Converse v. Udall

Decision Date13 January 1969
Docket NumberNo. 21697.,21697.
PartiesFord M. CONVERSE, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

William B. Murray (argued), Portland, Or., for appellant.

George R. Hyde (argued), Roger P. Marquis, Dept. of Justice, Washington, D. C., Sidney Lezak, U. S. Atty., Portland, Or., for appellee.

Before KOELSCH and DUNIWAY, Circuit Judges, and PREGERSON, District Judge.*

Certiorari Denied January 13, 1969. See 89 S.Ct. 635.

DUNIWAY, Circuit Judge:

Converse appeals from a judgment upholding a decision of the Secretary of the Interior. The Secretary's decision is reported at 72 Interior Dec. 141 (1965); that of the District Court is reported in Converse v. Udall, D.Or., 1966, 262 F. Supp. 583. This opinion assumes familiarity with those decisions. We affirm.

In 1955 (P.L. 167, 69 Stat. ch. 375, p. 367) Congress adopted an Act commonly called The Surface Resources Act. Section 4 (30 U.S.C. § 612) reserves to the United States, as to unpatented mining claims located after July 23, 1955, the effective date of the Act, the right to manage and dispose of the vegetative surface resources and to manage other surface resources, except mineral deposits subject to location. Section 5 (30 U. S.C. § 613) sets up machinery for determining, as to any unpatented claim located before that date, "the validity and effectiveness of any right or title to, or interest in or under such mining claim, which the mining claimant may assert contrary to or in conflict with the limitations and restrictions specified in section 4 of this Act * * *." (69 Stat. p. 371). The Act further provides, in section 7 (30 U.S.C. § 615): "Nothing in this Act shall be construed in any manner to limit or restrict or to authorize the limitation or restriction of any existing rights of any claimant under any valid mining claim heretofore located, except as such rights may be limited or restricted as a result of a proceeding pursuant to section 5 of this Act." (69 Stat. p. 372). One of the purposes of the Act was to eliminate some of the abuses that had occurred under the mining laws. H.R.Rep. 730, 84th Cong., 1st Sess., 2 U.S.Code Cong. & Ad. News, pp. 2474, 2478 (1955). See Coleman v. United States, 9 Cir., 1966, 363 F.2d 190, 197, rev'd on other grounds, 1968, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170; Funderberg v. Udall, 9 Cir., 1968, 396 F.2d 638. But Congress did not intend to change the basic principles of the mining laws. H.R.Rep. 730, supra at 2480.

The claims in question being located in a National Forest, the Forest Service, acting under Section 5 of the Act, instituted before the Department of the Interior the proceedings that have culminated in the present appeal.

The Hearing Examiner did not hold that Converse's unpatented claims are void. He merely held that, as of July 23, 1955, a valid discovery had not been made on them, and that therefore the limitations of Section 4 of the Act apply to the claims. Converse still has his claims, can work them, and can apply for a patent. The Hearing Examiner's decision has been affirmed three times, once by the Assistant Director, Bureau of Land Management, once by the Assistant Solicitor, acting for the Secretary, and once by the District Court.

1. Jurisdiction

Appellant asserted that jurisdiction is conferred on the District Court by the Administrative Procedure Act (now 5 U.S.C. § 701), the Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202), the Act of June 25, 1948, relating to federal questions (28 U.S.C. § 1331), and the Act of October 5, 1962, (28 U. S.C. §§ 1361, 1391). The Declaratory Judgment Act does not confer jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194, nor does § 1391, which deals with venue. The Secretary contends that the Administrative Procedure Act does not apply, but concedes the applicability of 28 U.S.C. § 1361. However, we have held that the Administrative Procedure Act does apply, Adams v. Witmer, 9 Cir., 1958, 271 F.2d 29, 32-33; Coleman v. United States, supra, 363 F.2d at 194. The portion of our decision in Coleman dealing with the Administrative Procedure Act was not questioned by the Supreme Court. See also Foster v. Seaton, 1959, 106 U.S.App.D.C. 253, 271 F.2d 836, cited with apparent approval in Best v. Humboldt Placer Mining Co., 1963, 371 U.S. 334, 338 n. 7, 83 S.Ct. 379, 9 L.Ed.2d 350. Cf. Chournos v. United States, 10 Cir., 1964, 335 F.2d 918. We think that a federal question is involved (Butte & Superior Copper Co. v. Clark-Montana Realty Co., 1919, 249 U.S. 12, 22-23, 39 S.Ct. 231, 63 L.Ed. 447), that the Court had jurisdiction under section 1331 and the Administrative Procedure Act, and that venue was proper under § 1391. We do not decide whether jurisdiction also exists under § 1361.

2. Non-substantive Questions.

Converse asserts that there were many procedural errors in the administrative proceedings, and that the Hearing Examiner was biased and prejudiced. All of these claims are carefully and correctly considered and disposed of in the opinion of the District Court and we do not discuss them further.

3. The proper legal standard of "discovery".

Converse argues that the evidence does not support the decision, and that an improper legal standard was applied. We have reviewed the evidence and the findings, and we conclude that the latter are fully supported.1 The only substantial question is whether the legal standard applied was proper. We hold that it was.

The Act of 1955, as we have seen, provides for a determination of "the validity and effectiveness" of mining claims, (§ 5(c)) in connection with a request "for determination of surface rights." (§ 5(a)). It specifically refers to mining claims "heretofore located." (§§ 5(a), 5(b), 5(d), 6, 7.) This we take to mean before July 23, 1955, the effective date of the Act. But there is no definition in the Act of "validity" or "effectiveness." For this we must look elsewhere.

Ever since the adoption of the General Mining Law of 1872 (17 Stat. 91), the statutes have permitted location of "Mining-claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits," and has required, as to claims located after May 10, 1872, "the discovery of a vein or lode within the limits of the claim located." (30 U.S.C. § 23, formerly R.S. 2320, § 2 of the Act of 1872). And the law provides for the obtaining of a patent "for any land claimed and located for valuable deposits" (30 U.S.C. § 29, formerly R.S. 2325, § 6 of the Act of 1872). Thus the only statutory standard has been and still is the "discovery" of "veins or lodes" containing "valuable deposits" of the named metals or others. The Congress has left implementation of this standard to the Executive and the Courts.

All of the cases hold that whether the statutory requirements have been met is a question of fact.2 To guide the fact finder, the Department and the courts long ago developed what has come to be called the "prudent man" test, much as the courts have developed the "reasonable man" test to guide the fact finder in negligence cases.

In 1905, the Supreme Court in Chrisman v. Miller, 197 U.S. 313, 322, 25 S. Ct. 468, 470, 49 L.Ed. 770 approved and adopted the "prudent man" test as developed by the Land Department and stated by it in Castle v. Womble, 19 L.D. 455, 457 (1894), as follows:

"Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."

In so doing, the Court (197 U.S. at 321, 25 S.Ct. at 470) quoted with approval from United States v. Iron Silver Mining Co., 1888, 128 U.S. 673, 683, 9 S.Ct. 195, 32 L.Ed. 571, where Mr. Justice Field, speaking for the Court said:

"It is not enough that there may have been some indications by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as `known\' veins or lodes. To meet that designation the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation."

Thus it was made clear as long ago as 1888 that the finding of some mineral, or even of a vein or lode, is not enough to constitute discovery — their extent and value are also to be considered.

The Castle v. Womble definition has been approved by the Supreme Court several times, e. g., Cole v. Ralph, 1920, 252 U.S. 286, 299, 40 S.Ct. 321, 64 L.Ed. 567; Cameron v. United States, 1920, 252 U.S. 450, 459, 40 S.Ct. 410, 64 L.Ed. 659; Best v. Humboldt Placer Mining Co., 1963, 371 U.S. 334, 335-336, 83 S. Ct. 379, 9 L.Ed.2d 350; United States v. Coleman, 1968, 390 U.S. 599, 602, 88 S. Ct. 1327, 20 L.Ed.2d 170. This court has often applied the definition. Lange v. Robinson, 9 Cir., 1906, 148 F. 799, 803; Charlton v. Kelly, 9 Cir., 1907, 156 F. 433, 436, 13 Ann.Cas. 518; Cascaden v. Bortolis, 9 Cir., 1908, 162 F. 267, 268, 15 Ann.Cas. 625; Adams v. United States, 9 Cir., 1963, 318 F.2d 861, 870.

The decisions also make it clear that the standard is more liberally construed in favor of a first locator when the contest is between him and a second locator than in contests between a mineral locator and another party who challenges the mineral nature of the lands. Chrisman v. Miller, supra, 197 U.S. at 323, 25 S.Ct. at 471:

"It is true that, when the controversy is between two mineral claimants, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the
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