# Petition for Writ of Certiorari — Mendenhall v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3250%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1187 ## Text 84-718 Geemexn FELED Number A-194 now S 1084 ALEXANDER L. STEVAS CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 Robert L. Mendenhall, Petitioner, vs. The United States of America, The United States Department of the Interior, and Cecil D. Andrus, Secretary of the Interior and Edward F. Spang, State Director of the Nevada Office of the Bureau of Land Management, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Petition for Writ of Certiorari Hale C. Tognoni Suite 1260 100 West Clarendon Avenue Phoenix, Arizona 85013 Counsel for Petitioner Questions Presented for Review 1. Has Respondent, in administering the mining law, applied a standard of "discovery" wholly outside judicial interpretation and in opposition to the intent of Congress and the purpose of the mining laws? 2. Does due process require that agency discretion be judicially reviewed as to the facts in a condemnation without compensation and with no higher purpose contemplated for the condemed property? Table of Contents Questions presented for review............1l ee rrr CP. 6 og no 6 0060s sees eeeeeee a -§ 2 66660666666666606086066 seca Ee ee e*eeeee#eee#ee#e#e 6 Citations for opinions delivered in the Courts and the Interior Dept..........8 ee ee 8 8 og gg ng 6666 06666606668606068 Constitutional Provisions and Statututes De cece eeee SECC CC SE OCC SEOCseSCEE Btatement OF the COSSccccrccseses rrerTrrTers First Reason for Allowance of the Writ...21] Second Reason for Allowance of the Writ..38 TABLE OF AUTHORITIES CASES PAGE Arkla Exploration Co. and the State of Arkansas v. Arkansas - Texas Oil and Gas Corporation and James G. Watt..........6- 35 734 F.2d 347 (1984) Best v. Humboldt*®......... oo ee 2 38-9,41-2,44 371 U.S. 334, 335 (1963) Book v. Justice Mining Co.......ceeeneees 26 58 F. 106, 124-25 (C.C.D. Nev. 1893) Bowen Vv. Sil Flowccccccccccccccces Terereey i. 1969, 451 P.2d 626, 9 Ariz. App. 268 Use Vo BOVIS cccccccescccs poecececesscesee 519 F.2d 551 (9th Cir. 1975) Castle v. Womble......cccceceese eccescecee 27 19 Pub. Lands Dec. 455 (1894) Charlestone Stone Ve UeBeocccccccecesechtsda Dist. Ct. Nev., Civ.No. LV 2039 BRT, decided Nov. 7, 1974; Ninth Cir. Ct. No. 75-1532, decided May 12, 1977; order clarifying remand, Jan. 3, 1979. U.S. Ve Coleman... oe TEEEEEELECEEET? . Trt Cal. 1968, 88 S.Ct. 1327, 390 U.S. 599, rehearing den. 88 S.Ct. 1834, 391 U.S. 961, cert. den. 89 S.Ct. 1047, 394 U.S. 907 ° Recent U.S. Supreme Court cases in Boldface Print =9- Creede & Cripple Creek v. Uinta.......... 23 Colo.1905, 25 S.Ct.266, 196 U.S. 337 Chrisman v. Miller...cccccccccccccccceedtys29 197 U.S. 313 (1905) oF Fa A’) |) ReeereeererrrrrrereTs 02 0 4§ 24 F. 108 (D. Idaho 1928) BGWOPGS VY. BlOWOSecccceccccescccccecsccsecsde 588 F.2d 671, 673 (9th Cir. 1978) FOSter V. SEACON. cccccccccccccsccccccceddg Sl Dist. Ct. of App., D.C., No. 14953, decided Oct. 22, 1959 Wole Wo GMMR. coccessescececes TeTTTTITT 25 Arizona Contest Nos. A-035688 and A-035690 (1973) Heydenfeldt v. Daney.......eeeees eccccecs 23 Nev. 1877, 93 U.S. 634 BOlW TRIBLCW VW. Dabacocccececceccccccececs 37 143 U.S. 457, 459 (1892) U.S. ex rel. U.S. Borax Co. v. Ickes.....23 1938, 98 F.2d 271, 68 App. D.C. 399, cert. den. 59 S.Ct. 80, 305, U.S. 619. U.S. V. JONNSON. ccccccecccccscccces ececscecdd IBLA 78-507 (Feb. 28, 1979) Madison D. Locke v. Watt....cceeeeeeeees ~42 U.S. Dist. Ct., Nev., Civil R-82-297 BRT, decided Oct. 21, 1983, S.Ct. cert. for Oct., 1984 McKinley v. Wheeler... cccccccccscccsesesendd Colo. 1888, 9 S.Ct. 638, 130 U.S. 630 Melluzzo v. Morton.....ccecees TTTTTLTLITT 30 534 F.2d 860, 862-863 (9th Cir. 1976) Montana Ry. Co. v. Warren....cececesecees 40 137 U.S. 348, 352-53 (1890) Morrissey v. Brewer....... TrETTTTT 41,42,46 408 U.S. 471, 481-482 (1972) Wee Vo MOMULSPAc cccccccccsccecsccccscess 49 403 F.2d 816, 823 (9th Cir. 1968) UB. Vo RiSBiNEldiccccccecccsecesscecse 23,47 D.C. Idaho 1910, 182 F. 675 U.S. Vo SAYGOP, Ot Blecccccccccccccescces 33 U.S. Dist. Ct., Colo., Civil Action No. 66-C-131, decided April 18, 1967; 10th Cir. Ct. appeal, decided May 24, 1969. Steel vw. Smelt ine Co.ccccccccccecccscecsce 23 Colo. 1882, 1 S.Ct. 389, 106 U.S. 477 Verrue v. U.S..... TETETECELECEEEEEE EEE 29 457 F.2d 1202 (1972) Western Mining Council v. Watt........... 42 643 F.2d 618, 628 (1981) Wilber v. U.S. ex rel. Krushnic.......... 41 280 U.S. 306, 317 (1930) Zeigler v. S.& N. Ala. R.R. CO... eeeeeee 40 58 Ala. 594, 599 (1877) is STATUTES Mineral Lands and Mining - Title 30 BSGCiOR BSecccaacccccacecceschB, 33,387,685 BOGCEOM BGs oc ccccescosvscecessseseseeell BOSCIGR LSlenccccccccesesesccecsecescehe BOOCLOR SL). wc ccccccvscesvecsessesel®, M4 | OPE eee eer BOGTEOR BGs ss cwewasavcssdecocsenesesste General Mining Regulations of the Bureau of Land Management - Title 43 Section 185.1 ge fe errr r TST Se OTHER Governmen* Accounting Office Report, GAO/RCED-84-17, August 2, ee | Hansen, Clinton J., "Why Location Systems for Hard Minerals," Rocky Mountain Mineral Law Institute.......34 J. Adams & Barringer The Law of Mines and Mining in the United States, 188 sg re ee eee Laws of Nevada, Seventh Sess., Chap. LVII, "An Act to encourage the mining, milling, smelting, or other reduction of ores in the State of Nevada,"approved March 1, 1875.- p.48 herein of petition. CITATIONS FOR OPINIONS DELIVERED IN “HE COURTS AND THE INTERIOR DEPARTMENT U.S. v. Frank Sullivan, Nevada No. 065733 U.S. Vv. Sullivan, I.B.L.A. 72-273, 9 I.B.L.A. 278 Robert L. Mendenhall vy. U.S., Dist. Ct. Nevada,CV-R-80-146-ECR (1982) Mendenhall v. U.S., Ninth Cir. Ct. of Appeals, No. 83-1751 (1984); Rehearing denied June 28, 1984. JURISDICTION The United States District Court for the District of Nevada had juris- diction over this matter by virtue of the Administrative Procedures Act, 5 U.S.C. Section 701, et seq. and 28 U.S.C. Section 1331, et seq., which authorize and restrict judicial review of a decision by an administrative law judge and the Interior Board of Land Appeals. The judgment of the Court of Appeals for the Ninth Circuit, affirming the Federal District Court, was entered on May 1, 1984. Petition for rehearing was denied by order dated June 28,1984. Orders Extending Time to File Petition for Writ of Certiorari were granted by Associate Justice of the Supreme Court of the United States, William H. Rehnquist. This petition for Certiorari is timely filed on or before the extension dates granted in said orders, first to October 26, 1984, then to November 5, 1984. This courts' jurisdiction is invoked under 28 U.S.C. Section i254 (1), and the Fifth Amendment of the U.S. Constitution. ye ee ee CONSTITUTIONAL PROVISION and STATUTES INVOLVED Constitutional Amendment V No person .. . shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 30 U.S.C.§21, 22, 26,& 35 -CHAPTER 2 Mineral Lands and Regulations in General. §22 is set forth below: § 22. Lands open to purchase by citizens 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 and those who have declared their intention to become such, 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 laws of the United States. R.S. Section 2319; Feb. 25, 1920, ec. 85 Section 1,41 Stat. 437. -ll- 30 U.S.C.A. Section 161 (known as the Building Stone Act) $161. Entry of building stone lands; previcus law unaffected Any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims. Lands reserved for the benefit of the public schools or donated to any States shall not be subject to entry under this section. Nothing contained in this section shall be construed to repeal section 471 of Title 16 relating to the establishment of national forests. Aug. 4, 1892, ¢. 375, §§ 1, 3, 27 Stat. 348 30 U.S.C.A. Section 611 (known as the Common Varieties Act). $611. - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders and petrified wood. No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the -12- United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. "Common varieties" as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value and does not include so-called "block pumice" which occurs in nature in pieces having one dimension of two inches or more. "Petrified wood" as used in sections 601, 603, and 611 to 615 of this title means agatized, opalized, petrified, or silicified wood, or any material formed by the replace- ment of wood by silica or other matter. July 23, 1955, e¢. 375, Section 3, 69 Stat. 368; Sept. 18, 1962, Pub. L. 87-713, Section 1, 76 Stat. 652. -13- yp ge, Papas ea debe " STATEMENT OF THE CASE Petitioner purchased the unpatented mining claims hereinafter referred to as the Charleston 24/39 located approximately 12 road miles northwest of the city of Las Vegas. The claims, more particularly described in the records of the Bureau of Land Management, were located by E.H. Brawner, et. al. on February 28, 1955, and were part of a group known collectively as the | "Charleston Claims". Frank R. Sullivan acquired the "Charleston Claims" on April 9, 1959. Sullivan mined in the area and subsequently quitclaimed a large group of Charleston claims, not including the Charleston 24/39, to Charlestone Stone Products Co. In 1965, Donald G. Fisher, a mining engineer employed by Respondent to examine mining claims in the Las Vegas area and to invalidate those in -14- violation of Title 30 U.S.C., §611, reported that the Charleston claims were invalid for want of a "discovery". Consequently, Respondent brought contests against Charlestone Stone Products Co. and Petitioners' predecessor, Frank R. Sullivan. Fisher testified in the Bureau of Land Management (BLM) hearing against Charlestone Stone Products Co. but was transferred to another area department of the BLM before the hearing in U.S. v. Frank Sullivan!. He was replaced by Thomas E. Schessler as Lands and Minerals staff Officer with the Las Vegas District of the BLM, to become sole witness against the Sullivan claims. In both U.S. v. Charlestone and U.S. vs. Sullivan, the hearing examiner l. U.S. v. Frank Sullivan, Nevada No. 065733 -15- ruled the Charleston claims null and void and the Interior Board of Land Appeals affirmed. Upon judicial review in Charlestone Stone Products Co. v. Morton2 the District Court ruled that at least sixteen of the Charlestone claims were valid. On May 12, 1979, in Charlestone Stone Products v. U.S.,° the higher court concurred, reversing Respondent's invalidation of the mineral discovery. Andrus v. Charlestone Stone Products Co.4 followed; but the Supreme Court decided only that water on the Charlestone claims was not locatable 2. Charlestone Stone Products Co. v. Morton, Civil No. LV-2039 BRT (D. Nev., November 7, 1974) 3. Charlestone Stone Products v. U.S., No. 75-1532, Ninth Cir. Ct. of Appeals, decided May 12, 1977; order clarifying remand dated Jan. 3, 1979 (see appendix). 4. Andrus v. Charlestone Stone Products Co., 436 US 604 (1978) -16- under Title 30 §22. In a June 28, 1978 letter, the U.S. Department of the Interior, Office of the Solicitor, wrote that the Supreme Court did not alter the Ninth Circuit's holding with regard to the mineral discovery on the Charlestone claims and that the matter should be remanded to the Department of the Interior for further proceedings; and the Ninth Circuit clarified its remand on January 3, 1979. Patent for the Charleston Nos. 1-22 mining claims was subsequently applied for and granted. Meanwhile, Petitioner, Robert L. Mendenhall, had purchased from Sullivan the Charleston 24/39 (see Mendenhall's District Court Affidavit in appendix). Mendenhall proceeded to mine the aggregate from the Charleston 24/39 on a large and profitable scale and evidence presented in Robert L. Mendenhall v. a. that special qualities of the -17- aggregate, which even Respondents expert witness Schessler recognized, had overcome any disadvantages of distance from the market. The District Court flew in the face of the fact that Petitioner had developed a successful mine on the Charleton 24/39, proving Sullivan's "discovery"; and the court ignored the findings of the Ninth Circuit Court of Appeals in Charlestone Stone Products, Ine. v. U. S., supra. The District Court ruled that Schessler's feeble contention that the claims were too far from the market ever to become anything, was substantial evidence of no "discovery". On Appeal the Ninth Circuit concurred, May l, 1984. From that decision this appeal is made. 5. Robert L. Mendenhall v. U.S., Dist. Ct. Nevada, CV- R-80-146-ECR, confirmed (see affidavit of geologist and mining engineer, George Kiersch in appendix) -18- The land in question remains open to mineral entry, so Petitioner has exercised his right to stake new mining claims on the discovery, but relying on findings against Charleston 24/39, the Respondent has instigated trespass proceedings against Petitioner. — a " FIRST REASON FOR ALLOWANCE OF THE WRIT 1. Respondent, in administering the mining laws, has been applying a standard of "discovery" wholly outside judicial interpretation and in opposition to the intent of Congress and the purpose of the mining laws. Before the first federal mining laws were codified in 1866, the importance of a "discovery" on the claims was a matter of establishing primacy of possessory right. Two prospectors exploring in the same area were often racing to be the first with a mineral discovery around which one would be entitled to stake his claim and record it with the local mining district. The federal statutory authority for these mining claims proceeded after the mining laws were born of necessity in frontier mining communities. In 1866, the federal Dene Soar acres ial baat aye EER tay om ch ge. Ce Cee ee Tee REA Pati te Meet Be cpr olen nllacadll Dillan sahil S cari anit snd hates ee | government gave statutory authority to the principle that "all valuable mineral deposits in lands belonging to the United States... shall be free and open to exploration and purchase. ® Congress recognized the success of the miners' own laws in facilitating the discovery and development of the nation's mineral resources. The policy and general purpose declared by Title 30, Section 22 of the mining laws was to encourage as many people as possible to assume the hazards of searching for and extracting the valuable minerals deposited in the publie lands. It was supposed that by reason of the stimulus thus given to the production of mineral wealth and rendering the same available to commerce and the arts, the public 6. Mineral Lands and Mining 30 U.S.C Section 22. Quoted in entirety under "Statutes Involved" herein. ~2}- would indirectly receive a compensation commensurate with the value of the grant. Thus considered, the legislation was approveg as embodying a wise public policy. The Courts have consistently interpreted the intent of Congress to have been to reward and encourage the 8 discovery of valuable minerals;” and U.S. ex rel. U.S. Borax Co. v. Ickes? removed any doubt as to the purpose being restricted by lode or placer qualifications of the mineral deposit. The first federal statutes recognized only a lode type of mining claim. 7. U.S. v. Rizzinelli, D.C. Idaho 1910, 182 F.675. See also McKinley v. Wheeler, Colo. 1888, 9 S.Ct. 638, 130 U.S. 630. 8. Bowen v. Sil Flo, 1969, 451 P.2d 626, 9 Ariz.App. 268; | Haydenfeldt v. Daney, Nev. 1877, 93 U.S. 634; Creede & Cripple Creek v. Uinta Tunnel, Colo. 1905, 25 S. Ct. 266, 196 U.S. 337; Steel v. Smelting Co., Colo. 1882, 1 S.Ct. 389, 106 U.S. 477. 9. U.S. ex rel. U.S. Borax Co. v. Ickes, 1938, 98 F.2d 271, 68 App. D.C. 399, cert den 59 S. Ct. 80, 305 U.S. 619. -22- Placer claims became part of the statutes thereafter, and Petitioner's mineral deposit has been properly tocated under the law for placer mining claims. !9 The purpose of the federal mining statute known as the "Common Varieties Act" of July 23, 1955,!! is no different than the purpose of the mining laws in general. In U.S. v. Coleman!? in 1968, the Supreme Court affirmed the continuing intent of Congress to encourage mining even in consideration of common varieties of mineral. Within the context of this purpose, the Common Varieties Act was to solve a particular 10. Mineral Lands and Mining, Title 30, U.S.C., Sec. 35. ll. Ibid., Title 30, U.S.C., Section 611, quoted in "Statutes Involved" herein. 12. U.S. v. Coleman, Cal. 1968, 390 US 599, 88S Ct 1327, reh den. 391 US 961, 88 S Ct 1834, 391 U.S. 961, cert den 89 S.Ct. 1014, 394 U.S. 907. -23- Ey ee ee ee eee problem. According to testimony by Clifford Young, member of Congress and of the House Interior and Insular Affairs Committee at the time the Act was drafted: ", . ePeople were using the right to locate mining claims for purposes not connected with bonafide mining purposes, .. . People would locate claims for a cabin for recreational purposes or to tie up a good trout stream. Other land was located for commercial purposes to establish a site for a service station or curio shop. . The bill was strongly supported by the mining industry ... they wanted to preserve as large an area as possible of the type of materials that would be subject to a in the traditional way . The remedial legislation removed as of July 23, 1955, "common varieties" of mineral, specifically "sand, stone, gravel, pumice, pumicite or cinders and pertrified wood" from location under the 13. U.S. v. Guzman, Arizona Contest Nos. A-035688 and A-035690 (1973). -24- mining laws. Even so, the Act exempted "common varieties" having "distinct and special value," leaving undisturbed the idea that a discovery of valuable mineral on the public lands should be open to exploration and development by bona fide prospectors. In the administration of the Common Varieties Act, however, the new effort to define a "discovery" created complexities wholly out of keeping with the simple issue of good faith which the act of July 23, 1955 and the mining laws in general had intended. In 1893,!4 the Courts first interpreted the meaning of "valuable mineral deposit" (30 U.S.C. Section 22). One year later in Castie v. Nev. 1893). Womble, !5 the land department enunciated what would become known as the "prudent man rule:" "Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine . . . to hold otherwise would tend to make of little avail, if not entirely nugatory, that provision of the law whereby "all vaiuable mineral deposits in lands belonging to the United States ...are... declared to be free and open to exploration and purchase. For, if as soon as minerals are shown to exist, and at any time during exploration, before the returns become renumerative, the lands are to be subject to other disposition, few would be found willing to risk time and capital in an attempt to bring to light and make available the mineral wealth, which lies concealed in the bowels of the earth, as Congress obviously must have intended the explorers should have proper opportunity to do." 15. Castle v. Womble, 19 Pub. Lands Dec. 455 (1894) approved by the Supreme Court in Chrisman v. Miller, 197 U.S. 313 (1905). -26- j Petitioner's predecessor was the only witness in his own behalf at the hearing in U.S. v. Sullivan, Nevada No. 065733. The testimony leaves little doubt that Sullivan was developing in good faith what he called his "best gravel" on the Charleston 24/39. He and his predecessors before him and before passage of the Common Varieties Act in 1955 had, in fact, made sales from the Charleston claims. Sullivan's testimony as to sales and development was virtually unrebutted. Thomas E. Schessler, sole witness for Respondent, without benefit of supporting fact, simply delivered the opinion that the deposit was too far from the market to justify "the expenditures of labor and means, with a reasonable prospect of success in developing a valuable mine." Schessler had no knowledge of the advantages which the special value of -27- the deposit had in the marketplace, nor did he present any evidence that his opinion was based on any but one of the multitude of factors which effect the market for a mineral. Furthermore, according to Chrisman v. Miller, supra; "Standards to be applied in determining what a prudent prospector would or would not do are not those of a trained engineer or geologist" Verrue v. u.s. 16 should have con- strained the Respondent from pursuing an invalidation of Petitioner's mining claims. In Verrue absence of actual sales before the critical date of July 23, 1955, was not allowed to control in determining marketability, although the lack of sales was admittedly persuasive, depending upon the facts of the particular ease.!? Sullivan's testimony 16. Verrue v. U.S., 457 F.2d 1202 (1972). -28- in administrative hearing supported the factual conclusion that sales had been made from the Charleston claims prior to July 23, 1955. The idea that Mr. Schessler's opinion could overcome substantial evidence that Mr. Sullivan had made sales to the market arose from administrative habit involving claims which were made in bad faith for "common varieties". In the Las Vegas area Foster v. Seaton!® is an example. Foster did not present any evidence of developing a mineral deposit, he simply showed that there was sand and gravel on the claims and that he could forsee circumstances in the future which might make it valuable. Out of cases like 17. Edwards v. Kle 588 F. 2d 671, 673 (9th Cir. 1978); Melluzzo v. Morton, 534 F.2d 860-863 (9th Cir. 1976). 18. Foster v. Seaton, Dist. Ct. of App., D.C., No.14953, decided Oct. 22, 1959 (see appendix). -29- Foster v. Seaton came what would be called the "marketability test" whereby a claimant was asked to prove that a market for the deposit existed on July 23, 1955. In U.S. v. Coleman, supra, the Supreme Court approved the "marketability test", but the Court clearly found Coleman to be in bad faith, and one other important fact of the Coleman case was not shared by U.S. v. Sullivan. Coleman was challenged because he sought to purchase or patent his mining claim. Sullivan did not propose that he had proven his "discovery" so conclusively as to warrant the issue of a patent. After his claim was invalidated, he continued to develop what he believed to be a deposit of valuable mineral, as is his right under the mining laws; and he sold the claim to Robert Mendenball, -30- Petitioner, who shared Sullivan's evaluation of the deposit and proceeded to develop a paying mine. Evidence presented to the Federal District Court (affidavits in appendix of Petitioner and George Kiersch, geologist and engineer) proved that the Respondent erred in its invalidation of Petitioner's claims. Furthermore, the Appellate Court decision in Charlestone Stone Products v. Secretary of the Interior Cecil D. Andrus, supra, disallowed probative value to the type of mineral examination which Respondent's witness conducted. The Charlestone decision should have effectively put an end to the habit of Respondent making a prima facie case out of the opinions of men like Schessler, who are inexperienced in the marketplace and who come into an area as much as ten years after the period of «9 }- time about which they are asked to testify.!9 Like Charlestone Stone products, Petitioner is a good-faith entryman on the public lands. In addition the mineral deposit which the Court validated in the Charlestone case is the very same mineral for which Petitioner's claims were located. There can be little doubt that U.S. v. Sullivan does not serve the purpose of the mining laws. Does it contribute to some alternative to free mining which Respondent may be proposing for developing the nation's mineral resources? Maybe Respondent seeks to administer the deposit by selling it to the highest bidder or otherwise lease 19. U.S. v. Boyle 519 F.2d 551 (9th Cir. 1975); U.S v. Jolanta, CEL a, LBLL.A. 78-507 (Feb,28,1979); U.S. v. Shyder U.S. Dist. Ct., Dist of Colo., Civil Action No. 66-C- 131, decided Apr.8,1967; (10th Cir. Ct. decided May 24,1969). the land for mining purposes. The Court should be advised of the costs which such programs by the Respondent have encountered historically and today. In 1845, when President Polk considered the cost of leasing the nation's lead mines, he sold them. The amount collected in lead mine rentals was exceeded by more than four times for a four year period29 by the cost of administering the leasing program. The nation's gas and oil resources, originally locatable under the mining laws, have been under government leasing programs since the early 1920's. The United States now imports most of its oil although it is common knowledge that huge deposits remain to be developed domestically. The Appellate Court in 20. Hansen, Clinton J., "Why a Location System for Hard Minerals," (Rocky Mountain Mineral Law Institute). -33- Arkla Exploration Co. and the State of Arkansas v. Arkansas-Texas Oil and Gas Corporation and James G. Watt?! appears to be attempting to hold Respondent responsible for the failures of its leasing program and a new Government Accounting Office Report 22 concludes that although reasonable in concept, Respondent's emergency coal leasing regulations have been "difficult to administer within a competitive framework." Administration of the Common Varieties Act in such a way as to increase the number of mineral deposits unavailable to those who would privately explore and develop the nation's mineral 21. Arkla Exploration Co. and the State of Arkansas v. Arkansas-1 exas Oil and Gas Corporation and James 22. Government Accounting Office Report, GAO/RCED- 84-17, August 2; 1984. -34- resources, is foolhardy and against the intent of Congress and the interpretation of the Common Varieties Act by the Courts. Under the law, deposits of valuable mineral on the public lands are free and open to bona fide mineral entryman like Petitioner. Respondent, however, has succeeded in convincing the Courts below that its "marketability test", when applied to mineral entryman who have provided substantial evidence that they are in good faith exploring and developing mineral on the public lands, is within the letter of the law. Clearly, the purpose of the mining laws is not served in approval by the Courts of U.S. v. Sullivan. Petitioner urges the Supreme Court to consider the familiar rule "that a thing may be within the letter of the statute and yet not within the Statute, because not within its spirit, ~35- nor within the intention of its makers."22 22. Holy Trinity Church v. U.S., 143 U.S. 457, 459 (1892). -36- NR Cothturca 98 SECOND REASON FOR ALLOWANCE OF WRIT 2. Due process requires that agency discretion be judicially reviewed as to the facts in a condemnation without compensation and with no higher purpose contemplated for the condemned property. The mining laws have not changed in their purpose since they were enacted, but the laws are seldom fortified by court interpretation because increasingly the courts have elected to refuse to review or rehear the facts. The Courts below, in sympathy with sovereign immunity, were willing to leave agency discretion unchallenged in U.S. v. Sullivan despite factual evidence that Petitioner's property was being unlawfully seized. Best v. Humboldt Placer Mining Co. 24 has 24. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963). frequently been relied upon for court approval of land agency immunity. According to Best v. Humboldt: If a patent has not issued, contro- versies over mining claims should be solved by appeal to the Land Depart- ment and not to the courts. In Best v. Humboldt, the invalidated mining claims were to become part of the Trinity River Dam and Reservoir in California. The | invalidation proceedings on the Humboldt claims were for purposes of determining whether a property right existed for which compensation was due. Petitioner has not been advised of the modicum of proof which Respondent required of Humboldt Placer Mining Co., but where Best _v. Humboldt has shielded the Department of the Interior from making compensation for the taking of mining claims which have been developed in good faith, Petitioner wishes to supply a measure of historical perspective for the Court. When the railroad and highway builders moving across the country attempted to devalue the mining claimant's work and worth, they were stopped in the courts by the mining law because the courts and due process were still available to the mining claimant?>, Years of administrative procedure and expense did not intervene, and the uncertainty of the value of mining land did not deprive it of the possessory title to monetary worth and protection. 2% In determining which procedural safeguards must be afforded Petitioner, the Court must consider the extent to 25. Zeigler v. South & North Ala. R.R. Co., 58 Ala. 594, 26. Montana R + Co. v. Warren, 137 U.S. 348, 352-53 (1890). See also J. Adams & Barringer, The Law of Mines and Mining in the United States, 188 (1877). -39- which Mendenhall might suffer grievous loss, the nature of the government function involved, and the nature of the private interest affected - the criteria formulated in Morrissey v. Brewer.2! In Best v. Humboldt, supra, and in Wilbur v. United States ex rel. Krushnic, the Supreme Court has held that unpatented mining claims are possessory mineral interest in land, as well as "property in the fullest sense of that term."28 Similarly, the Ninth Circuit Court of Appeals recently concluded that the holder of an unpatented mining claim has a property right: (b)ecause an unpatented mining claim is a unique form of property which created in the owners a possessory 27. Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972). 28. Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 317 (1930). -40- interest in the land, the loss of such an interest wou} constitute a substantial injury." The extent of the loss to Petitioner is "property" by Supreme Court interpreta- tion and thereby it is entitled under the Fifth Amendment of the U.S. Consti- tution to Gue process before Respondent can take it. Morrissey v. Brewer, supra, instructs the courts to examine the nature of the governmental funetion involved in the taking of the property. In Best v. Humboldt, supra, the function of the government was to examine title prior to condemnation for adam and reservoir. In U.S. v. Sullivan the government function is not 29. Western wun Council v. wey 643 F.2d 618, 628 . a n D. e v. Watt, U.S. Dist. Ct., Nevada, C - 9 October 21, 1983, cert. S8.Ct., October, 1984. -41- clear. The area of the Charleston claims was once part of a "small tract" classification by the Bureau of Land Management which could have resulted in the land's becoming valuable as real estate; but the area was removed from that classification because it is extremely susceptible to flash fooding and remains chiefly valuable for its mineral deposit. The idea that development of certain deposits of mineral would be allowed only on public lands for which that mineral was the chief value came into the mining law by the Building Stone Act of 1892 (30 U.S.C. Section 161). The Common Varieties Act made no such limitation, the Common Varieties Act was to remove no valuable deposit of mineral located as of July 23, 1955, from the functioning of the general mining law. -42- Respondent's function in U.S. v. Sullivan was not to rid the land of mining claims so that the land might be used for another purpose without cost, as in Best v. Humboldt, supra, nor to determine the chief value of the land. The land of Petitioner's mining claims remains open to mineral entry today; so the Petitioner has located new mining claims over his discovery on the Charleston 24/39 and has made application for patent. He follows the advise of the Court in Best v. Humboldt: "A locator who does not carry his claim to patent does not lose his mineral claim, although he does take the risk that his claim will no longer support the issuance of a patent." In Best v. Humboldt, the Supreme Court elaborated on the property right of an unpatented mining claimant: -43- The claims are... valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral and if other statyfory requirements have been met. Despite the fact of a valuable discovery of mineral and the fact that Petitioner has met all statutory requirements, if the Court allows U.S. v.. Sullivan to escape judicial review of the facts, Petitioner fully expects to be compelled by Respondent to carry his mining claims through admin- istrative procedure and into the courts once again. The Respondent will undoubtedly interpret the invalidation in U.S. v. Sullivan as res adjudicata on the issue of whether Petitioner's deposit is a common variety of mineral, 30. 30 USC 21,22,26; General Mining Regulation of the Bureau of Land Mgt, 43 CFR §§ 185.1-185.3. See also: U.S. vs. Deasey, 24 F.108 (D. Idaho 1928). -44- which cannot be located after July 23, 1955, or a mineral with special and distinct value, exempt from the Conmon Varieties Act. The fact that Sullivan's claims and the discovery of the valuable mineral deposit were prior to July 23, 1955, will be virtually lost to Sullivan's predecessor in interest, Petitioner Robert Mendenhall. Absent a function for the invalidation of Sullivan's claims, if this Court confirms U.S. v. Sullivan, Respondent will have succeeded in making a mockery of the mining laws and of entrymen rights to due process of law with relation to mineral exploration and development on the public lands. Finally, Morrissey, supra, recommends that due process be safeguarded by a factual review of the findings in administrative tribunals where required by the nature of the -45- private interest affected. Without due process protection for mining claims, investors in the mineral industry are without any security for their invest- ment in what is otherwise such a high- risk that the nation's mineral industry is being seriously curtailed. Respondent, in its opposition to the mining laws, which it has been sworn to uphold, has become another enemy in a business frought with enemies - weather, difficult terrain, vandals, uncertainty of sufficent quantity and quality, cyclical mineral prices and varying costs of labor and materials. The Courts have recognized the hazards in their interpretation of the law, U.S. v. Rizzinelli, supra, and the testimony of Sullivan in U.S. v. Sullivan confirms that the Charleston 24/39 claims were not free from any of these hazards. -46- Furthermore, respect for local custom and state law is one of the important components of the federal mining laws. Even the amount of acreage allowed within a mining claim was left to the discretion of the local mining district in the 1866 federal mining laws; and the 1872 laws left the width of a lode claim to matters of individual terrain and to the custom by which miners had marked the particular countryside and mineral deposits. In the western states, such as Nevada, the mining industry has been at the crux of economic development and in recognition of that fact, Nevada state law has long provided eminent domain rights to mining. °! 31. Laws of Nevada, Seventh Session, Chapter LVI, "An Act to encourage the mining, milling, smelting, or other reduction of ores in the state of Nevada," approved March 1, 1875. -47- ate —“ - cae ee a ee FAs ee LU eS ee - Refusal by the Courts below to rehear the facts in U.S. v. Sullivan will result in property loss to Petitioner, will serve no constructive function of the Interior Department, and will adversely affect the mineral industry at large. Therefore, “Petitioner's rights to due process have been violated and evidentiary questions otherwise left to agency discretion must be decided in a factual hearing by the Courts. 22 32. U.S. vs. Noguiera, 403 F.2d 816 (9th Cir. 1968). -48- ~—-— Conclusion For these reasons, a writ of 2rtiorari should issue to review the idgement and opiniom of the Ninth ircuit. 2sspectfully submitted, Hate © Togunn ile C. Tognoni 10 West Clarendon, Suite 1260 loenix, AZ 85013 osunsel for Petitioner t ~~ BEST AVAILABLE COPY APPENDIX i) ii) APPENDIX TABLE OF CONTENTS ORDER EXTENDING TIME TO FILE PETI- TION FOR WRIT OF CERTIORARI..........1 ORDER FURTHER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI...... 2 DECISIONS, OPINIONS AND MEMORAN- DUMS RENDERED BY COURTS OR ADMINI- STRATIVE AGENCIES IN THE CASE Decision of the Hearing Examiner in United States v. Frank R. Sullivan, N@VGAGG NO. DGSTSS.ccrccccccccccccccce 3 Decision of the Hearing United States Department of Interior Board of Land Appeal, United States v. Sullivan, I.B.L.A. 72-273, 9 beBebecAe 378.0 cece Terrie TeTTTTT TT 26 December 30, 1982, Decision and Order of District Judge Edward C. Reed in Robert L. Mendenhall v. United States, 1982 CV-R-80-146- ECR, Nevada, (Reno)......... Terre re 32 Decisions in Companion Cases Charlestone Stone Products Co., Ine. v. Cecil D. Andrus, No. 75-1532, Ninth Circuit Court of Appeals, May 12, LOTT. cccccecccseese 59 Everett Foster v. Fred A. Seaton, Secretary of the Interior, No. 14953, District of Columbia Court of Appeals, October 22, 1959........ 92 ——e (iii) JUDGEMENT SOUGHT TO BE REVISED AND (iv) ORDER ON REHEARING...... eocccccces 101 OTHER Exhibit 4 - United States District Court, Nevada Civil No. R-80-146- ECR, Affidavit of George A. Kiersch, Geologist and Engineer...107 Exhibit 10 - United States District Court, Nevada Civil No. R-80-146-ECR, Affidavit of Robert L. Mendenhall, Petitioner..119 Supreme Court of the United States No. A-194 ROBERT L. MENDENHALL, Petitioner, V. UNITED STATES ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI Upon Consideration fo the application of counsel for petitioner(s), It Is Ordered that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including October 26, 1984. /s/ William H. Rehnquist Associate Justice of the Supreme Court of the United States Dated this 18th day of September, 1984 oje Supreme Court of the United States No. A-194 ROBERT L. MENDENHALL, Petitioner, Vv. UNITED STATES ORDER FURTHER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI Upon Consideration fo the application of counsel for petitioner(s), It Is Ordered that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended further to ane including November 5, 1984. /s/ William H. Rehnquist Associate Justice of the Supreme Court of the United States Dated this 23th day of October, 1984 UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS HEARINGS DIVISION Room W-2426, 2800 Cottage Way Sacramento, California 95825 December 28, 1971 DECISION United States of America, Contestant Frank R. Sullivan, Contestee Contest No. N-065732, 065733, Involving Charleston No. 24 aka Charleston No. 39 and Extension 39 of the Charleston; and Char- leston Spur No. l placer mining claims, located in Secs. 34, 35, and 36, T. 19 S., R. 59 E., and Sec. 3, T. 30 &., BR. $8 &., M.D.M., Clark County, Nevada MINING ‘“‘LAIMS DECLARED NULL AND VOID The manager of the Nevada Land Office ini- tiated these contests by filing a complaint which asserts as to Charleston No. 24 placer mining claim (also known as Charleston No. 39 and referred to in this decision as Charleston 24/39), and the Charleston Spur No. 1 placer mining claim: 1. That valuable minerals have not been found within the limits of the claims so as to constitute a valid discovery within the meaning of the mining laws. 2. That no discovery of a valuable mineral has been made within the limits of the claims because the mineral materials present cannot be marketed at a profit and/or could not be marketed at a profit prior to the Act of July 23, 1955. The contestee's answer denies the allega- tions of the complaint relating to lack of discovery of valuable minerals, and con- tends that "valuable minerals (namely; sand, gravel and/or rock) have been found within the limits of the claims and have been marketed at a profit both prior and subsequent to the Act of July 23, 1955." A hearing in this proceeding was held in Las Vegas, Nevada on February 18, 1971. In a brief filed subsequent to the hearing the contestee advised that he concurs with the following paragraphs of the "Summary of the Evidence," included in the post-hearing Sie does ial . as) TAREE ORIOLES LE ANWAR OE GF IN IMP NO OI LT SPM OTE TNE LE OPE A RE NRL! ENE AT OY SOO ON ONY brief filed on behalf of the Bureau of Land Management: l. The only mineral material on the two contested claims is the sand and gravel. The usable sand and gravel material on the two contested claims is suit- able for all general construction purposes. Subject to the usual minor differ- ences, the sand and gravel material on the two contested claims is simi- lar to and is useable for the same general construction and building purposes as other sand and gravel deposits in the Las Vegas area. The sand and gravel materials on the two contested claims constitute "common varieties of sand and gravel" within the purview of Section 3 of the Act of July 23, S9SG. + © © » The entire area of the Charleston No. 24/39 claim contains good qua- lity commercial sand and gravel. The five statements listed above are also Supported by the evidence in the case record. Mr. Thomas E. Schessler, a mining engineer, testified at the hearing on behalf of the Bureau of Land Management. The only other witness was the contestee, Mr. Frank R. Sullivan. Review of Evidence; Findings Mr. Schessler has a degree in geology and at the time of the hearing had worked for the U.S. Geological Survey, private mining companies, the U.S. Forest Service, and the Bureau of Land Management for a total of approximately 19 years. Tr. 2-3. In his work as a mining engineer he had examined "around a hundred" sand and gravel claims or deposits located in nine states other than Nevada, and between twenty and thirty claims in the Las Vegas Valley. In his research on the claims in question he learned that they had been located in late February 1955 by Mr. E. H. Brawner. The contestee acquired them in 1958 or 1959 as a part of a group of more than 20 "Charleston" claims. The two contested claims are approximately eleven miles by air or twelve miles by road northwest of Las Vegas. Tr. 10. Mr. Schessler examined them on January 22, 1971 and February 11, 1971. Tr. 9. Because he did not come to the Las Vegas area to work until 1967 his knowledge of the history of the claims, and activity on them during previous years was gained from a review of documents, including Bureau files, aerial photographs, and records of market sales of sand and gravel. In 1971 Mr. Schessler found two bulldozer cuts on the east end of Charleston 24/39, with piles of sand and gravel material nearby. His impression was that none of the excavated material had been removed from the claim. In addition, there are four or five older bulldozer cuts on the western end of that claim. Tr. 11-12. The excavated material in that area "seemed all to have been in place." Tr. 12. No pits or improvements were found on Charleston Spur No. 1. Exh. 2; Tr. 12. Most of that claim is bedrock outcrop. However, there is "probably not more than three acres" of alluvial type sand and gravel in a draw which crosses the lower part of the claim, and extends for a short distance into the upper portion. Exh. 3; TRe 3. From his investigation and observations, Mr. Sechessler concluded that there had been no removal or marketing of materials from either of the claims. Tr. 15. He indi- cated, however, that it would be hard to determine whether or not there had been removal of material from a draw in the western end of Charleston 24/29. Tr. 17- 18. In recent years Mr. Sullivan has con- structed a road which provides access to Charleston 24/39 from the east. Tr. 17. Until that was done only the western end of Charleston 24/39 and the southeastern por- tion of Charleston Spur No. 1 could be reached by road. He pointed out that a 1965 aerial photograph (Exhibit 3) shows no road coming into Charleston 24/39 from the east, and no bulldozer cuts on the eastern end. The Bureau's expert was unable to estimate the depth of the sand and gravel contained in the three acre portion of Charleston Spur No. 1. He found “essentially no sand and gravel" on the upper portion of that claim. He observed the sand and gravel deposit on Charleston 24/39 to a depth of 20 feet, and conceded that it could extend to a depth of 500 or 600 feet - - that claim could easily contain a million cubic yards. Tr. 18, 24, 49. Mr. Schessler testified that any marketing of sand and gravel from the claims "could not have been in large quantities." -9- Tr. 19. He described the locations of competing sand and gravel firms in the Las Vegas Valley, and pointed out that they were between two and five miles closer to the center of Las Vegas than the Charleston claims. In his view this placed the latter claims at a competitive disadvantage. Taking into account the growth of Las Vegas, he stated that prior to July 23, 1955 the "competitive problem of haulage distance was probably more. .. than it is today." Tr. 21. As a result of his inves- tigation he concluded that material from the two claims under consideration could not have been marketed at a profit as of July 23, 1955, and that there was no market demonstrated for those claims. On cross examination Mr. Schessler conceded that at the time of the hearing there was a total market for sand and gravel in excess of 3,000,000 tons per year. He -18- we acknowledged that in his 1971 inspections he found signs of removal from the 11 and 13A components of Charleston 24/39 (depicted on Exhibit 2), observing that the "evidence is slim that it was in any large quantity." Tr. 27. He insisted that there is nothing on the 1965 aerial photograph (Exhibit 3) to indicate "any substantial removal." Tr. 29, 31. He agreed that very heavy rainfall and a resulting flood could have obliterated excavations in the draws. Tr. 32. The contestee in his testimony explained that he acquired all of the Charleston claims "on a foreclosure." Tr. 38. He transferred the Charleston 1 through Charleston 22 claims. to Charleston Stone Products, but retained his interest in Charleston 24/39 and Charleston Spur _No. 1. His statements relating to removal of sand and gravel were couched in very si k- general terms. Excavated pits from which materials were removed and which are ob- servable on Exhibit 3 are located outside of the boundaries of the two claims in- volved in this contest (they may encroach to a minor extent on Charleston 24/39). Tr. 41. Mr. Sullivan stated that he "sold an awful lot of gravel" from a wash in the western (11 and 13A) segments of Charleston 24/39. This was in 1957 or later. Tr. 36- 38. He described the removals as follows: "At that time I didn't have big equipment. I did have small loaders, so I had to take what was loose and available, and close to the road. The road went right by it, and every time a flood would come down. . . it would come right back in and fill it and I would go right back and dig it up." Tr. 43. Two of the sand and gravel stockpiles which are "off the western boundary of Charleston 24/39 claim" were placed by Mr. Sullivan when he owned all of the Charlestcn claims. Tr. 44. «1 9~ At the hearing the contestee produced no evidence to establish that sand and gravel had been removed and marketed from Charleston 24/39 and Charleston Spur No. 1 prior to July 23, 1955. Four unsworn statements are attached to the Contestee's Brief, filed on July 9, 1971. One states that Wheeler Freightways "hauled gravei for Mr. E. J. Braner (sic) prior to 1955 on several occasions to areas in the Valley and different business concerns." The second unsworn statement is from a con- struction company superintendent, 48nd con- cerns a purchase of rock and gravel "in 1957-8." The other two unsworn statements share the basic deficiency of the two which have been described, being mere attachments to a brief filed after the hearing. However, they are the only ones which both (i) men- tion a time prior to July 23, 1955, and o13- (ii) refer to material hauled from the two claims which are the subject of this con- test. One, from an employee or former employee of the North Las Vegas Street Department, advises that the signer of the statement "in 1954, 1955, 1956. .. did haul gravel from pits located in the Charleston Placer No. 24 and the Charleston Spur Placer Mining Claim. ..." No details as to amounts paid for the gravel, if any, or as to quantities are provided. Also the statement does not furnish spe- eifie information on what happened during the five months which elapsed between the location of the claims and July 23, 1955. The last statement, from Mrs. Hilda Pine, refers to her husband as the "original discoverer," and asserts that "gravel was sold as a business venture from Mining Claim known as Charleston Spur No. 1, and Charleston No. 24, and Charleston alga - 3 Fe No. 39." Mrs. Pine's statement discusses receipt of "monies in payment for the gra- vel which was sold from our mining claims," her inspection of "claims to see that things were as they were ordered by my husband," and receipt of monies each year for gravel payments [d]uring the years that Mr. Brawner was staying with me and Mr. Pine, prior to 1955" (emphasis sup- plied). Mr. Pine was one of the locators of the Charleston Nos. 1 through 22 placer claims (see p. 2 of Hearing Examiner's October 30, 1970, decision in Contest Nos. N-065729-A-Q and N-065731-A-B in which Charleston Stone Products, Ine., is the contestee), but exhibits 4, 4A, 5 and 5A in this (the Sullivan) contest show that he was not a locator of Charleston 24/39 or Charleston Spur. No. 1. This fact, plus Mrs. Pine's reference to receipt of monies prior to 1955, indicate that she is con- fused as to claim boundaries and names. =18- Considered in its entirety, her statement is far more consistent with removals from one or more of the claims which had been located in 1942 by Mrs. Pine's husband and A.M. Murphy (Charleston Nos. 1-22) than it is with the asserted sales from Charleston Spur No. 1 and Charleston 24/39. It is noted that the Hearing Examiner's decision which is cited in this paragraph found that "Mr. Brawner was operating from Claim 10 and was utilizing material from Claim 9 in 1955 at the rate of approximately 5000 yards a year," and that within Claim 9 and Claim 10 "there is in excess of 1,000,000 yerds of usable material." Charleston Stone Products, Ine., contends that it is the owner of the 11 and 13A portions of Mr. Sullivan's Charleston 24/39 claims (see Exhibit 2). Therefore, the testimony of a "number of witnesses" in the Charleston Stone Products (the subject of -16- > on the above-titled Hearing Examiner's deci- sion), describing "the Brawner operation on the claims between 1954 and 1958" is of some interest. The findings in that deci- sion would seem to be at least as reliable as the allegations in the unsworn state- ments attached to the contestee's brief. The Hearing Examiner found: "There was no active operation on any of the remaining claims on July 23, 1955, [the reference is to all claims involved other than Charleston Nos. 9 and 10, and includes the overlapping 11 and 13A portions of Charleston 24/39] and the occasional utilization of material from these claims prior to and after that date was not con- nected with the Brawner operation. Also there was no probative evidence that the deposit on any of these latter claims could have been oper- ated profitably in competition with the many other potential deposits in the Las Vegas Valley on the critical date . « « o® Conclusions and Decision Upon the establishment of a prima facie case by the Government, the burden shifts to the mining claimant to show by a ofa prepoderance of evidence that a discovery of valuable minerals has been made. United States v. Patee et al. A-28731 (May 7, 1962). A recent decision, United States v. Clear Gravel Enterprises, Ine. IBLA 70-15 (May 2, 1971), summarizes the legal principles which govern this proceeding as follows: "The basic principles of law. . . are now well established and need no extensive elaboration. For a mining claim to be valid there must be discovered on the claim a valuable mineral deposit. A discovery exists [W] here minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of suc- cess in developing a valu- able mine. .. . Castle v. Womble, 19 L.D. 455, 457 (1894); United States v. Coleman, 390 U.S. 599 (1968). "This test, the prudent man rule, has been refined to require a showing that the mineral in question can be extracted, removed and «}g- presently marketed at a profit, the so-called marketability test. United States v. Coleman, supra. This present marketability can be demonstrated by a favorable showing as to such facts as the accessibility of the deposit, bona fides in development, proximity to market, and the existence of a present demand. The marketability test has been specifically held to be applicable in determining the validity of sand and gravel claims in the Las Vegas area. Palmer v. Dredge Corporation [398 F. 2d 791 (9th Cir. 1968), cert. den., 393 U.S. 1066 (1969)]; Foster v. Seaton, 271 F.2d 836 (D.C. Cir. 1969); Osborne v. Hammit, Civil No. 414 (D. Nev., August 19, 1964). "Furthermore, since Congress with- drew common varieties of sand and gravel from location under the mining laws on July 23, 1955 (30 U.S.C. §611 (1964), it is incumbent upon one who located a claim prior to that date for a common variety of sand and gravel to show that all the requirements for a discovery, including a showing that materials could have been extracted, removed and marketed at a profit, had been met by that date. Palmer v. Dredge Corporation [cited above] ; United States v. Barrows, 404 F.2d 749 (9th Cir. 1958), cert. den., 394 U.S. 974 (1969). The Clear Gravel Enterprises decision also holds that to satisfy the marketability ~}9- test for minerals of widespread occurrence, it is not enough to show that there is a general demand for the type of material in question -- it must be shown that the mineral from the particular deposit could have been extracted, sold and marketed at a profit. The decision also quotes exten- sively from Osborne v. Hanmit, supra. A portion of the quoted material from the latter decision is as follows: "the record discloses a situation where, if the Bradford Claims could be sustained on the hypothetical and speculative opinion evidence relied upon by the plaintiffs, each of the claims in the valley comprising over 100,000 acres might be separately validated on the same sort of theo- retical evidence. The end result would be that 100,000 acres of public land would have been patented as valuable for mining, where it is evident and shown by the record that not more than one percent of the material might have been marketable in the reasonably forseeable future." The Court observed also that the plaintiffs had "failed to enter the race" to supply the theoretical insufficiency of sand and -20- gravel, and that if they had done so they would have demonstrated present demand and given an indication that they intended to develop the claims in good faith. Mr. Schessler's testimony and Exhibit 3, the aerial photograph, establish a prima facie case that there was no production or sale of sand or gravel from Charleston 24/39 and Charleston Spur No. 1 on or prior to July 23, 1955. The excavated pits on Charleston Nos. 9 and 10 are corrobative of the Hearing Examiner's finding (in the October 30, 1970 decision relating to the Charleston claims which Mr. Sullivan did not retain) that Mr. Brawner's sand and gravel operation and utilization of mater- ials during 1955 and prior years involved Charleston Nos. 9 and 10, not the two which are the subject of this contest (located by Brawner in late February, 1955). Mr. Brawner had 27 Charleston claims -2l- -. available at that time, but was disposing of relatively minor quantities of sand and gravel. The case record provides no sup- port for an assumption that he moved from the Charleston Nos. 9 and 10 claims to either Charleston 24/39 or Charleston Spur 24/39 at any time during, or prior to, 1955. The contestee's brief asserts that in the event marketing from the contested claims did not occur prior to July 23, 1955, the criteria is “could have been marketed" at a profit prior to that date. Then, noting the contestee's testimony that he marketed materials from the two claims at a profit in years subsequent to 1955, the brief argues that this is an indication "that the materials were within the province of the definition of marketable material." But this leads one directly to an inquiry as to why sand and gravel from Charleston 24/39 -22- * and Charleston Spur No. 1 would have been utilized to satisfy a limited demand in preference to sand and gravel from the other Charleston claims. The demand was limited due to the existence of established sand and gravel operations which were closer to the City of Las Vegas. The few thousand yards of material sold annually by Mr. Brawner in those years satisfied the demand, and cannot be spread around to validate all of the Charleston claims. This contest provides an example of a fail- ure "to enter the race" as mentioned in Osborne v. Hammit, supra. A mining claimant does not meet his burden of proof, once the Government has presented a prima facie case, by presenting only infirm or inconsistent recollection rather than adequate records or other reliable means of proof. Accord, United States v. E.A. Barrows and Esther Barrows, A-31023 -23- (November 28, 1969). The contestee has failed to show by the preponderance of the evidence (i) that any quantity of sand and gravel actually was marketed from the con- tested claims prior to July 23, 1955, or (ii) that under known marketing conditions, there was an outlet for profitable disposal of a substantial quantity of sand and gravel from the two contested claims prior to July 23, 1955. Therefore, the Bureau has sustained the charge that no discovery of a valuable mineral has been made within the limits of the claims because the mineral materials present could not be marketed at a profit prior to the Act of July 23, 1955. In view of this holding there appears to be no necessity for rulings on the other charges contained in the complaint. The Charleston 24/39 and Charleston Spur No. 1 placer mining claims are hereby declared null and void. -24- An appeal from this decision may be taken to the Board of Land Appeal, in accordance with the regulations of 43 CFR Part 4, published in 36 F.R. 7185-7208, April 15, 1971 (Subpart E contains special rules applicable to publie land appeals). If an appeal is taken the notice of appeal must be filed in this office (not with the Board) in order to facilitate transmittal of the case file to the Board. If the procedures set forth in the regulations are not followed, an appeal is subject to dismissal. Dean F. Ratzman Hearing Examiner Distribution: Otto Aho, Field Solicitor, U.S. Department of the Interior, Room 2004, Federal Building, 300 Booth Street, Reno, Nevada 89502 (Cert.) Robert J. McNutt, Agent for Contestee, 5636 West Charleston Boulevard, Las Vegas, Nevada 89101 (Cert.) Frank Sullivan Box 3186 Las Vegas, Nevada 89114 (Cert.) Standard Distribution Enclosure: Regulations relating to appeals procedures =-%$- United States Department of the Interior OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF LAND APPEALS 4015 Wilson Boulevard Arlington, Virginia 22203 UNITED STATES V. FRANK R. SULLIVAN IBLA 72-273 Decided February 6, 1973 Appeal from a decision by Administra- tive Law Judgel Dean F. Ratzman declaring mining claims null and void. (Contest Nos. N-065732 and N-065733. Affirmed. Administrative Procedure: Hearings--Consti- tutional Law In an administrative proceeding to determine the validity of a mining claim, there is no denial of due process for lack of representation by a member of the bar. Due process l. The change of title of the hearing officer from "Hearing Examiner" to "Administrative Law Judge" was effectuated pursuant to order of the Civil Service Commission, 37 F.R. 16787 (August 19, 1972). -26- in such cases envisages notice and an opportunity for a hearing. APPEARANCES: Keith C. Hayes, Esq., of Las Vegas, Nevada, for the appellant; Otto Aho, Esq., Field So:icitor, United States Department of the Interior, Reno, Nevada, for the appellee. OPINION BY MR. FISHMAN Frank R. Sullivan has appealed to the Board of Land Appeals from a decision by an Administrative Law Judge dated December 28, 1971, which declared appellant's mining claims to be null and void. The mining claims in issue were the Charleston No. 24 (also known as the Charleston No. 39 and Extention 39 of the Charleston) and the Charleston Spur No. 1. The claims are situated approximately i2 miles from Las Vegas, Nevada and were located for sand and gravel in February of 1955. =97~ Appellant does not challenge the find- ings of fact or conclusion of law reached by the Judge. Instead, counsel for appel- lant argues that principles of due process require the decision of December 28, 1971, to be set aside and appellant to be given another opportunity to present his case. In support of this position, counsel for appellant states that appellant was repre- sented by Robert J. McNutt at the hearing, that McNutt was not a lawyer, and that neither the appellant nor McNutt was aware of appellant's burden or proof at the hear- ing. In United States v. Charles D. and Jeanne D. Haas, A-30654 (February 16, 1967), the appellants therein, whose mining claim was declared invalid, similarly argued on appeal that due process required their case to be remanded for a new hear- ing. The Department stated: -28- The appellants contend that it was an "abuse" of due process to allow them to present their case without aid of legal counsel. They suggest generaliy that their case could have been presented at the hearing in a more effective manner had they had benefit of legal counsel. This may be true. However, there was nothing that prevented the appellants from being represented by proper legal counsel. Department regulations permit a party to be represented at a hearing by proper legal counsel (see 43 CFR Part 1 [now codified as 43 CFR 1.3] and 43 CFR 1850-0- 6(3)(4)), but there is nothing to require such representation. In an administrative proceeding to determine the validity of a mining claim, there is no denial of due -29- process for lack of representation by proper legal counsel. Due process in such case implies notice and a hearing. Orchard v. Alexander, 157 U.S. 372, 383 (1895); Cameron v. United States, 252 U.S. 450, 460 (1920); Best v. Humoboldt Placer Mining Co., 371 U.S. 334, 338 (1963). * * ® For similar results, see United States v. Raymond Bass, Betty Yeck, et. al., 6 IBLA 113, 117 (1972) and United States v. William A. McCall and R.J. Kaltenborn, 1 IBLA 115, 121, (1970). In the case at bar, appellant was properly notified of the contest proceed- ings which were initiated to challenge the validity of his mining claims. Appellant was also afforded a fair hearing. It was he who chose not to engage the services of a lawyer at the time of the hearing when -30- his rights were at stake. He may not now be heard to complain. Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed. Frederick Fishman, Member We concur: Newton Frishberg, Chairman Edward W. Stuebing, Member Mr. Schessler said that he had per- sonally inspected the two claims on January 22, 1971, and February 11, 1971. A geologist from his office had accompanied him on the first inspection trip; Mr. Schessler had been alone during the second trip. He testified that he had driven onto the claims in a four-wheei drive vehicle. In particular, he had been looking for "improvements." He had found the two major bulldozer cuts. However, he reported that all of the materials that had been exca- vated seemed to be piled up near the cuts. Little or none appeared to have been removed. The gravel ceposits on the claims were described by Mr. Schessler as partly bank gravel, and the remainder as stream gravel. He said they were similar to other limestone-dolomite deposits in the Las Vegas Valley. The witness reiterated that neither his aerial photograph study nor his -38- UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ROBERT L. MENDENHALL, Plaintiff, CV-R-80-146-ECR vs. MEMORANDUM DECISION THE UNITED STATES OF AND ORDER AMERICA, THE UNITED STATES DEPARTMENT OF INTERIOR, an CECIL D. ANDRUS, Secretary of the Interior and EDWARD F. SPANG, State Director of Nevada Bureau of Land Management, Defendants. / This matter has come before the Court by reason of the plaintiff's objections to the report and recommendation of U.S. Magistrate Phyllis H. Atkins, which was filed March 31, 1982. The report and recommendation was made after considering the plaintiff's motion to set aside agency action and the motion to dismiss of defen- dant United States of America. -33- This Court has made a de novo deter- mination as to the portions of the Magistrate's report and recommendation that the plaintiff has objected to. The entire record before the Magistrate has been studied, oral argument was heard on August 9, 1982, and additional evidence and legal briefs submitted post-hearing by leave of Court have been examined. In February of 1955, predecessors in interest of the plaintiff located two placer claims (often referred to as Charleston 24/39 and Charleston Spur No. 1) in Clark County, Nevada. Notices of loca- tion were duly recorded in the Office of the County Recorder. The claims covered deposits of sand and gravel. Congress subsequently enacted 30 U.S.C. §611, which declared that common varieties of sand and gravel would not be deemed valuable minerals after July 23, 1955, so that they could not serve as the -33- basis for any mining claim located subse- quent to that date. Possession of the two subject claims was obtained through foreclosure by Mr. Frank R. Sullivan, in 1959. The United States filed a complaint, in November 1965, contesting the validity of mining claims. Essentially, the Governmert contended that no valuable minerals were found within the claims because the sand and gravel had not been and could not be marketed profitably on or before July 23, 1955. Acting pursuant to a power-of- attorney, civil engineer Robert J. McNutt answered the complaint for Mr. Sullivan. The Nevada land office of the U.S. Bureau of Land Management, Department of Interior, declared the claims null and void. One of the reasons given was that Mr. McNutt had not qualified, as a non-lawyer, to practice before the Department of Interior. Mr. McNutt filed an appeal of the decision on =%4- behalf of Mr. Sullivan. The Department, by letter dated May 22, 1967, advised Mr. Sullivan that the appeal was subject to dismissal because his agent and attorney- in-fact, Mr. McNutt, still had not shown himself qualified to practice before the Department. The letter even stated: "From the nature of the showing which he has attempted to make, it is obvious that Mr. MeNutt is not qualified to practice before the Department." Nevertheless, it went on to advise: "However, the Department has adopted the practice of accepting appeals filed by an attorney-in-fact when his action has been ratified by the appellant." Mr. Sullivan executed a formal ratifi- cation form before a notary public, in which he ratified and adopted the documents which had been filed on his behalf by Mr. McNutt. They had been entitled "Answer to Complaint", "Additional Showing as Required", "Notice of Appeal" and -$§- "Appeal". The letter accompanying the ratification form gave Mr. Sullivan's return address as "Albright & Heaton, Attorneys at Law, 300 Title Insurance & Trust Building, 309 South Third Street, Las Vegas, Nevada 89101." The Department thereupon remanded the case to Hearing Officer (later renamed Administrative Law Judge) Dean F. Ratzman. He held a hearing on February 18, 1971, at which Mr. McNutt represented Mr. Sullivan. Mr. Sullivan testified on his own behalf. He already had seen the Government's proposed exhi- bits, and told Mr. Ratzman that they didn't reflect about $15,000 wneth or work he (Sullivan) had done on the claims, nor did they show" . . . what I have done in order to market this gravel." The Hearing Officers admitted the exhibits without objection, with the understanding that Mr. Sullivan could testify as to what he had done to market the gravel, and he and Mr. -36- MeNutt could mark up the exhibits to illu- strate other work that had been done, as revealed by testimony. The Government's witness before the Hearing Officer was Thomas E. Schessler, a mining engineer and lands and minerals staff officer with the Las Vegas District of the Bureau of Land Management. He tes- tified that, during the four years he had been stationed in Las Vegas, he had inspected twenty to thirty sand and gravel claims in the Las Vegas Valley. He aiso had studied a United States Geological Survey publication on Clark County and had researched work done by predecessor mining engineers in the Las Vegas office. Further, he had examined a mosaic aerial photograph of the area in which Mr. Sullivan's two claims were situate. The picture taking had occurred during an April 15, 1965, flight. -37- iy - a ~ ) 7%, Aah .. Fo “ 7 LA) a 4 oe aA at > A, a * w , - LA oo Ps : ae © AD —_ ae ee — ground inspections revealed the removal of any significant amounts of materials. On cross-examination by Mr. McNutt, Mr. Schessler acknowledged that he had been in the Las Vegas area only since 1966. As a result, his knowledge of sand and gravel sales in the area had been derived from a review of market sales. He conceded that large quantities of sand and gravel had been removed from land bordering Mr. Sullivan's claims. Mr. Sullivan then testified on his own behalf. He said that he had had a rock crusher on the claims until 1957. Proces- sing of the materials extracted had been done in North Las Vegas, where they had been taken by truck. All of the materials had been taken from a draw or wash, where | they had been deposited during times of flood. Mr. Sullivan reported that a major flood had occurred in 1958. He believed that the new materials depusited by that -39- flood could have covered all evidence of the excavating work he had done previously. Mr. Schessler then was called back to the stand. He testified that character- istic color patterns would show in an aerial photograph of an area where an exca- vation had been followed by new flood deposits. Such color patterns are caused by the new growths of vegetation on those deposits. The aerial photograph of the two claims did not exhibit the characteristic color patterns that would support Mr. Sullivan's belief, in the expert witness' opinion. Nevertheless, he did not rule out the possibility that a subsequent flood could have obliterated Mr. Sullivan's exca- vations in the draw. Hearing Examiner Ratzman authorized the filing of post-hearing briefs by both sides. Attached to the brief filed on behalf of Mr. Sullivan were four unsworn statements from third parties re the haul- -40- as ing of gravel from his two claims. Two of the statements claimed that gravel had been hauled prior to July 23, 1955. Hearing Examiner Ratzman's written decision was dated December 28, 1971. It declared the two mining claims to be null and void. He pointed out that the evidence revealed that there were large quantities of sand and gravel within the two claims; Charleston 24/39 alone could easily contain a million cubic yards. Further, he dis- cussed in some detail the evidence as to whether sand and gravel had been removed and marketed from the claims prior to July 23, 1955. This evidence included the four aforementioned statements. Mr. Ratzman's decision set forth the prineiples by which he had judged the case. First the Government had the burden of establishing a prima facie case. Then the burden shifted to the claimant, Mr. Sullivan, to show by a preponderance of o41 ee existing sand and gravel operations. The decision summed up his reasons for finding the two claims null and void as follows: "The contestee has failed to show by the preponderance of the evidence (i) that any quantity of sand and gravel actually was marketed from the contested claims prior to July 23, 1955, or (ii) that under known marketing Sone D5 pent, there was an outlet for profitable disposal of a substantial quantity of sand and gravel from the two contested claims prior to July 23, 1955." Mr. Suliivan retained attorney Keith C. Hayes to appeal the decision of Hearing Officer Ratzman. Mr. Hayes' pri- mary contention was that due process required the decision to be set aside and that Mr. Sullivan be given another oppor- tunity to present his case, in order that additional evidence might be considered. € The reason given for this argument was the representation of Mr. Sullivan by non- -43- lawyer Mr. McNutt before the Hearing Examiner. Attorney Hayes argued that neither Sullivan nor MeNutt had been aware of the burden of proof imposed upon the claimant at the time of the hearing. The appeal was considered by a three- man panel of the Interior Board of Land Appeals (IBLA), which affirmed the Hearing Officer's decision on February 6, 1973, in an unanimous opinion. It pointed out that Department of Interior regulations permit- ted a claimant to be represented by a lawyer, but did not require such represen- tation. The opinion declares that in an administrative proceeding to determine the validity of a mining claim there is no denial of due process because the claimant is not represented by a lawyer; all that due process implies is notice and a hearing. The panel emphasized that Mr. Sullivan chose not to engage the services of a lawyer for the hearing, so that he "may not now be heard to complain." s'd~ The Bureau of Land Management duly recorded a notice that the two mining claims had been adjudicated null and void. The recordation was made in the official records of the Clark County Recorder on February 26, 1973. The plaintiff purchased the claims from Mr. Sullivan on March 7, 1979. By affidavit, he represents that he took an option on the two claims from Mr. Sullivan, who said that he owned them. Then, the plaintiff declares in his affidavit, he "went to the County Recorder and searched the record for evidence that Sullivan owned the Charleston claims, and found nothing that would indicate that the claims were not in good standing and then exercised my option and went to producing aggregate therefrom." Further evidence presented to this Court by the Plaintiff establishes that he has made a large investment in Operating equipment on the claims and has -45- been producing vast amounts of sand and gravei materials there. The Plaintiff has several objections to the Magistrate's report. First, he disagrees with the Magistrate's holding that he is limited, in this U.S. Distret Court action, to the issue raised before the IBLA; namely, the lack of due process resulting from Mr. Sullivan's not having a lawyer represent him before Hearing Officer Ratzman. He further objects to the Magistrate's conclusion that issues as to the validity of the claims had been waived by Sullivan's failure to raise them in his appeal to the IBLA. In addition, he takes issue with the Magistrate's conclusion that the administrative record reflects no evi- dence of any sales of or ability to sell sand and gravel from the claims prior to Mr. Sullivan's acquisition of them in 1959. The plaintiff objects in toto to Magistrate Atkins' recommendation to this -46- Court. She recommends that the plaintiff's motion to set aside agency action be denied, and that defendant Uhited States' motion to dismiss the action be granted. Discussion: This Court essentially is reviewing the IBLA's affirmation of the Hearing Officer's decision adverse to the plain- tiff. The scope of this review is quite limited. It consists of an examination to determine whether the agency action was arbitrary, capricious, an abuse of discre- tion, unsupported by substantial evidence, or not in accordance with the law. Melluzzo v. Watt, 674 F.2d 819, 820 (9th Cir. 1982). In doing so, this Court does not reweigh the evidence or substitute its judgment for that of the administrative agency, Rawls v. United States, 566 F.2d 1373, 1376 (9th Cir. 1978); Baker v. United States, 613 F.2d 224, 226 (9th Cir. 1980). -47- Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the agency's conclu- sion. United States v. Smith Christian Min. Enterprises, 537 F.Supp. 57, 62 (D.Ore. 1981). It is something less than the weight of the evidence; the possibility of reaching an opposite conclusion from the evidence does not prevent the administra- tive agency's holding from being supported by substantial evidence. Ibid. The record as a whole is looked at, Multiple Use, Inc. v. Morton, 504 F.2d 448, 452 (9th Cir. 1974), rather than merely the evidence that supports the agency decision. Charleston Stone Products Co., Ine. v. Andrus, 553, F.2d 1209, 1213 (9th Cir. 1977), rev'd on oth. gds. 436 U.S. 604 (1978). The claimant had to produce credible evidence, for the agency was not required to give any weight to testimony or other evidence which it did not believe. Osborne v. Hammit, 377 F.Supp. 977, 985 (D.Nev. 1964). -48- The testimony of the Government's expert, Mr. Schessler, constituted suffi- cient substantial evidence to constitute a prima facie case. He testified that he had examined the claims and the sand and gravel there could not have been mined and marketed at a profit on or before July 23, 1955. His testimoney was not contradicted by evidence that substantial amounts of the materials had been mined or marketed prior thereto. See McCall v. Andrus, 628 F.2d 1185, 1189 (9th Cir. 1980); see also Russell v. Peterson, 498 F.Supp. 8, 9-10 (D.Ore. 1980). If supported by substantial evidence in the record, the agency's findings of fact are conclusive. Converse v. Udall, 399 F.2d 616, n.1l (9th Cir. 1968). There- fore, judicial review is not procedurally a trial de novo. Doria Min. & Engineerng Corp. v. Morton, 608 F.2d 1255, n.5 (9th Cir. 1979). Judicial review is confined to -49- the agency record, and it is not appropri- ate for the reviewing court to consider new evidence. United States v. Smith Christian Min. Enterprises, 537 F.Supp. 57, 63 (D.Ore. 1981). An exception is recognized when the party seeking review alleges that he has discovered new evidence showing that the administrative decision was obtained by fraud. Doria Min. & Engineering Corp. v. Morton, supra at 1258. No such allegation has been made here. Absent exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative proceeding at the appropri- ate time. Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir. 1979). It is for the agency, not the courts, to determine whether the admnistrative record should be reopened to consider new facts, unless the failure to reconsider can be characterized an abuse of discretion. Nance v. -50- Environmental Protection Agency, 645 F.2d 701, 717 (9th Cir. 1981). Since the IBLA refused attorney Hayes' request that the record be reopened to allow the introduction of further evidence, this Court allowed additional exhibits to be submitted in order shee determine whether the IBLA's refusal was an abuse of discretion. Although a statistical exhibit does indicate a significant growth in demand for sand and gravel in the Las Vegas Valley tonnagewise as early as 1955, the same exhibit shows no increase in average price per ton until 1958. The inference is that existing sources of supply easily accomodated the larger demand in 1955. Even if the new evidence had been considered by the Hearing Officer or the IBLA, it would not have been manifestly unjust for the agency to have declared the claims null and void for failure of the claimant to show marketability with a reasonable expectation of profit. -$) “gaa ite? Pe baroaiite te re » ¢ ie gate m | : ws *» 7 er ra giawels 40241 hggi gs 7 §.5irai bes a ee eee a Tels Eee a ~ q , ; a ¥ Lier en? Ta) a3) 4 r; [ r, a f * - ¥ a: d by . biomed el -4 Secs 4 Sire ; 3 auys Ols64He-) . = a) Gree 4 - r a ) bal Ge 2\ \ 4 7 «@ 9 : re | ug sve ® + ; a a re ® ee - ' oa “a e . a > —_ iM. a ™i>¢ ia = 1 CJ ‘ ® ¢ Cra | q P : ie. aT f ; 7 tr location in accordance with those acts [of congress] of a tract of land for the mineral bearing or other valuable deposits upon or within it that are not found in lodes or veins in rock in place." Webb v. American Asphaltum Min. Co., 157 F.203, 204 (8th Cir. 1907). See also 1 American Law of Mining §5.10 (1576). We are staisfied that Charlestone, as Murphy's successor, had the right to appropriate and utilize as a mineral the water within any of the claims which met the above two prong test of value and success in development. It has been said that "'Mineral' is a word of general language, and not per se a term of art . . It is not capable of a definition of universal application, but is susceptible to limitation or expansion according to the intention with which it is used in the particular .. . statute." Bumpus v. United States, 325 F.2d 264, 266 (10th Cir. 1963). -87- Since early times, water has been regarded as a mineral. "(T]he term ‘mineral’ has been held to embrace water, particularly subterranean water, irrespective of the character and quantity of salts and gases which may be in solution." 58 C.J.S. Mines & Minerals §2(7) (1948). (Footnotes omitted). Water itself may be classified as a mineral. United States v. Union Oil Co. of California, 549 F.2d 1271, 1273 (9th Cir. 1977). The pertinent Acts of Congress which allow a prospector to enter and patent placer claims for valuable minerals do not expressly define water as a non-mineral. In Union Oil Co., supra at i273 this Court hazards that "Congress was not aware of geothermal power when it enacted the Stock- Raising Homestead Act in 1916; it had no specific intention either to reserve geothermal resources or to pass title to [the Stock-Raisers]." It is common knowledge that the successful recovery of many "hard" minerals from the earth and the utilization of the soft mineral of water therewith go hand in hand. American Law of Mining §2.71 (1976). Therefore, it would be incongruous for us to hazard that Congress was not aware of the necessary glove of water for the hand of mining and therefrom Congress impliedly intended to reserve water from those minerals allowed to be located and recovered. In any event we decline to do so. The limitation in 30 U.S.C. §611 on the location of claims for conmon varieties of certain named minerals does not apply to water. In fact, the express language of §611 exempts from its operation "some other mineral occurring in or in association wth such deposit." Therefore, it is of no importance that the discovery of water within Claim 22 occurred after July 23, 1955. -89- LOO nee SR CJ a a SP 2 es S: = P j a | . 7 ; > - - . e . » ! ae ; The water recovered from the source under Claim 22 undeniably has an intrinsic value in the desert area. There is by the nature of Charlestone's operations no evidence of a profitable market of the water per se for either domestic or irrigation uses. Nevertheless the only relevant evidence in the record demonstrates the existence of a profitable market of the water as a washing agent for the sand and gravel recovered from the valid claims. Although unwashed sand and gravel has a limited market, good quality sand and gravel in combination with water draws a premium market. We are satisfied that Charlestone has shown a profitable market for the water recovered upon Claim 22 and its claim for ‘the extraction of that water is valid. P This District Court noted that the source of water under Claim 22 was present on the date of Murphy's notice of location. ~9)~ ss ¢ a : i -s F = a i eee 7 = ~ RMR MIP Seer ae et Me as eis a oe yea The judgment of the District Court entered on November 8, 1974, vacating the decision of the Board dated January 18, 1973 and remanding the cause to the Secretary is affirmed, and the cause is remanded to the District Court for further order of remand to the Secretary consistent with the foregoing. AFFIRMED AND REMANDED. #§1- oe? UNITED STATES COURT OF APPEALS For The District of Columbia Circuit No. 14953 EVERETT FOSTER, ET AL., APPELLANTS V. FRED A. SEATON, SECRETARY OF THE INTERIOR, APPELLEE Appeal from the United States District Court for the District of Columbia Decided October 22, 1959 Mr. Leo A. Huard, with whom Messrs. Ralph E. Becker and F. Murray Callahan were on the brief, for appellants. Mr. Claron C. Spencer, Attorney, Department of Justice, with whom Mr. S. Billingsley Hill, Attorney, Department of Justice, was on the brief, for appellee. Mr. Roger P. Marquis, Attorney, Department of Justice, also entered an appearance for appellee. Before PRETTYMAN, Chief Judge, and BAZELON and BURGER, Circuit Judges. -92- e ‘ ‘ >. ae a Cn a eee) ne ee eet A a! le } y Zt; > 7 i » ait * a) - F Wi “fi iT 7 * a a, ay 7 a ~) / f é i= dl ~ al 7 M aa yoo tiy } a ee P°Yuise=. 722 Bear gat. -eh7o aor e+) ane 7 | as knit \ee eiAvonalt abuste iB: een aan) yeh ora S39 ei 23r PeL2 ee ae aa = i ee : ~ or aarescee aay eae : pe aks aoe ae ; : - ; wr gravel claims, the discovery evaluation standard must be applied as of July 23, 1955. 30 U.S.C. 611 (1976). The Hearing Officer's finding that Mendenhall's predecessor-in-interest, Sullivan, failed to carry his burden of showing marketability potential as of July 23, 1955 is supported by substantial evi- dence. The Hearing Officer found that Sullivan's "statements relating to removal of sand and gravel were couched in very general terms." The value of the claims as of July 23, 1955 was not established. Sullivan was the only witness on behalf of his own claim, and the Hearing Officer found that he "present[ed] only infirm or inconsistent recollection rather than adequate records or other reliable evidence." The Hearing Officer found that Sullivan failed to show that sand and gravel was marketed or that there was a profitable outlet for sand and gravel as of -103- ~3Qrs t a> aba July 23, 1955. The Hearing Officer applied the proper standard, and nothing in the record establishes discovery and marketa- bility potential as of July 23, 1955. After the government established a prima facie case, the burden of proving marketa- bility rested on Sullivan. Humboldt Placer Mining co. v. Secretary of Department of Interior, 549 F.2d 622, 624 (9th Cir. 1977) (citations omitted). Because the showing was not made, the Hearing Officer's decision was proper. AFFIRMED. Filed: May 1, 1984 Phillip B. Winberry Clerk, U.S. Court of Appeals -104- ae etic) ‘a le ohh mn 4 2 = . a i a ai eS ss ee 4 =~ 7 = = . s oa Sy a =o — ao q ar 4. = . 7 “a _ 7 > 7 y a in a A hn Ah hae Pi Se es = ‘ : read on - 7 ak ro) Niele Tra | oe 2 .’ _. ra i" : Li oy Pee hd ee UP gE ys Oe Neen, gee | rane ; y, ¥ * i ca 1) 4 oe ee , | ons we sig SE rn Se 2 ie CUTS cGy “bhatt 25 = : =| ioe ee A ayo - ne v a 4 - j i 4 : ; 7 . J Pat? ft ] i : ¥ , i) Z a? A ; ' . : ae - ; ; _ tne! >) - a ee Sa ie, —ion ee as Ve } ; mee at * 3 cal Serial eed se a Ot et Ge WS? da en a te rr ' > >" 1, : : J : i ‘t+ ' >? : = -. - se ao, “ee y 1 LJ # Pg es eae oll, ener na ON AO LOLS Oa Dy We ca ee a i 7 - [oe yA. q _ - a = : aa oe : ~ se wey CC Fa ot ; = soo é ie : s Pa + ve : : nh _* 7 6 Via | P| oe = ae . ‘ Feet, Fe i h, Fs, ein ce - and 4 “tan? oh _ 7 ; —_ = if ie 7 _ r : es | : = i : A. ove 7 9 a p aw & : aa : " © Whe rT : = yy - - ? 7 nae : 7 a a a me aA - i Bs eee eres Sees La 4 ie ' - ~ ; i or; Sir, _ : to oo _ ae Foe e peo oe eae UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT L. MENDENHALL Appellant, No. 83-1751 Vs. AMERICA, and UNITED STATES DEPARTMENT OF INTERIOR, et al, ) ) ) . UNITED STATES OF ) ORDER ) ) ) ) Appellees. ) ) Before: TANG and PREGERSON, Circuit Judges, and HATTER* District Judge. The panel as constituted above has voted to deny the petition for rehearing. Judges Tang and Pregerson voted to reject the suggestion for rehearing en banc and Judge Hatter recommended such rejection. The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en bane. Fed. R. App. P. 35 (b). ° The Honorable Terry J. Hatter, Jr., United States District Judge for the Central District of California, sitting by designation. -105- The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected. Filed: June 28, 1984 Phillip B. Windberry Clerk U. S. Court of Appeals -106- UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ROBERT L. MENDENHALL Plaintiff, Civil No. R-80-146-ECR Vv. | AFFIDAVIT OF THE UNITED STATES OF GEORGE A. KIERSCH AMERICA, THE UNITED STATES DEPARTMENT OF INTERIOR, and CECIL D. ANDRUS, Secretary of the Interior and EDWARD F. SPANG, State Director of Nevada Bureau of Land Management, Defendant. ll ee ee ee AFFIANT, being first duly sworn upon oath, avows and deposes as follows: 1. That I, GEORGE A. KIERSCH, Affiant herein, am a registered professional geolo- gist and engineer in Arizona (1750) and in California as geologist (928) and engineer- ing geologist (362) with degrees of Geological Engineer and Ph.D. (geology/mining). My varied geological experience over a 40-year span is mainly relevant to engineering and mineral -107- resources projects, having served as a Consultant, Manager of Exploration and/or Geologist for over 100 projects in the United States and in foreign countries. My address is: 4750 N. Camino Luz, Tucson, Arizona 85718. A specific description of my background is set forth in the attached resume as Exhibit "A". 2. That 1 examined the Charleston claim numbers 24/39 (involved with the lawsuit described above) and numbers 1-23 on the edge of the Spring Mountains as to their geologic setting, origin and princi- pal characteristics of the aggregate deposits thereon, end associated features. The naturally high-quality ag- gregate deposits that occur throughout the claims were examined for composition and physical properties. Their use for asphalt concrete aggregate was reviewed in-depth with Mr. Robert L. Mendenhall of Las Vegas Paving Company. The following reports, -108- maps, and sources of information on the geology, aggregate resources and production records for the deposits were reviewed: a. Dames & Moore Consultants, 1968, Report of investigation of sand and gravel placer claims near Las Vegas, Nevada for Charleston Stone Products: By Toland, George C. April 30, 1968. b. Randle Associates, 1981, Results of tests for consumption asphalt cement: For Las Vegas Paving Co., (May 20, 1981). ec. Western Technologies, 1982, Results of tests for consumption asphalt cement: For Las Vegas Paving Co. (June 24, 1982). d. U.S. Bureau of Land Management, 1982, Contract agreement for sale of sand/gravel (Base Course) to Gilbert Development Corp. (January i3, 1982). -109- Longwell, C.R., Pampeyan, E.H., Bousyen, Ben, and Roberts, R.J., 1965, Geology and mineral deposits of Clark County Nevada: Nevada Bureau of Mines Bulletin 62, 177p, maps. Burehfeld, B.C., Fleck, R.J., Secor, D.T., Vineelette, R.R. - and Davis, G.A. 1974, Geology of Spring Mountains, Nevada: Geological Society of America Bulletin, Vol. 85, P. 1013-1022. Las Vegas Paving Co., 1982, Summary of aggregate production July 1979 - August, 1982 (August 23, 1982). Maps of Charleston Stone/Sullivan Claims (No. 1-23 and 24/39). Topographic maps of Corn Creek Springs and Blue Diamond quadrangles Nevada: U.S. Geological Survey 1:62,500, 1952 edition. -110- 3. That I, after examining the aggre- gate deposits in the field and discussing their production history and service record with R. L. Mendenhall, Plaintiff in this lawsuit, have the following observations: a. The physical characteristics and origin of the aggregate deposits on. the Las Vegas Paving Company Claims (24/39) are similar to and inter- related with the Charleston Stone Claims (1-23). The aggregate deposits occur within a narrow valley carved in the steeply dipping Goodspring Dolomite beds (Spring Mountains) and continue eastward as a zone in the alluvial materials at the mouth of the canyon. The Spring Mountains are broadly folded and highly faulted. The Keystone thrust fault, a major feature of the Spring Mountains, is located immediately to the south of -ill- the canyon where Claims 1 through 9 are located.. The deformation of the bedrock by the Keystone thrust actions have contributed to the widespread faulting and fracturing of the dolomite/limestone beds in the vicinity of the canyon. Conse- quently, when these beds deteriorate and are broken down by erosion and weathering processes, small sharp to angular rock fragments are formed -- largely under l-inch in size. Normal fluvial processes have distributed the varied-sized dolomite/limestone rock fragments along the canyon and throughout a limited area beyond the enuients mouth and edge of the mountain slopes. The naturally occurring aggregate deposit throughout the area of Claims 24/39 and the Earlier Claims -113- 1 10 to 23 consists of angular broken pieces of limestone rock with only minor rounding thai are predo- minantly of well-graded sizes under l-inch. The clean aggregate with only minor silt content consists of many-sided (6-8) rock fragments. Their ideal shapes allow the indivi- dual pieces of aggregate to knit and chink more closely together than a manufactured aggregate.. The zone of naturally occurring aggregate is up to 15 feet thick in some parts of the Claims (24/39). The aggregate deposit is normally overlain by a thin, near-surface cap or zone of caliche-bearing sand/gravel, 3 to 6 feet thick. Recent geologic activity (regional uplift) has caused the intermittent water runoff from the canyon slopes to downcut through the zone of -113- caliche cap throughout the approximate area of Claims 10 through 16. This downcutting has exposed the high-quality aggregate deposit in this sector and therefore essentially no stripping of overburden is necessary for mining. The angular, well-graded aggregate requires no washing and no crushing to meet specifications for use as asphait concrete. The natural gradation sizes of the pit-run aggregate fali within the range of asphalt concrete specifications. Consequently, only screening of the aggregate is needed to provide a balanced product for asphalt concrete... An ccecasional block and piece greater than l-inch im size is wasted by the screening process. -114- g. The caliche-bearing overburden material of lower-quality is satisfactory for Base Course (ABC) uses. 4. That I determined there are some physical properties and qualities which make the unique aggregate deposits of Las Vegas Paving Company (No. 24/39) specially useful in the industry for asphalt con- crete, such as: a. The natural occurring aggregate deposits on Claims 24/39 are clean and well-graded. The screened product meets grading specifications directly and the pit-run aggregate requires no washing and no crushing. Furthermore, there is almost no waste product of oversize rock pieces. b. The dolomite/limestone aggregate requires considerably less asphalt consumption to meet asphalt concrete -115- standards than other aggregates in the region. This aggregate requires only 3.5 to 3.8% asphalt binder while the normal aggregate from this region requires 5% asphalt binder to meet standards. Consequently the Las Vegas Paving Company aggregate saves some 20 percent in asphalt costs for concrete mix. (For every 1% below the 5% normal there is a $1.80/ton saving). The specific gravity of the pit-run aggregate averages 5 to 10 pounds heavier, at 161 pounds per volume unit, than the normal Las Vegas region aggregate at 149 pounds/volume unit. This characteristic is due to the natural angular shapes of the rock fragments which allow the close chinking and locking of grains in a mixture. This unique property of the -116- naturally occurring aggregate is Superior to the grain locking of a manufactured aggregate. d. The well-graded natural occurrence of the aggregate -- requiring no crushing -~- reduces production cost some $0.50/ton. e. The several special and unique characteristics of the aggregate deposits combine for a very high- quality product at much lower overall costs for the production of asphalt concrete -- about $3.20/ton below the costs for a norma 1 gravelly material in the Las Vegas region. 5. That therefore, in my judgement, the deposit of naturally occurring, high- quality aggregate throughout the Charleston 24/39 placer mining claims is a valuable mineral deposit which possesses properties giving it distinet and special values for -11T- a Aas a ee 2 7 ve oor ee a # 4°, p hans i 64 , s 4 : SS 7) ia. as - i — es -- $v. 34 Gi Sati to ae ve Seitesays = is ® : - z a fo : : ») @ 4 . : “ ‘ee Ri fin By s i 7 aes Ce : j " At eer | » a C= iy + ot! Lyuee % ‘ - 7 3 ose > & ,~* : ‘ ae P) ‘ el AiiGis dione reas i: “aqusar Smet oa Aa) = occurring thereon into high quality Asphalt Concrete Aggregate. 5. That in early 1978 while searching for a source of High Quality Aspalt Con- crete Aggregate in the Las Vegas area I flew the surrounding hills in search of such an aggregate source and first saw the Charleston claim area from the air, then visited the ground and found that this pitted area, within easy access of Las Vegas, contained a naturally occurring crushed and sorted aggregate that was uniquely suited for Aspalt Concrete Aggregate. 6. That I then went in search of the claim owners and found that Mr. Frank Sullivan owned the Charleston claims and I took an option to purchase the claims. Mr. Sullivan represented that he owned the claims and I went to the County recorder and searched the record for evidence that Sullivan owned the Charleston claims, and -121- ee tiie found nothing that would indicate that the claims were not in good standing and then exercised my option and went to producing aggregate therefrom. 7. That as I produced the aggregate and used it in our hot asphalt mix designs - confirmed my belief that we had a super- ior quality aggregate which we could pro- duce directly from the claims without crushing, washing, or any treatment other than screening out random oversized boul- ders and thus we had a Naturally Occurring High Quality Aggretate (N.O.H.Q.A.C.A.) which had the following qualities possessed by no other Asphalt Concrete Aggregate: a. The naturally occurring angular fragments lie an optimum distance from the source so that the corners are rounded just enough to fit snugly together to form a very dense finished product. -122- The angular fragments are naturally sorted so that they fit all standard specifications for asphalt concrete aggregate. The angular fragments on Charleston 24/39 can be screened to produce surfacing "chips" (- 3/8th to + 3/16ths) for asphalt concrete pavements without crushing or other treatment of any kind. This naturally occurring high quality asphalt concrete aggregate requires low levels of asphalt (3.5% to 3.8%) where normal manufactured aggregates in the Las Vegas area require approx. 5% asphalt. The density of the result.ing asphalt mix is higher than the normal asphalt aggregate by some 5 to 10 pounds per cubie foot. -123- FURTHER, Affiant sayeth not. Robert L. Mendenhall Robert L. Mendenhall STATE OF NEVADA ) > 8. County of Clark ) On this 9th day of Sept., 1982, before me personally appeared Robert L. Menden- hall, who acknowledged this document before me. Rosemarie Heide Ward Notary Public My commission expires: Sept. 17, 1983 -124- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3250%3A1. Public record. Not legal advice.