For over thirty years, residents and the local government of Crested Butte, Colorado have been fighting to keep a molybdenum mine out of their backyard. In 2004, the High Country Citizens Alliance, the town of Crested Butte, and the Board of County Commissioners filed an administrative protest challenging several applications to patent mineral land on nearby Mt. Emmons. The Bureau of Land Management denied their protest and issued nine mineral patents. The issuance of these patents increased the likelihood of a molybdenum mine on Mt. Emmons. The unsuccessful protestors appealed the BLM's decision in federal district court. In High Country Citizens Alliance ("HCCA") v. Clarke, the Tenth Circuit, relying on the U.S. Supreme Court case Block v. Community Nutrition Institute, affirmed the district court's conclusion that the 1872 Mining Law impliedly precluded judicial review of protests to patent applications when the protesters do not have a competing property interest in the underlying land. This Note evaluates the Tenth Circuit's application of implied preclusion jurisprudence generally, and of Block in particular, to the Mining Law. The Note argues that the majority in HCCA misapplied Block and wrongly concluded that Congress meant to prevent citizens from seeking judicial review of allegedly unlawful patent applications. It concludes by urging other courts to read Block narrowly and in a manner that gives effect to the long-recognized presumption in favor of judicial review.
The Fight to Save Red Lady: Does the 1872 Mining Law Impliedly Preclude Review of Patent Protest Determinations,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol79/iss3/6