U.S. v. Haskins

• Decision Date: 25 October 1974
• Docket Number: No. 72-2342,72-2342
• Citation: 505 F.2d 246
• Parties: UNITED STATES of America, Appellant, v. Richard P. HASKINS, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 246

505 F.2d 246

UNITED STATES of America, Appellant, v. Richard P. HASKINS, Appellee.

No. 72-2342.

United States Court of Appeals, Ninth Circuit.

Oct. 25, 1974.

Jacques B. Gelin (argued), Appellate Section, U.S. Dept. of Justice, Washington, D.C., for appellant.

Hale C. Tognoni (argued), Phoenix, Ariz., for appellee.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and THOMPSON, ¹ District Judge.

OPINION

BRUCE R. THOMPSON, District Judge.

This is an action in ejectment brought by the United States to enforce its right to possession of an area in the Angeles National Forest near Los Angeles, California, described as Section 28, T. 3 N., R. 14 W., San Bernardino B & M.

The Complaint alleges that defendant, Richard P. Haskins, claims the right to possess the property by virtue of four invalidated maining claims denominated as Lone Jack, Lap Wing, Roger Williams and Lady Helen, and two invalidated millsites called Lap Wing Millsite and Lady Helen Millsite. The claims in question were located as lode mining claims and encompass approximately 85.1 acres. The Complaint alleges that after appropriate administrative proceedings, the claims in question were declared null and void by final decision of the Interior Board of Land Appeals on July 30, 1971.

Defendant Haskins answered. He denied that his possessory interest in the property was based upon the four lode mining claims and two millsites. He admitted that the claims and millsites had been declared null and void by the Interior Board of Land Appeals. He denied that that decision was final and binding, stating that a reasonable time had not elapsed in which to obtain judicial review of the decision.

Defendant also filed a counterclaim in which he makes it clear that his present claim to the possession of the property must be determined on the basis of his assertion of valid placer mining claim locations of the same property which had been encompassed by the lode mining claim locations and millsites. He alleged that his patent application to obtain a patent to the Haskins Quarries Placer Mining Claim was filed on May 27, 1968, and that the processing of that application had been frustrated by the decision of the Bureau of Land Management that the then pending litigation before the Interior Board of Land Appeals, in effect, involved the same property.

The plaintiff moved for summary judgment. In opposition to the motion, defendant filed, among other things, an affidavit of E. Rowland Tragitt, a graduate of the Missouri School of Mines and Metallurgy in 1923 and a registered professional engineer in Missouri and Arizona. In addition to sixteen years of experience working for mining companies, Mr. Tragitt was employed by the Bureau of Land Management as a Field Examiner and later Supervising Engineer and Lands and Minerals Officer from 1939 until 1957. From 1957 until 1968, Mr. Tragitt was Chief Mining Engineer for Region 3 of the Forest Service, United States Department of Agriculture, Albuquerque, New Mexico. The affidavit states that in March of 1972, he made a thorough examination of the Haskins Quarries Placer Mining Claim and determined that there is a minimum of 900,000 tons of dolomite on the claims and that the use of dolomite in the Los Angeles area included the following: Flux in iron and steel foundries, filler in paints, asphalt and rubber, the manufacture of glass, paper, refractories, insulation and fertilizer, and as a supplement in animal feed. Mr. Tragitt also stated: 'That in addition to the dolomite, there are a minimum of 100,000 tons of decorative stone marketable for use as roofing granules, terrazzo chips, and decorative stone in walls, rock gardens, fire places, and patios.'

The District Court heard the motion for summary judgment and filed a memorandum opinion denying the motion. The following quotation summarizes the basis for the decision:

'In moving for a summary judgment of dismissal of defendant's counterclaim, the Government urges that since the land embraced within the lode claims was held to be without commercial value in the contest proceedings, the issue is res adjudicata in the patent application proceedings relating to the placer claim. But this is not necessarily so. There is after all a difference between a lode claim and a placer claim. The former relates to a vein of quartz or other rock in place, whereas a placer claim covers all forms of deposit except a vein of quartz or other rock in place, and what might be an insufficient showing of commercial value in support of a lode claim might well be sufficient to establish a valid placer mining claim. Both types of claims can, of course, be made upon the same property and can co-exist, even though in different ownership.'

The Court determined that the application for patent to the placer claims should be remanded to the Department of the Interior for administrative determination. The Court also certified the case as one appropriate for interlocutory appeal under 28 U.S.C. 1292(b), and the appeal was accepted by this Court. The District Court stated the following as the controlling questions of law involved in its decision:

'1. Can the defendant pursue his application for patent of the Haskins' Placer Mining Claim pursuant to Title 30 U.S.C. 38 where his lode claims under which he had previously worked the property have been declared invalid for lack of discovery?

'2. Does defendant's possession of the property which antedates the effective date of the Watershed Withdrawal Act of 1928 by more than five years, entitle him to proceed with his patent application notwithstanding the fact that his notice of intention to hold as a placer mining claim was not filed until subsequent to the effective date of the Watershed Withdrawal Act?

'3. If the defendant is entitled to proceed with his patent application and since the Government has chosen this Court as a forum, does this Court have jurisdiction over the patent application proceeding to the extent that it may make an order declaring the defendant entitled to a patent, or should these proceedings be remanded to the Department of the Interior to process defendant's application administratively?'

The instant controversy has a long history. The Haskins family has occupied this land within Angeles National Forest since the turn of the century. Between 1894 and 1908, Haskins' mother located lode mining claims for gold, silver, vanadium and uranium. In 1929, she filed a patent application for the lode claims known as Lone Jack, Lap Wing and for the Lap Wing Millsite. The Forest Service filed a protest. In the meantime, on May 29, 1928, Congress had enacted 45 Stat. 956 which withdrew these lands, among others, within Angeles National Forest from location and entry under the mining laws. The Withdrawal Act declared that it would not defeat or affect any lawful right which had already attached under the mining laws. Mrs. Haskins' patent applications were processed between 1929 and 1936 and the final decision was that the applications were rejected. In the course of these proceedings, a Forest Service Minerals Examiner had rendered a report in which he observed that the Lady Helen Claim, lying west of the Lone Jack, was 'unquestionably patentable.' It should be noted that in the administrative hearings in the 1930's, testimony was received from Mrs. Haskins and Bartholomew J. Haskins, who were then living, and that the proceedings resulted in the rejection of patents for the Lone Jack and Lap Wing claims.

The Haskins remained in possession.

In about June of 1962, Richard P. Haskins filed a verified statement specifying the exact nature of his mining claims. He claimed the four lode mining claims known as Lone Jack, Lap Wing, Roger Williams and Lady Helen and the Lap Wing Millsite and Lady Helen Millsite. In 1964, the Government initiated contest proceedings against these claims. In the administrative hearings, Haskins testified that while his predecessors had originally been looking for gold and silver, he was now interested only in dolomite. The decision of the Examiner was to the effect that there is not now a valuable mineral deposit on any of the four lode claims and that the two millsites are not being used for mining or milling processes. He declared the lode claims null and void for lack of a presently valuable mineral deposit and the millsites null and void for lack of use. This is the decision which became final on July 30, 1971 by virtue of the decision of the Interior Board of Land Appeals.

In the meantime, Haskins had filed an application for patent to the ground in question as the 'Haskins Quarries Mining Claim' under 30 U.S.C. 38 (based on adverse possession under state law), and under 30 U.S.C. 161 authorizing entry on lands chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims.

The record before the Court shows that limestone is calcium carbonate and dolomite is a combination of calcium carbonate and magnesium carbonate. A 1937 report of the California State Minerologist shows that the Haskins dolomite deposit consists of a series of lenses of dolomite in the gneissoid granite from thirty to forty feet thick and from one hundred to two hundred feet in length. An analysis of one sample showed approximately 36% Magnesium carbonate and 58% Calcium carbonate and of another approximately 12% Magnesium carbonate and 87% Calcium carbonate.

1. APPLICABILITY OF 30 U.S.C. 38.

Section 38, Title 30, United States Code, provides as follows:

'Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter * * *.'

This savings clause has...