BERYL A. HOWELL, United States District Judge
The plaintiff, Walter Freeman, purchased an interest in approximately 5,000 acres of Federal land located in southern Oregon from a mining and exploration firm. The price was $10. See United States v. Freeman, OR-48970A (March 27, 2009) ("ALJ Decision") at 12-13; AR 1926-27. Prior to the sale, Inspiration Development Corporation ("IDC"), conducted extensive research regarding the land and explored the viability of potential mining operations. At the conclusion of its exploration, rather than attempt to develop the land, IDC was prepared to abandon the claim altogether. Id. Instead, IDC sold its interest to the plaintiff. Id. Thereafter, the plaintiff unsuccessfully attempted to market the nickel ore to a nearby smelter, the only nickel smelter in the United States. The smelter "concluded that [the plaintiff's] ore did not have a high enough nickel content to be worthy of processing" and instead decided to import ore from Australia. Id. Undeterred, the plaintiff attempted to develop his own mining operation on the land, but the Bureau of Land Management ("BLM") denied the plaintiff's proposal and a congressional moratorium prevented the plaintiff from patenting his claim on the land. Accordingly, in 2001, the plaintiff filed suit in the Court of Federal Claims seeking compensation for the alleged taking of his rights in the land, which the plaintiff claims "would have made in excess of $146 million." Pl.'s Mot. Partial Summ. J. & Mem. Supp. ("Pl.'s Mem.") at 4, ECF No. 25.
The Court of Federal Claims stayed the plaintiff's action to permit the United States Department of Interior ("DOI") to determine whether the plaintiff had established the discovery of a valuable mineral deposit on the land and, thus, whether the plaintiff maintained a valid property interest in the Federal land as of the time of the alleged taking. After a lengthy mineral examination, an Administrative Law Judge ("ALJ") for the DOI ruled in a detailed 88-page opinion that the plaintiff had "failed to establish . . . a discovery of a valuable mineral deposit." ALJ Decision at 88; AR 2002. The ALJ's decision was affirmed in a thorough 48-page opinion by the Interior Board of Land Appeals ("IBLA"). See United States v. Freeman, 179 IBLA 341 (2010) ("2010 IBLA Decision"); AR 05805.
The plaintiff now brings this action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2), against the DOI and two of its components, the IBLA and the BLM (collectively, the "Federal Defendants"), seeking to set aside two decisions of the IBLA relating to the plaintiff's
The background of this case, and the applicable law, has been summarized in great detail by the Court previously in Freeman v. United States Department of the Interior, 37 F.Supp.3d 313 (D.D.C. 2014), which addressed the plaintiff's first cause of action. Accordingly, the relevant background is summarized only briefly below.
Under the General Mining Law of 1872 (Mining Law), 30 U.S.C. §§ 22 et seq., "citizens may stake, or `locate,' claims to extract minerals [on federal public land] without prior government permission and without paying royalties to the United States." See Orion Reserves Ltd. Partnership v. Salazar, 553 F.3d 697, 699 (D.C.Cir.2009). Before a Congressional moratorium was enacted in 1994, claimants could "apply for purchase of a deed, or `patent,' conveying full legal title to the land on which their claims are located." Id. at 699 (citing 30 U.S.C. § 29). To qualify for a patent, an applicant must establish that their mining claim is valid.
An unpatented mining claim is valid against the United States only upon discovery of a valuable mineral deposit within the limits of the claim, and compliance with all statutory and regulatory requirements relating to the location, recordation, and filing of the claim. See 30 U.S.C.
To determine whether a mining claim is valid, BLM conducts a mineral examination.
The OHA provides two levels of review to resolve mining contests: ALJs in the Hearing Division have authority to hold evidentiary hearings and issue decisions concerning the validity of mining claims; and the IBLA decides appeals from ALJ rulings. 43 C.F.R. §§ 4.452-4-8; 43 C.F.R. § 4.452-9. In contest proceedings before the ALJ, the BLM bears the initial "burden of going forward with sufficient evidence to establish a prima facie case" that the claim is invalid. Foster v. Seaton, 271 F.2d 836, 838 (D.C.Cir. 1959). "The government presents a prima facie case where a governmental mineral examiner offers expert testimony, based on probative evidence that the discovery of a valuable mineral deposit has not been made within the boundaries of a contested claim." Ernest K. Lehmann & Assocs. of Mont., Inc. v. Salazar, 602 F.Supp.2d 146, 150 (D.D.C.2009), aff'd, 377 Fed.Appx. 28 (D.C.Cir.2010) (citing United States v. Pass Minerals, Inc., 168 IBLA 115, 123 (IBLA 2006)). Once the government has made a prima facie case, the burden shifts to the claimant to establish by a preponderance of the evidence sufficient proof of validity. Id. The claimant bears the ultimate
The instant dispute stems from the plaintiff's original 161 unpatented mining claims, located by his predecessors-in-interest between 1940 and the early 1970s, on approximately 4,968 acres of Federal land administered by BLM and the United States Forest Service ("USFS"), mostly found in the Siskiyou National Forest in southern Oregon.
On September 9, 1992, the plaintiff filed an application seeking to patent 151 of the 161 mining claims. Freeman, 179 IBLA at 343; AR 5806. Before the application was acted on by BLM, a congressional moratorium took effect on October 1, 1994, halting the processing of patent applications for unpatented mining claims. See Department of the Interior and Related Agencies Appropriations Act of 1995 § 112. Due to this moratorium, BLM has not processed the plaintiff's application. Freeman, 179 IBLA at 343; AR 5806. On December 17, 1992, the plaintiff filed a "plan of operations" ("POO") with the USFS, proposing to sample and mine his claims, which was ultimately denied in October 2000. Id. On January 22, 2001, the plaintiff filed suit in the Court of Federal Claims, alleging that the United States had, "by refusing to approve his patent application and by effectively denying approval of his POO, engaged in a taking of his property rights," in violation of the Fifth Amendment. Freeman, 37 F.Supp.3d at 323; see also AR 10699-712 (Court of Federal Claims Complaint). The plaintiff's claim before the Court of Federal Claims turns on whether he possesses a compensable property right against the United States. To facilitate this determination, on October 10, 2001, the Court of Federal Claims stayed proceedings and remanded the matter to the DOI "for determination of the validity of plaintiff's mining claims." AR 10728 (Order at 1, Freeman v. United States, No. 01-0039 (Fed.Cl. Oct. 10, 2001)). As of this Opinion, the Court of Federal Claims proceeding has been stayed for nearly fifteen years during the course of the administrative proceedings in this case.
To determine the validity of the plaintiff's mining claims, DOI retained Western Mine Engineering to produce two reports regarding the economic viability of the plaintiff's claims. The first report concerned the economic viability of the plaintiff's claim as of October 1994 (the date of the Congressional moratorium), while the second report concerned the economic viability of the plaintiff's claim as of October 2000 (the date of the rejection of plaintiff's POO). See Freeman, 179 IBLA at 344; AR 5808. In light of the reports, "BLM concluded that none of the [plaintiff's] claims contained minerals of sufficient quality or quantity to constitute a discovery,
The ALJ presided over contest proceedings spanning 25 days, 400 exhibits, and 3,400 pages of transcript. Freeman, 179 IBLA at 342, 345; AR 5806, AR 5809. As noted, the ALJ issued a detailed 88-page opinion, concluding that the plaintiff "failed to establish that a discovery of a valuable mineral deposit" by either the October 1994 or October 2000 marketability dates. See ALJ Decision at 88, AR 2002. The IBLA affirmed the ALJ Decision on August 11, 2010. See Freeman, 179 IBLA 341.
The plaintiff filed suit in this Court to overturn the decision of the IBLA affirming the ALJ's finding of a lack of discovery. Previously, this Court found that the IBLA properly maintained jurisdiction over the plaintiff's contest proceedings.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based upon the pleadings, depositions, and affidavits and other factual materials in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a), (c); see Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A genuine issue of material fact exists if the evidence, `viewed in a light most favorable to the nonmoving party,' could support a reasonable jury's verdict for the non-moving party." Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)).
In APA cases such as this one, involving cross-motions for summary judgment, "the district judge sits as an appellate tribunal. The `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) (collecting cases). Accordingly, this Court need not and ought not engage in lengthy fact finding, since "[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions."
Under the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C), or "without observance of procedure required by law," id. § 706(2)(D); see Otis Elevator Co. v. Sec'y of Labor, 762 F.3d 116, 120-21 (D.C.Cir.2014) (citing Fabi Constr. Co. v. Sec'y of Labor, 370 F.3d 29, 33 (D.C.Cir.2004)).
In evaluating agency actions under the "arbitrary and capricious" standard, courts "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (citation and internal quotation marks omitted); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on unrelated grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183, 195 (D.C.Cir.2013). The scope of review under this standard "is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also Fogo De Chao, Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1135 (D.C.Cir. 2014) (same) (quoting Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011)); Agape Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C.Cir.2013) (same) (quoting Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1311 (D.C.Cir.2010)).
"[T]he arbitrary and capricious standard is `highly deferential' and `presumes agency action to be valid[.]'" Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C.Cir.2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C.Cir. 2008)); Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981) (same). If an agency, however, "failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action." Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C.Cir.1999)); see Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C.Cir. 2014) ("[T]here are cases where an agency's failure to state its reasoning or to adopt an intelligible decisional standard is so glaring that we can declare with confidence
The D.C. Circuit has provided explicit instructions on the scope of review under the arbitrary and capricious standard applicable to challenges, such as the instant one, to a decision of the IBLA regarding mining claims. See Aera Energy LLC v. Salazar, 642 F.3d 212, 218 (D.C.Cir.2011) ("[T]he IBLA's decision . . . represents Interior's final agency action for the purposes of judicial review"). Specifically, in Orion Reserves, 553 F.3d at 703-04, the Court stated: "We uphold the IBLA's determinations so long as the Board engaged in reasoned decisionmaking and its decision is adequately explained and supported by the record. Likewise, because substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, we reverse an agency's decision only when the record is so compelling that no reasonable factfinder could fail to find to the contrary." Id. (internal citations and quotation marks omitted).
To satisfy the discovery requirement for a valid claim, the mere physical presence of a mineral is insufficient. Instead, "the discovered deposits must be of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine." United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968) (internal quotations omitted); see also Cameron, 252 U.S. at 459, 40 S.Ct. 410, ("[T]o support a mining location the discovery should be such as would justify a person of ordinary prudence in the further expenditure of his time and means in an effort to develop a paying mine. That is not a novel or mistaken test, but is one which the Land Department long has applied and this court has approved."); Davis v. Nelson, 329 F.2d 840, 846 (9th Cir.1964) ("[V]alidity of [ ] title . . . depends upon the resolution of a question of fact, that is, has there been a discovery of valuable mineral within the limits of the claim?"); Foster v. Seaton, 271 F.2d 836, 838 (D.C.Cir.1959). In applying this "prudent man test," "profitability is an important consideration. . . ." Coleman, 390 U.S. at 602, 88 S.Ct. 1327. "Minerals which no prudent man will extract because there is no demand for them at a price higher than the costs of extraction and transportation are hardly economically valuable" and will not establish the discovery requirement of a valid claim. Id.
The ALJ also concluded that the plaintiff failed to overcome the BLM's prima facie case. The ALJ concluded that the plaintiff relied on "unproven, untested, and unconventional technologies" and relied on known technologies to "consistently function at their outermost limits." ALJ Decision at 61, AR 1975. As a result of the numerous obstacles faced by the plaintiff, the ALJ did not even "reach the issue of capital costs," which would have further undermined the profitability of the plaintiff's proposal. See Freeman, 179 IBLA at 351; AR 5815. The IBLA reviewed the case "de novo" and found "no reason to disturb [the ALJ's] findings or result." Id. at 388; AR 5852. The IBLA concluded that to upset the ALJ determination "would be to construct a case that leaps well beyond the facts established in the hearing and contrary to the applicable law." Id.
The plaintiff now seeks to overturn the IBLA decision, leveling a scattershot of complaints against the analysis performed by the Board.
The plaintiff's chief complaint concerns the price data used to assess the economic viability of his claim at the time of the alleged government taking. The issue before the IBLA was whether the plaintiff established a valid claim at either the time of the Congressional patent moratorium (October 1994) or at the time of BLM's denial of the plaintiff's POO (October 2000)—the dates of the alleged government taking. During the BLM's mineral examination and during the subsequent contest proceedings, the Government's experts applied the BLM's Mineral Commodity Price Policy ("MCP") as of those dates to reach their conclusions regarding the non-viability of the plaintiff's claim. The MCP employs a six-year pricing average, examining pricing data for the thirty-six months preceding the marketability date, the average price in the month of the marketability date, and the average futures prices in each of the thirty-six months following the marketability date. See 65 Fed.Reg. 41,724. In other words, the MCP looks both backwards and forwards to estimate a reasonable nickel price. Under the MCP, the nickel price was $2.93 per pound as of October 2000 and $3.00 per pound as of October 1994. In 2007, at the time of the contest proceedings before the ALJ, the price of nickel had surged to a historic high of $21.00 per pound. See Freeman, 179 IBLA at 354-55; AR 5818-819. Accordingly, the expected price of nickel as of the alleged government taking was of central importance to the viability of the plaintiff's proposed mine.
After listening to testimony and examining the forecasts of industry analysts, the ALJ concluded that the plaintiff had not submitted evidence justifying a price different than the price established by the MCP, and that the plaintiff had failed to make "the necessary showing that . . . higher prices could have been reasonably anticipated." ALJ Decision at 27, AR 01941. The IBLA's "review of the evidence regarding nickel price predictions confirm[ed] [the ALJ's] conclusion that the weight of the evidence on the topic of nickel prices in the relevant 6-year period [did] not support a nickel price above $4.00 a pound." Freeman, 79 IBLA at 357; AR 5821.
Nonetheless, the plaintiff challenges the application of the MCP in the present case, arguing that it is a non-binding policy rather than a substantive rule of law, does not apply by its very terms (or, if it does apply, requires the use of nickel prices as of the 2007 contest proceeding), conflicts with the prudent person standard, and that historical pricing should have been used. See Pl.'s Mem. at 13-34. In making these arguments, the plaintiff merely regurgitates arguments previously made and rejected by this Court in his jurisdictional challenge. See Freeman, 37 F.Supp.3d at 334-336. In his jurisdictional challenge, the plaintiff argued that the policy of the DOI, as embodied by the MCP, was to determine the validity of a mining claim as of the date of the contest proceeding and
In addition, contrary to the arguments of the plaintiff, the application of the MCP in this case does not conflict with the prudent-person standard. See Pl.'s Mem. at 20 ("The prudent person test cannot be squeezed into a narrow formula as the Interior Department's Pricing Policy purports to do."). The ALJ recognized that the MCP was non-binding, but concluded that "the Government's use of the six-year average policy was appropriate and resulted in estimated prices that a person of ordinary prudence would have relied on in determining whether to develop the [plaintiff's] claims in October 1994 and October 2000." ALJ Decision at 30; AR 1944. Similarly, the IBLA determined that it was reasonable for the ALJ to apply the MCP in the present case and that there existed substantial evidence in the record to support the price established by the MCP. See Freeman, 179 IBLA at 356; AR 5820 (discussing "nickel price predictions" of numerous analysts consistent with the price range established by the MCP). As a result, the IBLA upheld the ALJ's determination that "the weight of the evidence on the topic of nickel prices . . . does not support a nickel price above $4.00 a pound." Id. at 357; AR 5821. Thus, the IBLA did not substitute the MCP in place of the prudent-person standard, but instead determined that the expected price of nickel resulting from the MCP was consistent with the price a prudent person would use in evaluating whether to proceed with the development of a claim.
In rejecting the plaintiff's claim that historical prices should have been used, the IBLA reasoned that "a prudent person would not decide whether to expend time and money to develop a paying mine based on the possibility of a record nickel market bubble in the future." Id. Indeed, as the plaintiff's own witness testified before the ALJ, nickel prices at the time of the hearing were "way higher than anyone would have even dreamed of. . . ." AR 4123. Another witness for the plaintiff had forecast in 1998 that nickel prices through 2010 would range from "an average low of $3.32 per pound, an average medium price of $3.52, and an average high of $3.96 per pound." Freeman, 179 IBLA at 356 n.12; AR 5820. The record evinces clear support for expected nickel prices in the range used by the ALJ and the IBLA.
The IBLA further rejected the plaintiff's argument—also advanced here—that
The plaintiff proposed alternative methods for utilizing his ore in order to establish the viability of his claim. The plaintiff proposed to "upgrade" the ore, see Pl.'s Mem. at 35-39, and to make a "master alloy" or "nickel-iron-chrome alloy" from the ore, see Pl.'s Mem. at 40-61. The IBLA's rejection of the viability of both proposals was reasonable and considered.
The IBLA upheld the ALJ's conclusion that it was "not possible to upgrade the ore" after explicitly examining the testimony from two of BLM's mineral examiners.
The IBLA's rejection of the plaintiff's proposed master alloy was likewise reasonable.
Second, and fatally to the plaintiff's argument, neither the ALJ nor the IBLA relied on the uncertain presence of chromium in order to reach their conclusion regarding the viability of the plaintiff's master alloy. See Freeman, 179 IBLA at 364; AR 5828 ("The foregoing provides a sufficient basis for rejecting [the plaintiff's] assertions with respect to the alleged chromium resource, but it is not necessary to go further with the issue because [the ALJ] assumed arguendo that [the plaintiff] had demonstrated the presence of chrome on the Nicore claims, and in the quantities he asserts, and nonetheless concluded that he had failed to show a discovery. . . ."). Instead, both decisions examined the proposed costs and methods associated with the extraction of the ore in order to make both ferronickel and the plaintiff's master alloy. Following careful consideration of the proposed costs and the amount of chromium (if any) that could be extracted, the IBLA concluded that the plaintiff's claim was not viable under either theory.
The plaintiff also attacks the estimated production costs employed by the IBLA in reaching its decision. Specifically, the plaintiff targets the IBLA's examination
To lower costs, the plaintiff proposed to use an interruptible power source for his operations. The ALJ found, however, that the plaintiff "had failed to demonstrate that it would be cost-effective to purchase interruptible power." Freeman, 179 IBLA at 374; AR 5838. On appeal before the IBLA, and now before this Court, the plaintiff argues that the ALJ and now the IBLA ignored the plaintiff's evidence that the power would only be interrupted in the winter months and improperly required the plaintiff to conduct a cost-benefit analysis regarding the use of interruptible power. Neither contention withstands the most cursory scrutiny. The IBLA decision expressly considered the plaintiff's argument that the risks of interruptible power were reduced because they were "weather-related predictable events that occur only once a year." Id. at 375; AR 5839. Nonetheless, the IBLA noted that the plaintiff failed to account for a series of risks that might raise the costs of an interruptible power source, including "the cost for a back-up generator" since interruptions might occur unexpectedly and for more than a "short duration." Id. at 374; AR 5838. Ultimately, the ALJ concluded, and the IBLA affirmed, that "there are risks, and costs associated with such risks," that were not fully considered by the plaintiff in proposing the use of an interruptible power source and that these risks could "directly affect [the] safety and productivity" of the mine. Id. at 375; AR 5839. As a result, both concluded that the plaintiff "failed to present appropriate analysis [demonstrating] that he could achieve the cost savings he projected by purchasing interruptible power." Id. The IBLA's decision was reasoned, explained, and supported by the record.
The plaintiff also objects to the IBLA's rejection of two other proposed cost saving measures.
The IBLA also found that the plaintiff's proposal to use "biomass" and "wood waste" as kiln fuel was too speculative to justify a person of ordinary prudence from relying upon such a process. See Freeman, 179 IBLA at 373; AR 5837. As an initial matter, "no smelter [in the world] uses only wood waste as kiln fuel." Id. at 371; AR 5835. The plaintiff's own witness in support of the technique testified that he was uncertain whether it would be possible to heat a wood-fired kiln to a sufficient temperature to ensure proper calcining of the ore. See id. at 372; AR 5836 ("Do you know if using wood chips would achieve the correct temperature of a nickel laterite calciner? A: I don't know."). Moreover, the risks, which include "flames literally bursting from the kiln," further suggest the need for caution. See Freeman, 179 IBLA at 369-73; AR 5833-37 (discussing testimony describing proposed process as creating "a significant matter of safety"). The IBLA's finding that a person of ordinary prudence would not rely upon such a process was adequately supported by the record.
Finally, the IBLA concluded that the plaintiff had not evidenced cost savings from his proposed use of lime or "adequately estimated the cost of calcining local limestone to produce the necessary flux." Freeman, 179 IBLA at 378; AR 5842. In order for the plaintiff to make his proposed master alloy, the plaintiff would need to use lime as part of the smelting process.
The plaintiff also finds fault with the IBLA because the ALJ referred "to some costs in terms of dollars per calcine and others in per ton of dry ore." Pl.'s Mem. at 64. The IBLA considered this issue, noting that the ALJ "used the terms as if they were synonymous," and that the parties did not "misunderstand his intended context or usage." Freeman, 179 IBLA at 354; AR 5818. Nonetheless, the IBLA conducted a de novo review of the record and reached the same conclusion as the ALJ regarding the validity of the plaintiff's claim. Accordingly, the plaintiff's argument the IBLA decision should be reversed because of a linguistic error by the ALJ is rejected.
In addition, the plaintiff challenges the conclusion of the IBLA opinion, which noted that many of the assumptions underlying the plaintiff's proposal are open to question.
In sum, the plaintiff's argument that an individual "could be prudent in efforts to develop a productive mine" at his claim is unavailing. Pl.'s Mem. at 34 (emphasis added). Repeatedly in the arguments made before the IBLA, and now this Court, the plaintiff strings together a series of untested assumptions and best-case scenarios to argue that his mining claim could work and that it would therefore be prudent to pursue. The plaintiff's arguments reveal a profound misunderstanding of the prudent person standard. A prudent person carefully balances the risks, and the costs associated with those risks, against the expected return. Yet, in the instant case, the plaintiff ignores the costs associated with the risks inherent in his proposal. The plaintiff's "analysis is based on unproved or undeveloped technology and requires existing technology to meet demands which may be theoretically possible but which exceed what a person of ordinary prudence would reasonably expect." ALJ Decision at 46; AR 1960. This is not surprising given the context here: The plaintiff makes his development proposals against the backdrop of a takings proceeding where he seeks compensation for the alleged $146 million value of his claim as opposed to enduring the actual financial and physical risks of developing his proposed mine. Nevertheless, the legal discovery of a valid mineral is not an exercise in the possible but in the prudent. After reviewing the testimony and the evidence, both the ALJ and the IBLA issued detailed and thorough decisions, concluding that the plaintiff failed to make a discovery of a valid mineral right on his claims. These decisions were imminently reasonable and will not be disturbed by this Court.
For the foregoing reasons, the plaintiff's Motion for Partial Summary Judgment, ECF No. 25, is denied and the Federal Defendants' Cross-Motion for Summary Judgment, ECF No. 27, is granted. An appropriate Order accompanies this Memorandum Opinion.
Fed. Defs' Mem. Supp. Cross-Mot. Summ. J. at 14, ECF No. 27. Notably, the plaintiff does not dispute the veracity of the assertions.
79 IBLA at 365; AR 5829.