Thompson v. United States

• Decision Date: 25 September 1962
• Docket Number: No. 17180.,17180.
• Citation: 308 F.2d 628
• Parties: Lowell THOMPSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

308 F.2d 628 (1962)

Lowell THOMPSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17180.

United States Court of Appeals Ninth Circuit.

September 25, 1962.

COPYRIGHT MATERIAL OMITTED

Wellman Clark, Spokane, Wash., H. J. Hull & Sons, H. J. Hull, Piatt Hull, and Alden Hull, Wallace, Idaho, for appellant.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, and Elizabeth Dudley, Attys., Dept. of Justice, Washington, D. C., and Kenneth G. Bergquist, U. S. Atty., Boise, Idaho, for appellee.

Before ORR and MERRILL, Circuit Judges, and KILKENNY, District Judge.

KILKENNY, District Judge.

By this action the United States seeks to quiet title to certain lands in Idaho, to restrain and enjoin appellant from using the premises and to recover damages for minerals taken and used by appellant during the course of his occupancy.

Milwaukee Land Company was the owner of approximately 25,000 acres of real property in Shoshone, Clearwater, Latah and Benewah Counties, Idaho. Prior to August, 1933, the Land Company conveyed said property to one Dickie, reserving its rights to oils, gases, coals, ores, minerals and fossils in the land. In said month, Dickie conveyed all of his interest in said land to the United States, "to encourage the practice of forestry for the benefit of the people of the United States." In December, 1937, the Land Company conveyed its reserved interests in the property to the United States, the deed specifying that the conveyance was made pursuant to the provisions of Section 7 of the Act of June 7, 1924, 43 Stat. 654, 16 U.S.C.A. § 569,¹ and the Act of March 3, 1925, 43 Stat. 1133, 16 U.S.C.A. § 555. The former conveyance was accepted by the Secretary of Agriculture on August 8, 1935, as a donation under said Section 7. The Department of Agriculture, in October, 1942, issued a permit to appellant's predecessor to mine and remove minerals from a part of the above mentioned tract of land. This permit was assigned to appellant in January, 1953, with the approval of the Bureau of Land Management. At the request of appellant, this permit was terminated in September, 1955. Appellant, in November, 1954, after receiving the advice of an attorney, located mining claims on the property in question. After making such locations, appellant and his attorney corresponded with officials of the United States in connection with the validity of the claims. The United States took the position that the lands in question were not subject to entry and location under the general mining laws and demanded that appellant discontinue his trespass on said lands. This action is the result of appellant's refusal to comply with such demands.

The district court held that the lands in question were not open to mineral location and that appellant knowingly and intentionally trespassed on the property and removed minerals of a value of $305,810.54, on which he made, after the deduction of the costs and expenses of extraction, a profit of $110,766.64. The court further found that the appellant damaged the property in the sum of $4,792.66 and owed rental under the former lease in the sum of $311.95. Against the total of these sums, the court allowed an offset of $42,670.22 for minerals mined but not sold, to which the United States had title and was entitled to possession, and held that the United States was entitled to judgment against appellant for $73,201.63.

Appellant assigns error as follows:

I. The lower court erred in holding that the lands in question were not open to mineral location.

II. That the lower court adopted an erroneous measure of damage.

III. That appellant should have been allowed the reasonable value of his personal services in removing the minerals.

IV. That the lower court erred in failing to consider the effect of the judgment on appellant's income tax problems.

I. Appellant contends that the lands in question are public lands and that his mineral entries were made pursuant to the Act of February 25, 1920, 30 U.S.C.A. § 22.² He argues that the area is subject to the National Forest Act of March 3, 1891, Title 16 U.S.C.A. § 471 et seq. and that Section 478³ specifically authorizes the location of mineral claims on forest lands. 16 U.S.C.A. § 475, enacted in 1897, limited the effect of the National Forest Act to "public lands." The lower court found, and we believe the evidence sustains such finding, that the conveyance from Dickie to the United States was a donation and was made pursuant to the provisions of 16 U.S.C.A. § 569, rather than 16 U.S.C. A. § 555. The court will take judicial notice of the fact that such a large body of land would not and could not be acquired for the limited purposes mentioned in Section 555, i. e., National Forest headquarters, Ranger Stations, dwellings or other sites required for effective conduct of the activities of the Forest Service. For that matter, it may have been the intention of the Secretary to accept the donation and devote a very limited portion of the area to the purposes mentioned in Section 555 and the remainder of the area to the purposes mentioned in Section 569. Both conveyances could have been accepted as donations without doing violence to our ultimate conclusions.

Throughout his argument, the appellant urges that the lands in question are "public lands" within the meaning of the Forest Service Act and for that reason the area is subject to mineral entry. He cites many cases involving general principles and makes reference to numerous statutes. Appellant's difficulty is that he fails to recognize the distinction between "public land" and "acquired land." Each was defined with commendable clarity in Barash v. Seaton, 1958, 103 U.S.App.D.C. 159, 256 F.2d 714, 715, as follows: "Acquired land is Government owned land acquired from private ownership. Public land is Government owned land which was part of the original public domain." These definitions are quoted with approval in Murray v. United States, 8 Cir., 1961, 291 F.2d 161. Since the lands in question were not public lands within the meaning of the phrase as used in the National Forest Act, and since the lands in question were acquired by the United States for a specific purpose, our decision is controlled by the opinion of the United States Supreme Court in Oklahoma v. Texas, 1922, 258 U.S. 574, 599, 600, 42 S. Ct. 406, 66 L.Ed. 771, and the opinion of this circuit in Rawson v. United States, 9 Cir., 1955, 225 F.2d 855, cert. den. 350 U.S. 934, 76 S.Ct. 306, 100 L.Ed. 816. While it is true that the lands acquired in Rawson were acquired under another statute for another type of project, the general principles involved in that case are identical with those here in question. In Rawson, this court held that there was no authority for a mineral location on lands which had been acquired by the United States for use in connection with an emergency relief project and in so holding, held that Title 30 U.S.C.A. § 22 must be read in the light of the entire enactment of which it was but a part, and that when so read, the section embraces land owned by the United States, but not all lands so owned. It is there held that it was only where the United States had indicated that the lands are held for disposal under the general land laws that a mineral location might be filed. The Dickie land was acquired and held, not for sale, but for the specific purposes mentioned under the donation laws.

Aside from the logic of applying the decisions in Rawson and Oklahoma v. Texas to the facts in this case, we conclude that a proper construction of the statutes points to the same result. A study of the applicable legislation leads us to the conclusion that, from a standpoint of status and origin, lands which are subject to administration by the Forest Service within National Forests should be classified, for most purposes, in two groups: (1) that group reserved from the public domain for National Forest purposes or acquired through exchange for such reserved land or timber; and (2) that group re-acquired by the United States from private, state or local government ownership through purchase, exchange, donation or settlement. A large area of the lands in group (2) was acquired under the authority of the Weeks Act of March 1, 1911 (36 Stat. 961), as amended, 16 U.S.C.A. §§ 480, 500, 513-519, 521, 552, 563, which provides for the purchase of lands to promote the production of timber or regulation of stream flow. The lands acquired by this Act are subject to specific laws authorizing exchange, classification of small tracts of agricultural land, development of mineral resources, and are specifically reserved as National Forest lands. Located within the boundaries of the National Forest is a substantial area acquired under statutes other than the Weeks Act or acquired in exchange for reserved public domain land. This is the type of land with which we are here concerned. As late as April 23, 1958, the Secretary of Agriculture and the House Committee on Agriculture were of the view that lands acquired under the procedures herein followed were not subject to mineral development, except through proper leases.⁴ It is obvious that the title to the lands in question was placed in the United States for the specific purpose of preserving the timber and that the recognition of a mining location pursuant to 30 U.S.C.A. § 22 would be wholly inconsistent with the purpose of the acquisition. Section 7 of the Act of June 7, 1924, supra, provided that lands acquired pursuant thereto would be subject to all laws applicable to lands acquired under the Act of March 1, 1911, which is commonly known as the Weeks Act, 36 Stat. 961. The Weeks Act declared its primary purpose to be the protection of watersheds of navigable streams and authority was given to acquire lands for such purpose. Under the Weeks Act it was the Secretary of Agriculture, not the Secretary of the Interior, who was authorized to permit the prospecting, development and...