R. Jay Kidd v. United States Department of Interior, Bureau of Land Management, and Henry W. Manning

This is an appeal from the district court’s decision granting appellees summary judgment against R. Jay Kidd upon his complaint for review of the proceedings and decision of the Interior Board of Land Appeals (IBLA).

The IBLA upheld the Bureau of Land Management’s (BLM) rejection of Kidd’s first priority drawn application for desert land entry. The application was rejected for Kidd’s failure to provide two witness statements, as required by the Desert Land Entry Act, 43 U.S.C. § 322 . Kidd submitted two statements, but from the same individual. As a result, the second drawn application received immediate priority.

A reviewing court may set aside agency action where it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2). A grant of summary judgment is reviewed de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).

Kidd argues the Desert Land Entry Act was repealed by implication in the 1934 enactment of the Taylor Grazing Act, which does not require witness statements. In the alternative, Kidd contends the agency abused its discretion by rejecting his priority application when the objective of the…