Foust v. Lujan

• Decision Date: 14 August 1991
• Docket Number: No. 90-8004,90-8004
• Citation: 942 F.2d 712
• Parties: Oliver J. FOUST, Plaintiff-Appellant, v. Manuel LUJAN, Jr., Secretary of the Interior, Defendant-Appellee, Northern Arapaho and Shoshone Indian Tribes of the Wind River Indian Reservation, Defendants/intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 712

942 F.2d 712

Oliver J. FOUST, Plaintiff-Appellant, v. Manuel LUJAN, Jr., Secretary of the Interior, Defendant-Appellee Northern Arapaho and Shoshone Indian Tribes of the Wind River Indian Reservation, Defendants/intervenors-Appellees.

No. 90-8004.

United States Court of Appeals Tenth Circuit.

Aug. 14, 1991.

Rehearing Denied Oct. 24, 1991.

John R. Hursh (Maureen T. Donohoue with him on the briefs) of Hursh & Donohoue, Riverton, Wyo., for plaintiff-appellant.

Andrew C. Mergen, Atty., Dept. of Justice, Environment and Natural Resources Div., Washington, D.C. (Richard B. Stewart, Asst. Atty. Gen., Richard A. Stacey, U.S. Atty., and David A. Kubichek, Asst. U.S. Atty., Cheyenne, Wyo., Robert L. Klarquist, Atty. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., with him on the brief), for defendant-appellee.

Robert S. Thompson, III (Sandra Hansen, also of Whiteing & Thompson, Boulder, Colo., Susan M. Williams of Gover, Stetson, Williams & West, Albuquerque, N.M., with him on the brief), for defendants-intervenors-appellees.

Before McKAY, SETH and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Oliver Foust applied, pursuant to § 316 of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1746, to correct an error in a land patent issued by the United States to Byron Smith, his predecessor in title. The Bureau of Land Management (BLM) approved Foust's application, and intervenors-defendants the Northern Arapaho and Shoshone Indian Tribes (Indians) appealed. The Interior Board of Land Appeals (IBLA) reversed the BLM's decision, and the district court upheld the reversal. Foust now appeals.

The land at issue is within Section 28, T. 6N., R. 6E., Wind River Meridian, Wyoming, which was part of a federal reserved water power site at the time the United States issued the patent to Smith. In 1929 and 1930, Smith filed homestead entry applications for the NE 1/4SE 1/4 and lots 4 and 5. His applications were denied initially but then granted after he appealed. In 1935, Smith filed a final proof for his entries onto these three lots, listing his improvements as follows: a house, double garage and other buildings on the NE 1/4SE 1/4; a house, garage, and cellar on lot 4; and a fenced garden on lot 5. In 1936, the United States issued to Smith patents for the NE 1/4SE 1/4 and lots 4 and 5.

In 1942, the United States restored all undisposed land within Section 28, T. 6N., R. 6E., to the ownership of the Northern Arapaho and Shoshone Indian Tribes of the Wind River Reservation. In 1963, Smith's widow conveyed the NE 1/4SE 1/4 and lots 4 and 5 to Foust by warranty deed. A 1979 resurvey of the area showed that the buildings that Smith had built and indicated as being on the NE 1/4SE 1/4 were, in actuality, located within the SW 1/4NE 1/4. Foust applied for a patent correction in 1982, ultimately proposing to deed back the NE 1/4SE 1/4 and lot 5 to the United States in exchange for roughly equal acreage on which the buildings are actually located. The Indians, who have title to the SW 1/4NE 1/4, filed an action in the district court to nullify the patents, which was dismissed without prejudice to enable the patent correction proceedings to continue.

Foust argues that because of the difficulty in surveying the mountainous terrain and ascertaining lot boundaries, both the United States and Smith believed that the land on which Smith built was within the boundaries of the lots conveyed by the patents. Foust contends that this mutual mistake of fact can be corrected under 43 U.S.C. § 1746. The IBLA and the district court rejected Foust's arguments on several alternative grounds: 1) the land on which Smith built, SW 1/4NE 1/4, was not open to entry at the time the patents were issued and therefore cannot be subject to a patent correction under 43 U.S.C. § 1746; 2) Foust did not prove that a mistake of fact was made in granting him the NE 1/4SE 1/4 and lots 4 and 5; and 3) the equities of the case support a ruling for the Indians. See Shoshone and Arapahoe Tribes, 102 IBLA 256 (1988), I R. tab 1, Ex. B; Order Affirming Decision of the Interior Board of Land Appeals (D.Wyo. Nov. 13, 1989) (hereinafter "Order of Nov. 13, 1989"), I R. tab 33.

We review the IBLA's decision to determine if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," or is "unsupported by substantial evidence...." 5 U.S.C. § 706(2)(A) & (E).

"Under the 'arbitrary and capricious' standard the scope of review is a narrow one. A reviewing court must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.' "

Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)). Under the "substantial evidence" test, our inquiry is whether the agency's decision is based on " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). This is something more than a mere scintilla but something less than the weight of the evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Consolo, 383 U.S. at 620, 86 S.Ct. at 1026-27. " 'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.' " Bowman Transp., 419 U.S. at 284 n. 2, 95 S.Ct. at 441 n. 2 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)).

I

We consider first whether 43 U.S.C. § 1746 permits a patent correction involving an exchange of the SW 1/4NE 1/4 for other lots to which Foust has title. The statute provides:

"The Secretary [of Interior] may correct patents or documents of conveyance ... relating to the disposal of public lands where necessary in order to eliminate errors. In addition, the Secretary may make corrections of errors in any documents of conveyance which have heretofore been issued by the Federal Government to dispose of public lands."

43 U.S.C. § 1746. The IBLA and the district court found that § 1746 does not allow what Foust proposes, because the SW 1/4NE 1/4 had been withdrawn from homestead entry for the purpose of a power reserve at the time the patents were issued. The district court acknowledged Foust's argument that Congress amended FLPMA in 1976 to remove language requiring that patent corrections be based on the land's availability for entry. Compare 43 U.S.C. § 697 (1964) with 43 U.S.C. § 1746 (1982). However, the court found the deletion of the entry language to be ambiguous and interpreted it to be "part of a concerted effort to simplify public land administration while retaining the basic precepts of public land law." Order of Nov. 13, 1989, at 18. We disagree.

The meaning of the congressional amendment deleting the entry language is clear: the statute no longer requires the land's availability for entry to correct a patent. We will not speculate as to what Congress might have intended, because no ambiguity exists. If Congress had intended something more subtle, it surely would have substituted language, rather than entirely deleting it. Furthermore, nothing in the legislative history supports the district court's analysis of congressional intent. See id. at 17-18 (legislative history fails to show why the entry language was deleted). A finding that the Secretary of Interior (Secretary) cannot correct a patent to include lands that were not subject to entry by the original patentee is not in accordance with the law.

We are similarly unpersuaded by the Indians' argument that the Secretary cannot correct a patent when doing so would require conveyance of tribal land. We agree that lands now held by the United States in trust for Indians are not public lands. See 43 U.S.C. § 1702(e). The relevant inquiry, however, is whether the lands in question were public lands at the time the patent was issued. The lot in question here, the SW 1/4NE 1/4, was owned by the United States, administered by the Secretary, and not held in trust for the Indians in 1936, and it therefore was public land under the statutory definition. See id.

We believe the Secretary's fiduciary duty to the Indians does not prevent him from correcting a patent to land that was public at the time the patent was issued and the alleged mistake made. If the responsible officers of the United States believed that the land on which Smith had built and claimed was the land described in the patent, and that the United States had already conveyed that land, the Congress could not have intended to restore that same land to the Indians in 1942. Thus, the Indians took the land subject to any mistaken description resulting from boundary uncertainties. The fact that the Secretary is vested with responsibilities both to correct patent errors and to act as trustee for the Indians cannot operate against patentees who have Indians, rather than non-Indians, as neighbors. We hold that the SW 1/4NE 1/4 is subject to the patent correction mechanism of 43 U.S.C. § 1746.

II

The IBLA found, and the district court agreed, that Foust failed to prove that Smith's patent contained an error. Our inquiry is limited to whether this determination is supported by substantial evidence, 5 U.S.C. § 706(2)(E), in light of the entire administrative record, see Bowman Transp., 419 U.S. at 284 n. 2, 95 S.Ct. at 441 n. 2; Roberts v. Morton, ...