Amicus Curiae Brief — Mendenhall v. United States

8 Supreme Court, U.S.

es / i ae oe

: JAN 49 1985

- Number 84-718

ALF XANDER L. S S

¥ IN THE co

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.

Motion for leave to File Amicus Curiae

Brief Amicus Curiae of Wayne Winters,

editor and publisher

Western Prospector and Miner

William S. Andrews

Counsel for the

Western Prospector and Miner

1432 N. 7th Street

Phoenix, Arizona 85006

(602) 254-5051

No. 84-718

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.

An Appeal from the U.S. Court of Appeals

ee -s 9th Circuit ~~

MOTION FOR LEAVE TO FILE AS AMICUS CURIAE

COMES NOW, Wayne Winters, by and

through his attorney William S. Andrews,

and moves that the Court grant permission

to file an amicus curiae brief to the

Western Prospector and Miner in support of

the petition for writ of certiorari in

Mendenhall v. U.S..

Nature of Applicant's Interest

The Western Prospector and Miner (WPM)

is a monthly periodical with readership

throughout the United States and abroad.

Its editor, Wayne Winters, has had a long

career editing newspapers primarily

concerned with mining: Tombstone Epitaph

(1964-1974); Bisbee Review (1974-1976) and

Western Prospector and Miner (1975 to

present). As editor of the Western

Prospector and Miner, Winters has become

painfully aware of growing discouragement

among the small mining community with

officers of the Department of Interior and

the U.S. Forest Service.

Petitioner, Robert Mendenhall's, legal

battle to secure title to his mining claims

has been fought by many of the small miners

about whom WPM reports. Despite compliance

with the mining laws, however, few have

ever won a legal tangle with agents of the

U.S. Government and to the best of our

ali-

knowledge, no mining claimant has ever been

heard by the U.S. Supreme Court in a battle

against the Interior Department, except in

those rare cases, when the claimant has

survived Interior's tribunals to win in a

lower court. Interior has invariably

appealed such cases to the U.S. Supreme

Court. Only then has the mining claimant

been heard.

WPM believes that the granting of the

petition for writ of certiorari of Robert

L. Mendenhall would afford the Court the

opportunity to bring about a peaceful

solution to a problem which has been

growing ever since the passing of the

Surface Resources Act of July 23, 1955 and,

with the solution, a renewed respect for

law.

Facts inadequately set forth by Petitioner

Wayne Winters, editor of the WPM, has

chronicled in his newspapers many mining

claims which have been invalidated by

-iii-

Respondent over the years and the vicious

misuse of power by agents of the U.S.

Forest Service practiced against a class of

people who seem to have been forgotten by

the justice system. In an affidavit made a

part of the amicus curiae brief in the

appendix, Winters summarizes the facts of

those stories; and in a second appendix

document, the most recent develcpments in

the unrest in the community of small miners

in northern California are set forth for

the court in a copy of an article from the

front page of the Western Prospector and

Miner for December, 1984.

Also in the appendix to the amicus

curiae brief are excerpts from a Senate

hearing in 1966 which overwhelmingly

substantiate that Respondent has willfully

misadministered the Surface Resources Act

of 1955. The question of the intent of

Congress in passing that Act is fully

answered and documented by these excerpts.

eiye-

Questions of Law

Furthermore, the amicus curiae brief

calls the court's attention to two

important precedent cases not already cited

in the Petition for writ of certiorari:

Andrus v. Shell Oil Company, 446 U.S. 657,

660 (1980) dealing with the "marketability"

test for discovery of a valuable mineral

deposit; and Baker v. United States, 613

F.2d 224 (9th Cir. 1980), cert. denied, 449

U.S. 932 (1980) which addresses abuse of

discretion by Respondent contrary to

existing mining law in the administration

of the Surface Resources Act.

Respectfully submitted,

William S. Andrews

Attorney for the

Western Prospector and Miner

Table of Contents

Motion for leave to file amicus curiae....i

BODES OF AGTMOP LOG. co ccccovescesesecdcescc csi

Interest of Amicus Curiae... cece enveeed

ENC PORGUCTION. ccccccccccccccccccccecscccceeed

Argument Ee ee ee ee ee

The Common Varieties Act of 1955,

30 U.S.C. § 611, Does Not Apply

to Commercially Valuable Deposits

Argument errr re eT Tr Ter eT Sy Tree ee Te eee

Because the Surface Resources Act

Does Not Apply to Conmercially

Valuable Deposits the Test for

Discovery Must be Made by Looking

At Present Conditions and Not

Those in 1955

APZUMeENt BZonccccceccccccccscvecccsvcecccevsceseed

Even If a /howing of a Valuable

Mineral Deposit in 1955 Was Rele-

vant the Department Erred in Mis-

applying the Supreme Court's Test

for Mineral Validity Determina-

tions

Argument Duke 666 6web66660 66. 6S SRO e*eee#es 14

The Department Has Incorrectly

Applied A "Too Much" or "Excess

Reserves" Test

Summary of Argument......... cevdesvcenessel®

ee ee ee ee eoeeee Tr errr 5 |

Certificate of Mailing... ccccccccscccceelB

-vi-

Table of Authorities

Andrus v. Shell Oil Company, 446 U.S.

657 10 & 1l

Baker v. United States, 613 F.2d 224

(9th Cir. 1980), cert. denied, 449

rs CP k cee ease ce scccees caeek®

Barton v. Morton, 498 F.2nd 288 (9th

Cite: Bie aka he ve Pee a6 b 40.0 0 ee bees see e 13

Boyle v. Morton, 519 F.2d 200 (9th

Cir. 1974) eeevevee eoeeeveevesreeeeeeeeeeeeeeeeee 8

Brubaker v. Morton, 500 F.2d 200 (9th

Cir. Sa eae eeeeeveeeeeeeeeeeee ee 8

Chrisman v. Miller, 197 U.S. 313

Converse v. Udall, 399 F.2d 616 (9th

ees Desa ree ee eres DPE E BGS GS Goce sc eece 13

McClarty v. Secretary of the Interior,

Ree ee SEM Gets TOGO). wcrc cccccccee 8

Melluzzo v. Morton, 534 F.2d 860 (9th

eee eee Dh eh 6s sso 14

Multiple Use, Ine. v. Morton, 353 F.

Supp. 184 (D. Ariz. 1972), aff'd, 504

EE errr 14

U.S. v. Coleman, 390 U.S. 599

CEPT ES Ccceesces [OUP eeheeeeeecekO, Ll & 12

-vii-

No. 84-7.8

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.

An Appeal from the U.S. Court of Appeals

9th Circuit

Written consent of the Petitioner to

file this amicus curiae brief was mailed to

the Court on January 8, 1984. Written

request was made on January 4, 1984, to the

Respondent. The written request followed

oral consent to filing the amicus curiae.

Shortly before noon, Arizona time, on

January 9, 1985, Wayne Winters called Allen

Horowitz of the Solicitor General's Office

to inquire whether written consent had been

timely filed with the Clerk of the U.S.

Supreme Court. Horowitz replied: "Go ahead

and file it (the amicus curiae brief).

Assume that permission is granted unless

you hear definitely from me to the

contrary." Wishing to leave nothing to

assumption, a motion for leave to file as

an amicus curiae without written consent of

Respondent has been attached hereto.

INTEREST OF AMICUS CURIAE

The Western Prospector and Miner is a

monthly periodical with readership

throughout the United States and abroad.

Its editor, Wayne Winters, has had a long

career editing newspapers primarily

concerned with mining: Tombstone Epitaph

(1964-1974); Bisbee Review (1974-1976) and

=<

Western Prospector and Miner (1975 to

present). As editor of the Western

Prospector and Miner, Winters has become

painfully aware of growing discouragement

among the small mining community with

officers of the Department of Interior and

the U.S. Forest Service.

Petitioner's legal battle to secure

title to his mining claims has been fought

by many of the small miners about whom WPM

reports. Despite compliance with the

mining laws, however, few have ever won a

legal tangle with agents of the U.S.

Government and to the best of our

knowledge, no mining claimant has ever been

heard by the U.S. Supreme Court in a battle

against the Interior Department, except in

those rare cases, when the claimant has

survived Interior's tribunals to win in a

lower court. Interior has invariably

appealed such cases to the U.S. Supreme

Court.

WPM believes that the granting of the

petition for writ of certiorari of Robert

L. Mendenhall would afford the Court the

opportunity to bring about a peaceful

solution to a problem which has been

growing ever since the passing of the

Surface Resources Act of July 23, 1955 and,

with the solution, a renewed respect for

law. Wayne Winters, editor of the WPM has

chronicled in his newspapers many mining

claims which have been invalidated by

Respondent over the years and a vicious

misuse of power by agents of the U.S.

Forest Service practiced against a class of

people who seem to have been forgotten by

the justice system. In an affidavit made a

part hereof in the appendix, Winters

summarizes the facts of those stories.

INTRODUCTION

Prior to the passing of the Surface

Resources Act of 1955, hearings before

offices of the Interior Department with

regard to mining claims were invariably the

result of a dispute between private users.

After the Surface Resources Act of 1955,

the Forest Service and the Bureau of Land

Management became parties at interest in

invalidation proceedings set up under the

provision for Administrative Procedure

(Titie 5, Section 500, et seq.). Despite

safeguards against arbitrary and capricious

use of agency discretion in these quasi-

judicial hearings, Respondent has been

unable to overcome a conflict of interest

in its contests against mining claimants.

Respondent has openly admitted that it

believes the stated intent of Congr’ss - to

encourage mining on the public lands - is

contrary to wise administration.

Respondent advocates leasing the nations

-5-

minerals.! wsing the inherent subjectivity

and the judgmental imperative involved in

the phrase "valuable mineral deposit" from

the law entitling mining claims on the

publie lands, the Respondent has succeeded

in nullifying the mining laws.

1. Testimony of Arthur W. Greeley, Associate Chief,

Forest Service, Department of Agriculture in "Legislative

Purpose of Public Law 167" (30 U.S.C.A. 611). Hearing

before the Subcommittee on Minerals, Materiais, and Fuels

of the Committe on Interior and Insular Affairs, U.S.

Senate, 89th Cong., Second Session on S. 2281 and S. 3485,

Bills to Amend Section 3 of the Act of July 23, 1955 (69

Stat. 367, 368), June 28, 1966.

~¢-

ARGUMENT

I. The Common Varieties Act of 1955,

30 U.S.C. § 611, Does Not Apply

to Commercially Valuable Deposits

By the term of the Common Varieties

Act, "common varieties" which may not be

located do not include materials with a

"distinet and special value." It is clear

that the intent of Congress was to prevent

bad faith mining claimants from obtaining

land for other purposes than mining under

the mining laws and not to prevent the

location by bona fide miners of valuable

mineral deposits. It is important that the

Supreme Court re-affirm this basic

principle of the mining laws as Congress

has in each and every statute that it has

passed effecting public lands open to

mineral entry.

Although the intent of Congress

clearly was to allow the location of

commercially valuable sand, rock, gravel

~

and cinders, ete., the statute has been

repeatedly misconstrued by the Department

of Interior which has disallowed the

location of obviously valuable mineral

deposits.

In addition, the circuit courts have

not been precise in their definition of

common varieties. See, e.g., Brubaker v.

Morton, 500 F.2d 200 (9th Cir. 1974),

McClarty v. Secretary of the Interior, 408

F.2d 907 (9th Cir. 1969), and Boyle v.

Morton, 519 F.2d 551 (9th Cir. 1975). cert.

denied, 423 U.S. 1033 (1975).

II. Beeause the Surface Resources Act

Does Not Apply to Commercially

Valuable Deposits the Test for

Discovery Must be Made by Looking

At Present Conditions and Not

Those in 1955

When Congress passed the Common

Varieties Act it intended only to prevent

the location of deposits of sand, stone,

gravel, cinders, ete., that were common,

i.e., not conmercially valuable, and

Congress in no way intended to preclude the

future location of commercially valuable,

deposits of these materials. Because the

location of such deposits is permissable

today, any challenge to the validity of a

discovery should look to the present value

of the deposit rather than those conditions

that may have existed in 1955. In the case

of the Mendenhall deposit at issue, it is

clear that because this was an active

producer when the invalidation proceedings

commenced, all of the tests for discovery

clearly have been met.

III. Even If a Showing of a Valuable

Mineral Deposit in 1955 Was Rele-

vant the Department Erred in Mis-

applying the Supreme Court's Test

for Mineral Validity Determinations

In 1905 the United States Supreme

Court approved the Department of Interior's

"pnbrudent-man test" under which discovery of

a “valuable mineral deposit" requires proof

-§-=

of a deposit of such character that a

"person of ordinary prudence would be

justified in the further expenditure of his

labor and means with the reasonable

prospect of success, in developing a

valuable mine." Chrisman v. Miller, 197

U.S. 313 (1905). In United States v.

Coleman, 390 U.S. 599 (1968); the court

approved the department's marketability

test--whether a mineral can be extracted,

removed and marketed at a profit--

determining it to be a logical complement

of the prudent man standard. See also,

Andrus v. Shell Oil Company, 446 U.S. 657,

660 n.4 (1980).

Unfortunately, the department's

application of the marketability test has

been anything but a "complement" of the

prudent man rule. Where the marketability

test, as approved by the Supreme Court, was

intended to be a flexible evidentiary

standard, the department has instead used

=16-

ee

it as a rigid and singular test of validity

in circumstances where that test is neither

appropriate nor logical.

As stated in Coleman, the marketabil-

ity test was designed only to throw light

on a prospector's intent and only to deter-

mine a prudent man could reasonably believe

that a profitable mine could be put in

production and not whether a presently

profitable mine existed. In looking at the

"market" the department has totally ignored

a crucial factor in all market determina-

tions: A market depends not only upon

seqnent conditions, but also upon whether

those conditions can be developed. In

other words, in applying the marketability

test the department has totally ignored the

reasonable ability of mineral operators to

develop a market for a valuable product.

That present marketability is not a

sine qua non of all mineral discoveries was

shown in Andrus v. Shell Oil, 446 U.S. at

alie-

SS

663 n.6, where the court reasoned that

under the Mineral Leasing Act Congress did

not consider "present marketability" a

prerequisite to the patentability of oil

shale.

In any event, the marketability test

as applied in Coleman is not necessarily

the same marketability test that should be

applied in this case. Coleman involved a

patent proceeding. If the elaims in

Coleman had been shown to be valuable then

the government would have forever lost all

fee title to the claims. Such

circumstances warrant a strict test of

mineral value. However, in this case the

claim invalidation proceedings are not in

response to a patent application. Rather

they are based upon a determination by the

department that the department would prefer

the claims to be invalid.

Indeed, in this case, there are no

allegations of any higher or better use of

-12-

the land in question. For this reason the

marketability test, if applied at all,

should be liberally construed in order to

fully comport with the intent of Congress

in the Mining Law of 1872. Specifically,

the mineral claimant should be permitted to

have an opportunity to fully delineate the

nature of his mineral discovery. With the

strict application of the marketability

test to a location, the department

precludes the ability of a claimant to

develop a prospect that may only be

marginally marketable into one that is

highly marketable.

For court decisions that have consid-

ered the flexibility of the construction of

the marketability rule see Converse v.

Udall, 399 F.2d 616 (9th Cir. 1968), cert.

denied, 303 U.S. 1025 (1969); Barton V

Morton, 498 F. 2d 288 (9th Cir.1974) (after

discovery of mineral deposit the claimant

need only show a reasonable prospect that a

-13-

profitable mine will be developed);

Multiple Use Ine. v. Morton, 353 F. Supp.

184 (D. Ariz. 1972), aff'd, 504 F.2d 448

(9th Cir. 1974) (it need not be proved that

the claim can in fact be operated at a

profit); Melluzzo v. Morton, 534 F. 2d 860

(9th Cir. 1976) (lack or insubstantiality

of sales of material from claims in

question if relevant to the question of

marketability. It is not, however,

econelusive proof of lack of value.)

IV. The Department Has Incorrectly

Applied A "Too Much" or "Excess

Reserves" Test

A valuable mineral deposit may not be

declared invalid simply because a great

quantity of mineral reserves cannot be

marketed all at once. Baker v. United

States, 613 F. 2d 224 (9th Cir. 1980),

cert. denied, 449 U.S. 932 (1980). It is

clear from the transcripts of the

department hearings that the presence of

-14-

other valuable reserves of similar, but not

identical, deposits was a conclusive factor

in finding the Mendenhall claims invalid.

It should be noted that the deposits in

this case clearly could be marketed in the

foreseeable future and that the opposition

to the denial of ceriorari in Baker by

Justice Blackmun with Justices Marshall and

Powell is not at issue in this case.

-15-

SUMMARY OF ARGUMENT

The Department of the Interior has

gone against the intent of Congress in

administering the Surface Resources Act of

1955, 30 U.S.C. § 611. By applying the Act

to valuable deposits of mineral, the

Interior Department has created a miasma of

irrelevant considerations regarding the

validity of a mining claim--regulations

applied without regard to the good faith of

the claimant; without regard for present

market for the mineral; without regard for

the limits placed on the "marketability

test" by the U. S. Supreme Court in Coleman

and in Andrus v. Shell Oil.

-18-

CONCLUS ION

The need for the U.S. Supreme Court to

consider the issues in Mendenhall v. U.S.

has attained to urgency. The court must

affirm that (1) "eommon varieties," when

claimant is, in good faith, developing a

mineral deposit, are locatable under the

mining laws and (2) the "marketability"

test as used by Respondent is wholly

outside the mining laws and unnecessary to

their administration. The petition for

writ of certiorari must be granted if law

is to govern the public lands.

William S. Andrews

-}7-

ENTRY OF APPEARANCE

and

CERTIFICATE OF SERVICE

I cerify that I am a member of the

Supreme Court of the United States Bar;

that I am appearing on behalf of Wayne

Winters, editor-in-chief of the Western

Prospector and Miner, in this matter and

that forty (40) copies have been mailed to

the Court and three (3) copies of the

foregoing Amicus Curiae Brief have been

served upon all appropriate parties by

depositing the documents in a United States

Post Office, first-class postage prepaid,

this llth day of January, 1985, addressed

to:

Solicitor General

Department of Justice

Washington, D.C. 20530

and

The Department of the Interior

Land and Natural Resources Division

Appellate Section

Attn: Wendy B. Jacobs, Attorney

18th and C. Streets, N.W.

Washington, D.C. 20240

=18-

LV Mai, XL Ie

William S. Andrews

Attorney for Amicus Curiae

1432 N. Seventh St.

Phoenix, Arizona 85006

STATE OF ARIZONA )

) ss.

County of Maricopa )

On this ike day of January, 1985,

personally appeared before me, the

undersigned officer, William S. Andrews,

who acknowledged the above instrument.

: od Notary Public

My Commission Expires:

.*

-19-