Foster v. Seaton, 14953.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation271 F.2d 836
PartiesEverett FOSTER et al., Appellants v. Fred A. SEATON, Secretary of the Interior, Appellee.
Docket NumberNo. 14953.,14953.
Decision Date22 October 1959

Mr. Leo A. Huard, Washington, D. C., with whom Messrs. Ralph E. Becker and F. Murray Callahan, Washington, D. C., were on the brief, for appellants.

Mr. Claron C. Spencer, Atty., Dept. of Justice, with whom Mr. S. Billingsley Hill, Atty., Dept. of Justice, was on the brief, for appellee. Mr. Roger P. Marquis, Atty., Dept. of Justice, also entered an appearance for appellee.

Before PRETTYMAN, Chief Judge, and BAZELON and BURGER, Circuit Judges.


This case relates to appellants' claims under provisions of the mining laws which authorize "occupation and purchase" of Government lands containing "valuable mineral deposits." Rev.Stat. §§ 2319, 2325, 2329 (1875), 30 U.S.C.A. §§ 22, 29, 35. The Department of the Interior instituted proceedings contesting the claims on the ground that the allegedly "valuable mineral deposits" of sand and gravel, located thirteen miles from the center of Las Vegas, Nevada, were insufficient, inter alia, in quantity, quality and accessibility to a market to constitute a valid discovery. The hearing officer rendered a decision favorable to appellants, but it was reversed by the Director of the Bureau of Land Management upon an appeal by rival claimants who had intervened to assert an interest in the land under the Small Tract Act, 68 Stat. 239 (1954), 43 U.S.C.A. § 682a et seq. The Secretary of the Interior sustained the Director's ruling. Appellants then instituted this suit in the District Court under the Administrative Procedure Act to review the Secretary's decision. On cross motions, the District Court granted a summary judgment in favor of appellee and this appeal followed.

Appellants have raised a number of points relating to errors of procedure and statutory interpretation allegedly committed throughout the administrative process. We have examined them carefully and find no merit in the contentions. We discuss them briefly.

Appellants claim that they were prejudiced because intervenors were improperly admitted to the hearing, and that, without such intervention, the ruling of the initial hearing examiner in favor of appellants would never have been appealed and hence never reversed.1 It is clear, however, that the intervenors as rival claimants for the land under the Small Tract Act, allowing the Secretary to lease or sell vacant Government lands for certain residential and commercial uses, were interested parties. We find no basis for disturbing the administrative action with respect to this intervention.

Appellants also contend that the hearing examiner erroneously denied their request to examine a confidential document from which a Government witness was testifying. The record shows that upon the witness' claim of a governmental privilege appellants' counsel withdrew his request for disclosure. Thereafter the hearing officer expressly stated that he would, if again requested, rule in appellants' favor. Since the objection was not revived, the point is plainly not now available to appellants.

Appellants' third allegation of error is that the Secretary failed to hold the Government to the standard of proof required by the Administrative Procedure Act, which states that "the proponent of a rule or order shall have the burden of proof." 60 Stat. 241 (1946), 5 U.S.C.A. § 1006. The Secretary ruled that, when the Government contests a mining claim, it bears only the burden of going forward with sufficient evidence to establish a prima facie case, and that the burden then shifts to the claimant to show by a preponderance of the evidence that his claim is valid.2 The short answer to appellants' objection is that they, and not the Government, are the true proponents of a rule or order; namely, a ruling that they have complied with the applicable mining laws. One who has located a claim upon the public domain has, prior to the discovery of valuable minerals, only "taken the initial steps in seeking a gratuity from the Government." Ickes v. Underwood, 78 U.S.App. D.C. 396, 399, 141 F.2d 546, 549, certiorari denied 1944, 323 U.S. 713, 65 S.Ct. 39, 89 L.Ed. 574; Rev.Stat. § 2319 (1875), 30 U.S.C.A. § 23. Until he has fully met the statutory requirements, title to the land remains in the United States. Teller v. United States, 8 Cir., 1901, 113 F. 273, 281. Were the rule otherwise, anyone could enter upon the public domain and ultimately obtain title unless the Government undertook the affirmative burden of proving that no valuable deposit...

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  • Earthworks v. U.S. Dep't of the Interior, Civil Action No. 09-1972 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 26, 2020
    ...of Interior , 83 F. Supp. 3d 173, 178 n.6 (D.D.C. 2015), aff'd , 650 F. App'x 6 (D.C. Cir. 2016) (per curiam); see also Foster v. Seaton , 271 F.2d 836, 838 (D.C. Cir. 1959) (per curiam) ("One who has located a claim upon the public domain has, prior to the discovery of valuable minerals, o......
  • State of Washington v. Udall, 22413.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 24, 1969
    ...States, 363 F.2d 190 (9th Cir. 1966), rev'd on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Foster v. Seaton, 106 U.S. App.D.C. 253, 271 F.2d 836 (1959), cited with approval in Best v. Humboldt Mining Co., 371 U.S. 334, 338 n. 7, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Ada......
  • Multiple Use, Inc. v. Morton, Civ. No. 71-211-PCT-WCF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 9, 1972
    ...U.S. 334, 335 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). The marketability test is similarly stated in simple language in Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836 (1959): . . . a mineral locator or applicant, to justify his possession, must show that by reason of accessibility, bona fi......
  • Coleman v. United States, 20227.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 21, 1966
    ...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 Departme......
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