Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1990)

No. 90-35369.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and PRO,**  District Judge.

MEMORANDUM*** 

Jack Stanley appealed to the Interior Board of Land Appeals (IBLA) a decision by the Bureau of Land Management (BLM) declaring his mining claims to be null and void ab initio. Kirk Stanley, principal of Ptarmigan Company, Inc., moved to intervene. The IBLA affirmed. See Jack Stanley, No. 86-1585, 103 IBLA 392 (Aug. 15, 1988). In so doing, it rejected Kirk's motion to intervene as unrelated to the issues presented in Jack's appeal. See id. at 396. To the extent the motion to intervene was actually a petition for reconsideration of an earlier IBLA decision, Ptarmigan Co., No. 84-290, 91 IBLA 113 (Mar. 17, 1986), the petition was denied as untimely pursuant to 43 C.F.R. 4.403. See Jack Stanley, 103 IBLA at 396.

Ptarmigan Company filed a complaint for review in the district court challenging the IBLA's denial of the motion to intervene. The district court granted summary judgment to the Secretary of the Interior. The court held that the IBLA's original decision in Ptarmigan Co. was correct. See Order 6-7, Ptarmigan Co., Inc. v. United States, No. A88-467 Civ. (Mar. 30, 1990). The court also noted that the request for reconsideration was untimely under the applicable federal regulations, and was supported only by evidence which was available during the IBLA's original consideration of Ptarmigan and "new" evidence of negligible value. See id. at 7-9. Finally, the court indicated that the IBLA in the original Ptarmigan matter had correctly resolved Ptarmigan's substantive "estoppel" argument. See id. at 8 (referencing Order, Bolt v. United States, No. A87-106 Civ. (Mar. 30, 1990)).

We review the district court's grant of summary judgment de novo. Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1057 (9th Cir.), cert. denied, 488 U.S. 828 (1988). The IBLA's denial of the motion to intervene in Jack Stanley will be upheld "unless it is arbitrary, capricious, an abuse of discretion, or contrary to law." Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1439 (9th Cir. 1990).

We perceive no abuse of discretion in the denial of the motion. The issues raised by Kirk Stanley and Ptarmigan Company were unrelated to the issues litigated by Jack Stanley, involving both different mining claims (albeit to the same land) and different legal controversies. Treated as a petition for reconsideration, the motion to intervene came well after the time for filing such a petition had elapsed under the Code of Federal Regulations.

Although Ptarmigan Company urges a rather unusual application (by analogy) of Federal Rule of Civil Procedure 60(b) to provide relief from the IBLA's original decision in Ptarmigan Co., even that rule would not require reversal: Rules 60(b) (2) and (3),1  the plausible bases for a reopening of Ptarmigan Co., themselves are subject to a one-year limitation. The motion to intervene came more than two years after the original Ptarmigan Co. decision.

Finally, even if reconsideration of the Ptarmigan Co. decision were granted, we agree with the district court and the IBLA that Ptarmigan Company's arguments on the merits are unavailing. The traditional elements of estoppel are (1) knowledge of the facts by the party to be estopped, (2) intent to induce reliance, (3) ignorance of the facts by the relying party, and (4) detrimental reliance. Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir. 1989) (en banc), cert. denied, 111 S. Ct. 384 (1990). Additionally, for the government to be estopped there must be (1) affirmative misconduct (not mere negligence) and (2) serious injustice outweighing the damage to the public interest of estopping the government. Id. at 707-08. Even with the "new" evidence, Ptarmigan Company cannot demonstrate any affirmative misconduct rising above the level of simple negligence.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

The Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

Rule 60(b) (2) permits relief from a judgment due to the discovery of new evidence which could not have been discovered previously. Rule 60(b) (3) permits relief from judgments obtained by the fraud or other misconduct of the adverse party