Western Nuclear, Inc. v. Andrus

• Decision Date: 13 November 1981
• Docket Number: No. 79-2290,79-2290
• Citation: 664 F.2d 234
• Parties: WESTERN NUCLEAR, INC., a Delaware Corporation, authorized and doing business in the State of Wyoming, Plaintiff-Appellant, v. Cecil ANDRUS, Secretary of the United States Department of the Interior, and the United States, Defendants-Appellees, and Wyoming Stock Growers Association, John Orr and Associated General Contractors of Wyoming, Intervenors. State of Utah and Associated General Contractors of Wyoming, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 234

664 F.2d 234

WESTERN NUCLEAR, INC., a Delaware Corporation, authorized and doing business in the State of Wyoming, Plaintiff-Appellant, v. Cecil ANDRUS, Secretary of the United States Department of

the Interior, and the United States, Defendants-Appellees,

and

Wyoming Stock Growers Association, John Orr and Associated

General Contractors of Wyoming, Intervenors.

State of Utah and Associated General Contractors of Wyoming,

Amici Curiae.

No. 79-2290.

United States Court of Appeals, Tenth Circuit.

Argued July 17, 1981.

Decided Nov. 13, 1981.

Harley W. Shaver, Denver, Colo. (John H. Licht, Denver, Colo., with him on the brief), of Canges, Shaver, Volpe & Licht, Denver, Colo., for plaintiff-appellant.

Edward J. Shawaker, Washington, D. C. (Robert L. Klarquist, Dept. of Justice, Washington, D. C., James W. Moorman, Asst. Atty. Gen., Washington, D. C., Charles E. Graves, U. S. Atty., and Sharon A. Lyman, Asst. U. S. Atty., Cheyenne, Wyo. and Lyle K. Rising, Dept. of the Interior, Denver, Colo., with him on the brief), for defendants-appellees.

David L. Wilkinson, Utah Atty. Gen., Richard L. Dewsnup, and Anne M. Stirba, Asst. Attys. Gen., Salt Lake City, Utah, on the brief, for State of Utah.

Marilyn S. Kite, Laramie, Wyo., on the brief, for Associated Gen. Contractors of Wyoming, intervenor and amicus curiae.

Before McWILLIAMS and BREITENSTEIN, Circuit Judges, and CHILSON, District Judge. ^*

PER CURIAM.

The central issue in this appeal concerns the meaning and scope of a mineral reservation in a patent granted under the Stock-Raising Homestead Act of 1916. Specifically, the question before us is whether gravel is included in the reservation of "coal and other minerals." The Wyoming Office of the Bureau of Land Management (BLM), the Interior Board of Land Appeals (IBLA), and the United States District Court for the District of Wyoming all concluded that gravel is a mineral reserved to the United States in a patent issued pursuant to the Stock-Raising Homestead Act of 1916. We conclude that the gravel here involved is not a reserved mineral, and therefore reverse.

The current dispute involves a tract of land situate in the State of Wyoming, which was conveyed by the United States to appellant's predecessor-in-interest on February 4, 1926, by Patent No. 974013, issued pursuant to the Stock-Raising Homestead Act of 1916. ¹ In accord with the provisions of the Act, the patent contained the following reservation:

Excepting and reserving, however, to the United States all the coal and other minerals in the lands so entered and patented, together with the right to prospect for, mine, and remove the same pursuant to the provisions and limitations of the Act of December 29, 1916. (emphasis added).

Western Nuclear, Inc., the appellant, has been involved in the mining and milling of uranium ore in and around Jeffrey City, Fremont County, Wyoming, for more than twenty years. From time to time during those years Western Nuclear obtained, from various sources, gravel, which it used for road surfacing, paving aggregate, shaft concrete aggregate, and the like. In 1975, Western Nuclear acquired, in fee, a portion of the land subject to the 1926 patent and proposed to meet its future gravel needs from an open gravel pit located on the acquired premises. ² Western Nuclear first secured a permit for development of the gravel pit from the Wyoming Department of Environmental Quality and then proceeded to extract gravel from the pit. It thereafter removed some 43,000 cubic yards of gravel to further its own commercial operations.

Later, the Wyoming Office of the BLM cited Western Nuclear for trespass. After hearing, the BLM entered its decision, which held, in substance, that the gravel on and underlying Western Nuclear's land had been reserved to the United States under the 1926 patent and that Western Nuclear had committed an unintentional trespass on federally-owned minerals by extracting and removing such gravel. ³ Western Nuclear was held liable for $13,000 in damages, such sum representing the value of the gravel which Western Nuclear had removed from the land.

Western Nuclear appealed the decision of the BLM to the United States Department of the Interior. On review, the IBLA held that the BLM did have jurisdiction over the subject matter of the dispute and that the gravel in question had been reserved to the United States in the 1926 patent. Because of a slight mathematical miscalculation, the damage award was reduced from $13,000 to $12,802.50. The opinion of the IBLA appears at 85 Interior Dec. 129 (1978).

Thereafter, Western Nuclear initiated the present proceeding, which it denominated as a "Complaint/Petition for Review," in the United States District Court for the District of Wyoming, asking that the IBLA decision be set aside and that the trial court quiet Western Nuclear's title to the gravel in question. Jurisdiction was based on 5 U.S.C. § 704 (1976) and 28 U.S.C. § 1331(a) (1976).

On judicial review, the trial court generally affirmed the decision of the IBLA, although the trial court ordered "that the element of damages shall be determined by the collaboration of the Wyoming State Office of the Bureau of Land Management and the landowners, Western Nuclear, Inc." Specifically, the Honorable Ewing T. Kerr, after an analysis of the legislative history, contemporaneous definitions and court decisions, concluded that gravel is a mineral within the meaning of the mineral reservation of the Stock-Raising Homestead Act. See Western Nuclear, Inc. v. Andrus, 475 F.Supp. 654 (D.Wyo.1979). Western Nuclear now appeals. ⁴

In this Court, Western Nuclear's primary argument is that gravel is not a reserved mineral, and that the trial court erred in affirming the IBLA's holding that the gravel was reserved to the United States. Western Nuclear alternatively contends that if the first issue be resolved adversely to it, then we should address ourselves to Western Nuclear's second argument that the BLM lacked subject-matter jurisdiction and, therefore, had no authority to issue the trespass notice. We believe that the jurisdictional issue is one which must be addressed first, although, in our view, the jurisdictional issue and the question of whether gravel is a mineral reserved under the 1926 patent are, to a degree at least, interrelated. As concerns jurisdiction, the trial court simply rejected that issue with the brief comment that "this argument lacks merit." 475 F.Supp. at 656.

The trespass notice served on Western Nuclear by the BLM stated that, in the opinion of the Secretary of the Interior, Western Nuclear had removed federally-owned materials without authorization and, in so doing, had violated the Materials Act of 1947 and the Surface Resources (Common Varieties) Act of 1955, and 43 C.F.R. § 9239.0-7 (1980). That regulation provides as follows:

The extraction, severance, injury, or removal of timber or mineral materials from public lands under the jurisdiction of the Department of the Interior, except when authorized by law and the regulations of the Department, is an act of trespass. Trespassers will be liable in damages to the United States and will be subject to prosecution for such unlawful acts. (emphasis added).

Western Nuclear points out that this regulatory prohibition is restricted to the "public lands," and that the Materials Act of 1947 and the Surface Resources (Common Varieties) Act of 1955 also are limited in scope because they authorize the disposition of gravel from "public lands" only. The basic theme of Western Nuclear's argument that the BLM was without jurisdiction in this case, therefore, is that the land here involved was patented in 1926, and, accordingly, such was no longer "public land" as of the date of the notice of trespass in 1975.

We recognize that the United States Supreme Court has consistently held that the term "public lands" means lands which are subject "to sale or other disposal under general laws." Northern Lumber Co. v. O'Brien, 204 U.S. 190, 196, 27 S.Ct. 249, 250, 51 L.Ed. 438 (1907); Bardon v. Northern Pacific Railroad Co., 145 U.S. 535, 538, 12 S.Ct. 856, 857, 36 L.Ed. 806 (1892); Newhall v. Sanger, 92 U.S. 761, 763, 23 L.Ed. 769 (1876). The term generally does not include lands to which any claims or rights of others have attached. Payne v. Central Pacific Railway Co., 255 U.S. 228, 237-38, 41 S.Ct. 314, 316-317, 65 L.Ed. 598 (1921). Under the general rule, therefore, "privately held lands in which the United States has retained mineral rights ... are not 'public lands' as defined by the Supreme Court because they clearly are not subject to sale under general laws, and there certainly are other claims or rights attached to them." Columbia Basin Land Protection Ass'n. v. Schlesinger, 643 F.2d 585, 598 (9th Cir. 1981).

The general rule, however, does not, in our view, resolve the present jurisdictional dispute. At the heart of the present controversy is the Stock-Raising Homestead Act, 43 U.S.C. § 299 (1976), which not only requires that patents issued under the Act contain the mineral reservation above set out, but also provides that the reserved mineral interests are "subject to disposal by the United States in accordance with the provisions of the coal and mineral laws in force at the time of such disposal." In our view, this statute contemplates that the Department of the Interior should have continuing jurisdiction over, and administration of, mineral interests reserved to the United States under the Stock-Raising Homestead Act until such time as those interests are disposed.

In concluding that the BLM's exercise of jurisdiction was appropriate in this case, we note that the Secretary of the Interior has broad authority as general manager over the federal lands. The United States Supreme Court has affirmed many times the sweeping scope of the Secretary's powers. See Boesche v. Udall, 373 U.S. 472, 476-78, 83 S.Ct. 1373, 1375-1376 10 L.Ed.2d 491 ...