Brubaker v. Morton

Decision Date27 June 1974
Docket NumberNo. 73-2974,73-2974
PartiesR. W. BRUBAKER, who is also known as Ronald W. Brubaker, et al., Appellants, v. Rogers C. B. MORTON, as Secretary of the Interior of the United States ofAmerica, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John B. Lonergan, San Bernardino, Cal., for appellants.

Edmund B. Clark, Chief, App. Section, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for appellee.

Before DUNIWAY and GOODWIN, Circuit Judges, and SKOPIL, * District judge.

OPINION

ALFRED T. GOODWIN, Circuit Judge:

The Secretary of the Interior invalidated appellants' placer mining claims located on public lands. Appellants sued, 1 contending that the Secretary erred in concluding that mineral deposits of colored stone, used for decorative roofing material, were 'common varieties' of stone, not subject to claim and location under the federal mining laws. The district court agreed with the Secretary, and granted summary judgment. We affirm.

The Secretary's decision was the culmination of administrative proceedings initiated by the filing of contests by the Bureau of Land Management in 1963, charging that the claims were of a 'common variety' of stone, not locatable under the mining laws at the times the claims were located. 2 After ten years of hearings and administrative appeals, the Interior Board of Land Appeals, acting pursuant to authority delegated to it by the Secretary, 43 C.F.R. 4.1, held that appellants' claims were void because their brightly colored stone, while selling for a higher price than gray stone did not have a special and distinct value over that of other stone deposits in common supply in the same market area. Hence, their stone was a common variety within the meaning of section 3 of the Act of July 23, 1955, 69 Stat. 368, 30 U.S.C. 611, and was not subject to mineral filing. 3

Title 30 U.S.C. 611 states in pertinent part as follows:

'No deposit of common varieties of sand, stone, gravel, pumice, pumicite or cinders * * * shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws * * *. 'Common varieties' as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value * * *.'

In United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968), the Supreme Court held that this section does apply to common varieties of building stone, but that 30 U.S.C. 161, authorizing mining locations of lands chiefly valuable for building stone, remains viable and effective as to building stone that has some property giving it distinct and special value.

Appellants argue that the stone on their claims, which is used primarily for roofing-rock, has a property giving it distinct and special value-- its bright color. Whereas their stone sells for from $10.50 to $13.00 per ton, normal gray stone, also used for roofing, sells for only $8.00 per ton. However, attractive colored stone like that on appellants' claims can be found in many other locations in the same market area, and appellants' stone sells for the same price as that from these other locations.

Relying upon the statute, 30 U.S.C. 611, and his own interpretive regulation, 43 C.F.R. 3711.1(b), 4 the Secretary held that, since comparable colored stone was in common supply, appellants' stone should be compared with other deposits of colored stone, not with deposits of gray stone, to determine whether it had some distinct and special value. So compared, it did not.

A court faced with a problem of statutory construction should give great deference to the interpretation of a statute by the officers or agency charged with its administration. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). When the construction of an administrative regulation, rather than the statute itself, is in issue, deference is even more clearly in order. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

Not only does the Secretary's interpretation conform to the command of the statute and his own regulation, but also it is consistent with the Supreme Court's opinion in United States v. Coleman, supra. The stone involved there was very common quartzite. The Supreme Court stated that the Secretary was correct in ruling that because of the immense quantities of identical stone in the area outside of Coleman's claims the stone should be considered a common variety. The Court emphasized the fact that the same stone was in common...

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18 cases
  • United States v. Corbin Farm Service
    • United States
    • U.S. District Court — Eastern District of California
    • 23 Gennaio 1978
    ...Statement No. 7, 42 Fed.Reg. 21496, 21499 (Apr. 27, 1977). This interpretation is entitled to great weight. E. g., Brubaker v. Morton, 500 F.2d 200, 202 (9th Cir. 1974) ("A court faced with a problem of statutory construction should give great deference to the interpretation of a statute by......
  • Montana Power Co. v. Environmental Protection Agcy.
    • United States
    • U.S. District Court — District of Montana
    • 28 Marzo 1977
    ...in order." Udall v. Tallman, supra at 16, 85 S.Ct. at 801. This position is adopted in the Ninth Circuit as well. Brubaker v. Morton, 500 F.2d 200 (9th Cir. 1974). However, the judicial deference to an administrative interpretation of a regulation is not an absolute requirement, especially ......
  • Nance v. E.P.A.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 18 Maggio 1981
    ...States, 512 F.2d 1176, 1179 (9th Cir. 1975). Agency interpretations of federal statutes are entitled to great weight. Brubaker v. Morton, 500 F.2d 200 (9th Cir. 1974). "(T)he construction of a statute by those charged with its execution should be followed unless there are compelling indicat......
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    • United States
    • New Jersey Supreme Court
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    ...268, 276, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Brubaker v. Morton, 500 F.2d 200, 202 (9 Cir. 1974). Accordingly, the opinion of the FDA Chief Counsel as to the preemptive reach of the FDA hearing aid regulations with res......
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