Unruh v. Udall
| Decision Date | 14 June 1967 |
| Docket Number | Civ. No. 1894-N. |
| Citation | 269 F. Supp. 97 |
| Parties | 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. |
| Court | U.S. District Court — District of Nevada |
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
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 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 recognized as a sufficient interest to accord him standing to sue and be sued. McLaren v. Fleischer, supra; Wells v. Bodkin, 1925, 267 U.S. 474, 45 S.Ct. 397, 69 L.Ed. 742; Bodkin v. Edwards, 1921, 255 U.S. 221, 41 S.Ct. 268, 65 L.Ed. 595.
On the question of burden of proof, however, the status of the contestant in a private contest is important.2 Who is the proponent of the rule or order in such a contest? See: Foster v. Seaton, 1959, 106 U.S.App.D.C. 253, 271 F.2d 836; Stewart v. Penny (D.C.Nev.1965), 238 F.Supp. 821. Plaintiff argues that the burden was upon Edwards, the homestead entryman, to establish absence of fraud by a preponderance of the evidence, this upon the theory that the contestant in a private contest stands in the shoes of the Government. Plaintiff relies upon the decision of this Court in Stewart v. Penny, supra. The Secretary, on the other hand, asserts that the burden was upon the contestant to prove fraud by clear and convincing evidence, and this principle was consistently adhered to throughout the course of administrative proceedings by the hearings examiner, the Director of the Bureau of Land Management, and the Secretary of the Interior.
We do not agree with plaintiff that Stewart v. Penny, supra, governs this case. There is a marked distinction between a government contest and a private contest of a homestead entry. In the former, the homestead entryman has applied for a patent to public lands and is the proponent of the rule or order, the procedure by way of contest complaint being a practical tool to define the issues to be tried. A private contest is different. In this case, the Bureau of Land Management had accepted the homestead entryman's proof of illness and had granted him the extension of time to establish residence on the property, an extension upon which he had relied. In seeking to overturn the order granting the extension, the plaintiff-contestant was the proponent and had the burden to establish the fraud which he alleged. His action, while indirectly in aid of enforcement of the homestead laws, was directly for the purpose of establishing a right of preference...
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United States v. Springer
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