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PAUL T. BARNES, JR. 191 IBLA 277 Decided September 22, 2017

PAUL T. BARNES, JR. 191 IBLA 277 Decided September 22, 2017 · IBL 2015-42A , Order Grantin Motiogn to Supplement Recor (Junde 22 , 2015). IBL 2015-42A , Order Granting Protectiv

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Page 1: PAUL T. BARNES, JR. 191 IBLA 277 Decided September 22, 2017 · IBL 2015-42A , Order Grantin Motiogn to Supplement Recor (Junde 22 , 2015). IBL 2015-42A , Order Granting Protectiv

PAUL T. BARNES, JR.

191 IBLA 277 Decided September 22, 2017

Page 2: PAUL T. BARNES, JR. 191 IBLA 277 Decided September 22, 2017 · IBL 2015-42A , Order Grantin Motiogn to Supplement Recor (Junde 22 , 2015). IBL 2015-42A , Order Granting Protectiv

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals Quincy St., Suite 300

22203

703-235-3750 703-235-8349 (fax)

PAUL T. BARNES, JR.

2015-42 Decided September 22, 2017

Appeal from a decision of the Tonopah (Nevada) Field Office, Bureau of Land Management, denying applications for potassium prospecting permits.

Affirmed.

1. Administrative Administrative Potassium Leases and Permits: Permits

When BLM, in its discretion, rejects an application for a land use authorization, i t must provide a rational basis for its decision. The regulations governing prospecting permit applications re-iterate this principle, specifying that BLM must, in any decision rejecting an application, detail the reasons why i t rejected the application. This is because the recipient of a BLM decision is entitled to a reasoned and factual explanation providing a basis for understanding and accepting the decision or, alternatively, for appealing and disputing it before the Board.

2. Administrative Procedure: Burden of Proof; Rules of Practice: Appeals: Burden of Proof

In challenging a BLM decision to reject a prospecting permit application, the applicant bears the burden of proof to show, by a preponderance of the evidence, that BLM committed a material error in its factual analysis or that the decision generally is not supported by the record showing that BLM gave due consideration to all relevant

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factors and acted on the basis of a rational connection between the facts found and the choice made. This burden is not satisfied by expressions of disagreement with BLM's analysis or conclusion.

3. Potassium Leases and Permits: Permits

Under BLM's regulations implementing the Mineral Leasing Act, BLM may, in its discretion, authorize a potassium prospecting permit. Once approved, the permit gives the permittee the exclusive right to prospect on and explore lands available for leasing to determine i f a valuable deposit exists. When BLM has determined that there is a known valuable deposit, i t wi l l not issue a prospecting permit. Rather, the regulations provide alternative procedures - exploration licenses and competitive leases - that allow for the extraction of potassium.

APPEARANCES: Paul T. Barnes, Jr., pro se, Janet Fealk, Esq., U.S. Department of the Interior, Office of the Regional Solicitor, Sacramento, California, for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE

Paul T. Barnes, Jr. appeals from an October 29, 2014, decision issued by the Tonopah (Nevada) Field Office, Bureau of Land Management (BLM), denying his applications for potassium prospecting permits on 10,172 acres of BLM-administered public lands in Esmeralda County, Nevada.1

SUMMARY

Under the Mineral Leasing Act and its implementing regulations, BLM may, in its discretion, authorize potassium prospecting permits. Once a permit issues, it gives the permittee the exclusive right to prospect on and explore lands to determine i f a valuable deposit of potassium exists. The regulations further provide that where BLM has determined that there is a known valuable deposit of potassium (or other leasable mineral), i t wi l l not issue a prospecting permit.

Decision at (unp.) 1 (identifying the applications as: N-82630, N-82743, N-82748, N-83525, and N-83848).

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Rather, BLM may issue an exploration license or competitive lease. Here, BLM denied applications for potassium prospecting permits because i t determined that the lands covered by the applications contained a known valuable deposit of potassium. The record before the Board - which includes information submitted by the company conducting lithium operations on those same lands and that show the existence of valuable deposits of potassium - supports BLM's determination. And once BLM determines there is a known valuable deposit of potassium, a prospecting permit is not appropriate. We conclude that BLM's action had a rational basis supported by the record and complied with its regulations, and Barnes has not otherwise shown any error in BLM's decision. We therefore affirm.

BACKGROUND

A. for Potassium Prospecting Permits

In 1989, and later, in 2007 and 2009, Barnes filed seven potassium prospecting permit applications with BLM seeking authorization to prospect for potassium on approximately 10,711 acres of BLM-administered public lands in Esmeralda County, Nevada.2 The lands covered by the applications had been subject to placer mining and mil l site claims for valuable deposits of lithium, and were patented by the United States to the Foote Mineral Company in 1988.3 The patent reserved all leasable minerals to the United States.4 The Cyprus Foote Mineral Company (Cyprus), a successor-in-interest to the Foote Mineral Company, filed suit in Federal district court challenging the patent's mineral reservation.5

The litigation was resolved in 1991 when the parties entered into a settlement agreement.6 The terms of the Settlement Agreement included Paragraph 3.A, under which the United States agreed not to issue any prospecting permits for so long as Cyprus is conducting a lithium operation; during a 10-year "standby period" commencing on the date Cyprus suspends and 1 year after Cyprus permanently ceases operations.7 The Settlement Agreement also provided that the United States could periodically inspect the stockpiled salts, and required Cyprus to provide BLM with annual reports summarizing information related to its activities, including the approximate quantity of salt the composition of such salts,

Id. IBLA 2015-42, Order Denying Petition for Stay (Feb. 10, 2015) at 1-2. Id. at 2; 30 § 524 (2012). Cyprus Foote Mineral Co. v. United States, No. (RJJ) (D. Nev.). Settlement Agreement (June 20, 1991). Id, at 7, 3.A.

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including the percentage of and the location of the stockpiles where the harvested salts were delivered.8

In 2007, BLM issued a decision suspending one of Barnes' permit applications, pending termination of the United States' commitment in the 1991 Settlement Agreement not to issue prospecting permits.9 BLM also issued decisions in 2008 and 2009 suspending Barnes' other permit applications.10 Barnes appealed BLM's first suspension decision, which the Board affirmed. In our Order affirming that suspension, we concluded that BLM was entitled to hold Barnes' application in suspension so long as Paragraph 3.A of the 1991 Settlement Agreement remained in effect, and that "BLM's action [was] consistent with its discretionary authority in determining whether to issue prospecting permits under 30 § 281 [2012] and the implementing regulations [at 43 C.F.R. Part 3505 - Prospecting Permits]."11

B. BLM's Decision Rejecting Barnes' Applications

On October 29, 2014, BLM issued the Decision presently on appeal before the Board, in which BLM rejected Barnes' seven potassium prospecting permit applications. In its Decision, BLM explained that it was "rejecting in their entirety" Barnes' applications "because the lands in the applications are known to contain valuable Potassium deposits and therefore are not subject to prospecting."12

Barnes appealed and sought a stay of the effect of BLM's decision. The Board denied the stay petition in an order dated February 10, 2015. We denied the stay because we concluded that Barnes had not met his burden to demonstrate sufficient justification based on three out of the four stay criteria: the relative harm to the parties i f the stay is granted or denied; the likelihood of immediate and irreparable harm i f the stay is not granted; and whether the public interest favors a stay.13 But in our order, we stated that neither BLM's decision nor the administrative record explained the basis for BLM's conclusion "that the lands at issue are known to contain valuable deposits of potassium."14

Id., at 13, 4.D. Decision, Application Suspended July 5, 2007. Decision, Application Suspended (N-83848), Aug. 20, 2008; Decision, Applications

Suspended (N-82630, N-82743, N-82748, N-83525), Oct. 28, 2009. Paul T. Barnes, Jr., IBLA 2007-260 (May 22, 2008) at 4. Decision at unp. 2. IBLA 2015-42, Order Denying Petition for Stay (Feb. 10, 2015) at 6.

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After we denied the stay, BLM filed an Answer, and we later granted a request by BLM to supplement the record, explaining that the Board has routinely allowed parties to supplement the record on appeal, which helps the Board in fulfilling its duty to review as complete a record as possible when reviewing an agency action.15 We also granted a request by Barnes to file a supplemental statement of reasons. On September 12, 2017, we issued a protective order to keep confidential certain information contained in the materials submitted by BLM in its supplement to the record.16

DISCUSSION

A. Standard of Review and Burden of Proof

[1] When BLM, in its discretion, rejects an application for a land use authorization, such as a prospect permitting application, it must provide a rational basis for its decision.17 The regulations governing prospecting permit applications re-iterate this principle, specifying that BLM must, in any decision rejecting an application, the reasons why [it] rejected [the] application."18 As we have stated, "'[t]he recipient of a BLM decision is entitled to a reasoned and factual explanation providing a basis for understanding and accepting the decision or, alternatively, for appealing and disputing it before the

[2] In challenging a BLM decision to reject a prospecting permit application, the applicant bears the burden of proof to show, "by a preponderance of the evidence, that BLM committed a material error in its factual analysis or that the decision generally is not supported by a record showing that BLM gave due consideration to all relevant factors and acted on the basis of a rational connection between the facts found and the choice made."20 The applicant for a prospecting permit does not satisfy its burden "simply by expressions of disagreement with BLM's analysis or conclusion."21 "A difference of opinion is insufficient to establish

IBLA 2015-42, Order Granting Motion to Supplement Record (June 22, 2015). IBLA 2015-42, Order Granting Protective Order (Sept. 12, 2017). Western Industrial Minerals, 182 IBLA 11, 19 (2012). 43 C.F.R. § 3505.50(a)(1); Western Industrial Minerals, 182 IBLA at 19. Western Industrial Minerals, 182 IBLA at 20-21 (quoting Thermal Energy Co.,

135 IBLA 291, 322 (1996)). Clayton Valley Minerals, LLC, 186 IBLA 1, 15 (2015); Western Industrial

Minerals, 182 IBLA at 21. Clayton Valley Minerals, LLC, 186 IBLA at 15.

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error on BLM's part."22 Moreover, in making decisions, "BLM is entitled to rely on the professional opinion of its experts, where it concerns matters within the realm of their expertise and is reasonable and supported by record evidence."23 This means that the challenging party must show not just that BLM's analysis and conclusions be in error, but that they

B. Legal Prospecting Permits, Exploration Licenses, and Competitive Leases

[3] The Mineral Leasing Act authorizes BLM, "under such rules and regulations as [the Department of the Interior] may prescribe, to grant to any qualified applicant a prospecting permit which shall give the exclusive right to prospect for chlorides, sulphates, carbonates, borates, silicates, or nitrates of potassium in lands belonging to the United States."25 Under BLM's implementing regulations, BLM may, in its discretion, authorize a potassium prospecting permit, which, once approved, gives the permittee "the exclusive right to prospect on and explore lands available for leasing . . . to determine i f a valuable deposit exists . . Potassium."26

The regulations specify that where BLM has determined that there is a known valuable deposit, i t wi l l not issue a prospecting permit.27 Rather, the regulations provide alternative procedures that allow for the extraction of potassium. First, the regulations provide for exploration licenses, which "allowD you to explore known, unleased mineral deposits to obtain geologic, environmental and other pertinent data concerning such deposits."28 The regulations also provide for competitive leases, which BLM may issue "on unleased lands where [BLM] knows that a valuable mineral deposit exists."29

Western Industrial Minerals, 182 IBLA at 21. Clayton Valley Minerals, LLC, 186 IBLA at 15. Id. (quoting West Cow Creek Permittees v. BLM, 142 IBLA 224, 238 (1998)). 30 U.S.C. § 281 (2012). 43 C.F.R. § 3505.10(a); id. § 3505.50(a) ("BLM's decision whether to approve

your application is at BLM's complete discretion."). Id. § 3508.11 ("[W]here we know that a valuable mineral deposit ... we

may issue you an exploration license, but not a prospecting (emphasis added).

Id. § 3506.10. Id. § 3508.11.

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C. BLM's Decision Has a Rational Basis That Is Supported by the Record, And Barnes Does Not Meet His Burden to Show Error in the Decision

On appeal, Barnes alleges that BLM's decision did not provide a "valid reason" for denying his prospecting permits.30 He states that in its decision, BLM relies on certain regulations governing prospecting permits, but that these regulations require the "opposite" result because they "giv[e] the applicant the right to prospect for potassium."31 Barnes further alleges that BLM's decision is in error because the Bureau did not publish in the Federal Register notice that the area covered by Barnes' applications "is a 'known potassium leasing and because it violates the 1991 Settlement Agreement between Cyprus and the United States.33

Barnes also accuses BLM of engaging in a "conspiracy" to deny his prospecting permits in favor of the company currently undertaking lithium operations in the area.34 As explained below, we conclude that BLM's decision states a rational basis that is supported by the record and is in compliance with the regulations governing prospecting permits. We also conclude that Barnes has not met his burden to show any error in that decision.

1. In its Supplement to the Administrative Record, BLM Provides Documentation Supporting Its Decision

While BLM's Decision did not include an explanation of the information and data relied upon by the Bureau in reaching its determination that the area covered by Barnes' applications contained known valuable potassium deposits, BLM has provided such an explanation in its Answer and in its Supplement to the Record. We may review this information in evaluating the sufficiency of BLM's Decision since the Board, unlike Federal courts, which are limited in their review to the administrative record created before the agency under the Administrative Procedure Act, is "not limited by the record before [a bureau] at the time it [made a decision on appeal] in determining the correctness of that decision."35

Statement of Reasons (SOR) at 23; see id. ("The reason given is not supported by the record or the law.").

Id. at 2 (citing 43 C.F.R. §§ 3501.10(a) and 3505.10(a)). Id. 3-4. Supplemental SOR at 2-4. Wyoming Outdoor Council, 160 IBLA 387, 398 (2004); see Southern Utah

Wilderness Alliance, 191 IBLA 37, 45 (2017) ("The Board may, in its discretion, accept and consider information provided by parties on appeal, in furtherance of

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In its Answer, BLM states that i t based its decision to reject Barnes' applications on: Annual reports by Cyprus and its successors that provide information on the amount of potassium and sodium salts stockpiled, (2) BLM inspection reports that show the existence of stockpiles of salt, and (3) BLM's earlier determination that the area is "known to be valuable" for

In a declaration submitted with the Answer, the Field Manager who issued the Decision explains in more detail the basis for BLM's conclusion that there are known valuable potassium deposits. The Field Manager first states that the information obtained from BLM inspections and inspection reports conducted under the authority of Paragraph 4.D of the 1991 Settlement Agreement shows the existence of stockpiles of salts from lithium mining within the areas covered by Barnes' applications.37 He further states that based on this information, as well as discussions with geologists and review of scientific articles, he concluded "that there are known valuable deposits of potassium in the area covered by Appellant's applications."38 The Field Manager also explains that he based his decision to reject Barnes' applications on information contained in the annual reports submitted by Cyprus and its successors under Paragraph 4.D of the 1991 Settlement Agreement. These reports include information about the approximate quantity of salt harvested; the ponds from which the salt was harvested; the assay of such salts, including the percentage of potassium; the location of the stockpiles to which harvested salts were delivered; and the density and porosity of the harvested salts.39

Finally, the Field Manager states that in reaching his conclusion that known valuable deposits of potassium exist in the area covered by Barnes' applications, he also relied on BLM's earlier determination "that the area was 'known to be valuable' for minerals subject to disposition under the mineral leasing laws."40 He cites as evidence the reservation of leasable minerals to the United States in the 1988 patent to Foote Mineral Company, and Paragraph 4.B of the 1991 Settlement Agreement, which provides that Cyprus "shall not contend that BLM acted in an

carrying out our 'duty to have before us as complete a record as (quoting Outdoor Council, 160 IBLA at 398)).

Answer at 6. Answer, Exhibit (Ex.) 3, Declaration of Timothy J. Coward (Jan. 25, 2015)

(Coward Declaration at unp. 1, 4. Id. 5. Id, 6.

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arbitrary and capricious manner in making its finding that the sodium and potassium are 'Known to be Valuable' . . .

Based on all this information, the Field Manager concluded that there are known valuable deposits of potassium in the area covered by Barnes' applications.42

He explains that once BLM makes a determination that there is a known valuable deposit of potassium, BLM has "no authority under its regulations to issue prospecting permits to [the applicant], and the applications were subsequently denied by the decision under appeal."43

In its supplement to the administrative record, BLM provided copies of the annual reports submitted between 1992 and 2013, and on which i t relied in making its decision to reject Barnes' prospecting permit applications, and a second declaration by the Tonopah Field Manager who made the Decision on appeal.44

BLM explained that it did not previously submit these reports because they contained confidential business information, but that a successor-in-interest to the 1991 Settlement Agreement (Rockwood Lithium) later agreed to waive the confidentiality of information concerning the potassium and salt content in the stockpiles of salts from lithium mining within the area covered by Barnes'

In his second declaration, the Field Manager states that the reports submitted "are the same as those contained in the BLM files," and he re-iterates that he relied on the reports' information concerning the potassium and salt content of the stockpiles to conclude that there are known valuable deposits of potassium in the area covered by Barnes' applications.46

Based on our review of BLM's supplemental information, including the annual reports and the Field Manager's interpretation of the data and information included in those reports, we conclude that the evidence in the record currently before the Board provides a sufficient basis to support BLM's finding that there are known valuable deposits of potassium in the area covered by Barnes' prospecting permit applications. The annual reports show the percentages of potassium

Id:, Settlement Agreement (June 20, 1991), at 11, 4.B. Coward Declaration 1, at unp. 2, 7. Id. Request to Supplement Record (June 15, 2015), Ex. 1 (annual reports) and Ex. 4

(Declaration of Timothy J. Coward (June 15, 2015) (Coward Declaration 2)). Request to Supplement Record (June 15, 2015), at 1-2 (explaining that

information in the reports related to lithium operations is redacted). Coward Declaration 2 at unp. 1, 4.

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contained in the salt stockpiles, and identify that between 1982 and 2008, there was sufficient potassium in the salts harvested to substantiate the Field Manager's conclusion that there were known valuable deposits of potassium.47

In his SOR, Barnes alleges that Cyprus's successor, Rockwood Lithium, may be "falsely" including potassium as assets in the sale of its parent company, and therefore, that "[i]t cannot be determined i f this is an area 'known to contain a valuable potassium But issues related to Rockwood Lithium's sale of its parent company are not at issue in this appeal; all that is before the Board is whether BLM properly rejected Barnes' applications based on BLM's determination that the area covered by the applications contains a known valuable deposit of potassium.

Moreover, in his supplemental SOR, Barnes does not address the new evidence of the annual reports. Nor does he make any arguments that BLM's technical expertise was faulty in relying on these reports or in reaching the conclusion that there are known valuable deposits of potassium in the area. Barnes does not meet his burden to demonstrate any error in the data, methodology, analysis, or conclusion of BLM's expert.49 We therefore find that BLM provided a rational basis for its Decision that is supported by the record, and Barnes has not demonstrated otherwise.

2. BLM's Decision Complies with its Regulations

Further, we reject Barnes' argument that BLM's decision was contrary to its regulations. The specific regulations cited by BLM in its decision are 43 C.F.R. § 3501.10(a) (What types of mineral use authorizations can I get under these rules?) and 43 C.F.R. § 3505.10(a) (What is a prospecting permit?). The first regulation explains that prospecting permits "let you explore for leasable deposits on lands where BLM has determined that prospecting is needed to determine the existence of a valuable deposit." The second regulation states that a "prospecting permit gives you the exclusive right to prospect on and explore lands available for leasing under this part to determine i f a valuable deposit exists . . . ." Barnes states, without explanation, that these regulations require BLM to issue him prospecting permits because they give him "the right to prospect for potassium."50 But this is incorrect.

Request to Supplement Record (June 15, 2015), Ex. 1 (annual reports). SOR at 4; see id. at 4-23. See Clayton Valley Minerals, LLC, 186 IBLA at 15. 2.

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The regulation at 43 C.F.R. § 3501.10(a) is simply a statement of what a prospecting permit is - i.e., once issued, i t lets the holder of the permit explore for leasable mineral deposits. Similarly, the regulation at 43 C.F.R. § 3505.10(a) explains that a holder of a prospecting permit has the "exclusive right" to prospect on and explore lands. But both regulations apply only when i t is unknown i f there is valuable deposit of leasable minerals. Section 3501.10(a) specifies that a prospecting permit is issued when "BLM has determined that prospecting is needed to determine the existence of a valuable deposit." And section 3505.10(a) re-iterates that a prospecting permit is for the purpose of i f a valuable deposit exists." Neither regulation requires issuance of a prospecting permit where, as here, BLM has already determined that an area contains known valuable deposits of potassium. Rather, as BLM correctly stated in its Decision, once a known deposit exists, the lands "are not subject to prospecting."51 Instead, other mechanisms are available for exploring and extracting potassium from such areas: exploration licenses and competitive leases.52

We also find no support for Barnes' argument that BLM was required to publish a notice in the Federal Register (ox elsewhere) of the Bureau's determination that the area at issue contains known valuable deposits of potassium.53 There is no legal requirement that BLM issue a formal statement when it has made such a determination, and Barnes cites to no legal authority supporting his position.54 BLM was not required to do this, and there is no error in its Decision on this basis.

Finally, we reject Barnes' argument that BLM's Decision denying his prospecting permit applications violated Paragraph 3.A of the 1991 Settlement Agreement.55 According to Barnes, Paragraph 3.A requires that BLM continue to suspend his applications until "completion" of the time frames within which the government committed to refrain from issuing prospecting permits - i.e., for as long as Cyprus is conducting a lithium operation, during the 10-year "standby period," and one year after Cyprus permanently ceases operations.56 We agree with BLM,

Decision at unp. 2. C.F.R. §§ 3506.10 ("An exploration license allows you to explore known,

unleased mineral deposits . . . .") and ("BLM may issue a competitive lease on unleased lands where we know that a valuable mineral deposit exists.").

See Supplemental SOR at 2. Answer at 9-10. See SOR at 3-4. Id.

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however, that Paragraph 3.A does not require the continued suspension of Barnes' prospecting permit applications, but simply sets forth the time period within which BLM wi l l not issue such permits.57 I t does not prohibit BLM from denying prospecting permit applications when the Bureau has determined that a known valuable deposit of potassium exists.

Further, we disagree with Barnes' assertion that this Board's order in Paul T. Barnes, Jr.,58 supports his interpretation of Paragraph 3.A.59 In that order, the Board stated that suspension of Barnes' application was consistent with BLM's discretion under the regulations governing prospecting permits, and was favorable to Barnes because i t maintained "his priority for receipt of a future potassium permit."60 This statement indicates only that suspension favored Barnes because he could still receive a prospecting permit in the future. I t does not indicate that Barnes was somehow guaranteed a permit once the timeframes in Paragraph 3.A were satisfied. Nor does the statement indicate that BLM was prohibited from denying an application in the future.

We therefore conclude that BLM's Decision rejecting Barnes' prospecting permit applications is consistent with the regulations governing prospecting permits and exploration and leasing in areas with known valuable mineral deposits. Barnes has not met his burden to show error in that Decision.

3. Barnes Does Not Demonstra te BLM Was Biased Against Him in Denying His Prospecting Permit Applications

Finally, in his Supplemental SOR, Barnes asserts that BLM has conspired against him and is "working in concert to prevent Barnes and his companies . . . from ultimately obtaining Preference Right Leases . . . He argues that two 2011 e-mails from a BLM geologist demonstrate BLM's bias.62 But we find no bias evident in the e-mail communications pointed to by Barnes. In the first e-mail, a BLM geologist describes a meeting between BLM employees and Barnes about his prospecting permit applications, stating that the prospecting permits "coincide" with lithium projects; i t was unclear "whether either the lithium or potassium

See Answer at 10. IBLA 2007-260 (May 22, 2008). 3-4. IBLA 2007-260 (May 22, 2008) at 4-5. Supplemental SOR at 2. 2-3.

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operation would be able to acquire a water use permit from the State"; and BLM should "take the same actions for the same reasons and avoid giving conflicting messages to the proponents."63 In the second e-mail, the same BLM geologist describes an internal BLM meeting about Barnes' prospecting permits. The geologist states that a BLM Nevada State Office employee was "thinking that i f Mr. Barnes is planning/targeting the same geologic unit as Western Lithium, then we should not issue the exploration plan or [process the] prospect permit applications until Western Lithium has had a chance to bring in their mine plan of operations and we get their [plan] reviewed, approved, and bonded."64 Because Western Lithium's mine claims "pre-date potassium permits . . . they get 'first

Although Barnes concedes that "[i]t is unclear . . . how [the first e-mail] affects IBLA 2015-42," he states "it is clear there is an influencing factor present."66

He further alleges that the second e-mail shows that BLM intended to "stifle" him and his companies' permits and "disregard" the Multiple Minerals Development Act of 1954.67 These e-mails, however, demonstrate only that BLM recognized the potentially competing interests of the lithium operator and Barnes - with respect to the eight prospecting permit applications at issue in another appeal - and the Bureau's obligation under the law to ensure that if i t decided to issue potassium prospecting permits to Barnes, both the lithium operator and Barnes would be required to conduct their operations in a manner that would not "endanger or materially interfere" with the other.68 Barnes' allegations of bias lack merit.

CONCLUSION

We conclude that BLM's Decision has a rational basis that is supported by the record and is in compliance with the regulations governing prospecting permit applications. Barnes does not meet his burden to demonstrate any error in the data, methodology, analysis, or conclusion of BLM's expert. As a result, he does not show error in BLM's decision to deny his permit applications.

Supplemental SOR at 3. Id. at 3-4. Id. at 4. Id. at 3. Id. at 4 (citing 30 § 526 (2012)). 30 U.S.C. § 526(b) and (c) (2012).

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Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the we affirm BLM's October 14, 2015, Decision denying Barnes' seven potassium prospecting permit applications.

I concur:

43 C.F.R. § 4.1.

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Rmurray
Amy Sosin with S
Rmurray
James Roberts with S