United States v. Nogueira

• Decision Date: 04 November 1968
• Docket Number: No. 21754.,21754.
• Citation: 403 F.2d 816
• Parties: UNITED STATES of America, Appellant, v. Edison R. NOGUEIRA et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.2d 816 (1968)

UNITED STATES of America, Appellant, v. Edison R. NOGUEIRA et al., Appellee.

No. 21754.

United States Court of Appeals Ninth Circuit.

November 4, 1968.

Roger P. Marquis (argued), Lands Div., Dept. of Justice, Edwin L. Weisl, Jr., Clyde O. Martz, Asst. Attys. Gen., Washington, D. C., Wm. M. Byrne, U. S. Atty., Ernestine Tolin, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

Milton Wichner (argued), Hollywood, Cal., for appellee.

Before ELY and CARTER, Circuit Judges, and BELLONI,^* District Judge.

JAMES M. CARTER, Circuit Judge.

This is an appeal from a summary judgment dismissing a complaint filed by the United States, seeking to eject appellees, and to recover damages because of an alleged trespass upon land and occupancy of a residence by appellees, in the Cleveland National Forest. The dismissal was on grounds of lack of jurisdiction, in that the validity of a mining claim under which appellees claimed rights, must first be adjudicated by the Department of the Interior. This appeal followed.

THE QUESTION PRESENTED

The question presented is whether the district court lacked jurisdiction of a suit by the United States, for ejectment, and to recover trespass damages, prior to the determination of the validity of a mining claim filed on the property of the United States.

THE FACTS

The Grape Vine Placer Mining Claim was located in 1903 and 1945, on lands of the United States, now within the Cleveland National Forest. An application for a patent, filed by the widow of the original locator, was rejected by the Interior Department on February 29, 1960, on the ground that the material involved, shale, was a common clay not subject to location under the mining laws.

On May 1, 1961, the widow executed a quitclaim deed to her son, Robert Mattey, conveying the lot known as Grape Vine Placer Mining Claim. On May 8, 1961, the mining claim was leased to Maria Nogueira with an option to purchase. Robert Mattey thereafter on May 18, 1961, filed for recording a placer location purportedly for fire clay on the same property. Minor excavation took place on the property in 1961.¹ There was no substantial proof of mining on the property since that date. Instead, the Nogueiras have used the land as a residence.² At the very least, a question of fact was presented.

On October 30, 1962, the Forest Service requested removal of the Nogueiras by January 30, 1963. Robert Mattey on March 16, 1964, executed a quitclaim deed to the mining claim to Maria Nogueira. Suit against the Nogueiras on their refusal to move was instituted on February 10, 1965. A hearing was held, and on February 21, 1966, the district court stated that the case was not ripe for action by the court because the Department of Interior had not held the 1961 claim to be invalid and that such an adjudication was a preliminary prerequisite to jurisdiction by the district court.

The district court invited a motion for summary judgment by the appellees and on the hearing of the motion, relying on Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed. 2d 350 (1963), granted the motion for summary judgment on behalf of the appellees.

The district court signed and filed findings of fact and conclusions of law, wherein it found that since the location of the last claim by Mattey on May 1, 1961, and its filing on May 18, 1961, "no proceedings have been instituted by or before the Bureau of Land Management and the Department of the Interior to contest the said Grape Vine Placer Mining Company, or to otherwise attack its validity. * * * That the valuable mineral which was claimed to have been discovered on said mining claim was an uncommon variety of clay known as fire clay. That defendants are in the position of and occupying the Grape Vine Placer Mining Claim as successors in interest to Robert A. Mattey, who located the said mining claim on May 1, 1961." The court concluded that it had no jurisdiction to determine the rights of appellees to occupy the claim unless and until the validity of the mining claim had been finally determined by the Department of the Interior, after hearings held in accordance with the provision of the Administrative Procedure Act; and that unless and until said mining claim has been finally adjudged to be invalid, appellees and each of them were lawfully and properly in possession of and occupancy of the claim, and entitled to be free from obstruction, resistance and interference of the United States, its agents, officers and employees.

The judgment entered by the court further ordered "that the answer and counterclaim of defendants, and the motion of defendants for leave to amend answer to include the Fourth Affirmative Defense and counterclaim be dismissed without prejudice." Hence, we are not concerned in this appeal with the alleged rights asserted by defendants in their answer and counterclaim based on the Act of October 23, 1962, Pub.L. 87-851, 76 Stat. 1127, 30 U.S.C., §§ 701-709;³ nor is any issue here presented as to the proposed Fourth Affirmative Defense attacking the Interior Department's decision of 1960 holding the original Mattey claim invalid.

CONTENTIONS OF THE GOVERNMENT

The United States in urging that the district court had jurisdiction of the action, presents three independent contentions:

(1) That this court in Kennedy v. United States, 119 F.2d 564 (9 Cir. 1941), sustained the right of the United States to secure an adjudication of its right to possession of the public domain and in that connection to adjudge a stock raising homestead entry to be invalid; that the same result has been and should be reached in mining claims, and that Best, supra, does not hold otherwise.

(2) That under Section 4(a) of the Act of July 23, 1955, 69 Stat. 368, 30 U.S.C. § 612, which provides:

"* * * Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto. * * *"

a mining claim not filed and occupied for the bona fide purpose and intention of developing a profitable mine is void, and consequently no defense to a trespass action by the United States.

(3) That even if the 1961 mining claim was valid, it would justify occupation of the public land only for mining purposes, as provided in Section 4 of the Act of July 23, 1955, 69 Stat. 368, 30 U.S.C. § 612 set forth above; that occupation of a mining claim only for a permanent residence is clearly illegal; and that relief prohibiting continuation of such illegal action and damages for such a trespass cannot properly be denied.

If the government is right in any one of its three contentions, then it was error to hold that the court had no jurisdiction and to grant a summary judgment; and the judgment must be reversed.

I.

Did the District Court have jurisdiction to adjudicate the validity of the mining claim?

The government first contends that the district court had jurisdiction to determine the validity of the mining claim in connection with an adjudication of the government's right to possession. We first examine Best v. Humboldt Placer Mining Co., supra, in depth because it was reliance on Best which led the district court to deny the government any relief and to grant the summary judgment for supposed lack of jurisdiction.

Best was a case in which the United States sued in the district court to condemn outstanding mining claims on certain public lands needed for the construction of a dam. The government sought immediate possession to the land. The district court allowed the United States a writ of possession; but no other issues in the action were determined.

The complaint asked that the United States be allowed to reserve authority to have the validity of any mining claims determined in administrative proceedings before the Bureau of Land Management. After being granted a writ of possession, the Government instituted administrative proceedings for a determination as to the validity of the unpatented mining claims on the condemned land.

The holders of the claims, in a separate action in the district court sought to enjoin the administrative proceedings, but the injunction was denied. The Court of Appeals reversed, concluding that since the United States went into the District Court to condemn the land and to get immediate possession pursuant to F.R.Civ.P. 71A, the validity of the mining claims were, of necessity, left to judicial determination.

The Supreme Court reversed the Court of Appeals stating (371 U.S. at 340, 83 S.Ct. at 384):

"The United States is not foreclosed from insisting on resort to the administrative proceedings for a determination of the validity of those claims. It may take property pursuant to its power of eminent domain, either by entering into physical possession of the property without a court order, or by instituting condemnation proceedings * * *. Institution of suit is one way to obtain immediate possession; and we see nothing incompatible between the use of that means to obtain possession and the use of the administrative proceedings to determine title. * * *

We conclude that the institution of the suit in the District Court was an appropriate way of obtaining immediate possession, that it was not inconsistent with the administrative remedy for determining the validity of the mining claims, and that the District Court acted properly in holding its hand until the issue of the validity of the claims has been resolved by the agency entrusted by Congress with the task."⁴

The statement in the last paragraph of Best, supra, "* * * that the District Court acted properly in holding its hand until the issue of the validity of the claims has been resolved by the agency entrusted by Congress with the task" is troublesome. It would on its face appear that the district court was acting on some theory of the doctrine of...