Petition — Roberts v. Andrus

‘i Supreme Court, U. $

~~ FILED ai

IN THE

Supreme Court of the Bnited States

OCTOBER TERM 1976

No. 76-1813

KENNETH ROBERTS, et ai.,

Appellants,

CECIL D. ANDRUS, Secretary,

United States Department of the Interior,

Appellee.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

CLEMENT THEODORE COOPER, ESQUIRE

918 F Street, N.W. (300-302)

Washington, D.C. 20004

TALLMADGE, TALLMADGE, WALLACE

& HAHN

515 Western Federal Savings Building

Denver, Colorado 80202

Attorneys for Petitioners

SS FS SY LT

Washington. 0.C. ¢ CLS PUBLISHERS « LAW PRINTING CO. « (202) 393-0625

———

(i)

TABLE OF CONTENTS

Page

oes da cegaeknekaees l

EGS al a RO re Pe Gy Oa RMI =a 3

Ee a Te en Ee 3

I oa i a Seek gg pat on 5,6

CONSTITUTIONAL PROVISIONS INVOLVED .............. 5

FEDERAL REGULATIONS INVOLVED ................--. 6

ee Fal sc okba ween 7

ee oe on cep bane cuees eeee 7,8

he sc ewue caesenees 9-13

REASONS FOR GRANTING THE WRIT ...............-.. 13-21

ee eee el dies pa eb wks senweenaa 22

RN Mirek tee aM a Sa a oh a) la

RRR SS ee ae eMC se tee ee Ib

RE AS Gr I aoa ae eae MS ena rae wena Ic

tee ale uae ve Ute aeee aed Id

I ce Gane re re i rs eS ie le

a NS Se ote ea he if

SR ree eR ee. lg

TABLE OF AUTHORITIES

Cases:

Atlantic Richfield Co. v. Hickel, 432 F.2d 587, at

keg 15

Belk v. Meagher, 104 U.S. 279 (1881) ...........00c0 ee uees 18

Best v. Humboldt Placer Mining Company, 371 U.S.

re ee a was 13

Boesche v. Udall, 373 U.S. 472, 83 S. Ct. 1373

ee ee hee ati we eee vad 13

Brandt v. Hickel, 427 F.2d 57 (9th Cir. 1970) ............4-5 16

Brown v. Hitchock, 173 U.S. 473, 19 S. Ct. 485

ae Mae rr ee aw ene eee hee 13

Cameron v. United States, 252 U.S. 450 (1920) ............ 13,14

Castle w. Wamiis, 19 LB. SSS (IGS) 2. nce ccrccccceces 14

(ii)

Chapman v. El Paso Natural Gas, 92 U.S. App. D.C.

ee SUD chet caenes Ceceesetevecesceageaeey 16

Christman v. Miller, 197 U.S. 313, 25 S. Ct. 468

ES ee eer rr ery ee err he Pe eee ek 14,18

Citizens to Preserve Overton Park v. Volpe, 401

i e & 5 |. | Prrrrrrererrcetr ee Tre era 17

Cole v. Ralph, 252 U.S. 286, 40 S. Ct. 321 (1920)... . see 18,21

Davis v. Wiebold, 139 U.S. 507 (1891)... eee ee ee ee eee 14

Environmental Defense Fund, Inc. v. Environmental

Protection Agency, 510 F.2d 1292, 1305 (D.C.

De Soe ea Cee bow oe cee gechs ae eeseveeeweete 18

eee, Te, Be Ss SU CRUD. ce cS abe ciseccvciccoss 18

Foster v. Seaton, 106 U.S. App. D.C. 253, 271 F.2d

Se Gs Ss SE oo 6S Ke 55 obec Cee eetdederrnadews 16,17

F.T.C. v. Cinderella Career & Finishing School, Inc.,

f= |! PPP Tere TeTeTTLEe TET 18

Hickel v. TOSCO, 400 U.S. 48 (1970) ........ 0c eee cece eens 9

Ickes v. Virginia-Colorado Dev. Corp., 295 U.S. 639

CRUD 90h se hab 60.066 o ddd user OSetecdcererese 18,21

Interstate Fire Ins. Co. v. U.S., 215 F. Supp. 586

(E.D. Tenn. (1963), affd. 339 F.2d 603 (6th

SS Keer rere ty reer rT CET ETE ETE ee 16

levies ©. bem, SS ULB. FEE GORE) wc cccccwcccescccesenes 18

Kennecott Copper Corp. v. FTC, 467 F.2d 67,

PETE Bee heh dew Reece rbeee resi nce vengacne 18

Kern Oil Co. v. Crawford, 143 Cal. 298, 76 Pac.

Fees EEE a's n 60-66-65 Onn 6e4 NH OSA WEE ROD OS Os 20

Kerner v. Flemming, 283 F.2d 916, 922 (2nd Cir.

PST SPT eee eee Teorey Pe TT EERE 17

Mandrell v. Weinberger, 511 F.2d 1102 (10th Cir.) ........... 17

a i ekeeébe ee ee een 18,21

McKinley Creek Mining Co. v. Alaska United Mining

Sk, Ce Ss See SP NED he Koes oe scesecvesivvevds 19

Nickol v. United States, 501 F.2d 1389 (10th Cir.) ......... 17,20

Northern Pac. R. Co. v. McComes, 39 S. Ct. 546

SE og kee. cha ias twee ds Ges chants san Oelewe 13

(iii)

Page

Reins v. Murray, 22 L.D. 409 (1896) ..........cccccccees 19,20

Rideau v. Louisiana, 373 U.S. 723 (1963) ............00e00- 18

Roberts v. Morton, 389 F. Supp. at90 .............005. 2,18,19

Roberts, et al. v. United States, 423 U.S. 828

GOP secncenesens SREE RSC O EES CHtahuevewosrege :

Seaton v. Texas Co., 103 U.S. App. D.C. 163, 256

ee ee SK bd Uh bd Oe ee Uh Beh bec Pues 4c 0b8 cows 16

Sheppard v. Maxwell, 384 U.S. 33 (1966) ..............005. 18

Union Oil of California v. Smith, 249 U.S. 337

SD 'b:0-0iw Cau axed cee eeewe cach wtsdinwkeunds 18,21

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,

CPE 3.26 006s ob bkdee ete Dt coke in cebteake oe 17

United States of America v. Zweifel & Roberts, et

is Se ED - owas dbebed dees 6b bKouee ee 2,14

U.S. v. Certain Parcels of Land, 131 F. Supp. 65

Sn CD. i. ch 2 ee aa Gee ee dis os eae as Bmkt 16

United States v. Coleman, 390 U.S. 599, 602

SED «a Ww 4 Sule oun dewea eee PEE ehdvnwece ee 14,15

United States v. Georgia-Pacific Co., 421 F.2d 92

eG SEE. 25 ee 6 TRRMAENE oe e he laeLenekeces 16

United States v. Strauss, et al., 59 1.D. 129(1945) «.. 2. ee, 16

White v. Lee, 76 Cal. $93, 996, 21, Pac. 363 ww ccc ccc cece 20

We Oi a Pee ET GUD steer ovcwccsucisecacduen 18

Constitutional Provisions Involved:

ee dwad bbe kuoehneenbes 5

Py ee , . ccceenbbebeebeenetes Sh

ee A i dees oe eke eek bese §,21

Federal Statutes Involved:

EEE. ows 0 cn6 O00 nee Cure CES ES eee 5,14

PL EE caso 05 o.c haku bed a 4anaeune eee erate 5,6

Pe Es eh auet cacnhl ehaands Cease dees 5,17

> a Se Ps UN ED oc c cbc cece es cneeedbbee 16

D We SEE we 64 6 Oa ce ees Sc edd bv eee ewes 20

oF ee ED . 5 650560 ca oe base hoe“ de beeteueawee 3

(iv)

DU EE RGdcweesevevevescceccsneccovece

DPM GGaSedeenevoveevcoosvovnesesqes

Federal Regulations Involved:

es WUD Ceci wc ecicesccccseecesecces

et A Re OE) | eee ee

PEGE Sh vedere enccorssccersesccces

State Statutes:

Colo. Rev. Stat. 34-43-112 (1973) ........-0250005s

Federal Rules Involved:

Rule 56, Federal Rules of Civil Procedure ...........

Special Treatises Involved:

SE PEED cece sr eescoesicveecccccecs

Bloom, Devoto and Stevens (May, 1970). Dawsonite

and Gibbsite in the Green River Formation:

DCE cecbs cape eeesososssvcseeses

DE Sh OUGCR OSE SUS CCK bees oo eer ercorecs

Hite, R. J. and Dyni, J. R., 1967. Potential

Resources of Dawsonite and Nacholite in the

Picearce Creek Basin, Northwest Colorado: 4th

Annual Oil Shale Symposium, Colo. School of

Mines Quarterly, v. 62, no. 3, pp. 25-38 ..........

Instructions, Location of Oil Shale Placer Claims, 52

ae

Lindley on Mines, 3rd ed., Sec. 336 ..........5005-

Lindley on Mines, Vol. 2, Sec. 454 (1914) ...........

Milton, Charles & Eugster, H. P. 1959. Mineral

Assemblages of the Green River Formation in

Researches in Geochemistry, ed. P. H. Ableson:

John Wiley and Sons, New York, pp. 118-150 ......

Milton, Charles & Smith, J. W., 1966. Dawsonite in

the Green River Formation of Colorado: Econ.

Geol. v. 61, no. 6, pp. 1029-1042 ..........2.4.-.

Sen. Doc. No. 248, 79th Cong., 2d Sess. 208, 270

DE SSG SRSw OAc eesaoeseresocenceccess

10

10

17

IN THE

Supreme Court of the Gnited States

OCTOBER TERM 1976

No.

KENNETH ROBERTS, ef al,

Appellants,

CECIL D. ANDRUS, Secretary,

United States Department of the Interior,

Appellee.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

Petitioners, Kenneth Roberts, et al., petition this Court for

a Writ of Certiorari to Review the Judgment of the United

States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

This case comes before the Court in two Dimensions. The

First dimension deals, indirectly, with a certain judgment and

order entered by the United States Court of Appeals for the

Tenth Circuit on the question of jurisdiction. In United States

of America, Plaintiff v. Merle I. Zweifel, et al., Defendants,

Civil Action No. 5784, brought in the United States District

Court for the District of Wyoming, that Court held that a

Federal District Court did have subject matter jurisdiction to

entertain an original action brought to cancel out unpatented

mining claims and that the government may elect the forum

of Her choice whether such Forum shall be the Bureau of

Land Management or through the Federal District Court.

Appendix la to 2a, unreported. The Tenth Circuit Court of

Appeals affirmed the District Court’s ruling on the question

of jurisdicition. Appendix Ib to 8b, reported at 508 F.2d

1150 (C.A. 10, 1975). Petition for Writ of Certiorari was filed

in this Honorable Court, Number 74-1410. On October 6,

1975, this Honorable Court denied Certiorari. Reported at

423 U.S. 828 (1975). Appendix Ic. Petititioners have brought

the jurisdictional questions before the Court, under this

Petition, for the stated reasons that (a) the Tenth Circuit

Court of Appeals relied heavily upon Its ruling in 508 F.2d

1150 (C.A. 10, 1975) which ruling is contrary to the trinity

of cases deciding the jurisdictional question by this Honorable

Court in years past and consistently so. (b) This Honorable

Court may well consider the ruling denying certiorari on

October 6, 1975 as is reported at 423 U.S. 828 (1975).

The Second dimension deals directly with a judgment and

order entered by the District Court affirming a final judgment

and order entered by the Interior Board of Land Appeals,

printed in the appendix to this petition, pages 1d to 9d. That

judgment and order is reported at 389 F. Supp. 87 (1975).

Petitioners prosecuted an Appeal to the Tenth Circuit Court

of Appeals. On November 19, 1976, the Tenth ircuit Court

of Appeals affirmed the judgment and order of the District

Court. Appendix le to 1l6e, to be reported at F.2d

(C.A. 10, 1976).' Petitioners filed a Petition for

‘Conflicting pursuits of jurisdiction is evidenced by the

fact that in 508 F.2d 1150 (1975), the Respondents initiated actions to

cancel out unpatented mining claims in the Federal District Court in the

first instance, by-passing the Bureau of Land Management. In the

present action, Respondents properly initiated the action in the Bureau

of Land Management as was consistent with prior decisions rendered by

this Court.

rehearing and suggestion for rehearing en banc. On March 15,

1977, the Tenth Circuit Court of Appeals denied both

petitions. Appendix If.

JURISDICTION

The judgment of the United States Court of Appeals for

the Tenth Circuit, affirming the Judgment of the United

States District Court for the District of Colorado, was dated

and entered on November 19, 1976. The petition for

rehearing and suggestion for rehearing en banc was dated and

entered on March 15, 1977. The jurisdiction of this Court is

invoked under 28 U.S.C. 1234(1).

QUESTIONS PRESENTED

(1.) Whether a State Statute which supplements

a Federal Statute specifying the exact

method of staking an unpatented placer

mining claim on lands situated within the

public domain is constitutionally burden-

some and repugnant and therefore consti-

tutes a denial of equal protection of laws

and a denial of due process of law?

(1I.) Whether the Rule enunciated by this Court

in United States v. Coleman, 390 U.S. 599,

602 (1968), applying the marketability test

as complementary to the Reasonable Pru-

dent Man Test in defining “discovery of a

valuable locatable mineral” as extended to

cover minerals having intrinsic value, should

be delineated in its application in order to

prevent legally burdensome requirements in

proving discovery of minerals such as daw-

sonite, gibbsite, nordstrandite and nahcolite,

which are commingled with a kerogenbaring

dolomite termed “oil shales” underlying

most, if not all, of the Piceance Creek Basin

of the Green River Formation?

4

(III.) Whether the refusal of a District Court and

Court of Appeals to apply the Doctrine of

Laches to actions or inactions by the United

States of America in prosecuting, timely,

administrative actions aimed at cancelling

out unpatented placer mining claims consti-

tutes a denial of procedural and substantive

due process of law?

(IV.) Whether or not, in a contested mining

proceeding brought by the United States of

America aimed at cancelling out unpatented

placer mining claims, the rule which requires

that unpatented placer mining claim holders

bear the burden of proof which is contrary

to the overwhelming rules of evidence and

case law, constitutes a denial of equal

protection of laws and a denial of pro-

cedural due process of law?

(V.) Whether or not adverse news publicity pre-

ceding the commencement of a contested mining

claim proceeding brought by the United States

of America, renders the proceeding null and void

for want of a fair trial at the administrative

level?

(VI.) Whether, in a contested mining proceeding

brought by the United States of America

challenging the validity of unpatented placer

mining claims, the right to trial by jury on

all issues of fact as to location and

discovery, is preserved and should be

constitutionally afforded at the Administra-

tive level or, having exhausted those

remedies, by a Trial de novo, by Jury, on

judicial review in a Federal District Court

thereby precluding a Rule 56 Summary

Type Judgment?

(VIII.) Whether, in a _ contested mining claim

proceeding brought by the United States of

America, challenging the validity of un-

patented mining claims containing Daw-

sonite, Gibbsite, and Nordstrandite which

are commingled with the Kerogen-bearing

EE——_coOEO SS...

dolomites known as “Oil Shale”, the

Government is Estopped in challenging

claims based upon questions of discovery

and location where geological facts were

known to the United States by previous

Departmental Decisions declaring “Oil

Shale” a valuable mineral under the Mineral

Location Act of 1872 and where the claims

involved are located by United States

Geological Survey’s Rectangular Method in

which case the Government would not,

according to prior case law, inquire into

compliance with State Law?

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment, United States Constitution.

Fourteenth Amendment, United States Constitution.

Seventh Amendment, United States Constitution.

STATUTES INVOLVED

5 U.S.C. 556(d). provides as follows:

“Except as otherwise provided by statute, the

proponent of a rule or order has the burden of proof.”

30 U.S.C. 22, provides as follows:

“Except as otherwise provided, all valuable mineral

deposits in lands belonging to the United States, both

surveyed and unsurveyed, shall be free and open to

exploration and purchase, and the lands in which they

are found to occupation and purchase, by citizens of the

United States,...under regulations prescribed by law,

and according to the local customs or rules of miners in

the several mining districts, so far as the same are

applicable and not inconsistent with the law of the

United States.”

30 U.S.C. 28, provides as follows:

6

“The miners of each mining district may make

regulations not in conflict with the laws of the United

States, or with the laws of the State or Territory in

which the district is situated, governing the location,

manner of recording, amount of work necessary to hold

possession of a mining claim, subject to the following

requirements: The location must be distinctly marked on

the ground so that its boundaries can be readily

traced...”

30 U.S.C. 35, provides as follows:

““... where the lands have been previously surveyed by

the United States, the entry in its exterior limits shail

conform to the legal subdivisions of the public lands.

And where placer claims are upon surveyed lands, and

conform to legal subdivisions, no further survey or plat

shall be required, and all placer-mining claims located

after the 10th day of May 1872, shall conform as near as

practicable with the United States system of public-land

surveys, and the rectangular subdivisions of such

surveys...”

30 U.S.C. 162, provides as follows:

“All unoccupied public lands of the United States

containing salt springs, or deposits of salt in any form,

and chiefly valuable therefor, shall be subject to location

and purchase under the provisions of the law relating to

placer-mining claims.”

FEDERAL REGULATIONS INVOLVED

43 CF.R. 1852.2-1, provides as follows:

“The Government may initiate contests for any cause

affecting the legality or validity of any entry or

settlement or mining claim.”

43 C.F.R. 3831.1 (1969), provides as follows:

“A location is made (a) by staking the corners of the

claim except placer claims described by legal subdivision

where State law permits location without marking the

boundaries of the claim on the ground...”

a

STATE STATUTES INVOLVED

Colorado Revised Statutes, 34-43-112 (1973), provides as

follows:

“(a) Before filing the location certificate the discovers

shall locate his claim.

<b) By posting upon such claim a plain sign or notice,

containing the name of the claim, the name of the

locator, the date of discovery and the number of acres or

feet claimed;

(c) By marking the surface boundaries with substantial

posts, sunk into the ground, one at each angle of the

claim.”

. STATEMENT OF THE CASE

On August 7, 1968 and, as amended, on April 25, 1969

and June 12, 1969, the Respondents brought an action in the

Bureau of Land Management challenging the validity of

approximately 2,910 associated placer mining claims. These

claims are located in Garfield and Rio Blanco Counties,

Colorado. Geologically, the areas have been identified as the

Piceance Creek Basin, Green River Formation, Colorado. The

Piceance Creek Basin is well known for its kerogen-bearing

dolomites termed as “Oil Shales”. Oil Shale is found

abundantly throughout the Piceance Creek Basin and the

dolomites are commingled with a carbonate of alumina and

sodium called dawsonite, gibbsite, and nordstrandite. These

kerogen-bearing dolomites are known, mineralogically, as the

Host Rock or Matrix. Alumina cannot be extracted from the

kerogen-bearing dolomites, also known as “Marlstone”,

without doing damage to the Matrix and, vice-versa, Oil Shale

cannot be extracted from the Marlstone without doing

damage to the alumina bearing compounds known as

dawsonite, gibbsite, and nordstrandite.

Petitioners filed an Answer to the Complaint and the cause

proceeded to Administrative Hearing before the Administra-

tive Law Judge. On February 25, 1972, the Administrative

Law Judge ruled that (a) the claims had not been located in

accordance with the mining laws and, (b) Petitioners had

failed to show a valid discovery of a valuable, locatable

mineral. The claims were declared null and void.

Petitioners thereafter filed and prosecuted an appeal before

the Interior Board of Land Appeals. That Board sustained the

Administrative Law Judge’s Ruling. The decision and ruling

by the Interior Board of Land Appeals is reported at 11

1.B.L.A. 53 (1973). Appendix lg to 22g.

Petitioners filed a Complaint in the United States District

Court for the District of Colorado, seeking a review of the

judgment and decision entered by the Interior Board of Land

Appeals. The Respondents filed a Motion for Summary

Judgment under Rule 56, Federal Rules of Civil Procedure.

Petitioners filed extensive briefs and opposition thereto. On

January 23, 1975, the District Court held that the evidence

adduced by the Respondents sustained the finding that

alumina was not present in the claims in quantities sufficient

for economic and commercial extraction and marketing and

that the claims were not sufficiently marked. The Court

further ruled that the record demonstrated that the

proceedings before the administrative law judge did not deny

the claimants due process. Appendix d-1 to d-9, reported at

389 F. Supp. 87 (1975). An appeal was filed in the Tenth

Circuit Court of Appeals from the decision and order entered

by the District Court, granting Summary Judgment to the

Respondents.

On November 19, 1976, the Tenth Circuit Court of

Appeals entered a decision and order affirming the District

Court’s decision. Appendix le to 16e, reported at F.2d

, (1976). Petitioners filed a petition for rehearing and

Suggestion for rehearing en banc. That petition was likewise

denied on March 15, 1977, Appendix If. It is from that final

ruling by the Tenth Circuit Court of Appeals that Petitioners

have tiled a Petition for Certiorari in this Honorable Court.

9

STATEMENT OF FACTS

Petitioners were the owners, in part, of approximately

2,910 unpatented mining claims. The claims are situated in

the Piceance Creek Basin of the Eocene Green River

Formation, Colorado. This vast and extensive Basin is well

known for its kerogen-bearing dolomites known as “oil shale”

and often referred to as “Marlstone”. Throughout the entire

strata of the Basin, the minerals Dawsonite, Gibbsite and

Nordstrandite as well as Nacholite are found. These minerals

contain an abundant supply of alumina and other valuable

minerals. The minerals are commingled with the Marlstone. So

commingled are the minerals that, technically, the Host Rock

or Matrix might well be considered the dawsonite, gibbsite,

nordstrandite and nacholite compounds rather than the

Maristone. The history of oil shale and its value is well known

to the Honorable Court.?

Between May 2, 1966 and February 10, 1967, approxi-

mately 2,910 unpatented mining claims were located in the

Piceance Creek Basin by an agent and locator for petitioners.

These claims were located consistently over a wide area of oil

shale properties and the mineral, alumina, is commingled with

the oil shale or marlstone. The claims were duly staked by

U.S.G.S. Rectangular Method and in some instances, claims

were staked by posting a marker or monument at each angle

of the claims. Location certificates were duly executed and

filed in the local county recorders offices in Meeker, Garfield

and Rio Blanco Counties, Colorado. Notably, the claims were

located on lands which were well known, as common

knowledge, for their intrinsically valuable minerals such as

dawsonite, gibbsite, nordstrandite and nacholite from which

alumina could be extracted and marlstone from which shale

oil could be extracted at distillation by use of the in situ or

retort methods.

?This Court decided one aspect of oil shale cases dealing with the

assessment work issue in Hickel v. TOSCO, 400 U.S. 48 (1970).

ES a

10

Of importance to the Court is the background or

mineralogy of the Piceance Creek Basin since Respondents

placed the Onus upon Petitioner to prove that which they

already knew as common knowledge. The mineral, Dawsonite,

was first identified in cores from the Piceance Creek Basin by

Dr. Charles Milton, then of the U.S. Geological Survey.’ This

identification was made by Dr. Milton in 1958. Subsequent to

the identification by Dr. Milton, Hite and Dyni conducted

further research and found the Piceance Creek Basin to

contained Dawsonite and Nacholite which are potentially

valuable sources of alumina and soda ash.* According to

another survey conducted by Drs. DeVoto, Stevens and

Bloom,’ the following finds were made as to value:

“The occurrence of gibbsite ubiquitously with dawsonite

was Originally suggested by the fact that in many units

there is considerably more dilute-acid-soluble aluminum

than sodium.”

“The continuous intervals averaging greater than 1.5 and

2.8 percent aluminum have a minimum gross value in the

ground of about $8 and $14 per ton soluble extractable

aluminum, respectively, using a value for aluminum of 25

cents per pound... The gross value, in place, of the

kerogen contained in this same zone (averaging 25

gallons of oil per ton) is approximately $1.75 per ton.

The ultimate value of this rock could be controlled more

3Milton, Charles, and Smith, J.W., 1966. Dawsonite in the Green

River Formation of Colorado: Econ. Geol. v. 61, no. 6, pp. 1029-1042.

Milton, Charles, and Eugster, H.P., 1959. Mineral Assemblages of the

Green River Formation in Researches in Geochemistry, ed. P.H.

Ableson: John Wiley and Sons, New York, pp. 118-150.

*Hite, RJ. and Dyni, J.R., 1967. Potential resources of dawsonite

and nacholite in the Piceance Creek Basin, Northwest Colorado: 4th

Annual Oil Shale Symposium, Colo. School of Mines Quarterly, v. 62,

no. 3, pp. 25-38.

5Bloom, DeVoto and Stevens (May, 1970). Dawsonite and Gibbsite

in the Green River Formation: Mines Magazine. (Professors of Geology at

Colorado School of Mines.

eer

weet

-— <<

11

by its value. as aluminum ore than by its value as a

source of oil. Every square mile (of the 150 square

miles) that has a 500 foot thickness of continuously

interval averaging 1.5 percent of aluminum contains

between 3/4th and | billion tons of potential ore.”

By all accounts, based upon studies conducted by the United

Geological Survey, The Bureau of the Mines and the Atomic

Energy Commission, the foregoing findings have been

substantially confirmed and these technical facts were well

known to the respondent, even on the date when respondents

first filed a complaint challenging the validity of the 2,910

unpatented placer mining claims.

On August 7, 1968, the government filed a complaint (as

amended April 25, 1969, and June 12, 1969) challenging the

validity of the unpatented placer mining claims. In the

complaint, the Government charged (1) that the claims were

not located in accordance with the mining laws, and (2) there

was no discovery of a valuable, locatable mineral deposit

within the meaning of the mining laws within the limits of

any of the claims. However, prior to the filing of the

complaint, through various press releases, adverse information

was transmitted to the Press concerning the Department of

Interior’s stand in proclaiming the invalidity of the 2,910

mining claims. For example, in March, 1968, the Washington

Post Reported:

“MINING CLAIMS CLEARED FOR OIL New York

Times Service WASHINGTON — The department of the

interior Tuesday wiped out 5,200 mining claims on the

oil-rich shale lands of Colorado and Utah...”

The Wall Street Journal reported:

“More than 5,000 mining claims on shale lands in

Utah and Colorado have been wiped out by Interior

Dept., solicitor Edward Weinberg. The claims, most of

which were filed in the past couple of years, were chiefly

on federally owned lands that contain shale oil reserves.

Weinberg ruled that dawsonite (a mineral mixed with

much of the shale) is not subject to claims.

12

The move was the latest in a series designed to clear

title to shale oil lands in Colorado, Utah and Wyoming

so that oil extraction may get under way. About 80% of

the land is owned by the federal government. Literally

thousands of other claims still are in dispute.”

While proclaiming, prior to actual trial, that the claims had

been administratively “wiped out” by the Interior Depart-

ment’s Solicitor, Walter R. Hibbard, Jr., Director of the U.S.

Bureau of Mines, in testimony at a closed hearing before a

house appropriations subcommittee, told the Congress that

“Oil shale may contain enough aluminum-bearing minerals to

meet the nation’s aluminum needs for years — plus trillions of

dollars worth of oil.’”®

The facts in the administrative record, documented by

substantial evidence, proved, inter alia, the following:

That during the years 1965 and 1966, the Contestees hired

an Agent-Locator, one Merle I. Zweifel, for purposes of

locating the 2,910 unpatented placer mining claims situated in

the Piceance Creek Basin, Colorado. That the Locator did in

fact enter upon the lands and posted location notices on each

claim setting forth the names of each locator on the claims.

The claims notices were in fact executed and filed for

recordation with the County Courthouses in Meeker, Colorado

and at the County Courthouses in Garfield and Moffat

Counties, Colorado. The actual method of staking each claim

consisted of making “Y” stakes and placing the stakes at each

angle of the claim, in most instances. Photographs were taken

as evidence of staking.

The claims are situated within a 250 square mile radius and

have a 500 foot thickness of continuous interval averaging 1.5

percent aluminum which contains between 3/4ths and |

billion tons of potential ore. The 1.5 percent aluminum

mentioned can be processed from approximately 40 billion

tons of alumina which can be extracted from each acre.

(emphasis supplied). Private Industry had perfected methods

Reported in The Daily Oklahoman, Sat. April 13, 1968.

ee ne eee ee ee eee

13

or processes on which patents have been issued, by which

alumina could be extracted from dawsonite, gibbsite,

nordstrandite and anaicite. Alumina is an intrinsically valuable

mineral and approximately 36 out of 50 states are considered

primary alumina markets in the United States. Transportation

from the site of the mine to the market can be accomplished

by use of horizontal methods or the market can move close

to the point of primary production. In considering the value

of alumina in place, (in the ground), approximately 1.5 and

2.8 percent aluminum have a gross value in the ground of

about $8.00 to $14.00 per ton. By use of various extraction

processes, one could recover 132 pounds of alumina from

each 200 pounds of gibbsite, nordstrandite. By use of various

extraction processes, one could recover 700 pounds of

alumina from 2,000 pounds of dawsonite. Projecti«n has it

that the demand for alumina will continue to increase by a

substantial percentage within the next ten years. These were

the facts before the Administrative Agency and, on judicial

review, before the Federal District Court and the Court of

Appeals.

REASONS FOR GRANTING THE WRIT

1. The inconsistencies in subsequent decisions emanating

out of various Federal Circuit Courts, after this Court’s ruling

on jurisdiction in Best v. Humboldt Placer Mining Company,

371 U.S. 334 (1963); Cameron v. United States, 252 U.S. 450

(1920); Brown vy. Hitchock, 173 U.S. 473, 19 S. Ct. 485

(1899); Northern Pac. R. Co. v. McComas, 39 §. Ct. 546

(1918); Boesche v. Udall, 373 U.S. 472, 83 S. Ct. 1373

(1963), are clearly representative of an incorrect interpreta-

tion of the law. The rule is well settled that subject matter

jurisdiction involving unpatented mining claim litigation is

vested solely in the Secretary of the Interior, acting through

the Bureau of Land Management and not the Federal Courts

14

in the first instance. In United States of America v. Zweifel &

Roberts, et al., 508 F.2d 1150 (1975), the Tenth Circuit

Court of Appeals upheld a District Court ruling invoking

jurisdiction in the first instance. This Honorable Court denied

certiorari, 423 U.S. 829 (1975). In view of the fact that

United States v. Zweifel & Roberts, supra, is an adjunct

proceeding to the litigation before this Court, review of that

ruling appears timely as well as proper. Furthermore, the

Tenth Circuit Court of Appeals, cited United States v.

Zweifel, supra, approvingly, even though incorrectly, in its

decision from which this Petition for Certiorari is taken.

Il. The rule enunciated by this Court in United States v.

Coleman, 390 U.S. 599, 602 (1968) has been misinterpreted

by the Circuit Courts throughout the United States. In

Coleman, supra, this Court held that in order to determine

whether a mineral is a “valuable mineral deposit” under 30

U.S.C. 22, it must be shown that the mineral can be

extracted, removed and marketed at a profit. The Market-

ability Tests enunciated by the Court in Coleman, supre, is

complementary to the “Reasonable Prudent Man Test” which

provides that where minerals found are of such character

and quantity and quality that a person of ordinary prudence

would be justified in further expenditure of labor and means,

with a reasonable prospect of developing a paying mine.

Christman v. Miller, 197 U.S. 313, 25 S. Ct. 468 (1905);

Cameron v. United States, 252 U.S. 450, 40 S. Ct. 410

(1919); Castle v. Womble, 19 L.D. 455 (1894); Cole v. Ralph,

252 US. 286, 40 S. Ct. 321 (1920); Davis v. Wiebold, 139

U.S. 507 (1891); Lindley on M.xes, ‘ta ed., Sec. 336. The

question with which the Cour ‘3 c "ty: upon to deal is not

whether the Marketability ‘i ct enum * «4 by this Court in

Coleman, supra, is complementary to the Reasonable Prudent

Man Test, but rather, whether or not the need for a showing

that a market exists is mandatory where minerals having

intrinsic value, of wide-spread occurrence, would justify a

reasonable prudent man in expending time, labor, effort and

resources in developing a paying mine. Contrary to subsequent

15

holdings or decisions by Federal Courts after Coleman. supra,

alumina is a mineral having intrinsic value with a readily

available market. Accordingly, the requirement that litigants

in mining claim contests must demonstrate that a market does

in fact exist is legally burdensome and constitutes a denial of

equal protection of the laws.

It must be remembered that Coleman, supra, came before

this Court on litigation involving quartzite deposits which the

litigants claimed rendered the lands valuable for building

stone. In the cause now on Petition for Certiorari, the mineral

lands are chiefly valuable for alumina, an intrinsically valuable

mineral, as well as maristone or kerogen from which oil shale

can be extracted. Coleman, supra, must be placed in proper

perspective. This Court did not intend that the Marketability

Test be applied in all cases involving all minerals. This

interpretation is borne out by the fact that the Court

elaborated fully as follows:

“... the prudent man test and the marketability test are

not distinct standards, but are complementary in that the

latter is a refinement of the former. While it is true that

the marketability test is usually the critical factor in

cases involving nonmetallic minerals of widespread

occurrence, this is accounted for by the perfectly natural

reason that precious metals which are.in small supply

and for which there is a great demand, and sell at a price

so high as to leave little room for doubt that they can be

extracted and marketed at a profit.” id. 603

The Agency, the District Court and the Tenth Circuit Court

of Appeals applied a standard which was not required under

the geological significance of the mineral claims involved.

Ill. The refusal of the District Court and the Court of

Appeals to apply the doctrine of laches or Estoppel to actions

or inactions by the United States constituted a denial of

procedural and substantive due process of law.

In cases emanating out of the Tenth Circuit, the Court has

held that the doctrine of estoppel may be applied against the

government. Atlantic Richfield Co. v. Hickel, 432 F.2d 587.

16

at 591-592 (10th Cir., 1970). There is further authority for

the view, in the Federal Courts, that government can be

estopped by the conduct of its agents, within the scope of

their authority. /nterstate Fire Ins. Co. v. U.S., 215 F. Supp.

586 (E.D. Tenn. 1963), affd., 339 F.2d 603 (6th Cir., 1964);

U.S. v. Certain Parcels of Land, 131 F. Supp. 65 (S.D. Cal.,

1955). More particularly, in cases involving disputes arising

out of the administration of public lands, and where the

government acts in a proprietary capacity rather than a

sovereignty, the doctrine of estoppel has been applied. Brandt

v. Hickel, 427 F.2d 57 (9th Cir., 1970); United States v.

Georgia-Pacific Co., 421 F.2d 92, (9th Cir., 1970). In other

cases, the Secretary of the Interior has been collaterally

estopped from disavowing official advice (such as failure to

acknowledge technical facts derived from agency expertise in

research such as facts derived from Bureau of the Mines, the

Atomic Energy Commission, and U.S. Geological Survey)

relating to the extensive mineral contents of the mineral lands

involved in this Proceeding. Seaton v. Texas Co., 103 U.S.

App. D.C. 163, 256 F.2d 718; Chapman vy. El Paso Natural

Gas, 92 U.S. App. D.C. 154, 204 F.2d 35. Certainly, the

Secretary of the Interior cannot ignore technical facts which

he is bound to have knowledge of.

Accordingly, failure to apply the doctrine of estoppel and

laches constituted a denial of procedural due process of law.

IV. The time worn rule, which is contrary to procedural

and adjective law, has been stated as follows: When the

Government contests a mining claim, it bears only the burden

of going forward with sufficient evidence to establish a prima

facie case, and the burden of proof shifts to the claimant to

show by a preponderance of evidence that his claim is valid.

The rule is further stated that in an Administrative Contest

challenging the invalidity of placer or lode mining claims, the

burden of proof is borne by the proponent of a rule or order.

5 U.S.C. 1006, 60 Stat. 241 (1946); Foster v. Seaton, 106

U.S. App. D.C. 253, 271 F.2d 836 (D.C. Cir., 1959); United

States v. Strauss, etal, 59 ID. 129 (1945). The

17

constituttional validity of the rule has never been tested in

this Honorable Court. The question therefore abounds —

whether in an administrative contest, where the government

challenges the validity of unpatented mining claims, she must

bear the burden of proof throughout the adversary pro-

ceeding?

The holding in Foster v. Seaton, supra, even though

incorrect, was again applied and followed by the Tenth

Circuit Court of Appeals in United States v. Zweifel, supra,

and the rule has again been followed in the case from which

Certiorari has been filed with this Court. Firstly, the Secretary

of the Interior, is the proponent of a rule or order in a

contested mining claim proceeding. The fact that a Statute or

Regulation asserts an affirmative fact and/or requirement and

the Secretary challenges that fact, by way of a negative

pregnant, does not relieve the Secretary of carrying the

Burden of Proof. For comparison, cf. Kerner v. Flemming,

283 F.2d 916, 922 (2nd Cir., 1960). A reading of Section

556(d) 5 U.S.C., provides as follows:

“Except as statutes otherwise provide, the proponent of

a rule or order shall have the burden of proof.”

The Committee Reports suggest that the proponent of a rule

or order has the burden of proof means not only that the

party initiating the proceedings has the general burden of

coming forward with a prima facie case but that other parties,

who are proponents of some different result, also for that

purpose have a burden to maintain.’ The Burden of Proof

assigned to the Secretary is well nigh supported by the fact

that upon review of administrative decisions by federal courts,

all decisions must be supported by substantial evidence in the

Administrative Record. Nickol v. United States, 501 F.2d

1389 (10th Cir.); Roberts v. Morton, 389 F. Supp. at 90;

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414

(6th Cir.); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,

487-88; Mandrell v. Weinberger, 511 F.2d 1102 (10th Cir.).

7Sen Doc. No. 248, 79th Cong., 2d Sess. 208, 270 (1946).

18

The imposition of burden of proof upon claimants of

mineral lands in proceedings brought by the government

would indeed constitute and does constitute a denial of equal

protection of the laws and a denial of due process of law.

V. This court first enunciated the rule condemning adverse

news publicity Sheppard v. Maxwell, 384 U.S. 33 (1966). The

practice was further condemned by the Court of Appeals in

F.R.C. v. Cinderella Career and Finishing School, Inc., 404

F.2d 1308 (1968). Yet, the Court of Appeals has dealt with

the problem lightly by simply concluding that a showing of

personal bias is required and the fact that the administrative

law judge indicated that he was unaware of any adverse

prehearing publicity concerning the claims and therefore his

determination was not tainted. But contrary to a summary

conclusion arrived at by the Court, there was an inherent

demonstration, by virtue of the obvious results, that there was

indeed a prejudgment on the merits of the issues in the

proceedings. Environmental Defense Fund, Inc. v. Environ-

mental Protection Agency, 510 F.2d 1292, 1305 (D.C. Cir.);

Kennecott Copper Corporation v. FTC, 467 F.2d 67, 79-80

(10th Cir.). That prejudgment cannot and should not be

lightly taken particularly where valuable property rights are

involved. Union Oil of California v. Smith, 249 U.S. 337

(1919); Belk v. Meagher, 104 U.S. 279 (1881); Wilbur v. U.S.,

46 F.2d 217 (1930); Cole v. Ralph, 252 U.S. 286, 40 S. Ct.

321 (1920); Christman vy. Miller, supra; Ickes v. Virginia-

Colorado Dev. Corp., 295 U.S. 639 (1939); Manuel v. Wulff,

152 U.S. 505.

This Court has held that hearings which are held in a trial

atmosphere that has been utterly corrupted by press

coverage and which precedes an adverse decision should be

overturned. /rvin v. Dowd, 366 U.S. 717 (1961); Rideau vy.

Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532

(1965).

VI. There is a conflict of decisions as to whether one who

locates unpatented mining claims on lands within the Public

Domain, must not only stake his claims in accordance with

19

the Federal Law but must follow the exact method of staking

as required by State Laws.

The Tenth Circuit Court of Appeals held that Petitioners,

in staking the claims involved, should have followed the

dictates of the Colorado State Statutes. The Federal Law

Provides that a Locator may stake his claim by following the

U.S.G.S. Rectangular Method which does not require that the

locator sink a post at each angle of the claim so long as the

claims can be identified by permanent government markers or

monuments. 30 U.S.C. 35; 43 C.F.R. 3401.1; 43 C.F.R.

3831.1. The rule is well settled that in a proceeding between

the government and a private mining claimant, the Land

Department will not inquire as to his compliance with the

local lews and regulations specifying the manner in which the

location should be marked on the ground. Reins v. Murray,

22 L.D. 409 (1896); Instructions, Location of Oil Shale Placer

Ciaims, 52 1.D. 631 (1929); McKinley Creek Mining Co. y.

Alaska United Mining Co., 183 U.S. 563, 569 (1902). On the

other hand, the Colorado Statute provides that the Locator

mark the surface boundaries with substantial posts, sunk ir.to

the ground, one at each angle of the claim. C.R.S. 34-43-112

(1973). But the Department has never overruled its decision

in Reins v. Murray, supra. Thus, where the Department

reversed its field of directions and placed the burden upon

petitioners to demonstrate that they must comply with State

Law constituted a denial of equal protection of laws and a

denial of due process of law.

The rule is well settled that the location must be distinctly

marked upon the ground so that its boundaries can be readily

traced. But the law is not now in a settled state in light of

the Tenth Circuit Court’s ruling in Roberts v. Morton, supra.

In McKinley Mining Co. v. Alaska Mining Company,

supra, this Court held that a location on unsurveyed lands was

valid where there was only one monument, a stump, and that

the stump could readily provide a basis or monument from

which the claim could be readily traced. According to some

authorities, the California Courts take the position that simply

20

complying with Federal Law does not satisfy the requirements

of State Statutes. In the leading case of White v. Lee, 78 Cal.

593, 596, 21 Pac. 363, The Court so held. But White

vy. Lee was overruled in Kern Oil Co. v. Crawford, 143 Cal.

298, 76 Pac. 1111, 1113 (1903). Kern, supra, was adopted

and followed by the Department of Interior in Reins y.

Murray, supra. See Lindley on Mines, Vol. 2, Sec. 454 (1914).

Petitioners call upon this Honorable Court to settle the

state of the law insofar as compliance with State Statutes are

concerned in contested mining claim proceedings initiated by

the Government. Seemingly, the Government would know

where the boundaries or permanent markers identifying each

rectangle is situated thereby precluding the necessity of a

locator showing that the claim can be readily traced.

VII. In a contested mining proceeding brought by the

United States of America before the Land Department, and,

upon judicial review, a Trial Court is duty bound to grant a

Trial by Jury, de novo, where there are genuine issues of

material fact in dispute which would preclude a Rule 56

Summary ‘ype Judgment.

While the Administrative Procedure Act, 5 U.S.C. 101, ef

seq. does not provide for Jury Trial on Judicial Review, a

Federal District Court cannot, constitutionally, render a

Summary Judgment ruling by simply examining the entire

administrative record in order to ascertain whether the

Agency’s decision is supported by substantial evidence in the

Administrative Record. Nickol v. United States, supra. The

usual practice in Federal Courts, on judicial review, is to

render a Summary Judgment without benefit of a trial by

jury in order to weigh all genuine issues of material fact in

dispute. One school of thought has it that in Administrative

Proceedings, jury trials are not guaranteed. Nonethelesss,

under the Seventh Amendment of the U.S. Constitution, a

claim having value based upon the minerals found within the

confines of each claim and the well settled property right

concept clearly delineate the action as one sounding in the

nature of a suit at common law, thus satisfying the

ee >

21

requirements of the Seventh Amendment. The common law

concept of an unpatented mining claim labeled as property in

the fullest sense of the word has been well settled. This Court

has held that a mining claim, unpatented, perfected under the

law is property in the highest sense of that term. Cole vy.

Ralph, supra; Union Oil of California v. Smith, supra; Manuel

v. Wulff, supra; Ickes v. Virginia-Colorado Dev. Corp., supra.

The jury trial concept at the Administrative Leve! and on

Judicial Review does not come as a procedural hybrid. The

title of hearing officer from Hearing Examiner to “Adminis-

trative Law Judge” has been effected pursuant to order of the

Civil Service Commission, 37 F.R. 16787 (Aug. 19, 1972).

Court Rooms have been devised within each Administrative

Agency. The setting points out much more, in physical plant,

which is compatable to the full jury trial system rather than

the former ‘informal’ administrative hearing room. If,

according to Nickol v. United States, supra, a trial judge is

required to weigh all of the evidence, draw inferences from all

of the facts, a litigant is well foreclosed from fully contesting

the factual issues which, in any event, should be heard by a

jury of peers as a common law action.

22

CONCLUSION

For the foregoing reasons, Petitioners respectfully request

that their Petition for Writ of Certiorari to review the

Decision of the United States Court of Appeals for the Tenth

Circuit be granted; That an Order to that effect be entered,

and the Court below and the Counsel be notified of the

Granting of the Petition.

Respectfully submitted,

CLEMENT THEODORE COOPER, ESQUIRE

918 F Street, N.W. (300-302)

Washington, D.C. 20004

TALLMADGE, TALLMADGE, WALLACE

& HAHN

515 Western Federal Savings

Building

Denver, Colorado 80202

Attorneys for Petitioners

a Oo a ee he el