Barbara A. Sims v. Steven Ellis

MEMORANDUM

Barbara Sims, on behalf of the estate of Sandy Sims, seeks an order from the district court to the Bureau of Land Management and the Department of the Interior (collectively the “agency”) to issue patent on seven mill site claims associated with the Democrat Mine in Idaho. Because rights to a patent do not vest until a validity determination is completed, the district court did not have discretion to issue the requested order under the Mandamus and Venue Act, 28 U.S.C. § 1361 , or the Administrative Procedure Act, 5 U.S.C. § 706 . We therefore affirm the district court’s denial of the requested relief.

Sims’s argument that rights to a patent vest upon the submission of an application and the payment of fees is squarely foreclosed by this court’s precedents. R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1068 (9th Cir. 1997) (“Thus, ‘no rights [in a patent claim] vest before the Secretary has decided whether to contest the patent claim.’” (alteration in original) (quoting Indep. Mining Co. v. Babbitt, 105 F.3d 502 , 508 (9th Cir. 1997))).

Because Sims had no vested right to a patent prior to a validity determination by the agency, there was no “plainly prescribed”…