Apr 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-2211. Petitioner-Appellant Copar Pumice Company, Inc. (Copar), proceeding under the Administrative Procedure Act, (APA), appeals the district court's denial of its petition for review concerning the Notice of Noncompliance that the United States Forest Service (FS) issued to Copar
concerning its pumice mining activities. The Appeals Court affirmed the district court's denial.
By way of background, Copar operates the El Cajete pumice mine on four unpatented mining claims located within the Jemez National Recreation Area in New Mexico. Pursuant to a written settlement agreement with the FS, Copar may extract pieces of pumice in excess of 3/4 inches in size "subject to all pertinent statutes and regulations." Copar's +3/4" pumice is an "uncommon variety" of pumice that has a distinct and special value as a stonewashing agent in the garment finishing industry: the pumice "abrade[s] denim fabric, especially jeans, by creating a worn look on new denim fabric."
After El Cajete mining operations began, the FS learned that Copar was not exclusively selling its +3/4" pumice to the garment finishing industry; rather, Copar was selling some of its +3/4" pumice to other industries for common variety uses. The FS claimed that this practice violated the applicable regulations, as well as the settlement agreement. Copar disagreed, and the FS eventually issued Copar a Notice of Noncompliance.
The Appeals Court ruled, "Copar acknowledged in the settlement agreement that it had no right to extract common variety pumice from El Cajete. Because it was not arbitrary and capricious for the FS to conclude that the portion of Copar's +3/4" pumice that is not destined for the garment finishing industry is common variety pumice, Copar had no right to extract common variety pumice, and therefore no taking occurred."
Access the complete opinion (click here).
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