & Ward
1270 Eagle Gate Tower
60 E. South Temple St., Salt Lake City UT 84111
(801) 521-3434

Counsel for Defendant
David A. Kubichek, Ass't U.S. Attorney
U.S. Attorney's Office
2120 Capitol Ave., Rm. 4002, Cheyenne WY 82001
(307) 772-2124

Before Kelly and Henry, JJ.