# Petition — Roberts v. Andrus

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2044%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 834

## Text

‘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.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2044%3A1. Public record. Not legal advice.