West Coast Exploration Co. v. McKay, No. 11187.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: FAHY, Circuit , concurring in the result
• Citation: 93 US App. DC 307,213 F.2d 582
• Parties: WEST COAST EXPLORATION CO. v. McKAY, Secretary of Interior.
• Docket Number: No. 11187.
• Decision Date: 26 January 1954

93 US App. DC 307, 213 F.2d 582 (1954)

WEST COAST EXPLORATION CO.
v.
McKAY, Secretary of Interior.

No. 11187.

United States Court of Appeals District of Columbia Circuit.

Decided January 26, 1954.

Writ of Certiorari Denied June 1, 1954.

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Mr. Edward D. Neuhoff, Los Angeles, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Mr. Ray L. Jenkins, Washington, D. C., was on the brief, for appellant. Mr. John W. Nairn, Washington, D. C., also entered an appearance, for appellant

Mr. Fred W. Smith, Attorney, Department of Justice, with whom Mr. Roger P. Marquis, Attorney, Department of Justice, was on the brief, for appellee. Mr. A. Devitt Vanech, Asst. Atty. Gen., also entered an appearance, for appellee.

Mr. Northcutt Ely, Washington, D. C., filed a brief on behalf of Harvey S. Mudd, Seeley G. Mudd, Henry T. Mudd, and George D. Dub as amici curiae, urging affirmance. Mr. Timothy V. A. Dillon, Washington, D. C., also entered an appearance for the amici curiae.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, PROCTOR,^* BAZELON, FAHY and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied June 1, 1954. See 74 S.Ct. 850.

Chief Judge STEPHENS announced the judgment and division of the court as follows:

The court is agreed that the appellant West Coast Exploration Co. is not entitled to the relief prayed for in its complaint, and is agreed that the case should be remanded to the District Court with directions to dismiss for lack of jurisdiction.

Chief Judge STEPHENS is of the view, expressed in his opinion printed below, in which Circuit Judge CLARK, Circuit Judge MILLER, Circuit Judge PRETTYMAN and Circuit Judge BAZELON concur, that the District Court had jurisdiction to consider the case but that after hearing the case that court should have dismissed and should now, on remand, be directed to dismiss the action for lack of jurisdiction. Circuit Judge PRETTYMAN has filed an additional opinion, printed below, in which Circuit Judge BAZELON joins.

Circuit Judge WASHINGTON has stated his views in his opinion, printed below, in which Circuit Judge EDGERTON concurs.

Circuit Judge FAHY concurs in the result for reasons stated in his opinion printed below.

STEPHENS, C. J., with whom concur Circuit Judge CLARK, Circuit Judge MILLER, Circuit Judge PRETTYMAN, and Circuit Judge BAZELON:

The judgment under review in this case was entered in an action commenced in the United States District Court for the District of Columbia by the filing by the appellant, West Coast Exploration Company, in this opinion referred to as West

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Coast, of a petition seeking relief in the nature of a mandatory injunction to compel Oscar L. Chapman, the predecessor in office of the present appellee, Douglas McKay, Secretary of the Interior, to approve the selection of, and to issue a patent to, a ten acre tract of land in California. The tract was denominated "Little Placer" and will hereafter, for convenience, sometimes be so referred to. The action was commenced as the result of the following: By the Act of February 10, 1855, 10 Stat. 849 (hereafter sometimes referred to as the Gerard Act), the Congress provided as follows

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Reese A. P. Gerard, William Gerard, and Rachel Blue, (formerly Rachel Gerard,) the only children and heirs of Joseph Gerard, a messenger of the United States to the Indians, who was killed in seventeen hundred and ninety-two, be, and they or their heirs are hereby permitted to enter, each one of them severally, or his or their heirs, one section of the public lands, without the payment of any consideration for said three sections, being in full payment for the patriotic services of said Joseph Gerard, and in accordance with the spirit of the inducements authorized by President Washington to be held out to such persons as would consent to carry a message from Fort Washington, now Cincinnati, in seventeen hundred and ninety-two, to the hostile Indians of the then Northwest Territory."

Pursuant to that Act the Department of the Interior issued to one William Gerard, one of the heirs referred to in the Act, a "special certificate" certifying the right of William to enter one section of the public lands without the payment of any consideration. Such certificates are commonly referred to in land law parlance as "scrip" and will, in this opinion, sometimes be so referred to. Thereafter William exchanged the special certificate for sixteen special certificates, each certifying the right of William to enter one-sixteenth of a section of the public lands without the payment of any consideration. By mesne conveyances West Coast acquired the ownership of one of the sixteen special certificates and thereunder, on March 14, 1947, selected Little Placer. The tract contained minerals, to wit, deposits of sodium borates and calcium borates. The selection was regularly filed with the Bureau of Land Management of the Department of the Interior at Los Angeles and was "accepted" by that Bureau. But the selection was later rejected by the Director of the Bureau at Washington in a decision of June 2, 1947. The rejection was upon — stating them in summary form — the following grounds:

While the Gerard Act is silent with respect to the character of the land that may be located thereunder, it was the uniform policy of the Congress, at and prior to the date of the Act, to exclude mineral lands from disposal under all non-mineral land laws, Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880),¹ and

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administrative practice has accorded with that policy.² Therefore, location under the Gerard Act prior to the Act of July 17, 1914, 38 Stat. 509, 30 U.S.C.A. § 121 et seq., was limited to surveyed public lands, non-mineral in character.³ Little Placer, the tract applied for, was withdrawn from settlement, location — including scrip location — sale or entry, and reserved for classification by Executive Order No. 6910 of November 26, 1934,⁴ and is therefore subject to location only if classified by the Secretary of the Interior under Section 7 of the Taylor Grazing Act, as amended, 43 U.S.C.A. § 315f, as being proper for acquisition and satisfaction of outstanding scrip rights.⁵ While the Act of July 17, 1914, as supplemented by the Act of March 4, 1933, 47 Stat. 1570, 30 U.S.C.A. § 124,⁶ authorized the disposal under the non-mineral

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public land laws of lands withdrawn or classified as valuable for phosphate, nitrate, potash, oil, gas, asphaltic or sodium minerals, the supplementing Act of March 4, 1933 provides that lands withdrawn, classified or reported as valuable for any of the minerals named shall not be subject to such disposal unless the Secretary of the Interior shall determine that it will not unreasonably interfere with operations under the federal mineral leasing laws. The Geological Survey had reported that information available to it indicated that unreasonable interference with operations under the sodium provisions of the Mineral Leasing Act⁷ would result from the disposal of the surface of the land under the non-mineral application. Therefore, the 1914 and 1933 Acts would not avail to remove the bar imposed by the construction and administration of the Gerard Act against the location of Gerard scrip on mineral land. Since the scrip application would have to be rejected on that ground, for that reason alone the tract sought, Little Placer, may not be classified as proper for scrip location

After this rejection by the Director of the Bureau of Land Management, West Coast filed a motion for rehearing. On November 18, 1947, the Secretary of the Interior denied the motion — thereby affirming the Director's rejection of the selection of Little Placer — in a decision the pertinent parts of which are the following:

"West Coast contends that its Gerard scrip may be located on mineral lands and consequently that the act of March 4, 1933, is inapplicable to this situation.

"Under the act of February 10, 1855, supra, Gerard scrip may be located on `the public lands.' But as used in that act, the term `public lands' does not include mineral lands in California. . . . The Supreme Court has held that an act granting sections 16 and 36 of the public lands to the State of California without specific exclusion therefrom of mineral lands, passed only 2 years prior to the Gerard scrip act, was nevertheless intended to exclude from its operation mineral lands. Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880). The Court discussed extensively the act there under consideration as well as other statutes enacted during the same period, reviewed the history of the settlement of California, the discovery of mineral wealth in that area, and the statutes and practices relating to the survey of these lands. It was concluded that

"`* * *, Congress, after keeping this matter in abeyance about sixteen years, enacted, in 1866, 14 Stat. at L., 251, a complete system for the sale and other regulation of its mineral lands, so totally different from that which governs other public lands as to show

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that it could never have been intended to submit them to the ordinary laws for disposing of tho territory of the United States.' (102 U. S. 167, 174, 26 L.Ed. 126)

"The Court's reasoning and conclusions with respect to the statute there under consideration is equally applicable with respect to the question of whether Gerard scrip may be located upon mineral lands in California. And the administrative practice has conformed to this conclusion, as illustrated by the various precedents cited in the decision approved on June 2, 1947.

"In its motion West Coast does not...