Roberts v. Morton

Decision Date23 January 1975
Docket NumberCiv. A. No. C-5308.
Citation389 F. Supp. 87
PartiesKenneth ROBERTS et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the Interior, Washington, D. C., and The Interior Board of Land Appeals, United States Department of the Interior, Defendants.
CourtU.S. District Court — District of Colorado

COPYRIGHT MATERIAL OMITTED

Clement Theodore Cooper, Washington, D. C., Talmadge, Talmadge, Wallace & Hahn, Denver, Colo., for plaintiffs.

James L. Treece, U. S. Atty., Denver, Colo., by Douglas D. Doane, Asst. U. S. Atty., Gerald Fish, Atty., U. S. Dept. of Justice, Washington, D. C., for defendants.

OPINION, ORDER AND JUDGMENT

CHILSON, District Judge.

Defendants seek a review of the decision of the Secretary of the Interior, as entered by the Interior Board of Land Appeals (IBLA) United States v. Merle I. Zweifel, et al., 1 BLA 72-311 (May 29, 1973) affirming the administrative law judge's holding that plaintiffs' unpatented placer mining claims are null and void. United States v. Merle I. Zweifel et al., Colorado Contest No. 441 (February 25, 1972).

The mining claims in question, the majority of which were located in the Piceance Creek Basin, widely known for its vast oil shale deposits, were filed between May 2, 1966, and February 10, 1967, by Merle I. Zweifel as locator-agent for plaintiffs. The 2,910 claims, covering roughly 400,000 acres, were filed for dawsonite and other aluminabearing minerals. Alumina is the source of aluminum metal. Opinion of ILBA at pp. 60-62; Opinion of administrative law judge at pp. 1-2.

The decision declaring plaintiffs' mining claims null and void was based on findings (1) that plaintiffs did not sustain their burden of showing a discovery of valuable, locatable, marketable minerals on their claims, 30 U.S.C. §§ 22, 29, 35; and (2) that plaintiffs failed to locate their individual claims in the manner prescribed by statute and the applicable regulations. In addition, the administrative law judge found certain of the claims to be void ab initio since some were asserted on lands previously withdrawn from entry for any purpose by Public Land Order 2636, 27 Fed.Reg. 2572 (March 17, 1962), and others were asserted on lands previously patented by the United States without mineral reservation.

Plaintiffs claim that the administrative decision is not supported by substantial evidence; that it was arrived at in an arbitrary, capricious, whimsical and biased manner; that incorrect legal principles were applied by the administrative tribunals; and that the proceedings were conducted so as to deprive plaintiffs of their rights to due process and a meaningful opportunity to be heard.

I. JURISDICTION

Plaintiffs promise jurisdiction of this action on 5 U.S.C. §§ 702, 704 (Administrative Procedure Act), 28 U.S.C. § 2201 (Declaratory Judgment Act), 28 U.S.C. § 1361, and 28 U.S.C. § 1391 (Venue).

In the pre-trial order entered herein on April 15, 1974, defendants admit jurisdiction under 28 U.S.C. § 1361 but deny plaintiffs' other jurisdictional allegations. Notwithstanding defendants' objections, jurisdiction to review the decision of the IBLA is properly based on 5 U.S.C. §§ 702, 704. Nickol v. United States, 501 F.2d 1389 (10th Cir. 1974). However, jurisdiction may not be based upon 28 U.S.C. § 2201 since the Declaratory Judgment Act is not jurisdictional. Converse v. Udall, 399 F.2d 616, 618 (9th Cir. 1968), cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). Nor may jurisdiction be based upon 28 U.S.C. § 1391 which deals only with venue. Converse v. Udall, supra.

This case is thus properly before the Court under 5 U.S.C. §§ 702, 704 and 28 U.S.C. § 1361.

II. PROPRIETY OF SUMMARY JUDGMENT ON REVIEW OF ADMINISTRATIVE RECORD

Defendants have filed a motion for summary judgment and a motion for judgment on the pleadings. Since the administrative record comprises "matters outside the pleadings" and has been considered by the Court, the motion for judgment on the pleadings shall be treated as a motion for summary judgment in accordance with Rule 12(c) Federal Rules of Civil Procedure.

The plaintiffs have also filed a motion for summary judgment supported by an affidavit which defendants have moved to strike. In view of the Court's disposition of the motions for summary judgment herein, it is unnecessary to determine defendants' motion to strike.

We now consider the propriety of summary judgment in a review of an administrative record.

In Nickol v. United States, supra, a case involving the review of an administrative invalidation of mining claims, the Tenth Circuit Court of Appeals held that a mere order granting or denying summary judgment in cases involving the review of administrative records is inappropriate. This conclusion was based on the Court's observation that the review of a factual record by its very nature involves genuine issues of material fact. Indeed, "a dispute concerning the presence or absence of substantial evidence in a record is itself a genuine issue of material fact, precluding an award of summary judgment." Johnson v. Weinberger, 388 F.Supp. 628, 629 (D.Colo.1974). See Nickol v. United States, supra.

However, when asked to review an administrative record to determine whether the decision therein reached is supported by substantial evidence, the Court's review is "confined to the agency record, or such portions of it which the parties may cite, and additional evidence is not to be admitted." Nickol v. United States, supra, 501 F.2d at 1390.

This Court now has before it the various pleadings, motions and briefs filed by the respective parties and the voluminous administrative record on which the the IBLA based its decision. This is the only pertinent material which the Court may consider on this review; the case is thus ripe for final disposition upon the entry of appropriate findings of fact and conclusions of law by this Court. Nickol v. United States, supra, 501 F.2d at 1391; Johnson v. Weinberger, supra.

III. STANDARD OF REVIEW

In reviewing a decision of the Secretary of the Interior, as reached by the IBLA, this Court's function is not to weigh the conflicting evidence adduced at the administrative proceedings. Rather, the Court must determine whether, upon the entire administrative record, there is substantial evidence to support the Secretary's decision, and if so, the decision must stand. 5 U.S.C. § 706(2) (E); Nickol v. United States, supra; Udall v. Snyder, 405 F.2d 1179, 1180 (10th Cir. 1968); Udall v. Garula, 405 F.2d 1181 (10th Cir. 1968); Converse v. Udall, supra; Pan American Petroleum Corp. v. Udall, 352 F.2d 32 (10th Cir. 1965); Henrikson v. Udall, 350 F.2d 949, 950 (9th Cir. 1965).

In analyzing the administrative record, the Court must also be persuaded that the Secretary applied the proper legal standards, both substantively and procedurally, and correctly interpreted any applicable rules and regulations in reaching his decision. See generally 5 U.S.C. § 706(2). See Sainberg v. Morton, 363 F.Supp. 1259, 1261 (D.Ariz. 1973) and cases therein cited.

IV. LEGAL STANDARDS FOR PERFECTING PLACER MINING CLAIMS

The United States mining laws permit citizens of the United States to explore, mine and/or purchase "valuable mineral deposits in lands belonging to the United States". 30 U.S.C. § 22. In order to perfect mining claims on public lands, the claimant must make a discovery, see 30 U.S.C. § 23, of valuable minerals thereon.

30 U.S.C. § 29 provides:

"A patent1 for any land claimed and located for valuable mineral deposits may be obtained in the following manner: Any person . . . may file . . . an application for a patent, under oath, . . ., showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land . . ." (emphasis added)

This same procedure is to be followed in order to obtain patents for placer mining claims such as are involved in this case. 30 U.S.C. § 35.

The statute does not prescribe guidelines for determining when a claim is made to "valuable mineral deposits." However, in a long line of cases, the Secretary of the Interior and the Courts have developed standards, known as the "prudent-man" and "marketability" tests, to be used in assessing the valuableness of mineral claims. As first stated in Castle v. Womble, 19 L.D. 455, 457 (1894),

"Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditures of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute are met."

This "prudent-man" standard is supplemented by the so-called "marketability" test. The claimant must show that a man of ordinary prudence could extract and market the claimed minerals at a profit. This requires that there exists, at the time of discovery rather than at some speculative future date, a market for the discovered minerals that is sufficient to attract the efforts of a person of ordinary prudence. See United States v. Zweifel, 508 F.2d 1150, (10th Cir. 1975); Barrows v. Hickel, 447 F.2d 80, 83 (9th Cir. 1971).

In United States v. Coleman, 390 U.S. 599, 602-603, 88 S.Ct. 1327, 1330, 20 L. Ld.2d 170, rehearing denied, 391 U.S. 961, 88 S.Ct. 1834, 20 L.Ed.2d 875 (1968), conformed to, 405 F.2d 72 (9th Cir.), cert. denied, 394 U.S. 907, 89 S.Ct. 1014, 22 L.Ed.2d 217 (1969), the Supreme Court reaffirmed its long held approval of the "prudent-man" test, and also approved the "marketability" test as "an admirable effort to identify with greater precision and objectivity the factors relevant to a determination that a mineral deposit is `valuable.'"

Plaintiffs argue that the "marketability" test is inapplicable in a case involving so-called "intrinsically valuable" minerals, which are presumed to be...

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