Freese v. United States, 334-78.

CourtCourt of Federal Claims
Citation639 F.2d 754
Docket NumberNo. 334-78.,334-78.
PartiesAndrew L. FREESE, 2d v. The UNITED STATES.
Decision Date28 January 1981

639 F.2d 754

Andrew L. FREESE, 2d

No. 334-78.

United States Court of Claims.

January 28, 1981.

639 F.2d 755

Andrew Freese, 2d, pro se.

Ronald G. Gluck, Washington, D.C., with whom was Asst. Atty. Gen., James W. Moorman, Washington, D.C., for defendant.

Before FRIEDMAN, Chief Judge, and KUNZIG and BENNETT, Judges.


KUNZIG, Judge:

This taking case comes before the court on the parties' cross-motions for partial summary judgment on Count I of plaintiff's petition. Plaintiff is the owner of five unpatented mining claims located on federal lands. In 1972, Congress incorporated these lands into the newly established Sawtooth National Recreation Area (Sawtooth). The law creating Sawtooth expressly terminated the ability of existing claimholders to proceed to patent upon claims located in the recreation area, i. e., to obtain fee title to the lands in which the claims are located. This case concerns the question whether Congress' action amounts to an unconstitutional taking by inverse condemnation. We hold for the Government. While plaintiff's opportunities have been somewhat narrowed, plaintiff has not suffered a deprivation of "private property" within the meaning of the fifth amendment.

Mining claims upon lands owned by the United States are "initiated by prospecting for minerals thereon, and, upon the discovery of minerals, by locating the lands upon which such discovery has been made. A location is made by (a) staking the corners of the claim... (b) posting notice of location thereon, and (c) complying with the State laws, regarding the recording of the location in the county recorder's office...." 43 C.F.R. § 3831.1 (1979). In order to hold the claim, "not less than $100 worth of labor must be performed or improvements made thereon annually". 43 C.F.R. § 3851.1 (1979). The owner of the mining claim "shall have the exclusive right of possession and enjoyment" of the claim. 30 U.S.C. § 26 (1976). Ownership of a mining claim does not confer fee title to the lands within which the claim is located. Fee title passes only upon the issuance of a patent therefor. See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed.2d 350 (1963); Benson Mining and Smelting Co. v. Alta Mining

639 F.2d 756
and Smelting Co., 145 U.S. 428, 430, 12 S.Ct. 877, 878, 36 L.Ed. 762 (1892)
A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person ... or corporation authorized to locate a claim under ... this title Mineral Lands and Regulations in General ... having claimed and located a piece of land for such purposes, who has ... complied with the terms of this title ... may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field notes of the claim ... made by or under the direction of the Director of the Bureau of Land Management, showing accurately the boundaries of the claim ... which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the Director of the Bureau of Land Management that $500 worth of labor has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of $5 per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the appellant has failed to comply with the terms of ... this title....

30 U.S.C. § 29 (1976). See generally 43 C.F.R. §§ 3861.1-3864.1-4 (1979).

Between the years 1955 and 1970, plaintiff acquired five unpatented mining claims upon federal lands located in Idaho.1 In 1972, Congress established the...

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