Brennan v. Udall

• Decision Date: 16 February 1966
• Docket Number: Civ. A. No. 8542.
• Citation: 251 F. Supp. 12
• Parties: C. W. BRENNAN, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Colorado

251 F. Supp. 12

C. W. BRENNAN, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior, Defendant.

Civ. A. No. 8542.

United States District Court D. Colorado.

February 16, 1966.

COPYRIGHT MATERIAL OMITTED

Fred M. Winner, Winner, Berge, Martin & Camfield, William S. Livingston, Denver, Colo., Whiteford, Hart, Carmody & Wilson, Washington, D. C., for plaintiff.

Lawrence M. Henry, U. S. Atty. for Dist. of Colorado, David I. Shedroff, Asst. U. S. Atty., and Robert Mesch and Lowell Madsen, Dept. of the Interior, Washington, D. C., for defendant.

WILLIAM E. DOYLE, District Judge.

This case was tried to the Court; evidence was taken, elaborate briefs were filed, and the matter now stands submitted on the basis of extensive testimony and numerous exhibits.

The plaintiff alleges that jurisdiction is conferred on the Court by the Administrative Procedure Act, 5 U.S.C. § 1009. Plaintiff has secured a legal opinion from the Secretary of Interior with respect to the title of plaintiff's predecessor in interest. The opinion of the Secretary adversely affects plaintiff's interests and raises issues which are sufficient to permit the granting of the relief which is here requested. We find sufficient grounds to accept jurisdiction under the provisions of the cited act and thus it is not necessary to determine whether additional jurisdictional basis exists.

Plaintiff alleges that federal question jurisdiction is present (Title 28 U.S.C. § 1331); that jurisdiction is properly based upon mandamus (28 U.S.C. § 1361); and that there is an adequate basis for jurisdiction which would grant declaratory relief (28 U.S.C. § 2201). In view, however, of our conclusion that the Administrative Procedure Act authorizes bringing of the suit and the granting of the relief demanded, it is unnecessary to determine whether the other cited provisions would also vest the Court with jurisdiction.

The defendant maintains that this suit is one that seeks to quiet title and as such is an unconsented action against the sovereign. Defendant further maintains that neither injunctive, mandamus, nor declaratory judgment relief is appropriate for the reason that the plaintiff, so it is argued, can not demonstrate imminent harm nor a clear duty not performed by defendant.

Cases relied on by defendant in support of his position that this Court lacks jurisdiction do not involve the issue of excess of administrative authority, but rather concern only challenges to the correctness of a decision committed by law to administrative discretion. See Switzerland Company v. Udall, 4 Cir. 1964, 337 F.2d 56; Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 7 L.Ed.2d 842 (1963).

Involved herein is the question whether the plaintiff is entitled to the oil shale content of certain lands obtained by plaintiff's predecessor in title through a patent issued pursuant to the Homestead Act (43 U.S.C. § 161), and subject to the conditions of the Act of July 17, 1914, (30 U.S.C. § 121 et seq.).

The history of the Baxter patent in relationship to the 1914 Act is important to our analysis of the plaintiff's several arguments. The application was made in 1907 by one George Baxter. In it he described the land as nonmineral. His entry onto the 160 acres of land in Township 2 South, Range 97 West, 6th P.M. Colorado was also in 1907. On December 18, 1909, Baxter filed with the Land Office at Glenwood Springs, Colorado, his formal application to enter the land under the provisions of the 1891 Homestead Act. Therein the land was described as non-mineral. A receiver's receipt was duly issued. On August 1, 1912, pursuant to the act of June 6, 1912, 43 U.S.C. § 164, Baxter filed notice of his election to make proof under the 1891 Homestead Act under which the entry was made. On July 17, 1914, Congress passed a statute "to provide for agricultural entry of lands withdrawn, classified, or reported as containing phosphate, nitrate, potash, oil, gas, or asphaltic minerals." 30 U.S.C. § 121. The controversy here centers around the meaning and applicability of this statute. This 1914 Act allowed homestead entry of lands classified as mineral provided that the entryman would agree to reserve in the United States title to the mineral for which the land was classified as valuable.¹ Its purpose was, therefore, to allow the issuance of agricultural patents on mineral lands provided an appropriate reservation was made. Subsequently, on May 23, 1916, the Commissioner, General Land Office, acting pursuant to the 1914 Act, classified some 87,000 acres of oil-shale land in Colorado as mineral lands, valuable as a source of petroleum and nitrogen.²

Baxter's land was among the tracts which were classified by the Commissioner on this occasion. On June 29, 1916, the Commissioner advised the Register and Receiver at Glenwood Springs, Colorado, that the classification had been made without withdrawal and would "be operative under and subject to the provisions of the act of July 17, 1914." Baxter did not receive the letter classifying his land as oil-shale land, nor, apparently, a copy of the Commissioner's letter advising the Register and Receiver in Glenwood Springs that the classification had been made pursuant to the 1914 Act.

In any event, when Baxter applied to make final proof before the Glenwood Springs Register, he was advised that he would have to sign a "petroleum waiver."³ In making final proof on January 13, 1917, Baxter certified that to his knowledge there was no indication of any kind of minerals on the land. The final certificate, issued to Baxter January 25, 1917, contained a notation that the patent was to contain provisions, reservations, conditions and limitations in accordance with the Act of July 17, 1914 "as to nitrates, oil and gas." Consequently, on September 22, 1917, Baxter was issued a patent containing the following language:

"Excepting and reserving, also, to the United States all the nitrate, oil, and gas in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine, and remove such deposits from the same upon compliance with the conditions and subject to the provisions and limitations of the Act of July 17, 1914 (38 Stat. 509)."

Following the issuance of the patent there apparently were no noteworthy happenings until October 29, 1963. The plaintiff herein at that time petitioned the Director, Bureau of Land Management, demanding a decision that "oil shale" was not included as "oil, gas or nitrate" as used in the 1914 Act. The Bureau of Land Management issued an opinion which became the final decision of the Department, recorded on January 20, 1964.⁴ We are called upon to determine the correctness of this decision.

In support of his theory that the Department's decision is invalid and must be reversed, plaintiff advances several arguments: First, that the patent itself must be strictly construed; that it fails to contain any mention of oil shale and at this late stage cannot be changed. Secondly, that the Secretary of Interior lacked authority to make any kind of reservation under the 1914 Act in Baxter's patent; that the Secretary lacked power to make any kind of a classification in 1916 inasmuch as Baxter had already entered the land and occupied it under the 1891 Homestead Act. In this connection, plaintiff calls attention to what is known as the "Pickett Act" of June 25, 1910, 43 U.S.C. § 141 et seq. This expressly prohibits the President from withdrawing lands entered in good faith under the homestead laws prior to the attempted withdrawal.⁵ See United States v. Midwest Oil Co., dissenting opinion, 236 U.S. 459, 510, 35 S.Ct. 309, 327, 59 L.Ed. 673 (1915). The crux of plaintiff's argument in this regard is that the Secretary's power to classify lands cannot be broader than the President's power to withdraw lands.

Plaintiff also argues quite forcibly that the 1914 Act could not in any event be applied to the Baxter land in that it does not and can not have any retroactive effect; that by its own terms, when read in conjunction with its history, it applies only to entries made after its enactment.

Plaintiff's third point is that the reservation in question did not reserve oil shale; that the 1914 Act under which the reservation was made, reserves oil and gas and that this does not and can not result in a reservation of oil shale.

I.

WHETHER THE SECRETARY HAD POWER TO CLASSIFY THE LAND IN QUESTION.

It is important to note at the outset that Baxter's patent was an agricultural and surface one and that he signed a waiver agreeing to the reservation of the 1914 Act. He contested neither the validity of the reservation nor its accuracy. At this late date, then, it would have to appear that the reservation was clearly unauthorized in the 1914 Act in order for plaintiff to be entitled to relief on the basis of his present contentions. His argument re the power of the Secretary is for the most part based upon the terms of the Pickett Act of 1910 which grants to the President authority to withdraw lands for various purposes, including classification.⁶ There is nothing in the Act which suggests an intent on the part of Congress to limit the Secretary's power to classify lands; rather, the Pickett Act was designed to clarify the President's authority to withdraw public lands. See United States v. Midwest Oil Co., supra.

In essence, plaintiff's argument is that to hold that there is administrative authority in the Secretary to classify lands would mean that the Secretary would have broader power in this regard than the President. If the powers are indeed the same the argument is cogent; however, we do not think that plaintiff makes a logical comparison. When land is classified by the Secretary as mineral at some time prior to patent, an affected entryman could under departmental regulations contest the accuracy and validity of the classification. However, land withdrawn by the President could not be challenged by a person affected....