Nicholas v. Secretary of Department of Interior, 20667.

• Decision Date: 14 November 1967
• Docket Number: No. 20667.,20667.
• Citation: 385 F.2d 177
• Parties: Jess H. NICHOLAS, Jr., Appellant, v. SECRETARY OF the DEPARTMENT OF INTERIOR and The United States of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

385 F.2d 177 (1967)

Jess H. NICHOLAS, Jr., Appellant, v. SECRETARY OF the DEPARTMENT OF INTERIOR and The United States of America, Appellees.

No. 20667.

United States Court of Appeals Ninth Circuit.

November 14, 1967.

Fisher & Hornaday, James E. Fisher (argued), Kenai, Alaska, for appellant.

Richard L. McVeigh, U. S. Atty., Anchorage, Alaska, Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis (argued), Atty. Lands Division, Dept. of Justice, Washington, D. C., for appellee.

Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges.

PER CURIAM:

Appellant appeals from a summary judgment entered in favor of appellee by the United States District Court for the District of Alaska.

Initially the Anchorage, Alaska, Land Office rejected appellant's final proof on a homestead entry and cancelled his entry for failure to meet the cultivation requirements of the Homestead Law as set forth in 43 U.S.C. § 164, but advised the appellant to apply for five acres of his entry as a homestead under the Act of May 26, 1934, 48 Stat. 809, 48 U.S.C. § 461 (1958).

On appeal to the Division of Appeals, Bureau of Land Management, the decision of the Land Office was affirmed, including that portion relating to the five acre homesite.

On appeal the Secretary of the Department of the Interior affirmed the decision of the Division of Appeals, including that portion relating to the five acre homesite, and added the statement that "This should amply protect him in all the improvements that he has made on the land."

In his complaint, as amended, filed in the District Court, appellant alleges in substance that notwithstanding the fact that he had fulfilled all the requirements necessary to qualify for a patent, the Secretary, by arbitrary and capricious action, cancelled his entry on the land and denied him a patent for said land. He further alleged that, acting on the assurance that he would be granted a patent to said land, he expended an estimated $7,500.00 on materials and improvements required to perfect his homestead entry and improve the land. The complaint prayed for a judgment setting aside the decision, and awarding title to said land to appellant and, in the alternative, in the event the relief requested was not granted, that an order be made permitting him to apply for a homesite on said land.

The District Court in entering summary judgment in favor of the appellee stated:

"The court now finds that the construction of the law in connection with the administrative decision complained of has a rational basis and that the findings of fact are supported by substantial evidence on the record as a whole."

The court further ordered:

"That plaintiff may apply for five (5) acres of his entry as a homesite under the Act of May 26, 1934, 48 Stat. 809, 48 U.S.C. § 461 (1958)."

Appellant's one hundred sixty acre homestead entry was allowed on August 3, 1956. On July 20, 1961, appellant filed final proof on his homestead entry, stating that in 1957 he cultivated three acres and planted alsak and timothy, which was not harvested; in 1958 he cultivated ten acres and planted rye, which was not harvested; and that in 1961 he cultivated seven acres and planted rye, which was not harvested. He further stated that twenty acres were "now cultivated", and that there was no use of the land for grazing. As his reason for cultivating less acreage than required by law, appellant stated "Unable to find someone to clear land." Appellant's proof was supported by two witnesses.

We have carefully reviewed the record of proceedings before the Secretary, the Division of Appeals, Bureau of Land Management, and the Land Office at Anchorage, Alaska, which record was before the District Court by stipulation of the parties. The record reveals that the Land Office rejected appellant's final proof on his homestead entry and cancelled his entry on the ground that appellant failed to cultivate the required number of acres during the third and fourth entry years.

In his appeal to the Division of Appeals, Bureau of Land Management, appellant stated that in the spring of 1958 he went to the Land Office at Anchorage to obtain information as to the meaning of "cultivation" in the homestead requirements. He was unable to see the Manager of the office. Whereupon he explained to a clerk at the counter that he had thirteen acres cultivated and planted to seed, and intended to have seven acres more cleared in the spring of '59, but wanted to wait a year or two to seed it as he wanted to use a land plane on it; that he was advised by the clerk that as long as he had all of the clearing done in the first three years, that was all that was necessary; that on the basis of the information given him, he decided to wait as long as possible for a land plane to become available, and that during the fifth year of his entry he planted the seven acres. Appellant contended that had he not been given the information, he would and could have completed his planting in 1959 on the seven acres which had been cleared that year.

As previously noted, the Division of Appeals, Bureau of Land Management, affirmed the decision of the Land Office, and rejected appellant's contention that he had a right to rely on the information received from a clerk at the counter.

In his appeal to the Secretary of the Department of the Interior, appellant contended that since the ten acres cultivated in '58, and the three acres cultivated in '57 were planted to...