Clear Gravel Enterprises, Inc. v. Keil
| Decision Date | 09 October 1974 |
| Docket Number | No. 72-2396,72-2396 |
| Citation | 505 F.2d 180 |
| Parties | CLEAR GRAVEL ENTERPRISES, INC., Plaintiff-Appellant, v. Nolan KEIL, State Director, Bureau of Land Management, state of Nevada, andRolla Chandler, Chief Division of Technical Services, Bureau of LandManagement, Reno, Nevada being agencies of the United States Department of theInterior, UnitedStates of America, Defendant-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John W. Bonner (argued), Las Vegas, Nev., for plaintiff-appellant.
Eva R. Datz, Atty. (argued), Lands & Natural Resources Div., Dept. of Justice, Washington, D.C., for defendant-appellees.
Before KOELSCH and KILKENNY, Circuit Judges, and McGOVERN, 1 District Judge.
This is an appeal from a Summary Judgment dismissing an action to set aside a decision of the United States Department of the Interior Board of Land Appeals which held two mining claims null and void for lack of discovery of a valuable mineral deposit.
The issue at law concerning the claims was whether minerals had been found which would justify a person of ordinary prudence in making further expenditures of labor and means upon the property with a reasonable prospect of success in developing a valuabel mine. United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). That is, did the Appellant satisfactorily show that the mineral in question could be extracted, removed and marketed at a profit on October 2, 1953, the date when the lands involved were effectively segregated from mineral appropriation for small tract purposes, 43 U.S.C. 682a et seq., and on July 23, 1955 when common variety sand and gravel deposits as here involved became no longer locatable. 30 U.S.C. 611. United States v. Barrows, 404 F.2d 749 (9th Cir., 1968), cert. denied 394 U.S. 974, 89 S.Ct. 1468, 22 L.Ed.2d. 754 (1969).
The claims in question were located for sand and gravel on January 21, 1946 and represent the last two of Appellant's sixteen association placer claims of 160 acres each of sand and gravel deposits in the Las Vegas, Nevada, Valley. Of the fourteen claims previously litigated, seven were ordered patented to the Appellant and the others were declared invalid.
While the marketability of the mineral could have been demonstrated by the Appellant by a showing of its accessibility, its proximity to the market, the demand for it and by the Appellant's bona fide efforts to develop the claims and compete in the market with the product extracted from...
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