Opinion
Civil No. 03-3073-CO.
October 28, 2004
ORDER
Plaintiffs bring this action seeking judicial review of the defendants' decisions dated October 30, 1998 and June 17, 2003. Plaintiffs request that this court: 1) set aside the Interior Board of Land Appeals (IBLA) decisions; 2) reverse the decision denying plaintiffs a patent to the Garden Spot claim, or, in the alternative, remand the matter for further administrative proceedings; and 3) award plaintiffs costs and attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court are plaintiffs' motion for summary judgment (#31) and defendants' cross motion for summary judgment(#39).
I. FACTS
Plaintiffs submit the following facts in support of their motion for summary judgment:
1. On January 5, 1987, plaintiffs applied for mineral patent of the Garden Spot Association Placer Claim. AR 002380.
2. On March 27, 1991, the defendants or their predecessors filed a Contest Complaint alleging, among other things, that there was insufficient mineralization on the claim to support patent. AR 001840.
3. Plaintiffs answered the Contest Complaint, AR 001834, and hearings occurred on April 24 and 25, 1992, again on May 6 and May 7, 1992, and again on December 29 and December 30, 1992. AR 000404-000583, AR 001056-001601. The Administrative Record includes all of the transcript of testimony and oral argument from those proceedings. The Administrative Record further includes all exhibits from those proceedings.
4. After post-hearing briefing, ALJ Harvey C. Sweitzer issued his Amended Decision on April 14, 1993, holding that the Garden Spot Association Placer Claim was void for lack of discovery of sufficient minerals to support a paying mine. AR 000243.
5. On April 29, 1993, plaintiffs timely filed their Notice of Appeal of the April 14, 1993, Amended Decision.
6. After briefing, on October 30, 1998, defendants, through the Office of Hearings and Appeals, IBLA, affirmed as modified the April 14, 1993, Amended Decision. AR 000090.
7. On December 21, 1998, plaintiffs timely filed their Petition for Reconsideration of the October 30, 1998, decision of the IBLA.
8. After briefing, on June 17, 2003, the IBLA, en banc, issued its ruling, including dissenting opinions, denying plaintiffs' Petition for Reconsideration. AR 000001.
9. On August 1, 2003, plaintiffs timely filed this proceeding seeking judicial review of the final agency action in this matter.
Defendants submit the following facts in support of their motion for summary judgment:
1. Plaintiffs Davy Lee Waters and Sannaraha Waters seek title to 50 acres of public land in Josephine County, Oregon. AR 2380-91. The land flanks Galice Creek, near its confluence with the Rogue River. AR 2401. The land includes a house, where the Waters live, several outbuildings, and more than 220,000 board-feet of timber. AR 1124, 2381, 2468.
2. The Waters seek title to the land under the 1872 Mining Law, which, if their claim was valid, would entitle them to purchase the land for $2.50 per acre, or a total of $125. 30 U.S.C. § 37; AR 2112.
3. The Waters have never made their living as miners. AR 1627-28, 1789. During the nearly 30 years the Waters have lived on the claim, Ms. Waters has worked for a restaurant and as a shuttle driver for Rogue River boaters, and Mr. Waters has worked for a gravel company. Id.
4. The claim, called the "Garden Spot," was first staked in 1896, and a series of claimants mined it for gold during the early 20th Century. AR 2403-2410. Ms. Waters first purchased an interest in the claim in 1975 for $2500 from an experienced miner. AR 1608. Ms. Waters' father had previously lived in the house on the claim. AR 1614-15.
5. At the time of her purchase, Ms. Waters had no mining experience, and did no mining on the claim for the next eight years while living on the claim. AR 1615-16, 1619. Mr. Waters began living with Ms. Waters on the claim in 1979. AR 1771.
6. The Waters began some limited hand-sluicing in 1983, and extracted, at most, only 3½ ounces of gold from the claim over the following five years. AR 1619-24. This work began at about the same time that the Bureau of Land Management (BLM) began asserting that the Waters were occupying the claim in trespass. AR 1188-90, 2283-84.
7. The Waters describe their work on the claim since they first occupied it as "prospecting" and "exploratory." AR 200, 827. The Waters have sold no gold from the claim. AR 1623.
8. The Waters applied to BLM for title — called a "patent" under the Mining Law — for the Garden Spot claim in 1987. AR 2380-86. Their application identified nine "discovery points" on the claim, all located in "virgin gravels" above Galice Creek. AR 2385, 2387.
9. In 1988-89, a BLM mineral examiner conducted a field examination of the claim, collecting 14 ore samples from the virgin gravels. AR 2399. At the time, the mineral examiner saw no evidence of ongoing diligent mining activity. AR 241
10. The Waters gave the BLM mineral examiner an amended patent application that included a cost analysis that assumed market wages of $13.75 an hour for an equipment operator and $5 an hour for a laborer. AR 2454.
11. After analyzing the samples and assessing the cost of mining, the claim, the mineral examiner concluded in a written report that the claim contained only isolated remnants of gold left after a half century of extensive mining, and there was insufficient gold to constitute a "valuable discovery" under the Mining Law. AR 2399, 2422. The mineral examiner also concluded that the claim was not being occupied for mining purposes. AR 2399.
12. On March 27, 1991, the BLM filed a contest complaint with the U.S. Department of the Interior's Office of Hearings and Appeals, charging that the Garden Spot claim should be declared null and void on the grounds that it did not contain minerals in sufficient quantity to constitute a valuable mineral deposit. AR 1840-42. On March 24, 1992, the BLM filed an amended complaint adding an allegation that the Waters were occupying the claim primarily for residential purposes, not mining. AR 1811-13.
13. An ALJ conducted a hearing on the contest in April and May, 1992, during which witnesses for the Waters and the BLM testified. AR 1056-1802-32. The Waters offered testimony of a consultant who had sampled, not only the virgin gravels that BLM had sampled, but also "pre-mined gravels," or tailings, and had found gold in both areas. AR 1491-1547. The consultant prepared a report opining that the claim contained sufficient gold to constitute a valuable discovery. AR 2650, 2657. The report relied on an economic analysis that omitted any labor costs, and stated that "[l]ow overhead is the key to a viable placer mining operation on this property." AR 256, 2660. The Waters also offered the testimony of a neighbor who dredged two samples from Galice Creek, in which some gold was found. AR 1548-50.
14. Following the initial hearing, the ALJ issued an order granting the parties' motion to conduct joint sampling of the pre-mined gravels and the Galice Creek gravels. AR 1028. The order provided that data derived from the new samples could be incorporated into an economic analysis to determine the validity of the claim. AR 1032.
15. The ALJ reopened the hearing in December, 1992. AR 406-759. The BLM offered a supplemental mineral report that analyzed the validity of the claim in light of the new samples. AR 2573. The report included an economic analysis that incorporated labor costs, including a 25% overhead adjustment for the cost of social security, unemployment compensation, and workers' compensation. AR 620, 2579-80. The report again concluded that mining the deposit would not be profitable, and that the claim was not supported by a valuable discovery. AR 2582.
16. At the hearing, the Waters objected to the new economic analysis. AR 621, 702-705. The ALJ admitted BLM's supplemental mineral report, but noted that the Waters would be free in post-hearing briefs to argue that it should not be considered. Id.
17. The Waters presented the testimony of several witnesses, including Mr. Waters, but offered no testimony or evidence regarding labor overhead costs or self-employment taxes. AR 422-503, 509-534, 722-757.
18. In their post-hearing brief, the Waters argued that the economic analysis should not include a 25% labor overhead charge, but conceded that they would be liable for self-employment taxes. AR 398-399. They offered no estimate of what those taxes would be. Id.
19. The ALJ concluded in a final decision dated April 14, 1993 that the Garden Spot claim was null and void for lack of a discovery of a valuable mineral deposit. AR 243-263. The ALJ first concluded that the claim should be evaluated solely on the gold found in the virgin gravels, because that was the only gold exposed as of October 11, 1990, the date BLM issued a "first-half final certificate" for the claim. AR 250-252. The ALJ next concluded that there was not sufficient gold in the virgin gravels to constitute a discovery, because the cost of mining that gold would exceed the expected return. AR 253-263. This conclusion rested on the labor costs offered by the Waters, and did not rely upon the 25% labor overhead charge. AR 256. The ALJ made no ruling on whether the overhead charge should be included in the analysis, but-ruled that "BLM was entitled to perform an economic analysis using its own cost projections . . ." AR 262.
20. The Waters appealed the ALJ's decision to the IBLA. AR 90. On October 30 5 1998, the IBLA affirmed the ALJ's decision, but on somewhat different grounds. Id. The IBLA rejected the ALJ's conclusion that the pre-mined gravels and the Galice Creek gravels should be excluded from the analysis. AR 101-103. The IBLA analyzed the gold values and cost of mining all three areas, and concluded that none of them constituted a valuable mineral deposit. AR 107, 109, 111. In its analysis, the IBLA used the labor rates supplied by the Waters, to which it added the 25% labor overhead charge from BLM's supplemental mineral report. AR 106.
21. The Waters petitioned the IBLA for reconsideration, arguing that IBLA should not have included the labor overhead charge in its cost analysis, because the Waters intended to mine the claim themselves and would not incur overhead charges. AR 80-81. The Waters again conceded that they would be liable for self-employment taxes, but asserted that it was impossible to determine what the amount of this tax would be without considering the Waters' "overall financial circumstances." AR 81.
22. While the Waters asked the IBLA to remand the case for a hearing on the cost of labor, they made no offer of proof as to what they would show in such a hearing about their "overall financial circumstances" and their liability for selfemployment taxes. AR 84-85.
23. On June 17, 2003, the IBLA denied the petition for reconsideration, concluding that the Waters had failed to demonstrate that extraordinary circumstances warranted reconsideration. AR 1. The IBLA concluded that, where it was clear that the Waters would have labor overhead costs in the form of self-employment taxes, they bore the burden of showing what those costs would be. AR 8.
II. LEGAL STANDARDS
Pursuant to Rule 56 (c) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56 (c); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.
The moving party bears the initial burden of proof. See Rebel Oil Company, Inc. v. Atlantic Richfield Company, 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted); See City of Mt. Pleasant, Iowa v. Associated Electric Cooperative, Inc., 838 F.2d 268, 273-274 (8th Cir. 1988) (it is sufficient for the movant to argue that the record does not contain an issue of fact and to identify that part of the record that supports that assertion).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
III. DISCUSSION
Plaintiffs move for summary judgment arguing that:1) Judge Grant's decision, applying a 25% labor surcharge rate, is arbitrary and capricious because it: runs counter to the evidence in the record and is contrary to established BLM precedent and protocol; and
2) Judge Harris's decision, denying reconsideration, is arbitrary and capricious and an abuse of discretion because it: refused to allow the correction of an erroneous decision based on the lack of evidence in the record on an issue which the parties considered immaterial and on which the BLM had the burden of going forward, failed to allow the authors of the previous opinion correct their mistake, and implied that the plaintiffs did not meet their obligation to offer evidence to counter the BLM's evidence.
In response to plaintiffs' motion and in support of their motion, defendants argue that:
1) the record shows that plaintiffs had ample opportunity at the hearing before the ALJ to demonstrate what their true overhead costs would be, they failed to avail themselves of that opportunity, and instead argued that labor overhead was inapplicable to the analysis of the validity of their claim;
2) the use of the 25% overhead cost in the record was consistent with well established precedent;
3) plaintiffs' failed to carry their burden of proof as to the validity of their claim — the burden was on plaintiffs to overcome the BLM's prima facie case of invalidity by offering proof of their mining costs;
4) the objective test mining claims requires consideration of market-rate labor costs, including overhead, regardless of whether the claim is mined by its owners — plaintiffs' analysis undervalued their labor;
5) the IBLA's denial of reconsideration was consistent with its rules;
6) the BLM met its burden of presenting a prima facie case that the claim was invalid;
7) the IBLA's conclusion that labor overhead costs must be considered in determining the existence of a discovery of a valuable deposit is entitled to deference; and
8) the dissenting opinions do not demonstrate that the IBLA's decision was arbitrary and capricious.
In response and reply, plaintiffs argue that:
1) the court should not consider defendants' arguments that are outside the scope of the agency decisions under review — plaintiffs move to strike the allegations in the first four paragraphs of section III and the arguments appearing on pages 23 and 25 because they are not germane to the court's review;
Plaintiffs' motion to strike the first four paragraphs of section III is denied. These paragraphs are included in defendants' unopposed concise statement of facts. Plaintiffs' motion to strike defendants' arguments on pages 23-25 is also denied. These arguments are supported by evidence in the record.
2) Judge Grant's decision is arbitrary and capricious because it wrongly assumes the plaintiffs will hire employees — Judge Sweitzer accepted plaintiffs' argument that the BLM failed to prove the labor overhead factor and accepted plaintiffs' estimate of labor costs;
3) Judge Harris's decision barring the correction of Judge Grant's error fails the arbitrary and capricious standard;
4) defendants contention that plaintiffs had many opportunities to rebut the BLM's contentions about labor overhead costs is implausible — it was unlikely that Judge Sweitzer would have granted any request by plaintiffs for a continuance;
5) Judge Sweitzer found that the BLM's evidence of labor overhead costs failed and the IBLA's decision to shift the burden onto plaintiffs during the appellate phase of the agency process was arbitrary, capricious, and an abuse of discretion;
6) it is undisputed that plaintiffs did not have an opportunity to address this issue — plaintiffs rebutted the BLM's evidence on labor overhead costs as evidenced by Judge Sweitzer's acceptance of plaintiffs' labor costs;
7) Judge Grant erroneously contested the matter;
8) the authorities cited by defendants do not support their case;
9) this court cannot base its determination on grounds not relied upon in the underlying agency decision;
10) since the plaintiffs had no intention of hiring employees, the mineral examiner's estimate of labor costs was wrong and Judge Sweitzer accepted plaintiffs' estimate of labor costs — Judge Grant failed to recognize Judge Sweitzer's finding and he should have been allowed to correct his mistake;
11) plaintiffs' request for remand should have been granted;
12) plaintiffs objected to the BLM's evidence of labor costs and Judge Sweitzer's ruling rejected the BLM's evidence; and
13) this case presented extraordinary circumstances warranting reconsideration.
In reply, defendants argue that:
1) plaintiffs have conceded that they were obliged to show all their mining costs, including labor costs and the resulting self-employment taxes;
2) plaintiffs had numerous opportunities to present evidence of their labor costs;
3) plaintiffs have failed to show that the IBLA's denial of reconsideration was an abuse of discretion; and
4) defendants' argument regarding plaintiffs' failure to mine is proper.
This court's review of the IBLA's decisions is limited to determining whether the decisions are arbitrary, capricious, an abuse of discretion, or not in accordance with law. Dredge Corp. v. Conn, 733 F.2d 704, 707 (9th Cir. 1984); Hoefler v. Babbit, 952 F.Supp. 1448, 1453-1454 (D.Or. 1996), affirmed, 139 F.3d 726 (9th Cir.), cert. denied, 525 U.S. 825 (1998). An agency's decision may only be called arbitrary and capricious if the agency: relied on factors which Congress did not intend it to consider; entirely failed to consider an important aspect of the problem; offered an explanation for its decision that runs counter to the evidence before the agency; or offered an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1448 (9th Cir. 1996) (citation omitted). An agency's decision may also be arbitrary and capricious if the agency fails to articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made; an agency must set forth clearly the grounds on which it acted. Friends of the Wild Swan, Inc. v. U.S. Fish and Wildlife Service, 12 F. Supp.2d 1121, 1131 (D.Or. 1997) (citations and quotations omitted). "This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (citation and quotations omitted).
In reviewing the decision of an ALJ, the IBLA has the authority to make de novo review of the entire record and to make findings based thereon. U.S. v. Dunbar Stone Co., 56 IBLA 61, 67-68 (1981). The IBLA is not bound by the ALJ's decision or his findings. Id. The IBLA is not limited in its review to the legal theories presented by the parties. Shiney Rock Mining Corp, 77 IBLA 261, 262 (1983).
The validity of a mining claim depends on the discovery of a valuable mineral deposit. Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir. 1999) (citing 30 U.S.C. § 22). To determine whether there has been a discovery of a valuable mineral deposit, the IBLA must apply the prudent-person test. Rogers v. Watt, 726 F.2d 1376, 1379 (9th Cir. 1984). The mineral deposit must be of a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine. Id.
The prudent-person test is an objective test, and it does not depend on what the claimant actually plans to do. U.S. v. Willsie, 152 IBLA 241, 771 (2000); U.S. v. Miller, 138 IBLA 246, 275 (1997). The determination of the validity of a mining claim can rest only on objective criteria, not subjective considerations. U.S. v. Rice, 73 IBLA 128, 140 (1983). The circumstances of the individual mining claimant are not relevant in applying the prudent-person test. U.S. v. Herald, 18 IBLA 43, 48 (1974).
Because the prudent-person test is objective, labor costs must be considered in determining whether a particular operation has a reasonable prospect of success, and the value of the labor of an individual mining claimant is not treated any differently than that of anyone he might hire. Miller, 138 IBLA at 275. "In conducting a profitability analysis, . . . the labor costs to be used are those that reflect the value that an ordinary person would expect to receive for his labor. . . . This is true whether the work is to be performed by the claimants or hired help."U.S. v. Clouser, 144 IBLA 110, 129 (1998). In calculating labor costs, it is proper to base the determination on ordinary labor costs that would be experienced on the claim were it going to be worked by a hired work force. Id. at 128.
Where . . . there is independent evidence establishing the value of the labor necessary to mine a deposit, it is that value which is properly used to determine whether or not a prudent man would expend his effort and means to develop a paying mine. The willingness of a claimant to accept less than the market value of his labor represents a subjective value judgment on the part of the claimant. In effect, for reasons unrelated to the economics of development, the mining claimant is subsidizing the operation of the claim by undervaluing his labor. The validity of the claim, however, must be premised on the objective economics surrounding the proposed mining venture.Miller, 138 IBLA at 276-277.
In a mining contest, the government bears the initial burden of going forward with sufficient evidence to support a prima facie case of invalidity. Hjelvik, 198 F.3d at 1074. The testimony of a government mineral expert that he has examined the claim and that the mineral could not be marketed at a profit establishes a prima facie case of invalidity. Dredge Corp., 733 F.2d at 707.
The burden then shifts to the claimant to prove by a preponderance of the evidence that the claim is valid. Hjelvik, 198 F.3d at 1074. The claimant needs only to preponderate as to issues raised by the evidence. Id. When a claimant challenges the government's evidence, it is incumbent on the claimant to produce evidence to overcome the government's evidence. Russell v. Peterson, 498 F.Supp. 8, 10 (D. Or. 1980).
The court finds that the IBLA's decision, authored by Judge Grant, applying a 25% labor overhead charge and declaring the Garden Spot Association Placer Mining Claim null and void for lack of discovery of a valuable mineral deposit was not arbitrary and capricious. Judge Grant's de novo review of the record was proper. Dunbar Stone Co., 56 IBLA at 67-68. The supplemental report by the BLM mineral examiner, which contained an economic analysis which included the 25% labor overhead charge, was properly admitted into evidence by Judge Sweitzer, was properly relied upon by Judge Grant, and established a prima facie case of invalidity. (AR 620, 1028, 1032, 2573, 2395-2424, 2579-2582). It was proper for the IBLA to include in the cost of labor the 25% overhead charge for fringe benefits a worker would receive. See Clouser, 144 IBLA at 128, 130-131.
The plaintiffs had an opportunity at the hearing to cross examine the BLM's expert and to offer their own evidence to counter the BLM's evidence. The burden was on the plaintiffs to offer objective evidence to counter the BLM's evidence. Lara v. Secretary of the Interior of U.S., 820 F.2d 1535, 1542 (9th Cir. 1987). Plaintiffs failed to meet this burden.
Plaintiffs offered no objective evidence of labor costs which included overhead. Plaintiffs instead offered subjective evidence that they would work the claim themselves and would not be subject to labor overhead, but instead to self-employment tax. Plaintiffs offered no evidence of the amount of self-employment tax. The evidence offered by plaintiffs was insufficient to meet the prudent-person test, which is an objective test that does not take into account a claimant's individual circumstances; whether plaintiffs planned to mine the claim themselves was irrelevant under the objective test.Miller, 138 IBLA at 275. The evidence offered by plaintiffs only shows that the plaintiffs were willing to subsidize their claim by working without the benefits a prudent person would expect. Id. at 276-277.
The only objective evidence of the objective labor cost was offered by the BLM's mineral expert. It was proper for the IBLA to consider this evidence and this evidence established that the plaintiffs' claim was invalid. The administrative record supports a finding that plaintiffs failed to overcome the BLM's prima facie case. Speculative cost reductions do not rebut a prima facie case. Clouser, 144 IBLA at 130. The decision to apply the 25% labor overhead charge was not arbitrary and capricious.
Under BLM regulations a motion for reconsideration may be granted in extraordinary circumstances for sufficient reason. The court finds that the IBLA did not abuse its discretion in denying plaintiffs' request for reconsideration. The court finds that the IBLA was not bound by the dissenting opinions when making its decision, and the IBLA's alleged failure to allow the authors of the Grant decision to revisit their decision did not violate any BLM regulations or any cited precedent. The court finds that the IBLA's finding that the plaintiffs failed to meet the burden to offer objective evidence of actual labor costs is supported by the record. Plaintiffs failed to offer such evidence at the hearing after the BLM introduced the supplemental report containing the labor overhead charge, and they did not request a continuance to gather such evidence. (AR 422-503, 509-534, 621, 702-705, 722-757). In their post-hearing brief plaintiffs argued that their labor costs should have been measured under a subjective standard. (AR 398-399). Plaintiffs could have offered such evidence in connection with their appeal or in connection with their motion for reconsideration, and that evidence could have been considered in determining plaintiffs' right to another hearing. U.S. v. Franklin, 45 IBLA 54, 58 (1980).
The IBLA's denial of reconsideration was not an abuse of discretion. The administrative record demonstrates plaintiffs had sufficient opportunities to present evidence to rebut the BLM's prima facie case, and that they failed to do so. The IBLA was not bound by the prior decisions of ALJs Sweitzer or Grant or the dissenting opinions. The IBLA did not violate any regulations or cited precedent by failing to remand the case to Judge Grant.
IV. ORDER
Based on the foregoing, as well as the briefing and arguments by the parties, it is ordered that plaintiffs' motion for summary judgment (#31) is denied, defendants' motion for summary judgment (#39) is granted, and this case is dismissed with prejudice.