Unruh v. Udall, Civ. No. 1894-N.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Writing for the CourtTHOMPSON
Citation269 F. Supp. 97
PartiesPaul E. UNRUH, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior of the United States, and Individually, J. R. Penny, formerly Nevada State Director, Bureau of Land Management, U. S. Department of the Interior, and Individually, Nolan F. Keil, Nevada State Director, Bureau of Land Management, U. S. Department of the Interior, and Individually, Val B. Richman, District Manager, Carson City Office, Bureau of Land Management, U. S. Department of the Interior, and Individually, and Wesley Laverne Edwards, Individually, Defendants.
Docket NumberCiv. No. 1894-N.
Decision Date14 June 1967

269 F. Supp. 97

Paul E. UNRUH, Plaintiff,
v.
Stewart L. UDALL, Secretary of the Interior of the United States, and Individually, J. R. Penny, formerly Nevada State Director, Bureau of Land Management, U. S. Department of the Interior, and Individually, Nolan F. Keil, Nevada State Director, Bureau of Land Management, U. S. Department of the Interior, and Individually, Val B. Richman, District Manager, Carson City Office, Bureau of Land Management, U. S. Department of the Interior, and Individually, and Wesley Laverne Edwards, Individually, Defendants.

Civ. No. 1894-N.

United States District Court D. Nevada.

June 14, 1967.


269 F. Supp. 98

George W. Abbott, Minden, Nev., for plaintiff.

Julien G. Sourwine, Asst. U. S. Atty., Reno, Nev., for defendant Government employees.

Stewart & Horton, Reno, Nev., for defendant Wesley Laverne Edwards.

ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

THOMPSON, District Judge.

Plaintiff initiated a contest (43 U.S.C. § 185) of a homestead entry made by one Wesley Laverne Edwards. Plaintiff's contention was that the homestead entryman had failed to establish residence on the property within six months after date of entry and that the extension of time granted to Edwards by the Bureau of Land Management, permitting establishment of residence within twelve months, was obtained by fraud 43 U.S.C. § 169; 43 C.F.R. 2211.2-2(c).

The issues made by the contest complaint and answer thereto were tried before a hearings examiner and followed the full course of administrative appeals culminating in a decision by the Secretary of the Interior on September 21, 1966 dismissing the contest. This action followed naming the Secretary of the Interior and homestead entryman as defendants and seeking a review of the Secretary's decision under the standards established by the Administrative Procedure Act (5 U.S.C. § 1001 et seq.).

The defendants have moved for summary judgment and have lodged the complete administrative record with the Court in support of the motion. Inasmuch as plaintiff's sole contention is that the finding of the Secretary of the Interior is arbitrary and not supported by any evidence, this Court would be limited to consideration of the administrative record alone even if the case were to be tried. Noren v. Beck (S.D. Cal.1961), 199 F.Supp. 708; Denison v. Udall (Ariz.1965), 248 F.Supp. 942. All parties allude solely to the administrative record in support of their contentions. Accordingly, the issues are those of law only, there are no disputed issues of material fact, and summary judgment is a proper procedure.

Plaintiff Unruh has no interest or asserted interest in the subject property other than that given him by statute (43 U.S.C. § 185).1 His status is that of a claim jumper. He "had no claim to the land prior to the contest, and in instituting and carrying it through acted as a common informer, which was admissible under the public land laws. To encourage the elimination of unlawful entries by such contests Congress" adopted the cited statute. McLaren v. Fleischer, 1921, 256 U.S. 477, at 479, 41 S.Ct. 577, 65 L.Ed. 1052.

This observation, while not in derogation of Unruh's right to initiate the contest for the purpose of acquiring a preference right of entry under the statute nor of his standing to maintain this action to review the Secretary's decision, is, nevertheless, pertinent to the question of burden of proof posed by the parties. The preference right of a successful contestant has long been...

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1 practice notes
  • United States v. Springer, No. 73-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 26, 1974
    ...(D.C.Mont.1963); Stewart v. Penny, 238 F.Supp. 821 (D. C.Nev.1965); Converse v. Udall, 262 F. Supp. 583 (D.C.Or.1966); Unruh v. Udall, 269 F.Supp. 97 Defendants' most strongly asserted contention is that the decision invalidating the mining locations is contrary to law. The undisputed proof......
1 cases
  • United States v. Springer, No. 73-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 26, 1974
    ...(D.C.Mont.1963); Stewart v. Penny, 238 F.Supp. 821 (D. C.Nev.1965); Converse v. Udall, 262 F. Supp. 583 (D.C.Or.1966); Unruh v. Udall, 269 F.Supp. 97 Defendants' most strongly asserted contention is that the decision invalidating the mining locations is contrary to law. The undisputed proof......

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