Dredge Corporation v. Penny

Citation338 F.2d 456
Decision Date13 November 1964
Docket Number18464.,No. 18463,18463
PartiesThe DREDGE CORPORATION, Appellant, v. J. Russell PENNY, State Supervisor, Bureau of Land Management, and Harold C. Hammitt, Manager of Reno, Nevada Land Office, Bureau of Land Management, Department of Interior, etc., Appellees. The DREDGE CORPORATION, Appellant, v. E. J. PALMER, State Supervisor, Bureau of Land Management, and James E. Keogh, Jr., Manager of Reno, Nevada Land Office, Bureau of Land Management, Department of the Interior, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

George W. Nilsson, Los Angeles, Cal., Deaner, Butler & Adamson, Las Vegas, Nev., for appellant.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marguis, Thos. L. McKevitt, A. Donald Mileur, Dept. of Justice, Washington, D. C., for appellees.

Before BARNES, HAMLEY and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

These are consolidated appeals from summary judgments entered in companion district court cases involving the validity of thirty-six mining claims near Las Vegas, Nevada. The claims are owned by The Dredge Corporation, a Nevada corporation, which is the plaintiff in each case. The defendants are officials of the Bureau of Land Management (Bureau) of the United States Department of the Interior (Department). They differ for each case, and in this opinion the cases will be distinguished from each other by referring to the name of the defendant first named, i. e., the Penny case and the Palmer case.1 Summary judgments were entered for the respective defendants, and the corporation appeals.

The facts essential to a determination of the questions presented by these appeals are not in dispute. On October 4, 1955, the validity of the twenty-eight claims involved in the Palmer case was challenged in a contest proceeding initiated before the Bureau by Keogh, acting in his official capacity.2 On December 18, 1957, the validity of the remaining eight claims involved in the Penny case was similarly challenged by Hammitt, acting in his official capacity.

In the contest involving the Palmer claims the hearing examiner entered a decision holding twenty-two of the twenty-eight claims to be null and void for lack of a valid discovery of minerals. He held that there was a valid discovery as to the remaining six claims and that those claims were valid. Both the corporation and the Government appealed to the director of the Bureau. The director entered a decision holding that all twenty-eight claims were null and void for lack of a valid discovery of minerals, thus affirming the examiner as to twenty-two claims and reversing him as to six. The corporation appealed to the Secretary of the Interior (Secretary). By decision dated December 29, 1959, Edmund T. Fritz, Deputy Solicitor of the Department, acting on behalf of the Secretary, affirmed the decision of the director.3

In the contest, involving the eight Penny claims the hearing examiner entered a decision holding all eight claims to be null and void for lack of a valid discovery of minerals.4 The corporation appealed to the director of the Bureau who entered a decision affirming the examiner's decision. The corporation then appealed to the Secretary. By decision dated December 18, 1959, Deputy Solicitor Fritz, acting on behalf of the Secretary, affirmed the decision of the director.5

The corporation then commenced these two actions in the United States District Court for the District of Nevada. In its complaint in the Palmer case and in its amended complaint in the Penny case, the corporation alleged that the administrative orders and acts referred to above are invalid for the following reasons: (1) they are in violation of the corporation's rights under the Fifth Amendment; (2) they were made in violation of the Administrative Procedure Act, 60 Stat. 237 (1946), as amended, 5 U.S.C. § 1001 et seq. (1958); (3) the corporation is entitled to an agency rehearing under the holdings of United States v. O'Leary, 63 I.D. 341, and Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; and (4) the agency orders and decisions in question are arbitrary and capricious, result from an abuse of discretion, and are unconstitutional and not in accordance with law.6

It was not specifically alleged, as a ground for declaring the administrative orders invalid, that the administrative finding that there had been no valid discovery of minerals is not supported by substantial evidence. However, the complaint in Palmer and the amended complaint in Penny, read as a whole, plainly indicate that this was a ground relied upon by the corporation. Each pleading contains an allegation that each of the placer mining claims contains a valuable deposit of sand, gravel and gold, and that each of said locations were, and are, based upon a valid discovery of such sand, gravel and gold.

In the complaint in the Palmer case, moreover, the grounds urged in the corporation's appeal to the Secretary from the decision of the director are set out, one of them being that the evidence was insufficient to justify the findings and decision. Both the defendants and the district court understood that, in its complaint and amended complaint, the corporation was challenging the sufficiency of the evidence to support the administrative finding as to discovery of minerals. This is indicated by the action thereafter taken by defendants and the district court, as recounted below.

Injunctive relief was sought in both suits as follows: (1) ordering Keogh or Hammitt, as the case may be, to reinstate the corporation's mineral entries and to conform the records of the Land Office to show that the mining claims are still in force and effect; (2) ordering them to set the described contests for de novo hearing at Las Vegas, Nevada, before a hearing officer qualified under the Administrative Procedure Act; (3) enjoining these officials from cancelling the corporation's mineral entries, from nullifying and voiding the claims and entries upon the records of the Land Office, from notifying any other Governmental agency or person that the corporation's claims are null and void, and from in any other manner carrying out or enforcing the described orders and decisions of the Secretary and his subordinates; and (4) enjoining Palmer, Hammitt and Penny from interfering with the possession, full use, enjoyment and operation of the claims by the corporation and its contractors.7

Comprehensive declaratory relief was also sought in both cases including the following: (1) declaring that the administrative decisions referred to above are invalid;8 (2) declaring that the corporation is entitled to an agency hearing de novo in the contest proceedings; and (3) declaring that the rules of practice relating to contests involving placer mining claims and appeals therefrom are, on their face, and as here construed and applied, unconstitutional.

The following additional declaratory relief was sought in the Penny case: (4) declaring that the right of way granted to a privately-owned public utility company for transmission lines across some of the claims described in that complaint is revoked and set aside; and (5) declaring void any Small Tract leases or patents, and any oil and gas leases issued covering any of the lands embraced within the eight claims.9

In their answers to the complaint in Palmer and the amended complaint in Penny, defendants, among other things, denied the allegations to the effect that there had been a valid discovery of minerals on each claim. On February 13, 1963, defendants moved in both cases for summary judgment under Rule 56, Federal Rules of Civil Procedure. Three grounds for the granting of these motions were urged, namely: (1) there is no genuine issue of fact and defendants are entitled to judgment as a matter of law; (2) the amended complaint fails to state a claim upon which relief can be granted; and (3) the Secretary of the Interior is an indispensable party. The motions were based upon the pleadings in the respective cases and upon the agency decisions therein referred to, certified copies of which were filed with the motion.

In each case a memorandum of points and authorities supporting the motion therein for summary judgment was filed. The memorandum filed in the Palmer case was not made a part of the record on appeal, but the memorandum filed in the Penny case states that such a memorandum was filed in Palmer, and that "precisely the same legal issues" are presented in the two cases.

Among other things it was argued in defendants' memorandum in the Penny case that the Secretary's findings concerning the discovery of minerals on the various claims are supported by substantial evidence. Presumably the same argument was made in the memorandum filed by defendants in the Palmer case.

In each case defendants, at the time of filing their motion for summary judgment, also moved for oral argument.

In each case The Dredge Corporation filed what it denominated an answer and motion to dismiss the motion for summary judgment. In these answers the corporation asserted that there were genuine issues of fact, but it did not state what those issues were. The company also asserted that the complaint or amended complaint, as the case may be, states claims upon which relief can be granted, and that the Secretary is not an indispensable party. No affidavits or other evidentiary materials other than a copy of the Under Secretary's order granting a rehearing, and no memorandum of authorities, were filed in support of the answer in either case.10

The district court thereafter, on its own motion, ordered the United States Attorney to file transcripts of the testimony taken in the two agency hearings. The transcripts of testimony were filed as directed, but the exhibits which were received at the administrative hearings were neither requested by the court nor filed with it by the United States Attorney.

Several months after these transcripts were filed, the...

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    ...by substantial evidence is a question of law); McCall v. Andrus, 628 F.2d 1185, 1189-90 (9th Cir.1980) (quoting Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir.1964) ("A judicial determination of whether a finding of fact is supported by substantial evidence presents only an issue of law.......
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    ...is on parties to request oral argument pursuant to local rules and, if not requested, argument is waived); but see Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir.1964). We think this rule is sound. As those courts have recognized, ordinarily it is appropriate to hear oral argument before......
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    • 7 Octubre 1981
    ...to adverse party). Nor is there an absolute right to be orally heard on the disposition of a legal issue. Dredge Corporation v. Penny, 338 F.2d 456, 462 n.14 (9th Cir. 1964). 51 Thus, at the first level or our analysis we reject any notion of due process which would place an absolute prohib......
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    ...the Secretary's decision, that decision must be affirmed". Henrikson v. Udall, 350 F.2d 949, 950 (9th Cir. 1965); Dredge Corporation v. Penny, 338 F.2d 456, 462 (9th Cir. 1964); White v. Udall, 404 F.2d 334, 335 (9th Cir. 1968). A court "cannot, pursuant to its mandamus jurisdiction, direct......
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    ...district court’s grant of summary judgment must be overturned because it denied his request for oral argument. In Dredge Corp. v. Penny , 338 F.2d 456, 462 (9th Cir.1964), we held that ‘in view of the language of Rule 56(c) … a district court may not … preclude a party from requesting oral ......

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