UNITED STATES OF AMERICA, ET AL., APPELLANTS V. MADISON D. LOCKE, ET AL. No. 83-1394 In the Supreme Court of the United States October Term, 1983 On Appeal from the United States District Court for the District of Nevada JURISDICTIONAL STATEMENT PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, the United States Department of the Interior; William P. Clark, Secretary of the Interior; the Bureau of Land Management; and Robert F. Burford, Director of the Bureau of Land Management, are appellants; and Rosalie E. Locke, Sam Buccambuso, and Tony Buccambuso are appellees. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional, statutory and regulatory provisions involved Statement The questions are substantial Conclusion Appendix OPINIONS BELOW The opinion of the district court (App., infra, 1a-13a) is reported at 573 F. Supp. 472. The decision of the Interior Board of Land Appeals (App., infra, 16a-21a) is reported at 65 I.B.L.A. 122. JURISDICTION The judgment of the district court (App., infra, 14a) was entered on October 24, 1983. A notice of appeal (App., infra, 15a) was filed on November 21, 1983. On January 10, 1984, Justice Rehnquist extended the time for docketing an appeal to and including February 21, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. See note 20, infra. CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED The relevant constitutional, statutory, and regulatory provisions are set out in App., infra, 25a-27a. QUESTIONS PRESENTED 1. Whether Section 314 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1744, violates the Due Process Clause of the Fifth Amendment to the extent it provides that failure to file a timely notice of annual assessment work or intention to hold a mining claim shall be deemed conclusively to constitute an abandonment of the claim. 2. Whether appellees "substantially complied" with the annual filing requirement of Section 314 and thereby retained their mining claims. STATEMENT 1. The Federal Land Policy and Management Act of 1976 (FLPMA or the Act), Pub. L. No. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. (& Supp. V) 1701 et seq.), made significant changes in the law governing federal land management. FLPMA represented a comprehensive effort by Congress to modernize public land laws and to solve a number of longstanding problems in the area of federal land policy. One of these was the lack of centralized information about the status of mining claims on federal lands. /1/ Prior to the passage of FLPMA, the existence of numerous mining claims located on federal land, combined with the absence of any general federal recording system, caused significant problems. /2/ By the mid-1970s, it was estimated that there were more than 6,000,000 unpatented mining claims on public lands other than national forests; in addition, more than half of the units of the National Forest System were thought to be covered by such claims. S. Rep. 94-583, 94th Cong., 1st Sess. 65 (1975). Many of the claims were believed to be stale. Ibid. See also Public Land Law Review Commission, One Third of the Nation's Land: A Report to the President and to the Congress 130 (1970). However, as the Senate committee explained, because of the absence of a federal recording requirement, "Federal land managers do not have an easy way of discovering which Federal lands are subject to either valid or invalid mining claim locations." S. Rep. 94-583, supra, at 65. See also One Third of the Nation's Land, supra, at 124 ("land managers do not know where claims are located"); Topaz Beryllium Co. v. United States, 479 F. Supp. 309, 312 (D. Utah 1979), aff'd, 649 F.2d 775 (10th Cir. 1981). The potential existence of unknown mining claims made it difficult for federal land managers to take actions affecting federal land for fear of interfering with the rights accorded to claimants under the federal mining laws. Each time the Bureau of Land Management proposed a sale of land or other conveyance, it was necessary to make a lengthy search of records in the county record's office and to produce a title abstract showing the existence or nonexistence of outstanding mining claims. Such searches in themselves constituted a major administrative burden. Moreover, if the county records indicated the existence of mining claims -- even only stale or abandoned claims -- it was necessary for BLM to initiate a mining contest to determine the validity of the claims before proceeding further with the proposed action. See Strauss, Mining Claims on Public Lands: A Study of Interior Department Procedures, 1974 Utah L. Rev. 185, 193, 215-219. In Section 314 of the Act, 43 U.S.C. 1744, Congress provided the basis for a federal recordation system that serves the dual purpose of ridding federal lands of stale mining claims and providing federal managers with data that allow them to make informed land management decisions. Section 314 includes two sorts of reporting requirements. Subsection (a) requires the owner of an unpatented claim located prior to October 21, 1976, within three years of that date, and "prior to December 31, of each year thereafter," to file with BLM a notice of intention to hold the claim or an affidavit of assessment work performed on the claim. Those who locate claims after October 21, 1976, must make such filings "prior to December 31 of each year" following the calendar year in which the claim was located. The second obligation is imposed by Section 314(b): the owner of an unpatented claim located prior to October 21, 1976, must, within three years of that date, file with BLM a copy of the official record of the notice of location or certificate of location. Those who locate claims after October 21, 1976, must file the required documents within 90 days of location. In Section 314(c), Congress provided that, except in certain enumerated circumstances, the failure to file the instruments required by subsections (a) and (b) "shall be deemed conclusively to constitute an abandonment of the mining claim * * * by the owner." The Department of the Interior has issued regulations implementing the Section 314 requirements. 43 C.F.R. 3833.2-1(a) provides that the owner of an unpatented mining claim located on federal land on or before October 21, 1976, must file evidence of annual assessment work or a notice of intention to hold the claim in the proper BLM office on or before October 22, 1979, and "on or before December 30 of each calendar year" thereafter. /3/ Under 43 C.F.R. 3833.4, the failure to file a required instrument within the prescribed time period "shall be deemed conclusively to constitute an abandonment of the mining claim * * * and it shall be void." BLM enters information from both initial filings and annual filings pursuant to Section 314 into a central computer. Every 60 days BLM prints out the information on mininc claims on a state-by-state basis. The computer printouts are microfilmed and distributed to BLM State Offices, to many state governments, and to private subscribers. 2. Appellees were mining claimants whose ten unpatented claims were located on federal land in Nevada. /4/ On October 19, 1979, they complied with the Section 314 initial filing requirements. However, in 1980 appellees waited until December 31 to hand deliver their affidavits of annual assessment work to the BLM Nevada State Office, thus missing the deadline set by statute and regulation. On April 4, 1981, the chief of the Records and Data Management Branch of the BLM Nevada State Office informed appellees that their claims had been declared abandoned and void because they had failed to file a notice of intent or proof of assessment work by December 30, 1980. See App., infra, 22a-24a. Appellees sought review of the BLM action, claiming, inter alia, that they were erroneously advised by unnamed BLM personnel as to the proper filing date and that Section 314 and the implementing regulations are unconstitutional and invalid because they resulted in taking appellees' property without notice and opportunity to be heard. In June 1982 the Interior Board of Land Appeals (IBLA) affirmed the BLM determination (App., infra, 16a-21a). The IBLA concluded that any reliance on erroneous information provided by a BLM employee could not relieve a claimant of an obligation imposed by statute or regulation. It declined to rule on appellees' constitutional claim on the ground that the Department of the Interior is not a proper forum to consider the constitutionality of Section 314. The IBLA noted, however, that the regulations at issue had been upheld in Topaz Beryllium Co. v. United States, 479 F. Supp. 309 (D. Utah 1979), aff'd, 649 F.2d 775 (10th Cir. 1981). 3. Appellees filed this action in the United States District Court for the District of Nevada, seeking review of the IBLA decision. Appellees requested, inter alia, a declaration that Section 314 is unconstitutional in that it deprived them of property without due process of law and would result in taking of their property without just compensation. Appellees also sought a permanent injunction against enforcement of the Interior Department regulations that implement Section 314. The district court granted summary judgment for appellees, holding that Section 314 is an "unconstitutional violation of procedural due process insofar as it creates an irrebuttable presumption of abandonment for failure to timely file the annual assessment notice" (App., infra, 10a). /5/ The court initially found that unpatented mining claims qualify as property interests sufficient to warrant due process protection (id. at 3a). It then concluded that Section 314 creates a forfeiture of appellees' claims, since appellees had not indicated any intent to abandon the claims (App., infra, 3a-4a). /6/ Applying the analysis set out in Vlandis v. Kline, 412 U.S. 441 (1973), the district court determined that estinguishment of claims pursuant to Section 314 amounts to a taking without due process because the statute creates a conclusive presumption of abandonment that is "not necessarily or universally true in fact" (App., infra, 5a) and because, in the court's view, there are other reasonable methods by which BLM could establish whether a miner intends to abandon a claim when he fails to file a timely assessment work notice (id. at 6a-7a). The court concluded that BLM could easily determine whether claimants had in fact abandoned their claims by notifying them of their failure to meet a filing deadline and by holding a preforfeiture hearing in cases in which there is a dispute about whether abandonment has occurred (id. at 7a, 9a-10a). The district court went on to hold (App., infra, 10a-12a) that even if appellees had not been deprived of their due process rights, they would still prevail because they had substantially complied with Section 314 by submitting the required notices one day after the statutory deadline. In the court's view, the primary purpose of Section 314 is to clear federal lands of stale claims, which is accomplished by requiring the initial filing of location notices; the requirement of annual filings thereafter is intended to facilitate maintenance of a current index of unpatented claims "merely for the convenience of federal land managers" (App., infra, 11a). Thus, according to the court, a standard of substantial compliance with the annual filing deadline would be consistent with the history and purpose of Section 314 (App., infra, 12a). In addition, the court, citing Hickel v. Oil Shale Corp., 400 U.S. 48, 57 (1970), and earlier cases for the proposition that substantial compliance satisfies the assessment work requirement under 30 U.S.C. 28, reasoned that it would be anomalous for the government to insist on strict compliance with Section 314 when, at the same time, substantial compliance is sufficient under 30 U.S.C. 28. App., infra, 12a. THE QUESTIONS ARE SUBSTANTIAL 1. The decision of the district court holds unconstitutional an important feature of the scheme for administration of federal lands that Congress mandated under the Federal Land Policy and Management Act of 1976. Section 314 of the Act, 43 U.S.C. 1744, provides the basis for a federal recordation system for unpatented mining claims located on federal land. It sets out specific reporting requirements for mining claimants, with precise filing deadlines. In Section 314(c) Congress conditioned retention of a mining claim located on federal land on compliance with the statutory filing requirements, thereby creating an enforcement mechanism that would assure both elimination of stale claims and maintenance of centralized, comprehensive, and up-to-date information on the status of claims. The decision below prevents uniform administration of the federal recordation system and undermines seriously the administrative workability of the system in Nevada. /7/ In addition, the decision casts doubt on the status of thousands of mining claims the Department of the Interior previously had adjudicated to be invalid based on the failure of claimants to make timely annual filings. This Court should grant review to remove the cloud placed on the validity of this important feature of the federal land management program. /8/ The decision below prevents BLM from administering a nationwide reporting program on a uniform basis. In Nevada (and apparently in Montana, see note 7, supra), BLM must at least set up new procedures in response to the decision below; and perhaps it will be forced to abandon any effort to enforce the Section 314 filing requirements in those states. The information (if any) gathered in those states presumably will not be comparable to data collected in other states. These results are inconsistent with the intent of Congress, which sought to create a centralized and up-to-date system that would permit determination of the status of mining claims on any federal land at any given time. Moreover, the failure to make a timely filing now has different consequences in different states: in Nevada (and perhaps in Montana), a claimant's failure to file an annual assessment work notice or notice of intention to retain a claim will have no consequence, while such a failure will result in invalidation of the claim in other states. The decision below creates serious difficulties for the future administration of the Section 314 filing requirements in Nevada. The decision effectively deprives BLM of any sanction for a claimant's failure to comply with the filing requirements; if claimants know they will not lose their claims if they miss a statutory deadline, they will have little incentive to meet the deadlines, or even to make filings at all. /9/ The result presumably will be a return in Nevada to the situation that existed prior to passage of Section 314, in which it was necessary for federal land managers to undertake burdensome title searches, notification, and adjudication when they wished to take actions involving federal lands. /10/ The decision below calls into question thousands of determinations previously made by the Interior Department. Pursuant to Section 314, BLM has adjudicated an estimated 40,000 claims on federal land in Nevada to be invalid following claimants' failure to make a timely annual filing. /11/ If the decision below were applied retroactively, BLM might be required to rescind those adjudications. Such action in turn would cast doubt on actions federal managers may have taken with respect to the land in question; in addition, it would create obvious problems in cases in which a later claimant has obtained rights in the same land (e.g., by "topfiling") in reliance on the prior claimant's failure to adhere to the Section 314 requirements. /12/ 2. The district court decision is erroneous. Congress clearly has authority to prescribe reasonable conditions for retention of unpatented mining claims located on federal lands. Moreover, Congress's decision to condition retention of such claims on a claimant's compliance with the filing requirements of Section 314 is fully consistent with the requirements of due process. a. The power of Congress to manage and control the mineral resources of the public domain is very broad. The Property Clause of the Constitution, Art. IV, Section 3, Cl. 2, provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." This court has repeatedly stated that "'(t)he power over the public land thus entrusted to Congress is without limitations.'" Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (quoting United States v. San Francisco, 310 U.S. 16, 29 (1940)). See also Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 294-295 (1958); Alabama v. Texas, 347 U.S. 272, 273 (1954); FPC v. Idaho Power Co., 344 U.S. 17, 21 (1952); United States v. California, 332 U.S. 19, 27 (1947); Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). The Property Clause gives Congress the power over public lands "'to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them.'" Kleppe v. New Mexico, 426 U.S. at 540 (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917)). This extensive power is clearly broad enough to encompass Section 314, which conditions retention of unpatented mining claims on a claimant's compliance with the filing deadlines set out in that section. Indeed, the Court has held that state governments, in legislating with respect to privately held land, have the power "to condition the retention of a property right upon the performance of an act within a limited period of time." Texaco, Inc. v. Short, 454 U.S. 516, 529 (1982). A fortiori, imposition of such a condition is within the power of Congress over the public domain. Moreover, conditioning retention of unpatented mining claims on the filing of annual notices is fully consistent with due process requirements. Such a condition is both reasonable and necessary to accomplishment of Congress's objectives in enacting Section 314. The congressional declaration of policy set out in FLPMA states that "the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts." 43 U.S.C. 1701(a)(2). As we explained above (at pages 2-4), Congress's purpose in enacting Section 314 was twofold; it wished to rid federal lands of stale mining claims and also to provide for centralized collection of comprehensive and up-to-date information on the status of mining claims on federal lands, so that federal managers could make informed and efficient decisions about the disposition of federal lands, without the heavy administrative burden of time-consuming title searches in county courthouses. /13/ Invalidation of claims based on failure to comply with filing requirements serves both these purposes. On the one hand, it provides the mechanism for terminating stale claims. But it also provides the only reliable tool for enforcement of the filing requirements and thus is essential to an "accurate and perpetual inventory of mining claims on the public lands and of those persons who assert an interest in (such) claims." Topaz Beryllium Co. v. United States, 479 F. Supp. 309, 314 (D. Utah 1979), aff'd, 649 F.2d 775 (10th Cir. 1981). The statue itself provides notice to claimants of the consequences of failure to make timely filings. Texaco v. Short, 454 U.S. at 532; FCIC v. Merrill, 332 U.S. 380, 384-385 (1947); Anderson National Bank v. Luckett, 321 U.S. 233, 243 (1944); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925). Indeed, under the terms of Section 314, claimants were allowed a three-year grace period within which to become familiar with the filing requirements -- more generous than the two-year grace period provided under the lapse provision of the Indiana recordation statute found to be consistent with due process in Texaco v. Short, supra. Due process does not require individualized notice to claimants that they risk invalidation of their claims if they do not meet the statutory filing deadlines. /14/ This Court held in Texaco v. Short that the Indiana legislature could, consistently with the requirements of due process, provide for lapse of vested mineral interests in private lands following a 20-year period of nonuse and the owner's failure to file a statement of claim within a two-year period, without individualized preforfeiture notice. /15/ A fortiori, due process does not require individualized notice in connection with appellees' inchoate mining claims located on public lands. /16/ Nor is a preforfeiture hearing required by due process in this context. Under Section 314, the only relevant issue is whether or not the claimant filed an annual notice that complies with the statutory requirements. A preforfeiture hearing would be of little use, since the facts that bear on that issue are a matter of public record. /17/ b. Despite the apparent consistency of Section 314 with the requirements of due process, the district court concluded (App., infra, 5a-10a) that Section 314(c) is unconstitutional on the ground that it creates an impermissible irrebuttable presumption of abandonment, citing Vlandis v. Kline, 412 U.S. 441 (1973). In fact, the irrebuttable presumption analysis of Vlandis has no application to this case. In Vlandis the Court considered Connecticut's practice of charging higher tuition to students who were not bona fide residents while denying to individuals who previously lived outside the state any opportunity to establish that they had become bona fide residents. The Court held that Connecticut's irrebuttable presumption of nonresidence violated due process because the presumption was not necessarily or universally true in fact and because the State had reasonable alternative means of determining bona fide residence. In this case, the district court concluded that Section 314 creates a conclusive presumption of abandonment that is not necessarily or universally true in fact (since failure to make a timely filing under Section 314 does not always signify intent to abandon a claim) and that there are reasonable alternative means of determining whether a claimant in fact has abandoned a claim (e.g., by individual notice and a preforfeiture hearing). But the district court erred in focusing on abandonment and intent to abandon. Although Congress used the term "abandoned" in Section 314, it did not make invalidation of a claim turn on abandonment or intent to abandon, but solely on whether the claimant has met the statutory filing requirements. /18/ The district court also misapplied the second prong of the Vlandis analysis in suggesting that BLM has reasonable alternative means of determining whether a claimant intends to abandon his claim. Since loss of a claim does not turn on intent to abandon under the statutory scheme, notice and an opportunity to prove non-abandonment are unnecessary. Even if such procedures were useful, they would hardly be "reasonable," since they would impose a significant administrative burden on BLM. Use of preforfeiture notice and hearing procedures would require BLM to return to the sort of claim-by-claim investigation it was forced to use before enactment of Section 314. In addition, mandatory use of such procedures would deprive BLM of any effective way to enforce the filing requirements, since claimants who know they do not risk automatic loss of their claims presumably will wait to file the necessary documents until they receive notices of their failure to file or perhaps until hearings are scheduled. As a result, BLM could be required to send annual follow-up notices and to schedule hearings in connection with a total of more than one million claims nationwide in order to ensure receipt of information on the status of claims -- a procedure that would defeat the legislative purpose underlying Section 314. /19/ 3. The district court also erred in its alternative holding (App., infra, 10a-12a) that appellees substantially complied with the requirements of Section 314 by filing their annual notices one day late. /20/ The statute on its face indicates that (except in certain enumerated circumstances) /21/ any failure to comply with the statutory filing requirements will result in loss of a mining claim. Neither the language nor the legislative history of Section 314 suggests that some form of "substantial compliance" with the filing deadlines would suffice to preserve a claim or that the Secretary has discretion to waive the deadlines. /22/ Construction of Section 314 to permit substantial compliance would be inconsistent with Congress's goal of enabling BLM to obtain complete and up-to-date information on the status of mining claims on federal lands. It may well be that the system Congress envisioned could function properly even if every claimant filed one day after the statutory deadline. But the principle of substantial compliance presumably is not limited to such short delays; thus, its application eventually would make a significant difference in the speed with which BLM could collect and tabulate information on mining claims. Moreover, the court's failure to define the boundaries of its substantial compliance principle leaves BLM with the unwelcome task of providing some content for the term. Is BLM to allow a 20-day grace period? A one-month grace period? A one-year grace period? Of course, no matter what grace period BLM chose, there would always be a claimant who filed a day or two after its expiration. And if BLM could not establish a clear cut-off point, it would be required to make case-by-case determinations that presumably could be challenged by disappointed claimants who dispute BLM's judgment about what compliance is "substantial." There is no indication that Congress intended to impose such administrative burdens on BLM. /23/ The district court relied on Hickel v. Oil Shale Corp., 400 U.S. 48, 57 (1970), and earlier cases /24/ in which this Court stated that substantial compliance is sufficient to meet the annual assessment work requirement of the general mining law, 30 U.S.C. 28. But those decisions do not control the present case. In enacting Section 314, Congress added to the conditions for retention of unpatented mining claims in order to eliminate the situation that had prevailed under the general mining law. Under Section 314, retention of a claim is based not on performance of assessment work, but on filing of particular documents. Section 314(c) expressly provides that failure to meet the filing requirements "shall be deemed conclusively" to constitute abandonment of the claim; in contrast, the saving clause at issue in Hickel v. Oil Shale Corp. and the other pre-FLPMA cases cited by the district court provides only that a claim must be "maintained in compliance with the laws under which initiated" (30 U.S.C. 193) in order to avoid leasing requirements. Thus, those cases are clearly distinguishable and do not mandate any departure from the plain language of Section 314. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. REX E. LEE Solicitor General F. HENRY HABICHT, II Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General CAROLYN F. CORWIN Assistant to the Solicitor General DAVID C. SHILTON ARTHUR E. GOWRAN Attorneys FEBRUARY 1984 /1/ Under the general mining laws, 30 U.S.C. 22 et seq., United States citizens may go on unappropriated, unreserved public lands in order to prospect for minerals. If a citizen finds valuable minerals he may mine them and eventually buy the land. Subsequent to enactment of the general mining laws, Congress removed certain minerals from their coverage. See 30 U.S.C. (Supp. V) 181 et seq. (oil, gas, oil shale, coal, and other energy and fertilizer minerals); 30 U.S.C. 611 et seq. (sand, gravel, and other building and construction minerals). /2/ Prior to 1976, most states imposed recording requirements, but there was no general federal requirement that a mining claimant record an unpatented mining claim or otherwise notify the Interior Department of the existence of the claim. In addition, the Department did not exercise any management authority over mining claim operations. /3/ Since 1982, the Department's regulations have provided that filings postmarked on or before midnight of December 30 and received by BLM by the close of business on the following January 19th will be considered timely filed. This amendment was prompted by the overload on the United States Postal Service caused by holiday mail. See 47 Fed. Reg. 56305 (1982) (to be codified at 43 C.F.R. 3833.0-5(m)). BLM informs us that the amendment appears to have resulted in an 80% decrease in untimely filings. BLM also advises us that since 1980 its practice has been to send a reminder of the filing requirements to claimants in September of each year. /4/ Appellees located their claims in 1952 and 1955, prior to the effective date of the Common Varieties Act of 1955, 30 U.S.C. 611 et seq., which withdrew common varieties of building and construction minerals from the coverage of the general mining laws. /5/ The court did not address appellees' request for an injunction against enforcement of Interior Department regulations. /6/ During the 1979-1980 assessment year appellees produced over $1,000,000 worth of gravel and sand from their claims. App., infra, 2a. /7/ BLM faces similar problems in Montana, where a federal court has declared Section 314(c) unconstitutional in a case involving invalidation of claims based on failure to file timely notices of location, as required by Section 314(b). Rogers v. United States, 575 F. Supp. 4 (D. Mont. 1982). The court in Rogers applied an irrebuttable presumption analysis similar to that employed by the district court in this case. The government did not seek review of the judgment in Rogers because it failed to file a notice of appeal to this Court within the 30-day time limit set by 28 U.S.C. 2101(a). The decision below may also call into question the recordation provisions of the Mining in the Parks Act. Section 8 of that Act, 16 U.S.C. 1907, declares that mining claims that are not recorded within one year after September 28, 1976, are "conclusively presumed to be abandoned and shall be void." /8/ Section 314 has already spawned considerable litigation. Thus far, the court below and the federal district court in Montana (see note 7, supra) have held Section 314(c) unconstitutional on the ground that it creates an impermissible irrebuttable presumption of abandonment. One state court has upheld Section 314(c) against a procedural due process challenge in a suit between private parties. See Aubert v. Fahey Group Mines, Inc., No. 24051 (1st Jud. Dist. Idaho Mar. 4, 1983), slip op. 9-14. The Ninth Circuit has rejected a facial due process challenge to Section 314, although it reserved certain due process issues that might arise in connection with application or enforcement of Section 314 in given factual situations. Western Mining Council v. Watt, 643 F.2d 618, 627-630 & n.18, cert. denied, 454 U.S. 1031 (1981). See also Topaz Beryllium Co. v. United States, 479 F. Supp. 309 (D. Utah 1979), aff'd, 649 F.2d 775 (10th Cir. 1981) (upholding Interior Department regulations implementing Section 314 as a proper exercise of statutory authority); Northwest Citizens for Wilderness Mining Co. v. BLM, No. CV 78-46-M (D. Mont. June 19, 1979) (rejecting challenge to BLM's refusal to accept untimely location notices required by Section 314(b)); Porter v. Dep't of the Interior, Civil No. 80-0825-N(I) (S.D. Cal. July 7, 1981). /9/ Prior to the enactment of Section 314, there were several statutory recording requirements applicable to special situations. See, e.g., Act of Aug. 11, 1955, ch. 797, 69 Stat. 682, 30 U.S.C. 623 (requiring recordation and reporting for claims on lands withdrawn for power site development). Because no penalty for noncompliance was provided in the statute (see MacDonald v. Best, 186 F. Supp. 217 (N.D. Cal. 1960)), BLM rarely received the filings required. /10/ Private subscribers to the BLM data base also will be deprived of a useful source of information concerning the status of mining claims on federal land in Nevada. We are informed by BLM that private subscribers use the information from Section 314 filings to assist in determining whether particular federal lands are available for location of claims. /11/ BLM advises us that from fiscal year 1977 through fiscal year 1983, it "closed" (i.e., adjudicated to be invalid) 48,249 mining claims on federal land in Nevada. BLM is unable to provide a precise breakdown that shows how many claims were closed because of a claimant's failure to make a timely annual filing (as opposed to, e.g., failure to file a notice of location required by Section 314(b) before the statutory deadline, or failure to provide correct documentation in connection with a filing). However, BLM estimates that a very high percentage of the closed cases were attributable to the failure of claimants to make a timely annual filing. Assuming the Rogers decision (see note 7, supra) would affect cases involving failure to make timely annual filings under Section 314(a), as well as failure to file an initial notice of location under Section 314(b), approximately 15,000 closed cases involving claims on federal lands in Montana also would be affected. /12/ In several cases involving litigation between competing private claimants, courts have applied Section 314(c) to determine the validity of a claim. See Schlosser v. Pierce, No. C81-0196B (D. Wyo. Sept. 9, 1982); Aubert v. Fahey Group Mines, Inc., supra. Depending on how much of the statute were held severable, the decision below might allow BLM to readjudicate the status of previously invalidated claims by notifying claimants of their failure to make a timely annual filing and by holding hearings to determine whether a claimant had abandoned his claim at the time he missed the filing deadline. Assuming such an approach were permissible, it would result in an enormous burden on BLM, which probably would have to spend years resolving the backlog. The system of claim-by-claim notification and hearings would be equally unworkable for future cases. Indeed, there would be little point in attempting to set up the sorts of procedures envisioned by the court below, since they would be quite similar to the mining contest procedures already available under the general mining laws. /13/ BLM informs us that the Section 314 filing requirements have indeed facilitated actions involving federal lands. For example, the State of Utah recently selected 223,000 acres pursuant to the indemnity selection program under 43 U.S.C. 853. In the course of a month, BLM was able to use the data base generated with the aid of Section 314 filings to identify 32,000 of those acres as covered by valid mining claims; that information was then used in reaching an agreement on acreage available for the State's indemnity selection. BLM estimates that prior to passage of Section 314, it would have taken four months of research at county courthouses, an additional 60 days for publication in the Federal Register and local newspapers, and perhaps several years for validity examinations and mining contest hearings in order to accomplish a similar result. The centralized data base thus saved BLM and the State of Utah a significant amount of time and labor. Thus far, the major benefits of the Section 314 recordation program have been in the area of land conveyance and disposal of isolated, unmanageable tracts pursuant to Section 203 of the FLPMA, 43 U.S.C. 1713. Information generated by the program has also aided in the demarcation of active mineral exploration areas, which in turn facilitates the planning of new areas of mining and industrial activity on public lands. /14/ In fact, BLM's practice has been to send out annual reminder notices to claimants several months before the filing deadline. See note 3, supra. There can be no question in this case that appellees were aware of the filing requirements under Section 314. Appellees made the initial filing of their notices of location, required by Section 314(b), several days before the statutory deadline in 1979. See page 5, supra. In addition, they were obviously aware that the statute requires annual filings, since they in fact made their 1980 filing the day after it was due. /15/ As the Court noted in Texaco, 454 U.S. at 536, a claim that absence of specific notice rendered ineffective the self-executing feature of the Indiana statute "has no greater force than a claim that a self-executing statute of limitations is unconstitutional." The Court in Texaco also made clear that a statute under which property is deemed to be abandoned upon the owner's failure to take reasonable actions imposed by law is not a "taking" that requires just compensation under the Fifth and Fourteenth Amendments. See 454 U.S. at 530. There is no "taking," because it is the owner's failure to take the required action, rather than the action of the government, that directly causes estinguishment of the property right. Thus, the district court here erred in characterizing Section 314 as resulting in a "taking" of appellees' property (see App., infra, 4a). /16/ Section 314 differs from the Indiana statute at issue in Texaco in that extinguishment of a mining claim under Section 314(c) does not depend in any way on nonuse, but only on failure to comply with the statutory filing requirements. However, that distinction is related to the differing purposes of the two statutes. The Indiana statute was designed to encourage use of private lands, while Section 314 has the dual objectives of clearing stale claims from federal lands and providing for the collection of centralized and up-to-date information about mining claims. Cf. Texaco v. Short, 454 U.S. at 536 n.28 (declining to reach the question whether a state could indulge in an assumption of abandonment if the statutory period of nonuse were shorter than 20 years or if "the interest affected is such that concepts of 'use' or 'nonuse' have little meaning"). /17/ Compare Cameron v. United States, 252 U.S. 450, 460 (1920), in which the Court noted that the government could nullify an unpatented mining claim after proper notice and an administrative hearing. Presumably the relevant issues in that pre-FLPMA case -- whether there had been a mineral discovery within the limits of the claim, whether the land was mineral in character, and whether other requirements of the general mining laws had been met (id. at 456) -- could best be determined in a hearing. /18/ Of course, Congress's choice of statutory language cannot invalidate a provision if its operation and effect are otherwise permissible. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 23-24 (1976). Here the context makes it clear that Congress did not use the term "abandoned" in its common law sense; instead, Congress in effect provided that failure to file the required instruments would result in extinguishment of a mining claim. Section 314 does not present the sort of dilemma that appeared to exist in Vlandis v. Kline. Congress did not establish abandonment as the statutory standard, but at the same time preclude introduction of evidence relating to that issue; rather, it simply required that a claimant file an annual notice before December 31 in order to retain his claim. That condition is not impossible or burdensome to meet; indeed, the vast majority of claimants succeed in meeting it each year. Cf. Weinberger v. Salfi, 422 U.S. 749, 772 (1975). /19/ This Court's decisions indicate that application of the Vlandis v. Kline analysis is inappropriate in the case of otherwise reasonable legislative regulatory measures. In particular, in Weinberger v. Salfi, supra, the Court declined to apply the Vlandis analysis to a statute that established time limits for assertion or protection of rights under the Social Security Act. The Court explained (422 U.S. at 773) that a court should not second-guess the legislature about "whether such a flat cutoff provision was necessary to protect the Secretary from stale claims, whether it would be possible to make individualized determinations as to any prejudice suffered by the Secretary as the result of an untimely filing, and whether or not an individualized hearing on that issue would be required in each case." See also Usery v. Turner Elkhorn Mining Co., 428 U.S. at 22-24; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 377 (1973). And see Note, Irrebuttable Presumptions: An Illusory Analysis, 27 Stan. L. Rev. 449, 472-473 (1975); Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534, 1556 (1974). /20/ Because the district court concluded that appellees could prevail on a nonconstitutional ground, it should not have reached the constitutional issue. See, e.g., United States v. Clark, 445 U.S. 23, 27 (1980). Nevertheless, the district court did decide the constitutional question and in fact gave that issue the prominent position in its opinion. The constitutional holding presumably will be applied in future cases arising in the District of Nevada. The fact that the district court cited an alternative ground for its judgment does not affect this Court's jurisdiction under 28 U.S.C. 1252. See United States v. Rock Royal Cooperative, Inc., 307 U.S. 533, 541 (1939). Cf. McLucas v. DeChamplain, 421 U.S. 21, 31 (1975); United States v. Raines, 362 U.S. 17, 20 (1960). /21/ Section 314(c) provides that "it shall not be considered a failure to file if the instrument is defective or not timely filed for record under other Federal laws permitting filing or recording thereof, or if the instrument is filed for record by or on behalf of some but not all of the owners of the mining claim or mill or tunnel site." /22/ The district court cited the Senate Report (S. Rep. 94-583, 94th Cong., 2d Sess. 65 (1975)) for the proposition that Congress was primarily interested in the elimination of stale claims when it enacted Section 314. App., infra, 8a-9a. But the Senate bill did not include the annual filing requirement; instead, it required that a claimant make an initial recordation and proceed to patent within ten years in order to retain a claim. The Conference Committee rejected the approach of the Senate bill and instead adopted the House amendments, which contained the annual filing requirement. H.R. Rep. 94-1724, 94th Cong., 2d Sess. 62 (1976). Thus, the comments in the Senate Report do not reflect the legislative purpose underlying the annual filing requirement. /23/ Congress is quite capable of establishing a grace period when it wishes to do so. Under 30 U.S.C. 188(b), Congress has provided that certain oil and gas leases will terminate automatically upon failure to make annual rental payments on or before the anniversary date of the lease. However, Congress also provided that the Secretary may reinstate the lease if the lessee pays or tenders the annual fee within 20 days of the anniversary date and if it can show that the failure to make a timely payment was justifiable or not due to a lack of reasonable diligence. 30 U.S.C. 188(c). See Ram Petroleums, Inc. v. Andrus, 478 F. Supp. 1165 (D. Nev. 1979), rev'd, 658 F.2d 1349, 1353 (9th Cir. 1981). There is no comparable provision in Section 314. /24/ Ickes v. Virginia-Colorado Development Corp., 295 U.S. 639 (1935); Wilbur v. United States ex rel. Krushnic, 280 U.S. 306 (1930). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.