Burnham Chemical Co. v. Krug, Civil Action No. 1579 — 47.
| Decision Date | 28 January 1949 |
| Docket Number | Civil Action No. 1579 — 47. |
| Parties | BURNHAM CHEMICAL CO. v. KRUG, Secretary of the Interior, et al. |
| Court | U.S. District Court — District of Columbia |
Mabel Walker Willebrandt and Thomas P. Corwin, both of Washington, D. C., for plaintiff.
Ralph S. Boyd, Department of Justice, of Washington, D. C., for defendants.
This is an action against the Secretary of the Interior, to require him to grant the plaintiff's application for a prospecting permit on certain lands located in what is known as the Kramer Borax District in the State of California.
The application was presented to the Department of the Interior on June 1, 1928. It sought a prospecting permit for sodium borates in the lands involved in this action. The application was presented pursuant to the provisions of Section 23 of the Act of February 25, 1920, known as the Mineral Leasing Act, U.S.C.A., Title 30, § 261.1 When the application was presented, the Act provided: "The Secretary of the Interior is hereby authorized and directed, under such rules and regulations as he may prescribe, to grant to any qualified applicant a prospecting permit." The mandatory words "and directed" were deleted from the statute by an amendment enacted on December 11, 1928.2
While the provisions of Section 23, as they existed at the time of the filing of the application, did not confer any discretion on the Secretary of the Interior, but imposed on him a mandatory duty to grant a prospecting permit to a qualified applicant, nevertheless that section must be read in conjunction with other sections of the same statute. Section 24 of the Act, U.S.C.A., Title 30, § 262, in effect, provided that lands known to contain valuable deposits of one of the substances enumerated in Section 23, and not covered by permits or leases, should be subject to lease by the Secretary of the Interior. It seems to the Court that in order to give effect to both sections of the Act, the mandatory provisions of Section 23 must be deemed inapplicable to lands embraced within Section 24, namely, lands known to contain valuable deposits of one of the minerals enumerated in Section 23.
At approximately the same time, or within a few months of the time when the plaintiff filed his application for a prospecting permit, another concern filed an application for a lease on the same land, under the provisions of Section 24. The Department of the Interior then suspended action on the plaintiff's application for a prospecting permit and conducted hearings on the application for a lease. The proceeding terminated, in so far as the plaintiff's application for a prospecting permit is concerned, on February 9, 1929, by a denial of plaintiff's application. The denial was based on the ground that the land in question was known to contain mineral deposits and, therefore, was subject to lease under Section 24, and not subject to prospecting under Section 23.
The Court is unable to reach the conclusion that there was anything either arbitrary or capricious in the conclusion reached by the Secretary of the Interior. Neither is there any basis for a determination that this finding was not supported by substantial evidence, even if the finding is subject to judicial review and does not involve a pure matter of executive discretion, — a subject concerning which the Court expresses no opinion at this juncture. Consequently the Court does not feel that there is any basis for setting aside the action of the Department of the Interior on the merits.
It is contended by the plaintiff that the Department of the Interior violated the law in not performing the mandatory duty imposed upon it to grant the application for a prospecting permit. While the provisions of the section are indeed mandatory, it does not follow that the duty imposed on the Secretary of the Interior is to grant an application automatically. He had a right — in fact, I think he had a duty — to consider and determine whether the lands in question were embraced within the purview of Section 23. Especially was this...
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