Sainberg v. Morton, CIV 72-217-PCT.

• Citation: 363 F. Supp. 1259
• Decision Date: 10 September 1973
• Docket Number: No. CIV 72-217-PCT.,CIV 72-217-PCT.
• Parties: Robert B. SAINBERG et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Arizona

363 F. Supp. 1259

Robert B. SAINBERG et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant.

No. CIV 72-217-PCT.

United States District Court, D. Arizona.

September 10, 1973.

Favour & Quail, P.A., Prescott, Ariz., for plaintiffs.

William C. Smitherman, U. S. Atty., Dist. of Ariz., Tucson, Ariz. by Richard S. Allemann, Asst. U. S. Atty., Phoenix, Ariz., for defendant.

MEMORANDUM AND ORDER

FREY, District Judge.

On May 3, 1972, the plaintiffs filed an action seeking to set aside a decision of the Secretary of Interior, acting through the Board of Land Appeals, which affirmed a decision of the Bureau of Land Management and the Arizona Land Office declaring plaintiff Sainberg's mining claim null and void for failure to file a timely answer to the government's contest complaint. Plaintiffs also seek to have the contest complaint summarily dismissed.

The jurisdiction of this Court is invoked under the provisions of the Administrative Procedure Act, 5 U.S.C. Sections 701-706, to review the decision of the Secretary and under 28 U.S.C. Section 1361 to compel summary dismissal of the contest complaint for failure to name each interested party.

The defendant has filed a Motion for Summary Judgment; the stated reasons are that the plaintiffs have not shown that they are entitled to the relief as requested, that there is no genuine issue of fact and that defendant is entitled to judgment as a matter of law. Defendant's motion is based upon the complaint, a memorandum of authorities, and the administrative record.

Plaintiffs have served and filed a Motion for Judgment on the Pleadings and response to defendant's motion. Plaintiffs' motion is based upon their complaint, their memorandum of authorities and the administrative record.

Both sides have filed various answering memoranda which raise the questions of whether all interested parties were served with the contest complaint and whether the Secretary applied his regulation properly.

The pertinent facts as set forth in the complaint and disclosed by the exhibits are relatively simple:

On April 22, 1963, plaintiff Sainberg filed an application for a mineral patent. An adverse claim was filed on October 27, 1964, by Rose Mary Druse, as Guardian of the Estate of Frank Patrick Vallely, an incompetent. The Superior Court of the State of Arizona in and for the County of Yavapai adjudicated title to the Silver Dollar No. 1 to be vested in plaintiff Sainberg by its Judgment and Decree of July 16, 1968. On October 13, 1969, a Mining Claim Contest Complaint instituted by the government was served on attorneys for the mining claimant and his attorney-in-fact. The thirty-day period for filing an answer to the complaint expired on November 12, 1969. An answer to the complaint was filed on behalf of the plaintiff Sainberg in the Arizona Land Office on November 13, 1969. The answer was thus, one day late.

Pursuant to Regulation 43 CFR, Section 1852.1-7(a), the Land Office Manager (Collins) on November 19, 1969, issued a decision wherein the untimely answer was rejected, the charges in the complaint, to the effect that the mining claim was invalid, were taken as admitted and the mining claim was declared null and void.

The plaintiffs herein appealed Collins' ruling to the Director of the Bureau of Land Management. The Director, through Frances A. Patton, Chief Branch of Mineral Appeals, Office of Appeals and Hearings, affirmed Collins' decision.

The plaintiffs herein further appealed the decision of Frances A. Patton to the Secretary of Interior. A decision by Anne Lewis with the concurrence of two members of the Board of Land Appeals exercising delegated authority from the Secretary of Interior, affirmed the decision with modification.

In reviewing a decision of the Secretary of Interior, it is the function of this Court to see that the Secretary, in arriving at his ruling, applied the proper legal standards and interpreted applicable rules and regulations correctly. Adams v. United States, 318 F.2d 861 (9th Cir. 1963); Converse v. Udall, 399 F.2d 616 (9th Cir. 1968). It is also the duty of this Court to determine whether upon review of the entire record, there is substantial evidence to support the Secretary's decision. Denison v. Udall, 248 F.Supp. 942 (D.C.Ariz. 1965); Henrikson v. Udall, 350 F.2d 949 (9th Cir. 1965).

Plaintiffs contend that the real parties interested in the mining claim were not served with the contest complaint and that therefore the complaint should be summarily dismissed. This contention is one which plaintiffs, by their attorneys, have laboriously strained to fabricate in order to seek the relief requested. It appears that plaintiffs attempt to confuse the Court with the fact that two powers of attorney were executed on June 11, 1968, and thereby attempt to impute knowledge of both to the Bureau of Land Management. It appears that two powers of attorney were indeed executed on said date, and both appointed Rose Mary Druse as attorney-in-fact for Robert Sainberg. The first empowered her to prosecute the application of the mineral patent. The second power coupled with an interest appointed her as attorney-in-fact empowering her "to convey to Frank Patrick Vallely and his heirs any or all of my right, title, claim or interest in and to the Silver Dollar No. 1 Lode Mining Claim".

The first power of attorney was furnished the Bureau of Land Management by letter of July 19, 1968. The letter, which is in the administrative record, makes absolutely no mention of the second power of attorney coupled with an interest. The letter was mailed by Mr. Keith Quail, plaintiffs' attorney, for the sole purpose of informing the Bureau that a Judgment and Decree as to the adverse claim filed by Rose Mary Druse had been entered, that Robert Sainberg had revoked George M. Ireland's power of attorney, and that a new power of attorney appointing Rose Mary Druse as attorney-in-fact for the purpose of prosecuting the patent application had been executed. On July 30, 1968, the Land Office acknowledged receipt of "the certified copy of the Judgment and Decree . . ., the revocation of the power of attorney to George M. Ireland . . . and the appointment of Rose Mary Druse as attorney-in-fact for Robert Sainberg". Again, no mention was made of...