United States District Court, D. Idaho
ARIZONA LITHIUM COMPANY LTD., an Arizona corporation; IDAHO METALS CORP., an Idaho corporation; INTERNATIONAL COBALT CORP., a Canadian corporation, Plaintiffs/Counter-defendants,
NORTH AMERICAN COBALT, INC., a Nevada corporation, Defendant/Counterclaimant.
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
before the Court is Defendant's Motion for Summary
Judgment (Dkt. 45), Plaintiffs' Motion for Partial
Summary Judgment (Dkt. 50), and Defendant's "Motion
in Limine to Exclude Expert Opinion Testimony Not Previously
Disclosed and Evidence Created by Plaintiffs after Close of
Discovery" (Dkt. 59). Following briefing on the motions,
the court held oral argument and took the matter under
advisement. After fully considering the arguments presented
by the parties, and for the reasons set forth below, the
Court finds good cause to GRANT in part and DENY in part
Defendant's Motion for Summary Judgment, to DENY
Plaintiffs' Motion for Partial Summary Judgment, and to
dismiss Defendant's Motion in Limine to Exclude Expert
Opinion Testimony as MOOT.
Factual Background 
lawsuit arises out of a dispute over unpatented lode mining
claims located in Lemhi County, Idaho.
Plaintiffs/Counter-Defendants Arizona Lithium Company Ltd.,
and transferees of interests, Idaho Metals Corp. and
International Cobalt Corp. (collectively "Arizona
Lithium") brought this suit for declaratory relief and
to quiet title to mining claim Nos. 1 through 58 inclusive,
situated within various sections of Township 21 North, Range
18 East of the Boise Meridian, in Lemhi County, Idaho
(collectively, the "BOCO Claims"). Defendant, North
American Cobalt Inc. ("NAC"), formally known as
Battery Mineral Resources (United States), Inc.
("BMR"), claims a senior possessory interest in 111
"BATT" lode mining claims ("BATT Claims")
that cover, in part, the same locations as the BOCO Claims.
instant motions involve three types of claims: (1) those that
overlap or partially overlap; (2) those which do not overlap
and which only NAC claims an interest in; and (3) those which
do not overlap and which only Arizona Lithium claims an
interest in. Arizona Lithium seeks partial summary judgment
with respect to some of the BOCO and BATT claims that
undisputedly coincide, specifically BATT Claims 60-69 and
80-87, which the parties agree overlap with BOCO Claims
50-58. Arizona Lithium argues the undisputed facts entitle it
to a declaratory judgment finding BATT Claims 60-69 and 80-87
are void as a matter of law due to NAC's improper
staking. Arizona Lithium contends such conclusion would
render that land open for mineral exploration and entitle
Arizona Lithium to quiet title in BOCO Claims 50-58 based on
Arizona Lithium's proper staking and discovery of mineral
deposits within such claims.
Lithium does not seek summary judgment on those claims which
do not overlap and which only NAC claims an interest in, but
argues there is a question of fact precluding summary
judgment as to which BATT and BOCO Claims overlap. Arizona
Lithium also seeks to quiet title in BOCO Claims 3-8 "on
the undisputed basis that NAC does not seek to quiet title in
those claims." Dkt. 50-2, at 7. The parties agree BOCO
Claims 3-8 do not overlap with any of the BATT Claims, and
that NAC does not claim an interest in BOCO Claims 3-8.
contrast, NAC suggests summary judgment should be granted
because: (1) Arizona Lithium has not made a mineral discovery
and cannot claim a possessory right to the BOCO Claims which
undisputedly overlap with, and are junior to, NAC's valid
claims; (2) Arizona Lithium does not have standing to contest
the BATT Claims it does not claim an interest in; and (3)
although NAC does not claim an interest in BOCO Claims 3-8,
Arizona Lithium's attempt to quiet title in such claims
exceeds the Court's jurisdiction.
The BATT Claims
early September of 2016, NAC hired Ethos Geological LLC
("Ethos") to stake mining claims for NAC on land
that had previously been located by another company,
Formation Capital, after Formation Capital allowed its claims
to lapse. Prior to staking the BATT Claims, a geologist for
Ethos, Scott Close checked with the Bureau of Land Management
("BLM") to ensure there were no outstanding claims
on file, and also went to the courthouse in Lemhi County to
check whether any outstanding claims had been recorded. Close
found no competing claims of record in Lemhi County or with
September 7-9, 2016, an Ethos crew headed by Close staked the
111 BATT Claims. Ethos staked many of these claims by hand.
Specifically, on September 7, 2016:
[T]he Ethos crew drove to a trailhead, hiked to a prominent
ridge above the area to be staked and established a permanent
monument at that location. From that permanent monument, the
four Ethos crew members hiked in parallel lines to locate the
corners of the top or northern four rows of the BATT Claims.
Each row consisted of 18 claims (600x1500 ft each). Each crew
member had a GPS device used to accurately place the corner
locations. The crew utilized natural monuments, including
trees, stumps and other vegetation to locate the corners of
the BATT Claims. They affixed tags describing the claim and
flagging to each corner monument. ... It took them all day to
locate the corners, finishing up in the twilight[.]
45-2, ¶ 4.
September 8, 2016, Ethos arranged for a helicopter to come to
Salmon to help complete the staking for the remaining BATT
Claims. The helicopter arrived on September 9, 2016, and two
members of the Ethos crew staked the remaining BATT Claims by
hovering over the site of each corner and releasing 4x4 posts
from the helicopter onto the ground. Close directed the
helicopter to each corner of the remaining BATT Claims using
his GPS coordinates. Ethos made two trips on September 9,
2016, and finished staking the area by helicopter that day.
Ethos recorded certificates of location for all 111 BATT lode
claims with the Lemhi County Recorder on September 9, 2016.
As required by statute, Ethos subsequently filed copies of
the recorded location notices with the Idaho field office for
the BLM less than 90 days after staking the claims. Because
it was retained to stake the claims on NAC's behalf,
Ethos later quitclaimed, transferred, and assigned the 111
BATT Claims to NAC. For purposes of its Partial Motion for
Summary Judgment, Arizona Lithium seeks a declaration finding
BATT Claims 60-69 and 80-87 invalid due to NAC's
contends an Ethos crew returned to the site of the BATT
Claims several times over the course of the next two years.
First, one year later, on September 23-24, 2017, Ethos
returned to maintain, to explore, and to map the surface
geology of the BATT Claims. Ethos returned in December of
2017, to take soil and rock samples and conduct additional
site investigation. Ethos again visited the site in April
2018, to stake claims near the BATT Claims. Close returned in
June of 2018, to collect rock samples. A four-person Ethos
crew returned to the BATT claims in July and August of 2018,
to perform additional maintenance work and site
investigation, including soil mapping and soil and rock
sampling. In September and October of 2018, a six-person
Ethos crew continued geologic investigation, and, in
purported work toward a discovery of mineral deposits on the
BATT Claims, took approximately 300 soil samples covering
each BATT Claim, and conducted extensive on-the-ground
geophysical exploration. NAC suggests an aerial geophysical
survey of the BATT Claims is underway, and that Ethos is
developing a drilling plan to submit to the Forest Service
for the next stage of investigation of the BATT claims.
addition to the aforementioned work, NAC contends Ethos has
added new claim tags to the corners of the claims over the
faded original corner tags, has ensured that all corner posts
and monuments are in the correct location and standing, and
has affixed copies of the recorded certificates of location
and amended certificates in plastic vials to the corners of
all of the BATT Claims. NAC has also paid the required fees
and filed the appropriate documents to maintain the BATT
Claims for the 2017, and 2018, annual periods.
The BOCO Claims
September of 2016, Arizona Lithium hired Carlin Trend Mining
Services ("Carlin Trend") to stake the BOCO Claims
for Arizona Lithium. Carlin Trend is located in Elko, Nevada,
and provides claim staking services in various western
states, including Idaho. Carlin Trend's team consisted of
Sandi Sullivan, Curtis Barlow, and Parker Walker. Sullivan
researched the BOCO Claims project area from Carlin
Trend's Elko offices. She searched the BLM's database
for public reports on mining claims. Sullivan checked the
database several times between August and September 2016, but
did not locate any mining claims filed in the proposed
project area of the BOCO Claims. Sullivan also attempted to
look on the Lemhi County Recorder's website for any
claims in the project area that had been recorded with the
County, but she was unable to access recorded records via
Lemhi County's website.
September, 2016, Barlow and Walker traveled to Lemhi County
to stake the BOCO Claims. On September 25, 2016, the two
began the process of locating the BOCO mining claims. There
was no road access to the project area, so they were flown in
by helicopter. Walker was left near the south end of the
claim block, along with a number of 4x4 milled posts to be
placed at designated points to locate the BOCO Claims. Barlow
remained on the helicopter to drop the remaining posts in the
BOCO Claim block so that he and Walker could return to place
the posts at designated corner points. While staking, both
Walker, on the ground, and Barlow, from the helicopter,
spotted wooden posts lying on the ground in the same area
where they intended to stake the BOCO Claims. The two men
stopped the staking process to inspect the posts and attempt
to identify the locator.
post, Walker and Barlow found a tag dated September 7, 2016.
The tag included a reference to "BATT," the
corners, and an X with numbers. Barlow immediately consulted
Sullivan regarding the BATT posts and asked whether he should
continue staking the BOCO claims. Sullivan instructed Barlow
to further investigate the area to determine any prior claims
work he and Walker could identify.
and Walker spent most of the rest of September 25, 2016,
looking for additional information about the BATT Claims.
They searched for paperwork, location monuments, and other
corner posts. Barlow and Walker found three BATT posts on the
ground. Although they hiked 1, 500 feet in all directions
(the maximum length of a lode claim) from each BATT post,
they did not find any paper notices containing all of the
information necessary for a notice of location. Barlow and
Walker also flew over the area by helicopter but did not see
any additional posts from the air.
the team's reconnaissance, Sullivan consulted with
Arizona Lithium regarding what Barlow and Walker had observed
and asked whether they should continue staking claims.
Sullivan and Arizona Lithium ultimately determined the BATT
Claims were not likely valid, and that the area remained open
for location. Arizona Lithium directed Carlin Trend to
continue staking the BOCO Claims unless the team found some
evidence that the BATT Claims were legitimate.
and Walker staked three BOCO Claims on September 25, and
staked the remaining BOCO Claims on September 26-28, 2016. As
they did so, they continued to look for posts or other
evidence related to the BATT Claims. While staking, Barlow
and Walker found a total of 10 BATT corners, most of which
consisted of orange tags attached to trees, and a total of
four posts lying on the ground. Arizona Lithium contends the
Carlin Trend team did not observe any notices of location,
and that none of the orange tags attached to trees or posts
contained the information required to identify the tree or
post as a notice of location.
BOCO Claims were staked by erecting 4x4 inch wooden posts
that stood approximately four feet tall. At one corner of
each claim, Carlin Trend attached a notice of location to the
wooden post using a weather proof red vial. Some of the BOCO
Claims were staked using "witness" posts, or posts
used to mark a corner where it was impracticable to place a
post in the true corner location. Arizona Lithium suggests
Carlin Trend used witness posts because of the challenging
terrain, including the heavily wooded area, new growth, and
downfalls, for safety reasons, and so Barlow and Walker would
not need to camp overnight in the remote project area.
Arizona Lithium also notes no witness posts were used for
staking the 58 BOCO Claims, Arizona Lithium recorded the BOCO
Certificates of Location in Lemhi County, and with the BLM,
in December of 2016. Arizona Lithium filed Amended
Certificates of Location on January 2, 2018. On October 15,
2018, Sullivan filed Second Amended Certificates to add the
name of the relevant mining district (Blackbird) and to
correct an omission in the First Amended Certificates.
Lithium filed suit on July 17, 2017, in the Idaho district
court for Lemhi County. NAC's predecessor in interest,
BMR, removed the matter to the United States District Court
for the District of Idaho. Arizona Lithium's initial
complaint sought a declaratory judgment invalidating the BATT
Claims and quieting title in BOCO Mining Claims 1-58.
September 27, 2017, NAC moved to dismiss Arizona
Lithium's suit for failure to comply with Idaho Code.
Dkt. 12. Specifically, NAC suggested Arizona Lithium failed
to adequately fulfill the affidavit requirement of Idaho Code
section 47-611. After briefing, but before oral argument,
Arizona Lithium filed its first amended notices of location.
The Court denied NAC's motion to dismiss, concluding that
even if the original notices of location were deficient, the
amendment was proper and related back to the original date of
filing: December 16, 2016.
Lithium filed its First Amended Complaint on June 13, 2018.
Dkt. 31. In its Amended Complaint, Arizona Lithium seeks: (1)
declaratory judgment, specifically a declaration of its
rights to the BOCO Claims and the invalidity of the BATT
Claims; and (2) to quiet title to the BOCO Claims. NAC
counterclaimed for declaratory relief finding Arizona Lithium
has no right, title, or interest in any of the BOCO Claims
which overlap with the BATT Claims, declaring NAC is entitled
to possession of the BATT Claims which do not overlap with
the BOCO claims, and enjoining Arizona Lithium from
trespassing on, or interfering with, NAC's possessory
interest in the BATT Claims. Dkt. 34. The parties filed
cross-motions for summary judgment on October 19, 2018. Dkt.
45; Dkt. 50.
is entitled to summary judgment if the "movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although "[credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge," the "mere existence of a scintilla of
evidence in support of the [non-movant's] position [is]
insufficient" to avoid summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252-255 (1986). If
the "record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no
genuine issue for trial." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation and quotation marks omitted).
as here, parties file cross-motions for summary judgment, the
court "evaluate[s] each motion separately, giving the
non-moving party in each instance the benefit of all
reasonable inferences." A.C.L.U. of Nev. v. City of
Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)
(quotation marks and citation omitted); see also Pintos
v. Pac. Creditors Ass 'n, 605 F.3d 665, 674 (9th
Cir. 2010) ("Cross-motions for summary judgment are
evaluated separately under [the] same standard."). In
evaluating the motions, "the court must consider each
party's evidence, regardless under which motion the
evidence is offered." Las Vegas Sands, LLC v.
Nehme, 632 F.3d 526, 532 (9th Cir. 2011).
outset, it is necessary to define the nature of the property
rights at issue in this dispute. Although the parties ask the
Court to quiet title with respect to certain claims, this
suit is properly classified as an action to determine
competing possessory interests to unpatented mining claims.
Hedrick v. Lee, 227 P. 27, 28 (Idaho 1924)
("The rights of conflicting locators to an unpatented
mining claim can in the very nature of things be the subject
of only a possessory action, and not of an action to quiet
title in the true sense of the term."). Due to issues
regarding standing and jurisdiction, the Court must first
dispose of those claims which are not subject to competing
Non-Overlapping BATT Claims
Amended Complaint, Arizona Lithium asks the Court to declare
all 111 BATT Claims invalid due to NAC's alleged failure
to properly locate such claims. NAC counters that Arizona
Lithium does not have Article III standing to challenge 52 of
the BATT claims because ...