Coleman v. United States

• Citation: 363 F.2d 190
• Decision Date: 21 June 1966
• Docket Number: No. 20227.,20227.
• Parties: Alfred COLEMAN and Edward J. McClennan, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.2d 190 (1966)

Alfred COLEMAN and Edward J. McClennan, Appellants, v. UNITED STATES of America, Appellee.

No. 20227.

United States Court of Appeals Ninth Circuit.

June 21, 1966.

COPYRIGHT MATERIAL OMITTED

George W. Nilsson, Los Angeles, Cal., for appellants.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, George R. Hyde, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., Ernestine Tolin, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and JERTBERG, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge:

Appellant has brought the case here to review the order of the District Court granting summary judgment to Appellee and dismissing Appellant's counterclaim. As originally filed by the United States, the suit was for ejectment of Coleman from his mining claims in the San Bernardino National Forest. The claims had been contested by the United States at the instance of the Forest Service in proceedings before the Interior Department and found invalid. In the District Court, Appellant counterclaimed, seeking judicial review of the decision of the Interior Department under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq. The initial problem here is the appropriateness of Appellant's counterclaim as a vehicle to obtain judicial review.

We think it settled, at least in this Circuit, that although the Administrative Procedure Act does not permit a trial de novo of administrative decisions, Noren v. Beck, 199 F.Supp. 708 (D.C. S.D.Cal.1961); Adams v. United States, 318 F.2d 861 (9 CCA 1963), it does authorize and require judicial review under the standards of the Administrative Procedure Act, Adams v. Witmer, 271 F.2d 29 (9 CCA 1959), Denison v. Udall, 248 F.Supp. 942 (D.C.Ariz.1965), and that a counterclaim is a permissible method of obtaining such review. Adams v. United States, supra.

The District Judge rendered judgment for the United States on its complaint and dismissed Appellant's counterclaim, but he did so only after "having considered the files, records and evidence in the case, including the entire certified record of the administrative proceedings." (Tr. 224) In view of this statement, we deem the dismissal of the counterclaim as an affirmance of the decision of the Interior Department on the merits and not as a dismissal because of some procedural deficiency. This is so because the decision invalidating the mining claims is the sole foundation for the ejectment action.

The eighteen mining claims in question were located as building stone claims (30 U.S.C. § 161)¹ on the dry bed of Baldwin Lake and an adjoining mountain within the San Bernardino National Forest during the period of 1949 to 1952. The claims cover an area of 720 acres. An application for patent was filed by Coleman in January, 1956, and a contest was commenced at the instance of the Forest Service on February 24, 1958, the charges being that:

"(a) The lands embraced within the claims are non-mineral in character.

"(b) Minerals have not been found within the limits of the claims in sufficient quantities to constitute a valid discovery.

"(c) $500.00 has not been expended on Baldwin Lake Quarry Claims No. 7, 9, 11 to 19, inclusive."

The Hearing Examiner, on December 18, 1958, found five of the mining claims to be valid and the other thirteen to be invalid. On appeal, the Acting Director of the Bureau of Land Management, on June 22, 1960, sustained the validity of three claims and part of a fourth. The Secretary of the Interior, acting through his Deputy Solicitor, in considering the appeal taken by Mr. Coleman, reviewed in detail the evidence introduced at the hearing on the contests. The Deputy Solicitor rendered a decision declaring all the subject mining claims to be null and void for the reason that a valid discovery had not been made. United States v. Alfred Coleman, A-28557, March 27, 1962. The ejectment action was filed August 8, 1963.

At the outset, we are faced with contentions by the Government seeking to limit the scope of judicial review of decisions in the Department of the Interior. This campaign commenced some years back when first it was broadly contended that the Administrative Procedure Act does not apply to Decisions of the Secretary of the Interior. This Court had no difficulty in rejecting this contention. Adams v. Witmer (9 CCA 1958), 271 F.2d 29. Cf. Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 93 L.Ed. 616. Next, as in this case, the Secretary has argued that the determination of a question of fact by the "Secretary of Interior, or his authorized representative, is conclusive in the absence of fraud or imposition" and that "decisions of the Secretary of Interior with respect to public lands have historically been accorded a conclusiveness beyond that of typical regulatory agencies." These are not the standards for review provided in the Administrative Procedure Act adopted in 1946 5 U.S.C. § 1009(e). The Government supports the limited review of actions by the Secretary of the Interior with the footnoted excerpts from the following cases: Cameron v. United States, 1920, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659;² Standard Oil Co. of California v. United States (9 CCA 1940), 107 F.2d 402, 410;³ and Best v. Humboldt Mining Company, 1963, 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350.⁴

Our study of these decisions and others has not persuaded us that Congress intended decisions of the Department of the Interior which reject applications for patents to enjoy a more favored position than those of other executive agencies under the Administrative Procedure Act. The Cameron case was decided in 1920, some twenty-six years before the Congress had spoken with respect to the scope and standards of judicial review of administrative rulings. Similarly, the Standard Oil case in this Circuit was decided six years before the adoption of the Administrative Procedure Act. Nor do we find in the Best case any support for the Government's present contentions. True, in that opinion Justice Douglas complimented the work of former Justice Van Devanter and quoted extensively from his opinion in Cameron. But the issue decided in Best was whether the Government could contest a mining claim administratively during the pendency of a condemnation action, and the Court explicitly, in Fn. 7 (371 U.S. 338, 83 S.Ct. 383), alluded to the present procedures: "Claimants today may appeal the Examiner's decision to the Director of the Bureau (43 CFR, 1962 Supp. § 221.1), from him to the Secretary (id., § 221.31), and from there to the courts. Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836." Also, in Best, the Court significantly refrained from commenting on the claimed onerousness of hearings in the Department as compared with court procedures, and said: "We express no views on those contentions, as each of them can appropriately be raised in the administrative proceedings, and reserved for judicial review." Emphasis added.

It has long been established that a qualified entryman upon public lands of the United States, whether as a locator of a mining claim, as a homesteader, or as one asserting rights under others of the multifarious laws governing entries on public lands, who perfects his entry by compliance with the applicable Act of Congress, thereby acquires a right to the land as against the sovereign itself, as well as third persons. Wilbur v. United States ex rel. Krushnic, 1930, 280 U.S. 306, 50 S.Ct. 103, 74 L.Ed. 445. It is such a legal right which Appellant here seeks to assert, and it is not a right which the Secretary of the Interior may, in his discretion, ignore or which he may reject "in the absence of fraud or imposition." This is precisely the kind of right which the Administrative Procedure Act, with its provisions for judicial review, was designed to safeguard from arbitrary, capricious and illegal deprivation by action of executive and administrative agencies. Adams v. Witmer (9 CCA 1959), 271 F.2d 29.

The Government also argues that we are here dealing with a "collateral attack" upon final agency action rather than a direct review thereof, and that the judicial surveillance of agency action is, therefore, under a more restrictive standard. The argument is made because after the Secretary's final decision on March 27, 1962, nothing was done by anyone until the United States filed this ejectment action on August 8, 1963. Appellant then sought review of the agency action by counterclaim. Adams v. United States (9 CCA 1963), 318 F.2d 861, involved a similar procedural situation and a dictum there p. 867 suggested a possible distinction. Upon reflection, however, we cannot discern any reason for a difference respecting the scope and character of review of agency action which would depend upon who commenced the action. This should not be a race to the courthouse. There is no statutory time limit for an aggrieved person to seek judicial review of agency action in the Department of the Interior under 5 U.S.C. § 1009.⁵ So far as the Government's present contention is concerned, had Coleman brought an action to review the Secretary's decision one day before the eviction suit was filed, this would have been a direct review rather than a so-called "collateral attack." It serves nothing to talk about collateral attack merely because review of agency action is sought in a counterclaim rather than in a complaint.

The issues, then, which faced the District Court are those provided in the Administrative Procedure Act. Were the "agency action, findings, and conclusions * * * arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence?" 5 U.S.C. § 1009(e) (B) (1) (5).

In one form or another, each of the decisions rendered within the Department in this case was based upon the issues raised by the second charge of the contest, (b), that a valid discovery had not been...