Nelson v. Interior Bd. of Land Appeals

• Decision Date: 12 June 1979
• Docket Number: No. 77-3523,77-3523
• Citation: 598 F.2d 531
• Parties: Leonard F. NELSON, Plaintiff-Appellant, v. INTERIOR BOARD OF LAND APPEALS, etc., et al., Defendants-Appellees, and Cecil D. Andrus, Secretary of the Interior, etc., et al., Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 531

598 F.2d 531

Leonard F. NELSON, Plaintiff-Appellant, v. INTERIOR BOARD OF LAND APPEALS, etc., et al., Defendants-Appellees and Cecil D. Andrus, Secretary of the Interior, etc., et al., Defendants.

No. 77-3523.

United States Court of Appeals Ninth Circuit.

June 12, 1979.

Stephen M. Ellis (argued), Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, Alaska, for plaintiff-appellant.

James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist, Atty., Appellate Section, Land and Natural Resources Div., U. S. Dept. of Justice (argued), Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before DUNIWAY, TRASK and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

This is the second appeal in this case. Our first decision is reported in Nelson v. Kleppe, 9 Cir., 1976, 529 F.2d 164. There, we held that a decision by the Interior Board of Land Appeals of the United States Department of the Interior was erroneous. The Board, overruling a decision of a hearing examiner, had held that Nelson did not have a habitable house on the homestead property when he filed his application for a patent. We reversed the decision of the district court, which had upheld the decision of the Board, and remanded the case to the district court for further proceedings.

The district court in turn remanded the matter to the Board of Land Appeals "for a final determination of all questions remaining concerning the issuance of (this) patent." ¹ On January 16, 1977, the Board handed down its second decision, 28 I.B.L.A. 314. It held that the remaining questions to be decided were whether Nelson had cultivated at least one-eighth of the homestead acreage for at least one year before filing final proof, whether his attempt at cultivation was made in good faith, and whether he had established and maintained his residence on the homestead to the exclusion of one elsewhere.

The hearing examiner had held that Nelson had met both the cultivation requirements and the residence requirements. The Board reversed both of these holdings, in a two to one decision. As to the residence requirement, it held that Nelson had not entered upon the property with a bona fide intention to make it his home. As to the cultivation requirements, it held that while the amount of acreage cultivated was sufficient, the cultivation was not done in good faith seeking to establish a profitable agricultural operation on the entry.

Nelson petitioned the district court for review of the Board's decision, and the Secretary moved for a summary judgment. The district court concluded that the Board's decision that Nelson had not met the cultivation requirements was in error, but that the Board's determination that Nelson had not met the residence requirement was correct. Summary judgment was entered to that effect. Nelson appealed and that appeal is now before us. The Secretary also appealed, presumably for the purpose of attacking the portion of the judgment reversing the Board's determination that Nelson had failed to comply with the cultivation requirement. However, on motion of the Secretary for voluntary dismissal, that appeal was dismissed on June 16, 1978, our No. 78-1049.

Accordingly, the only question before us is whether the portion of the district court's judgment upholding the Board's determination that Nelson failed to comply with the residence requirement of the homestead law should be reversed. It is our conclusion, upon review of the whole record, that the decision of the Board on this question is not supported by substantial evidence, 5 U.S.C. § 706(2)(E). As before, "(w)e confine our decision to the case of the veteran." (529 F.2d at 168), who is the beneficiary of special provisions of the law relaxing certain of the requirements for a valid homestead.

In reversing the decision of the hearing examiner, the Board relied almost entirely upon one fact, namely, that when Nelson built his house on the homestead property and moved into that house with his wife and children, he leased the house that he owned in Anchorage for a period of time corresponding very closely to the seven-month minimum time during which the law required him to reside upon the property in order to obtain a patent. This, together with the fact that at the end of the seven months Nelson and his family moved back to the Anchorage house, persuaded the Board that, contrary to the hearing examiner's findings, Nelson did not have the required bona fide intent to make the homestead his home when he moved onto the homestead property.

The difficulty with the finding of the Board, which was sustained by the district court, is that it disregards all of the other evidence in the record which points very strongly to the conclusion that Nelson did intend in good faith to make the property his home when he moved onto the property.

The hearing examiner decided that the fact that Nelson leased his Anchorage home did not show that Nelson did not intend to make the homestead his home. The examiner first described in detail the almost incredible difficulties that Nelson faced and overcame in order to occupy the homestead...