Roberts v. Morton

• Decision Date: 15 March 1977
• Docket Number: No. 75-1155,75-1155
• Citation: 549 F.2d 158
• Parties: Kenneth ROBERTS et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, and the Interior Board of Land Appeals, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 158

549 F.2d 158

Kenneth ROBERTS et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, and the

Interior Board of Land Appeals, Defendants-Appellees.

No. 75-1155.

United States Court of Appeals, Tenth Circuit.

Submitted Nov. 12, 1975.

Decided Nov. 19, 1976.

Rehearing and Rehearing In Banc Denied March 15, 1977.

Clement Theodore Cooper, Washington, D. C., and Tallmadge, Tallmadge, Wallace & Hahn, Denver, Colo., for plaintiffs-appellants.

Wallace H. Johnson, Asst. Atty. Gen., Washington, D. C., James L. Treece, U. S. Atty., Douglas D. Doane, Asst. U. S. Atty., Denver, Colo. and Jacques B. Gelin, and Eva R. Datz, Attys., Dept. of Justice, Washington, D. C., for defendants-appellees.

Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal is taken from a decision of the district court, 389 F.Supp. 87, which sustained the ruling of the Interior Board of Land Appeals, 11 IBLA 53, affirming the administrative law judge's decision that 2,910 unpatented placer mining claims of the plaintiffs-appellants are null and void. United States v. Zweifel, Colorado Contest No. 441 (C.C.No. 441). We agree with the district court's conclusions, and affirm.

The decisions cited above amply state the facts. We will only outline the background briefly as a premise for treating the appellate contentions before us.

These proceedings began when the United States filed a complaint in 1968 contesting the validity of these 2,910 unpatented placer mining claims covering portions of the Green River Formation in Rio Blanco, Garfield and Moffat Counties of Western Colorado. Most of these claims lie within the Piceance Creek Basin which contains vast deposits of oil shale. Oil shale has not been locatable under the mining laws since the passage of the Mineral Leasing Act of 1920.

The claims were filed between May, 1966 and February, 1967 (C.C.No. 441, p. 2) for dawsonite and other alumina-bearing compounds. Alumina is the source compound for aluminum. The dawsonite and other alumina-bearing compounds are commingled with the oil shale host rock. (C.C.No. 441, p. 32).

The administrative law judge found that certain of the claims were void ab initio since they had been filed on lands withdrawn for reclamation purposes by Public Land Order 2632, 25 Fed.Reg. 2572 (March 17, 1962) (Tr. 53-54). He also dismissed the complaint as to other claims previously patented by the United States without mineral reservation. (Tr. 53).

In addition, the administrative law judge concluded that all the remaining mining claims were null and void based on findings: (1) that the claimants failed to locate their claims in accordance with the applicable mining laws and regulations, 30 U.S.C. §§ 22 and 28; 43 C.F.R. § 3401.1 (now § 3831.1); Colorado Revised Statutes (C.R.S.) § 92-22-12 (1963), (now C.R.S. § 34-43-112 (1973)); and (2) that the claimants did not sustain their burden of showing the discovery of a valuable mineral deposit within the limits of each claim within the meaning of the mining laws. 30 U.S.C. §§ 22 and 23. The claimants appealed this decision to the Interior Board of Land Appeals. The Board reviewed the record and upheld the decision of the administrative law judge. The instant suit was then brought in the district court seeking declaratory and injunctive relief and to set aside the final administrative order.

Defendants moved for summary judgment and dismissal on the pleadings. Plaintiffs also moved for summary judgment, with a supporting affidavit. The court considered the propriety of summary judgment on review of an administrative record in light of Nickol v. United States, 501 F.2d 1389 (10th Cir.). With the pleadings, motions, briefs and the administrative record before it, the district court concluded that the case was "ripe for final disposition upon the entry of appropriate findings of fact and conclusions of law by this Court." Roberts v. Morton, supra, 389 F.Supp. at 90.

Those findings and conclusions followed in the court's written opinion, order and judgment which sustained the agency's rulings and dismissed this action with prejudice. This appeal now challenges both the procedure followed by the court and its rulings sustaining the two conclusions on which the claims were held void.

First, plaintiffs argue that the district court erred in granting summary judgment. They contend that the court erroneously limited the scope of review, that there were genuine issues of material fact, that all the testimony must be reviewed and conflicts resolved, so that summary disposition under Rule 56, F.R.Civ.P., was error.

In this action for declaratory relief and for review under the Administrative Procedure Act, the principal issues are whether the administrative tribunal applied correct legal principles and whether its findings were supported by substantial evidence. 5 U.S.C.A. § 706(2)(E). See Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 28 L.Ed.2d 136. Such 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. The reviewing court may set aside the administrative decision if it cannot conscientiously find that the evidence supporting the decision is substantial, when viewed in the light of the entire record, including the body of evidence opposed to the agency's view. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456.

We are convinced the district court fully complied with the procedural requirements of the Nickol case. The court's order was not one which merely sustained the agency summarily. The opinion shows that the court examined the facts in the record, evaluated the conflicts, and determined that the facts supported the elements making up the ultimate administrative decision. Nickol, supra at 1390-91. Regardless of the type of judgment entered, the opinion gives sufficient indication of the facts relied on from the administrative record to sustain the court's conclusion that the administrative decision was supported by substantial evidence. Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th Cir.). We thus find no procedural error in the disposition made.

Second, plaintiffs challenge the administrative ruling that their claims were void due to plaintiffs' failure to locate their claims in accordance with the mining laws.

The federal mining laws provide generally that valuable mineral deposits in Government lands shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens "under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." 30 U.S.C.A. § 22. The statute requires that the location must be distinctly marked on the ground so that its boundaries can be readily traced. See 30 U.S.C.A. § 28.

Plaintiffs' mining claims were located by Merle I. Zweifel. At the time he located the claims the federal regulation concerning the manner in which rights are initiated by location provided that a "location is made by staking the corners of the claim, posting notice of location thereon and complying with the State laws, regarding the recording of the location in the county recorder's office, discovery work, etc." 43 C.F.R. § 3401.1 (1969). ¹ And the Colorado statute, C.R.S. 92-22-12(2) (1963), now C.R.S. 34-43-112 (1973), which should be observed in the location of placer mining claims, provided:

(a) Before filing (the) location certificate the discoverer shall locate his claim;

(b) By posting upon such claim a plain sign or notice, containing the name of the claim, the name of the locator, the date of discovery and the number of acres or feet claimed;

(c) By marking the surface boundaries with substantial posts, sunk into the ground, one at each angle of the claim.

Plaintiffs argue that State law location requirements do not apply in contest proceedings initiated by the United States, citing Reins v. Murray, 22 L.D. 409 (1896). It is true that the Secretary in Reins said the public surveys are permanent and fixed and that it is the statute's (30 U.S.C. § 28) intent that location of placer claims by legal subdivision makes marking of boundaries an idle ceremony not contemplated by the law. See also Location of Oil Shale Placer Claims, Instructions, 52 L.D. 631 (1929). Nevertheless, as a result of 43 C.F.R. § 3401.1 the State location requirements did apply when Mr. Zweifel located these claims. In view of the federal regulation and the Colorado statute we cannot agree with the plaintiffs that the marking of the surface boundaries at each angle of the claim was not required to effect a valid location.

As the district court pointed out, 389 F.Supp. at 93-94, the Department has not required strict compliance with State location laws in every case, citing Reins v. Murray, supra. But substantial or colorable compliance with State location requirements has been enforced even in controversies between the Government and private claimants. United States v. Zweifel, 508 F.2d 1150, 1153-54 (10th Cir.).

The administrative law judge found that it was obvious from Zweifel's testimony and pictures that his efforts in addition to filing claim notices at the courthouse, were basically directed at posting notices or identification markers on groups of claims, not on individual claims. He found that Zweifel made no effort to establish individual claim corner monuments nor to ascertain whether the individual claims were in fact monumented by the public land surveys, that in fact simple arithmetic would reveal the impossibility of a person's being able to set foot and post a notice on each of the numerous claims within the time limits of Zweifel's...