Gabbs Exploration Company v. Udall, 16803.

• Decision Date: 14 February 1963
• Docket Number: No. 16803.,16803.
• Citation: 315 F.2d 37
• Parties: GABBS EXPLORATION COMPANY, Appellant, v. Stewart L. UDALL, Secretary of the Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

315 F.2d 37 (1963)

GABBS EXPLORATION COMPANY, Appellant, v. Stewart L. UDALL, Secretary of the Interior.

No. 16803.

United States Court of Appeals District of Columbia Circuit.

Argued October 31, 1962.

Decided February 14, 1963.

Petition for Rehearing Denied March 26, 1963.

Mr. Frederick Bernays Wiener, Washington, D. C., with whom Mr. Fred H. Evans, Salt Lake City, Utah, was on the brief, for appellant.

Mr. Thomas L. McKevitt, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark, and Messrs. Roger P. Marquis and Harold S. Harrison, Attys., Dept. of Justice, were on the brief, for appellee. Mr. S. Billingsley Hill, Atty., Dept. of Justice, also entered an appearance for appellee.

Before WILBUR K. MILLER, BASTIAN and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc March 26, 1963.

BASTIAN, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing plaintiff's appellant's complaint for declaratory judgment and for "relief in the nature of mandamus." The plaintiff sought a judgment declaring invalid two contest proceedings involving property hereinafter referred to; a judgment that the decisions of defendant's appellee's predecessor cancelling certain mineral entries are null and void; a judgment enjoining defendant from rejecting plaintiff's applications for patents; and a judgment directing defendant to determine the right of plaintiff to patents for certain mining claims, without regard to the contests.

On July 24, 1918, plaintiff's predecessor in title located eight oil placer claims in Rio Blanco County, Colorado (Mullins claims). On March 30, 1929, the then Secretary of the Interior instituted against the record owners of these claims a contest, No. 11977, in which it was charged:

"2. That there has not been expended upon each and every one of the claims labor and improvements of a reasonable value of $100 for the assessment years ending July 1, 1921, to July 1, 1928, inclusive, and the claims have been abandoned."

The record owners were served with the contest notice, but they filed no objection and, in fact, made no appearance. Thereafter, on June 5, 1929, the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, declared the contested oil shale locations null and void, and notified the contestees accordingly. No further action appears to have been taken until April 14, 1956, when plaintiff purchased, by quitclaim deed, the mining claims in question. Thereafter, plaintiff made applications for patents on all of said claims, which were duly rejected.

The second cause of action set forth in the complaint is known as the Sibbald-Coral claims. In December 1917 and February 1918, plaintiff's predecessor in title located eighteen oil placer claims in Garfield County, Colorado. On December 31, 1929, defendant's predecessor in office caused a contest, No. 12111, to be instituted against the record owner of the said claims, in which it was charged:

"1. That there has been no assessment work performed upon any of the above described placer mining claims for the assessment years ending July 1, 1921, up to and including July 1, 1929.

"2. That each and every one of said claims has been abandoned."

On January 13, 1930, the record owner of the claims was served a copy of the contest notice but failed to file an answer within the time allowed by the regulations of the Department of the Interior governing contests. Accordingly, on May 19, 1930, the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, declared the contested oil shale locations null and void, and the contestee was duly notified. On March 21, 1956, plaintiff purchased, by quitclaim deed, the mining claims in question and duly applied for a patent covering all said claims. The application was rejected, after which the present suit was instituted.

On cross-motions for summary judgment, the District Court entered judgment granting defendant's motion for summary judgment and denying that of plaintiff, and dismissed the complaint. This appeal followed. We affirm the judgment of the District Court.

Plaintiff's case is pitched largely on three grounds. It argues that the proceedings resulting in the cancellation of the claims were null and void, first, because the Supreme Court has held that a charge of failure to perform assessment work may not be a basis for declaring unpatented mining claims invalid;¹ second, because the Secretary of the Interior lacks authority to declare unpatented mining claims invalid by reason of abandonment; and finally, because, even if the Secretary does have such authority, the charges of abandonment in this case are invalid since they were not supported by an allegation of the particular facts constituting abandonment, as required under the rules of the Department of the Interior.

It is true that the Supreme Court did hold that failure to perform assessment work may not be the basis for holding unpatented mining claims invalid; however, this does not affect the charge that plaintiff's mining claims had been abandoned. The two charges are separate and distinct. And we find no merit in the contention that the Secretary lacked authority to cancel the mining claims by reason of abandonment. In fact, in Ickes v. Virginia-Colorado Development Corp., 295 U.S. 639, 55 S.Ct. 888 (1935), one of the cases relied upon by plaintiff and having to do with the charge of failure to perform assessment work, the Supreme Court said:

"There was authority in the Secretary of the Interior, by appropriate proceedings, to determine that a claim was invalid for lack of discovery, fraud, or other defect, or that it was subject to cancellation by reason of abandonment." 295 U.S. at 645, 55 S.Ct. at 889. Emphasis supplied.

Plaintiff contends that this expression, quoted from Mr. Chief Justice Hughes's opinion, is obiter dictum. We are unable to say that that is the case, because it seems to us that the quoted language was in fact material to the decision. Assuming it was dictum, however, we recognize the fact that, although a decision of an appellate court is controlling only to the extent of the actual facts involved, and an expression as to the law based on other facts is regarded as dictum and not controlling on lower courts, such dictum certainly deserves serious consideration. That, indeed, is the general rule in federal courts.

"If these conclusions were dicta, it does not necessarily follow that they were wrong, and certainly dicta of the United States Supreme Court should be very persuasive." Fouts v. Maryland Casualty Co., 30 F.2d 357, at 359 (4th Cir., 1929), reversing Maryland Casualty Co. v. Foutz, 4 Cir., 27 F.2d 423, cert. denied, Maryland Casualty Co. v. Fouts, 279 U.S. 852, 49 S.Ct. 348, 73 L.Ed. 995 (1929).

"The considered dicta of a court of last resort are entitled to the respectful recognition of inferior courts within the same judicial system." United States v. Roemig, 52 F.Supp. 857, at 861 (N.D.Iowa 1943).

"It the quotation declares the view of the court United States Supreme Court and has strong persuasive influence on the lower courts." International Ry. Co. v. Davidson, 65 F. Supp. 58, at 59 (W.D.N.Y.1945).

The owners of the Mullins and the Sibbald-Coral claims were not denied due process in the original contests, for it is clear that they had adequate notice of the contest against them, they were offered a hearing, and they were informed of the cancellation of their claims. In view of what we have previously stated, there was no jurisdictional defect in the 1929 contests. The only defect that plaintiff can point to in those initial contests is the failure of the complaint to allege the facts of abandonment and the lack of supporting affidavits. Plaintiff urges that these defects render the original judgments void. We do not think so.

Plaintiff's predecessors in interest might have corrected these errors or defects, if errors or defects there were, by timely appeal to the Secretary of the Interior from the decision of the Commissioner of the General Land Office. As timely appeal was not taken then, it is now too late for pl...