Waters
Waters v. Jossie
Opinion
Dissenting Opinion
Graber, J.
I respectfully dissent.
We may reverse a decision of the Interi- or Board of Land Appeals (“IBLA”) only if it was arbitrary, capricious, not supported by substantial evidence, or contrary to law. Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir.1999). With respect to the denial of a request to reconsider, we may reverse only for an abuse of discretion. ASARCO, Inc. v. Occupational Safety & Health Admin., 746 F.2d 483 , 501 (9th Cir.1984). In my view, those standards are not met here.
As to the initial decision, the 25% labor overhead figure rested on evidence from the BLM’s mineral expert. The IBLA permissibly held that the government had made its prima facie case and that the Waterses had failed to rebut it. Lara v. Sec’y of the Interior of the United States, 820 F.2d 1535, 1542 (9th Cir.1987). As to the decision on reconsideration, the IBLA permissibly concluded that the Waterses had not demonstrated that the initial decision was wrong.
Lead Opinion
Graber, J.
MEMORANDUM **
David Lee and Sannaraha Waters appeal from the district court’s entry of sum *985 mary judgment in favor of the Appellees, arguing that the Interior Board of Land Appeals (“IBLA”) abused its discretion in determining that their mining claim was null and void due to the lack of discovery of a valuable mineral deposit. We vacate the IBLA’s decision and remand for further administrative proceedings.
The IBLA erred in applying the 25% overhead surcharge to the labor rate to determine labor costs. The validity of a claim must be “premised on the objective economics surrounding the proposed mining venture. ” United States v. Miller, 138 IBLA 246, 277 (1997) (emphasis added). A proposed mining venture may be a “mom and pop” operation involving no outside employees. Id. See also United States v. Clouser, 144 IBLA 110 (1998). If a person of ordinary prudence would be justified in mining the claim without outside help, the claim is supported by a valuable discovery. See Castle v. Womble, 19 L.D. 455, 457 (1894). The evaluation of a small claim based on how a “mom and pop” venture would operate does not render the prudent:person test subjective.