Osborne v. Hammit

• Citation: 377 F. Supp. 977
• Decision Date: 20 August 1964
• Docket Number: Civ. No. 414.
• Parties: J. R. OSBORNE, in his own behalf and as Agent for R. R. Borders et al., Plaintiffs, v. Harold C. HAMMIT, Individually and as Manager of the Nevada Land Office, Bureau of Land Management, United States Department of the Interior, Defendants.
• Court: U.S. District Court — District of Nevada

377 F. Supp. 977

J. R. OSBORNE, in his own behalf and as Agent for R. R. Borders et al., Plaintiffs, v. Harold C. HAMMIT, Individually and as Manager of the Nevada Land Office, Bureau of Land Management, United States Department of the Interior, Defendants.

Civ. No. 414.

United States District Court, D. Nevada.

August 20, 1964.

Morse & Graves, Las Vegas, Nev., for plaintiff.

John W. Bonner, U. S. Atty., U. S. Courthouse, Las Vegas, Nev. and Thomas C. McKevitt, Atty., Dept. of Justice, Washington, D.C., for defendant.

FINDINGS OF FACT, OPINION AND DECISION

BRUCE R. THOMPSON, District Judge.

The jurisdiction of this Court was invoked pursuant to 5 U.S.C. § 1009 and 28 U.S.C. § 2201, by J. R. Osborne and others to review the final decision of the Secretary of the Interior dated October 23, 1961 cancelling certain unpatented mining claim locations. The trial was limited to the reception of the entire record of the administrative proceedings. Evidence aliunde such record was rejected. The Court, having reviewed the evidence and the arguments made on behalf of the respective parties, does now make the following Findings of Fact:

FINDINGS OF FACT

1. On December 1, 1948, the Bureau of Land Management, Department of the Interior, State of Nevada, issued an oil and gas lease covering the NW¼ and NW¼ of NE¼ of Section 32, T. 22 S., R. 61 E., M.D.M., Clark County, Nevada, which expired December 1, 1953 and which was in full force and effect in June, 1952.

2. On June 23, 1952, plaintiffs located four association placer mining claims, three of which are involved in this action, as follows:

(a) Bradford No. 1 Placer Mining Claim, embracing the NE¼ of Section 32, T. 22 S., R. 61 E., M. D.M.

(b) Bradford No. 2 Placer Mining Claim embracing the SE¼ of Section 32, T. 22 S., R. 61 E., M. D.M.

(c) Bradford No. 3 Placer Mining Claim embracing the NW¼ of Section 32, T. 22 S., R. 61 E.

Each claim appropriated sand and gravel as valuable minerals contained within the boundaries thereof.

3. On June 10, 1953, the Bureau of Land Management initiated contest proceedings attacking the validity of the three mining claims as follows: Contest No. 2476, attacking Bradford No. 2; Contest No. 2477, attacking Bradford Claim No. 3, and Contest No. 2478, attacking Bradford No. 1. The contestees answered and issues were joined on the contest complaints and answers thereto.

4. On June 4, 1954, plaintiffs filed with the Bureau of Land Management an application for mineral patent, Serial No. Nev-125248, embracing the lands included in the Bradford No. 1, No. 2 and No. 3 claims. On January 19, 1955, the Bureau of Land Management ordered publication of the application for patent. On April 4, 1955, the Bureau of Land Management collected $1,600.00 from plaintiffs as the statutory purchase price for the patent to the claims. In response to the publication of the application for patent, an adverse claim against those portions of Bradford No. 1 and Bradford No. 2 included in the E½ of E½ of Section 32 was filed. The adverse claimants instituted suit in the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark. The action was terminated by consent decree adjudging the adverse claimants to be the owners of unpatented claims embracing the E½ of SE¼ of Section 32 and plaintiffs to be the owners of the unpatented claims embracing the remainder of the property affected by the adverse claim.

5. On October 2, 1953, the Bureau of Land Management, exercising its powers respecting the classification of public lands for entry and disposition under the public land laws, classified Section 32, T. 22 S., R. 61 E., among other lands in Clark County, Nevada, as suitable for disposition under the small tract law for residential use.

6. On December 9, 1954, plaintiffs posted and recorded amended notices of location for the three Bradford claims for the purpose of gaining the benefits of the acts of August 12, 1953 and August 13, 1954 (30 U.S.C. §§ 501 and 521).

7. Commencing on November 30, 1954, a consolidated hearing was held before a Hearing Officer of the Bureau of Land Management on the contests No. 2746, 2477 and 2478, initiated by the Bureau against Bradford Claims No. 1, No. 2 and No. 3. Plaintiffs were represented and participated, as did a number of intervenors claiming an interest as small tract applicants. Although plaintiffs' application for mineral patent No. Nev-125248, was not formally consolidated for hearing with the contest complaints, plaintiffs, by their answers, had alleged the status of the patent proceedings as a defense to the contests, the record of the patent proceedings was received in evidence, and the right of plaintiffs to the issuance of a mining patent to the lands in question has been consistently treated as being in issue throughout the administrative procedure.

8. With respect to the issues made in the contest proceedings that the lands covered by the mining claims were non-mineral in character and that minerals had not been found in sufficient quantities or quality to constitute a valid discovery, the evidence proved, among other things, that sand and gravel mining locations had been made aggregating 800 to 1,000 in number and encompassing approximately 150 to 175 sections of public lands in Las Vegas Valley, Clark County, Nevada, and that the sand and gravel in the Bradford Claims was generally similar in character and quality to that in the other 150 or more sections of land on which similar claims had been located.

9. There was no evidence that the Bradford Claims, or any of them, were currently being worked or mined or that raw or processed material therefrom was currently or had recently been regularly produced and marketed.

10. The decision of the Hearings Officer was made April 7, 1955. He sustained the contests against Bradford No. 3 (NW¼, Sec. 32), and a portion of Bradford No. 1 (NW¼ NE¼ Sec. 32), upon the ground that the existing oil and gas lease No. 023272 removed such property from further mineral entry. This ruling was affirmed throughout all subsequent appeal and review proceedings and by the final decision of the Secretary of the Interior. The Hearings Officer found that Bradford No. 2 and the remainder of Bradford No. 1 (not encumbered by the oil and gas lease) were valid mining claims under the established rules governing proof of discovery of valuable non-metallic minerals. The Hearings Officer stated that the burden was on the Government to sustain its contest complaints by a preponderance of the evidence.

11. Both plaintiffs and the intervenors appealed the decision of the Hearings Officer to the Director of the Bureau of Land Management. By his decision dated March 9, 1957, the Director sustained the decision respecting the lands covered by the oil and gas lease holding that the amended notices of location posted and recorded by plaintiffs on December 9, 1954 were not timely and were ineffectual to invoke the benefits of the Acts of Congress of August 12, 1953 and August 13, 1954. The Director also suspended decision respecting the remainder of the claims pending final decision in the adverse action which had been brought in the Nevada District Court (See Finding 4).

12. Plaintiffs appealed to the Secretary of the Interior from the decision of the Director dated March 19, 1957. The decision of the Director was affirmed by the Secretary on May 16, 1958. This was the final agency action on the issue raised by the pre-existing oil and gas lease.

13. On March 8, 1959, the judgment of the Eighth Judicial District Court of the State of Nevada was recorded, resolving the conflicting possessory rights of plaintiffs and the adverse claimants as stated in Finding 4. On July 27, 1960, the Director of the Bureau of Land Management entered a supplementary decision in which he reversed in toto the decision of the Hearings Officer dated April 7, 1955, ruling: "Since the sand and gravel from these claims cannot be extracted, removed and presently marketed at a profit, the Bradford Nos. 1 and 2 Placer Mining Claims are null and void in their entireties. The Examiner's decision is reversed and mineral patent application Nevada 025248 is rejected."

14. The decision of the Director, dated July 27, 1960, was appealed by plaintiffs to the Secretary of the Interior who, on October 23, 1961, affirmed the Director's decision with respect to the three mining claims here involved. The Secretary held:

"The evidence upon which the Director based his finding that the claims are without validity, set forth in the Director's decision, fully supports his finding. The locators of these two claims have not met the test of showing that these minerals of wide occurrence, because of the accessibility of the deposits, "bona fides in development, proximity to market, and the existence of a present demand for the sand and gravel can be mined, removed, and disposed of at a profit. Without such a showing on the part of the locators, it was proper for the Director to declare the claims to be null and void. Foster v. Seaton, 106 U.S.App.D.C. 253 271 F.2d 836 (1959)."

15. The instant action, a Complaint for Injunction and Declaratory Relief, was filed November 22, 1961, seeking to set aside the decision of the Secretary of Interior and compel the issuance of a patent to the mining claims. Only one Harold C. Hammit, Manager of the Nevada Land Office, Bureau of Land Management, Department of the Interior, is a defendant herein.

16. The decisions of the Secretary of the Interior are supported by substantial evidence.

OPINION

The conclusions of law of the Court will be included in this Opinion, and to the extent that they are factual in character, or constitute statements of mixed law and ultimate fact, shall be deemed additional findings of fact.

Decree in Adverse Suit

1. The E½ of the SE¼ of Section 32, T. 22 S., R. 61 E. (the E½ of Bradford No. 2 Claim) has been conclusively eliminated from plainti...