Davis v. Nelson, 18661.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHAMLEY and DUNIWAY, Circuit , and THOMPSON
Citation329 F.2d 840
PartiesC. A. DAVIS et al., Appellants, v. Neal NELSON, State Director, Bureau of Land Management, and Rollo E. Chandler, Manager, and Oliver W. Johnson, Acting Manager, Riverside Land Office, Bureau of Land Management, Department of the Interior, Appellees.
Docket NumberNo. 18661.,18661.
Decision Date19 May 1964


Milton Wichner, Hollywood, Cal., for appellants.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, and Richard N. Countiss, Attys., Dept. of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., and Richard J. Dauber, Asst. U. S. Atty., Los Angeles, Cal., for appellees.

Before HAMLEY and DUNIWAY, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge.

Some sixty-four plaintiffs filed this action in the district court on behalf of themselves and others similarly situated, seeking to enjoin the State Director of the Bureau of Land Management, Department of the Interior, and the Manager and the Acting Manager of the District Land Office at Riverside, California, from prosecuting certain proceedings and from instituting other threatened proceedings contesting the validity of placer claims located by plaintiffs. The case is on appeal from the Judgment of Dismissal entered by the district court granting a motion to dismiss filed by defendants and dismissing the action without prejudice. The jurisdiction of this court is invoked under Title 28 U.S.C. § 1291.

The relevant facts digested from the Complaint, which must be accepted as true, show that plaintiffs and others are the locators and owners of more than three hundred placer mining claims in Kern County, California. The claims were located on the public lands of the United States which were open to location under the mining laws. All the requirements of the mining laws and regulations of the United States and of the State of California governing the location of placer claims, the recordation of notices of location, and the performance and recordation of proofs of annual labor have been fully met. Upon each claim there has been a discovery of valuable minerals, including gold and silver, and the claims have been and are held and worked by extensive excavation for their valuable mineral content. The claims are unpatented mining claims and no application for patent has been filed by any of the claimants.

The defendant officials of the Bureau of Land Management have initiated proceedings in the Land Office contesting the validity of the unpatented claims, alleging with respect to each contested claim that the "land embraced within the claim is non-mineral in character" and that "minerals have not been found within the limits of the claim in sufficient quantities to constitute a valid discovery." Like contests of other claims similarly located have been threatened by defendant officials. The lands on which the claims have been located remain in the public domain, free and open to exploration, location and purchase under the mining laws, and the United States has no present or planned use for the lands nor do the mining claim locations interfere with any present or planned governmental project.

The contest proceedings in the Land Office are in various stages of completion. With respect to more than 170 of such contests, the Manager of the Land Office, on July 16, 1962, entered orders striking Answers filed on behalf of the owners of the claims. He thereupon declared the charges alleged in the complaints to be taken as admitted, and declared the mining locations to be null and void. The action was taken upon the ground that the Answers so stricken had not been filed by the owner-contestees themselves in propria persona or by anyone authorized and qualified to appear and answer on their behalf. The situation thus created is presented in a separate cause of action of the Complaint seeking nullification of the orders of July 16, 1962 upon the grounds that the action was arbitrary and capricious and constituted an unconstitutional procedure depriving claimants of their property without due process of law.

Inasmuch as we agree with the district court that the complaint does not state a claim upon which relief can be granted within the jurisdiction of the court, we do not discuss other collateral issues raised by the briefs.

The essence of plaintiffs' contention is that the Bureau of Land Management in the Department of the Interior, an agency of the executive branch, has no authority in the related circumstances and under governing laws to initiate a contest of an unpatented mining claim. Plaintiffs state:

"Congress, in exercise of its plenary power over the lands of the United States, granted citizens the rights to freely explore the public domain for minerals, to occupy the lands wherein minerals were found and to freely appropriate the minerals discovered. When Congress entrusted the supervision and management of the public lands to the Secretary of the Interior, it gave him no power to burden or interfere with the citizens\' prospecting and occupation rights. Appellants\' complaint shows that by filing contest complaints, appellees are interfering with, burdening and destroying the citizens\' rights to prospect and occupy the public domains." We do not agree.

Congress has charged the Secretary of the Interior "with the supervision of public business relating to the following subjects and agencies: * * * 4. Bureau of Land Management * * * 13. Public lands, including mines." Title 5 U.S.C. § 485. The Secretary has promulgated regulations governing the location, occupation and patenting of mining claims on the public domain (43 C.F.R., Part 185) within the framework of the general mining law (30 U.S.C. § 21 et seq.), which represent a rather thorough codification of the law as established by federal and state court decisions. The regulations were issued under the delegation of authority granted by Congress. Title 43, U.S.C. § 1201; Title 30, U.S.C. § 22. The delegation has been recognized by the Supreme Court as a grant to the Department of the Interior of "plenary authority over the administration of public lands, including mineral lands; and * * * broad authority to issue regulations concerning them". Best v. Humboldt Placer Mining Co. (1963), 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350.

The pertinent regulations provide (43 C.F.R., Part 185):

"Sec. 185.1. Lands subject to location and purchase.
"Vacant public surveyed or unsurveyed lands are open to prospecting, and upon discovery of mineral, to location and purchase, as are also lands in national forests in the public-land States, lands entered or patented under the stock-raising homestead law (title to minerals only can be acquired), lands entered under other agricultural laws but not perfected, where prospecting can be done peaceably, and lands within the railroad grants for which patents have not issued.
"Sec. 185.2. Definition of mineral under mining laws.
"Whatever is recognized as a mineral by the standard authorities, whether metallic or other substance, when found in public lands in quantity and quality sufficient to render the lands valuable on account thereof, is treated as coming within the purview of the mining laws. Deposits of coal, oil, gas, oil shale, sodium, phosphate, potash, and in Louisiana and New Mexico sulphur, belonging to the United States, can be acquired under the mineral leasing laws, and are not subject to location and purchase under the United States mining laws.
"Sec. 185.3. Manner of initiating rights under locations.
"Rights to mineral lands, owned by the United States, are initiated by prospecting for minerals thereon, and, upon the discovery of mineral, by locating the lands upon which such discovery has been made. A location is made by staking the corners of the claim,2 posting notice of location thereon and complying with the State laws, regarding the recording of the location in the county recorder\'s office, discovery work, etc."
2. "Except placer claims described by legal subdivision.
"Sec. 185.4. Who may make locations.
"Citizens of the United States, or those who have declared their intention to become such, including minors who have reached the age of discretion and corporations organized under the laws of any State, may make mining locations. Agents may make locations for qualified locators." (Emphasis added)

These regulations do not conflict with the statutory framework found in the general mining law of May 10, 1872:

Title 30, U.S.C. § 22:

"Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

Title 30, U.S.C. § 23:

"* * * but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."

Title 30, U.S.C., § 35:

"Claims usually called `placers,\' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; * * *"

Plaintiffs would have us hold that it is the meaning and intent of the statute that a mining claim located for the purpose of prospecting the land before the discovery of valuable mineral thereon insures in the locator a valid possessory title to the land embraced within the claim which is enforceable against the United States, and which the United States cannot contest, absent other public use for the...

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