Johnson v. Udall

• Decision Date: 22 October 1968
• Docket Number: Civ. A. No. 68-994.
• Citation: 292 F. Supp. 738
• Court: U.S. District Court — Central District of California
• Parties: Robert N. JOHNSON, Gary Johnson, Walter Johnson, Emma Johnson, Ronald R. Johnson, Janet R. Johnson, and Thelma A. Johnson, as an individual and as the Executrix of the Last Will and Testament of Nolan F. Fultz, Deceased, Plaintiffs, v. Stewart L. UDALL, as Secretary of the Interior of the United States of America, Defendant.

292 F. Supp. 738

Robert N. JOHNSON, Gary Johnson, Walter Johnson, Emma Johnson, Ronald R. Johnson, Janet R. Johnson, and Thelma A. Johnson, as an individual and as the Executrix of the Last Will and Testament of Nolan F. Fultz, Deceased, Plaintiffs, v. Stewart L. UDALL, as Secretary of the Interior of the United States of America, Defendant.

Civ. A. No. 68-994.

United States District Court C. D. California.

October 22, 1968.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John B. Lonergan, of Lonergan, Jordan & Gresham, San Bernardino, Cal., for plaintiffs.

Wm. Matthew Byrne, Jr., U. S. Atty., and Ernestine Tolin, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT.

HAUK, District Judge.

Plaintiffs Robert N. Johnson, Gary Johnson, Walter Johnson, Emma Johnson, Ronald R. Johnson, Janet R. Johnson, Thelma A. Johnson, as an individual, and Thelma A. Johnson as Executrix of the Last Will of Nolan F. Fultz, deceased, filed a Complaint in this Court against Stewart L. Udall, as Secretary of the Interior, to compel Defendant as an officer of the United States to perform certain duties alleged by Plaintiffs to be owed them. Original jurisdiction of the Court was invoked under the provisions of Sec. 1(a) of the Act of October 5, 1962, 76 Stat. 744, 28 U.S.C. Sec. 1361.¹ The Complaint seeks judicial review of a final administrative agency action as is permitted by Sec. 1 of the Federal Administrative Procedure Act, 5 U.S.C. Secs. 702, 703, 704, 705 and 706.²

Defendant thereupon filed his Motion for Summary Judgment of Dismissal under Rule 56 of the Federal Rules of Civil Procedure for the stated reasons that there was a procedural deficiency as to the Plaintiffs as individuals resulting from their failure to exhaust their administrative remedies, that there was no genuine issue of fact, and that Defendant was entitled to judgment as a matter of law. Defendant's motion was based upon the Complaint, his Memorandum of Points and Authorities, and the entire administrative record in the Department of the Interior which was considered by the Assistant Solicitor in acting for the Secretary and in making the agency decision of which Plaintiffs complain.

Thereupon Plaintiffs served and filed their Motion for Summary Judgment in favor of Plaintiffs, the motion being based upon their complaint, their Memorandum of Points and Authorities, and the administrative record.

Both sides have filed various answering memoranda, objections and argument which raise the question of proper interpretation and application of the regulations of the Secretary of Interior governing the Department of Interior and Bureau of Land Management in contest proceedings, 43 C.F.R. 1852.1-3, 1852.1-4, 1852.1-5, 1852.1-6, 1852.1-7, 1852.2-1, 1852.2-2.³

The pertinent facts as set forth in the Complaint and disclosed by the exhibits attached and incorporated in that pleading are not controverted.

On May 7, 1965, the seven individual Plaintiffs other than Thelma A. Johnson as Executrix, together with one Nolan F. Fultz, filed in the Riverside District and Land Office of the Bureau of Land Management of the Department of the Interior an application under the mining laws of the United States and pertinent regulations of the Secretary of the Interior for a mineral patent of The Royal Black Mining Claim, a placer mining claim situated in Riverside County, California. Each of the eight applicants was the owner at that time of an undivided one-eighth interest in the entire claim and the eight applicants were all the owners of the claim. None of the applicants had any ownership to any particular area of the claim, their ownership being as to each an undivided interest owned and held in common with the other owners of the claim in the whole.

At the time the application for patent was filed in the land office, applicant Fultz was alive. He died September 8, 1965.

On February 4, 1966, a mining claim contest complaint was filed in the district and land office by the United States, as contestant, under the regulations contained in Subpart 1852 of Title 43 of the Code of Federal Regulations. The contest complaint named the patent applicants as contestees, and contained a request that the contestant be allowed to prove the allegations of the contest complaint to the effect that the material in the claim was not a valuable mineral deposit under the law and that valuable minerals had not been found within the limits of the claim in sufficient quantities to constitute a valid discovery under the mining laws. The contest complaint asked that one or both of the following actions be taken: (1) That the mineral entry made by the filing of the application for patent be cancelled, and (2) that the mining claim which was the subject of the entry be declared null and void. The contest complaint further contained the allegation that the contestant was informed and believed the contestees so named were the owners or asserted the ownership of the claim and were the only parties of interest and that their address was "c/o John B. Lonergan, Attorney at Law, 506 Andreson Building, San Bernardino, California 92401". This was the address of the eight contestees as given by them in their patent application. As required by 43 CFR 1852.1-4(a) (9), the contest complaint contained a notice that unless the contestees filed an answer in the district and land office within thirty (30) days after service of the notice and the complaint, the allegations of the complaint would be taken as admitted and the case decided without a hearing.

Service of the notice and contest complaint was by mail. A copy of the contest complaint containing the notice was sent by registered mail, return receipt requested, marked to be delivered to the addressees only, to the eight named contestees, addressed to them in care of the attorney, that being the record address of the applicants for patent in the patent application proceedings in the land office.

The registered mail envelope was received and accepted by the Attorney on February 8, 1966. The earlier death of Fultz was unknown to the attorney, who prepared an answer to the contest complaint and mailed it to the contestees for signature. Through apparent inadvertence the seven living contestees did not sign and return the document to the attorney or advise him of the death of Mr. Fultz until the 30-day period for answering the contest complaint had expired.

On March 18, 1966 the district and land office issued its decision stating that the contestees had not filed an answer to the complaint, and that, no answer having been filed, the allegations of the complaint were taken as admitted and that the mineral application was rejected and the mining claim declared null and void, as to all named contestees, including without specification the decedent Fultz.

The attorney wrote in at the end of the answer he received from the seven living contestees, along with their signatures, "Estate of Nolan F. Fultz, deceased" and requested the land office to accept the document for filing, and advised them of the death of Mr. Fultz. The answer was rejected and was physically returned to the attorney by the land office with the advice that the Secretary was without authority to waive his own rule to permit a late filing for the reason that his regulation on the subject was plain and unambiguous.

Thereupon the seven living contestees, together with Thelma A. Johnson as the executrix named in the Will of Mr. Fultz, not yet admitted to probate, appealed the district and land office decision to the Director of the Bureau of Land Management and also appealed from the action in rejecting the answer. In addition, the appellants, who are the plaintiffs here, moved the Director in writing for permission to file their answers to the contest complaint out of time and thereby asked for relief from the default so that both the living contestees and the executrix could prove the validity of the claim. On May 5, 1967 the Director affirmed the local land office decision and declined to waive the default, ruling that the departmental regulation requirements (43 CFR 1852.1-6 and 1852.1-7(a)) were mandatory and that the Secretary was without authority to waive his own rules to permit the late filing of an answer.

Thereupon the seven living contestees and Thelma A. Johnson, who had been appointed by the local probate court as executrix by an order dated March 31, 1967, took a timely appeal to the Secretary of the Interior under the departmental regulations. On January 29, 1968, by Decision A-30828 of that date, the Assistant Solicitor, Land Appeals, in the Office of the Secretary of the Interior, acting for the Secretary, affirmed the decision of the Bureau of Land Management of May 5, 1967, which in turn had affirmed the decision of the local land office, as to the individual contestees other than Nolan F. Fultz, and reversed the decisions of the Bureau of Land Management and the local office as to Thelma A. Johnson as Executrix of the Last Will of Nolan F. Fultz, deceased. The decision for the Secretary expressly held that since neither the heirs nor the legal representative of the Fultz estate had given the address in care of the attorney as their address of record in the land office, service there was not effective as to the Fultz interest and that it was therefore improper to declare null and void that interest in the mining claim and the proper proceedings must be pursued against it, while the contest complaint as to the living contestees had been properly served and that the individual living contestees were required at their peril to respond within the time allowed by the departmental regulations and that when they failed to do so, the contest complaint was properly taken as admitted against them.

The contest complaint has not been amended at any time. As filed it contained as a named contestee, with...