McClarty v. Secretary of Interior
| Decision Date | 20 February 1969 |
| Docket Number | No. 21227.,21227. |
| Citation | 408 F.2d 907 |
| Parties | Kenneth McCLARTY, Appellant, v. SECRETARY OF the INTERIOR et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald H. Bond (argued), of Halverson, Applegate, McDonald & Weeks, Yakima, Wash., for appellant.
Roger P. Marquis (argued), George R. Hyde, Edwin L. Weisl, Jr., Asst. Atty. Gen., Washington, D. C., Smithmoore P. Myers, U. S. Atty., Yakima, Wash., for appellee.
Before CHAMBERS and JERTBERG, Circuit Judges, and THOMPSON,* District Judge.
This is an appeal from a summary judgment entered May 27, 1966, by the District Court of the United States for the Eastern District of Washington, dismissing an action to review the decision of the Secretary of the Interior, United States v. McClarty, 71 I.D. 331 (1964), invalidating Appellant's mining claim located for building stone.
There have been significant developments in this area of the law since the processing of this case through the administrative appeals in the Interior Department and since the decision of the District Court. The Supreme Court has ruled (United States v. Coleman, 1968, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170)1 that the Act of July 23, 1955, 69 Stat. 367, 30 U.S.C. §§ 601-615, eliminating as minerals locatable under the mining laws a "deposit of common varieties of sand, stone, gravel, pumice, pumicite or cinders" applies to common varieties of building stone, but that the Act of August 4, 1892, 27 Stat. 348, 30 U.S.C. § 161, authorizing mining locations of lands chiefly valuable for building stone remains viable and "effective as to building stone that has `some property giving it distinct and special value'." United States v. Coleman, supra, at 605, 88 S.Ct. at 1331.
And on April 30, 1968, the Secretary of the Interior, in United States v. U. S. Minerals Development Corporation, 75 I.D. 127, undertook to review and reconcile his many decisions with respect to building stone claims against the cogent charge that his rulings avoiding such claims had the effect of vitiating 30 U.S.C. § 161 with the result that no building stone deposits are locatable under the mining laws. Among the decisions discussed was that in the instant case (United States v. McClarty, 71 I.D. 331). In the U.S. Minerals Development Corporation case, the Secretary, impelled by the Coleman decision to breathe some life into the building stone statute, has defined guidelines for distinguishing between common varieties and uncommon varieties of building stone. These guidelines, as we discern them, are (1) there must be a comparison of the mineral deposit in question with other deposits of such minerals generally; (2) the mineral deposit in question must have a unique property; (3) the unique property must give the deposit a distinct and special value; (4) if the special value is for uses to which ordinary varieties of the mineral are put, the deposit must have some distinct and special value for such use; and (5) the distinct and special value must be reflected by the higher price which the material commands in the market place. We accept this analysis as representing a genuine effort by the Secretary to implement the admonition of the Coleman case that certain kinds of building stone are still subject to location under the mining laws. The result in the Minerals Development Corporation case was a remand for further hearing to develop further evidence regarding the price commanded by the stone there in question as compared to other building stone on the market. The evidentiary record was deficient on this issue.
In the instant case, McClarty located a mining claim on a deposit of stone which was naturally fractured in regular shapes ready for use by the stonemason, with little, if any, cutting or shaping required. The deposit was unique in that seventy per cent or more of the stone had been shaped by nature into forms immediately usable in commercial and residential construction. This was determined by a comparison of this particular deposit with other deposits generally. The deposit had a unique and special property or characteristic for use...
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...I.B.L.A. at 76-79. The IBLA has often applied this regulation with a standard that the Ninth Circuit articulated in McClarty v. Sec'y of Interior, 408 F.2d 907 (9th Cir.1969), which set forth five guidelines for distinguishing between common and uncommon variety minerals.5 See David Q. Togn......
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