Amicus Curiae Brief — BedRoc Limited, LLC v. United States

y | NOV 4

No. 02-1593

In The

Supreme Court of the Anited States

¢

BEDROC LIMITED, LLC; WESTERN ELITE, INC.,

Petitioners,

V.

UNITED STATES OF AMERICA; GALE A. NORTON;

BUREAU OF LAND MANAGEMENT; CURTIS TUCKER;

UNITED STATES DEPARTMENT OF THE INTERIOR,

Respondents.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

@321EF AMICUS CURIAE OF THE

NATIONAL STONE, SAND & GRAVEL

ASSOCIATION IN SUPPORT OF PETITIONERS

AND URGING REVERSAL

SJ

LAURA LINDLEY

Counsel of Record

CHRISTOPHER G. HAYES

BJORK LINDLEY LITTLE PC

1600 Stout Street, Suite 1400

Denver, CO 80202

(303) 892-1400

Counsel for Amicus Curiae

National Stone, Sand &

Gravel Association

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Pittman Underground Water Act of 1919 (the

“Pittman Act”) authorized patents of up to 640 acres of

Nevada land to applicants who discovered and successfully

developed underground water sources. Pittman Act pat-

ents reserve all “coal and other valuable minerals” to the

United States. The questions presented are:

(1) Whether the reservation of “valuable minerals”

encompassed ordinary sand and gravel (or other ubiqui-

tous common materials), worthless at the time of the

patent, but which became marketable decades later as

development created markets in reasonable proximity to

such sand and gravel; and

(2) If Watt v. Western Nuclear, 462 U.S. 36 (1983),

calls for a per se rule regarding the reservation (or non-

reservation) of sand and gravel on land patented by the

federal government in the early twentieth century,

whether congressional intent would be better served by a

rule that common materials such as sand and gravel are

not reserved to the government as “valuable minerals.”

P

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............ccccecsescesseceseeeceeees i

TABLE OF CONTENTS .........cccccccccsssescesceeseecesceeseeee ii

TABLE OF AUTHORITIES ..........cccccccccsscessesceeceseeeee iv

STATEMENT OF THE CASE.........cccccccescssseseesescenees 1

OPINIONS BELOW ..........c.cccscsscsssssssssscescessonsessenes 2

JURISDICTIONS ..020<cccrcsesesecoeenesnsansennuanaannna 3

STATUTORY PROVISIONS INVOLVED................. 3

SUMMARY OF ARGUMENT...........ccccscesseeseesesceesenee 3

ARGUMIBIGP ....0000scccsscesessensorentesnsssuusiunnannn 4

Sand and Gravel Were Not “Valuable Miner-

als” Intended to be Reserved to the United

States Under the Pittman Act......................0

A. Western Nuclear Does Not Govern the

Decision in This Case...............cccseeceeeeees

B. The Intention of Congress in 1919 De-

termines the Scope of the Reservation of

Valuable Minerals Under the Pittman

1. The Scope of the Estate Conveyed

and Reserved Under the Pittman Act

Must Be Determined at the Time of

Ce Givens .cccccscoccccsccnsccumumnennaaaanaae

2. Congress Is Presumed to Have Been

Aware of Existing Law, Common Law,

and Contemporary Administrative

Decisions Excluding Sand and Gravel

From the Definition of the Term

“Valuable Minerals” ................ccc000eee0

Il.

III.

iii

TABLE OF CONTENTS - Continued

Page

3. Contemporaneous Authorities, In-

cluding Zimmerman and its Progeny,

Dictate That Sand and Gravel Were

Excluded From the Definition of

“Valuable Minerals” at the Time of

the Pittman Act in 1919 .................666

Congress Did Not Intend that Sand and

Gravel Be Developed Concurrently with the

Surface of Pittman Act Lands or of Stock-

Raising Homestead Act Lands ...................0++

A. Sand and Gravel Could Not Have Been

Developed Concurrently with the Surface

as a Valuable Mineral in 1919.................

B. There Was No Congressional Intent to

Develop Sand and Gravel as Minerals on

Pittman Act Lands ..............cccsceeeeeeeeeeeeees

The Maxim of Interpretation that “Nothing

- Passes Except What is Specifically Named”

was Applied Incorrectly in this Case Below

and in Western Nuclear ...........c.ccsecceseeeseeeseeee

CONCLUSION ...........ssccssesecseseeereeeeeseneeseesssessessnsenes

13

16

17

18

iv

TABLE OF AUTHORITIES

Page

CASES

Amoco Prod. Co. v. Southern Ute Indian Tribe, 526

es eee ccniniciensteninninccuiiditiniramernnnntensistaiiiiiciiiasd 5, 9, 11

Andrus v. Charlestone Stone Products Co., 436 U.S.

ee Gee rcnnssensunsransnstennsninnesnisnsnuabesienias 19, 20, 23, 24

Andrus v. Western Nuclear, 475 F. Supp. 654 (D.

Wyo. 1979), rev’d, 664 F.2d 234 (10th Cir. 1981),

rev'd sub nom. Watt v. Western Nuclear, 462 U.S.

i Cie scesensenemstnasnsmneneneiiminbiensestaniiianicinaiiinntiausataes 6

BedRoc Limited, L.L.C. v. United States, 314 F.3d

ee ee Se sencencenscnscnnidataininantniisninmtiainiinitaiintets 7

Bob Jones University v. U.S., 461 U.S. 574 (1983)............ 12

Burke v. Southern Pacific R. Co., 234 U.S. 669

Cia a cnarsmsnensntananentensnapannaneainnscantesiiiannitabatiatitetinititapaeiiaatiae 11

Caldwell v. United States, 250 U.S. 14 (1919) ............ 19, 20

Cannon v. University of Chicago, 441 U.S. 677

Gina Wale hrarenenssnenmisenemnnmmensneniiegmnieiiienenentaineniadinesiitastmmetasiatis 11

Goodyear Atomic Corp. v. Miller,486 U.S. 174

Guu cenvnceennensonenmnsineninemnaentensinicamiiaaiiiaiiinieiiasitmaiaiaaaasiia 11

Leo Sheep Co. v. United States, 440 U.S. 668 (1979).....9, 23

Morrison-Knudsen Const. Co. v. U.S. Dep’t of Labor,

Se eae Ne cicretsintarcsencsttesiceesininanieeicicahtaiiniacaniiimnetintiadie 12

N.L.R.B. v. Amax Coal Co., 453 U.S. 322 (1981)............... 11

Northern Pacific R. Co. v. Soderberg, 188 U.S. 526

Giieaieocnnssssinenennunensnmenneneneniapeicnmmienianintinianaipaiianes 19, 20, 21

<>

Vv

TABLE OF AUTHORITIES — Continued

Page

Perrin v. United States, 444 U.S. 37 (1979)........ccccceeeeeeeeee 10

Poverty Flats Land & Cattle Co. v. U.S., 788 F.2d

yy passim

Prudential Ins. Co. v. Benjamin, 328 U.S. 408

Ce 11

South Carolina State Highway Dep't v. Barnwell

Bros... 0B UB. 177 (1GBB)....cccccececcccecececscoscccesecsesesscosecs 11

Traynor v. Turnage, 485 U.S. 535 (1988)............... 10, 11, 12

United States Dep't of Labor v. Perini North River

Assoc., 459 U.S. 297 (1983) ..........cccccccccereeeeeeeeeeeereneeees 12

United States v. Hess, 194 F.3d 1164 (10th Cir.

7 6, 19, 20, 22

United States v. Hess, No. 02-1220, filed September

QO 6

United States v. Union Pacific R. Co., 353 U.S. 112

0 ——————————— 19, 20, 21

Watt v. Western Nuclear, 462 U.S. 36 (1983)............. passim

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS, AND RULES

1 0). |) | 3

Act of July 1, 1862, 12 Stat. 489 .............:cccccecseeeeeeeeeneeeeees 21

Coal Act of 1909, 35 Stat. 844 (repealed 1976)................++. 5

Coal Act of 1910, 36 Stat. 584 (repealed 1976)................-+. 5

Federal Land Policy and Management Act of 1976,

4B UBC. BB 2FG1 2 FEB ccccccccccccsccsscsscssccscssccsessscesseccsseceses 6

Indian Reorganization Act, 25 U.S.C. § 465............:c-sesee 6

vi

TABLE OF AUTHORITIES -— Continued

Page

Mining Act of 1872, 30 U.S.C. §§ 21 and 22.............. passim

Pickett Act, 36 Stat. 847 (repealed 1976)....................000000 5

Pittman Underground Water Act of 1919, 78 Stat.

293 (repealed 78 Stat. 389 (1964))...............cccceeeees passim

Stock-Raising Homestead Act of 1916, 39 Stat. 862

(repealed 90 Stat. 2744 (1976)).............cceceeeeeeeeeeees passim

Surface Resources Act of 1955 (the Common Varie-

ee Cet iciitnicicnesninnntinnninniidiatiineisinniine 3,17

MISCELLANEOUS

Castle v. Womble, 19 L.D. 455 (1894) ......0...........cceceeeeeeeees 13

Earl Williams, 140 IBLA 295 (1997) ............cccccccssseeeeeeeeees 19

Eleanor Schwartz, A Capsule Examination of the

Legislative History of the Federal Land Policy

and Management Act of 1976, 21 Ariz. L. REV.

ia acai ala 6

Hughes v. Florida, 42 L.D. 401 (1913)...............ceceeeeeeeeeees 10

Litch v. Scott, 40 L.D. 467 (1912).............cccccecceeeeee 10, 15, 16

Loren Mall, Federal Mineral Reservations, 20

Rocky MTN. MIN. L. INST. 399 (1975)..............ccccceceeeceees 6

LOUISE PEFFER, THE CLOSING OF THE PUBLIC Do-

MAIN-DISPOSAL AND RESERVATION POLICIES 1900-

1950 347 (Arno Press, New York 1972) .............ccccc00eeees 5

Pacific Coast Marble v. Northern Pacific R. Co., 25

arias STII UIIITTITTITTTnsslicnirerraiiasnensinitiindaitindeatestiaiamnaaiaadidiiaaiainidiiaiiadl 9,14

Richard Bate, Mineral Exceptions and Reservations

in Federal Public Land Patents, 17 ROCKY MTN.

DMO. L. INST. 326 (1972)......cccvcescseescennsusssesssssnsvssessensessees 4

Vii

TABLE OF AUTHORITIES — Continued

STEPHEN S. FULLER, THE IMPACTS OF THE CRUSHED

STONE, SAND & GRAVEL INDUSTRY ON THE U.S.

Economy (National Stone, Sand & Gravel Asso-

1

STATEMENT OF THE CASE’

The NSSGA is a nationwide trade organization whose

membership represents ninety percent of the annual

production of crushed stone and seventy-five percent of the

annual sand and gravel production in the United States.

During 2002, a total of about 2.73 billion metric tons of

crushed stone, sand and gravel, valued at $14.6 billion,

were produced in the United States. NSSGA’s membership

of approximately 800 companies includes major interna-

tional corporations, regional operators, and small family-

owned corporations extracting and selling product from a

single location.’ These entities have organized their

business relationships on the basis of certain expectations,

resting on a settled body of law governing ownership of

sand and gravel in lands where the surface and mineral

estates are severed.

Many NSSGA members operate on lands the title to

which is descended from the various public lands acts of

the late nineteenth and early twentieth century, including

the Pittman Act at issue in the present case. The common

* The parties have consented in writing to the filing of this brief.

Copies of the parties’ consents are being filed simultaneously with this

brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

* Assertions concerning the scope and economic importance of the

sand and gravel industry are derived from STEPHEN S. FULLER, THE

IMPACTS OF THE CRUSHED STONE, SAND & GRAVEL INDUSTRY ON THE U.S.

Economy (National Stone, Sand & Gravel Association 2003). The

pamphlet is available at www.NSSGA. org.

2

interest of all NSSGA members in this case lies in affirming

a consistent rule of interpretation for mineral reservations,

and opposing a ruling that would cause the retroactive

transfer of ownership of sand and gravel from the owner of

one estate to the owner of another by judicial reinterpreta-

tion of long-standing property relationships. Members

have ordered their affairs, paid royalties, and made

substantial capital investments in reliance on what they

understood to be settled and predictable principles of

property law. The Ninth Circuit’s decision would upset

those expectations, which would have profound conse-

quences, the measure of which the Ninth Circuit could not

possibly predict, for the surface owners potentially affected

by this decision. The inability even to forecast such conse-

quences provides a compelling reason to affirm a consis-

tent, plain-language interpretation of mineral reservations

in order to safeguard well-founded expectations and

ensure the certainty of title held by NSSGA members, and

other owners of split estates, across the westérn United

States.

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OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit (Pet. App. A, la-21a) is reported at 314

F.3d 1080. The opinion of the District Court for the Dis-

trict of Nevada (Pet. App. B, 22a-38a) is reported at 50

F. Supp. 2d 1001. The opinion of the Interior Board of

Land Appeals (Pet. App. C, 39a-63a) is reported at 140

IBLA 295 (1997).

ee eee Ce

3

JURISDICTION

The judgment of the Court of Appeals was entered on

December 30, 2002. On March 21, 2003, Justice O’Connor

granted an extension-of time to file a petition to April 30,

2003. ‘The petition was filed timely and this Court granted

a writ of certiorari on September 30, 2003. The Court’s

jurisdiction is invoked under 28 U.S.C. section 1254(1).

¢

STATUTORY PROVISIONS INVOLVED

The Pittman Underground Water Act, 78 Stat. 293-95

(repealed 78 Stat. 389 (1964)) is set forth at Pet. App. D

(64a-68a). Section 9 of the Stock-Raising Homestead Act of

1916, 39 Stat. 862 (repealed 90 Stat. 2744 (1976)), and

Section 3 of the Surface Resources Act of 1955 (the Com-

mon Varieties Act), 30 U.S.C. § 611, are set forth at Pet.

App. E and F (69a-71a).

+

SUMMARY OF ARGUMENT

This case presents the Court with an opportunity to

revisit and strengthen a number of essential constructs

with regard to the law of federal land patents and property

law in general. Among these basic principles are the

critical need to apply the plain language to effectuate the

purposes of unambiguous legislation, the vital importance

of construing the language of a property grant at the time

of granting, and the fundamental significance of certainty

of title. This Court should require the Department of the

Interior (“Interior”) to honor the promises it made decades

ago, as those promises were intended at the time.

4

The Ninth Circuit’s ruling misapplied fundamental

principles of statutory construction. Statutory terms must

be interpreted and applied according to their common

meaning at the time the legislation was enacted. Congress

is presumed to have known of that meaning and of the

holdings of contemporaneous administrative decisions

interpreting and applying the terms at issue.

In addition, the Ninth Circuit misapplied the maxim

of interpretation that limits the scope of grants from the

United States under the public lands laws by applying it

to the reservation rather than to the grant.

+

ARGUMENT

In the early years of the Nation’s westward expansion,

the country’s land disposal laws encouraged settlement

and development by making it possible for individuals to

acquire a tract by farming, building, and settling on it for

a statutory period. Before 1909, the various land disposal

laws passed by Congress distinguished between lands that

were classified as “mineral in character” (that is, chiefly

valuable for the production of minerals) and those that

were non-mineral (deemed chiefly valuable for agricul-

ture). Patents issued under the non-mineral classification

statutes did not reserve minerals to the United States, but

conveyed the full fee interest in the lands. See, e.g., Rich-

ard Bate, Mineral Exceptions and Reservations in Federal

Public Land Patents, 17 Rocxy Mtn. Min. L. Inst. 326, 386-

406 (1972).

In the first decade of the twentieth century, public

concern grew over the apparently dwindling supply of coal

available for production from the public lands. In particular,

5

there was public outrage over the large amounts of the

public domain, particularly coal and oil-producing lands,

that had apparently been fraudulently patented under the

agricultural entry statutes. In response to these concerns,

President Theodore Roosevelt withdrew millions of acres

of land from entry under the homestead laws, and forced

Congress to reform the system of land disposal acts.

Congress responded by enacting laws requiring the reser-

vation of specified minerals in patents issued by the

United States. The earliest of these Acts, the Coal Act of

1909, 35 Stat. 844 (repealed 1976), and the Coal Act of

1910, 36 Stat. 584 (repealed 1976), reserved only the coal

estate in favor of the United States. Those acts were soon

followed by others which reserved additional minerals,

including the Pickett Act, 36 Stat. 847 (repealed 1976), the

Stock-Raising Homestead Act of 1916, 39 Stat. 862 (repealed

1976), and the Pittman Act. See generally Amoco Prod. Co. v.

Southern Ute Indian Tribe, 526 U.S. 865 (1999).

Between 1805 and 1945, some 987 million acres of the

public domain passed into private ownership. Of these,

approximately 70.4 million acres were patented under the

Stock-Raising Homestead Act, 16.2 million acres were

patented under the Coal Acts of 1909 and 1910, and an

additional 51 million acres were patented under the other

land disposal acts, including the Pittman Act, that re-

quired or permitted the reservation of certain minerals to

the United States.’ Among the lands included in this last

group were those at issue in this case.

* LOUISE PEFFER, THE CLOSING OF THE PUBLIC DOMAIN-DISPOSAL

AND RESERVATION POLICIES 1900-1950 347 (Arno Press, New York

(Continued on following page)

6

In 1976, Congress repealed most of the land disposal

laws, and replaced the policy of disposal with one favoring

retention and management of the public lands.‘ In imple-

menting that policy since 1976, Interior has sought to

establish a rule that sand and gravel, which were not

considered to be minerals at the time the public land

disposal laws were passed, were included in the reserva-

tion of minerals in patents issued under those Acts. The

current case is part of that trend. See, e.g., Andrus v.

Western Nuclear, 475 F. Supp. 654 (D. Wyo. 1979), rev'd,

664 F.2d 234 (10th Cir. 1981), rev’d sub nom. Watt v.

Western Nuclear, 462 U.S. 36 (1983) (construing Stock-

Raising Homestead Act of 1916); Poverty Flats Land &

Cattle Co. v. U.S., 788 F.2d 676 (10th Cir. 1986) (constru-

ing the Taylor Grazing Act); United States v. Hess, 194

F.3d 1164 (10th Cir. 1999) (construing the Indian Reor-

ganization Act, 25 U.S.C. § 465).° In each case, Interior’s

policy goals have threatened the security of title of patent-

ees and their successors by retroactively claiming reserved

ownership of a significant component of the surface estate

which had been presumed for decades to be a part of the

original grant.

1972); Loren Mall, Federal Mineral Reservations, 20 Rocky MTN. MIN.

L. INST. 399 (1975).

* The Federal Land Policy and Management Act of 1976, 43 U.S.C.

§§ 1701-1785. See Eleanor Schwartz, A Capsule Examination of the

Legislative History of the Federal Land Policy and Management Act of

1976, 21 Ariz. L. REV. 285 (1979).

* The Tenth Circuit remanded Hess. The District Court’s decision

on remand was reversed November 12, 2003. United States v. Hess, No.

02-1212 (10th Cir. filed Sept. 20, 2002).

ore

7

In the present case, the lands at issue were desig-

nated by Interior as “non-mineral in character” in 1934

and made eligible for patent under the Pittman Act.

BedRoc Limited’s predecessor obtained a patent to these

lands in 1940, a time in which no commercial market

existed for this deposit of sand and gravel (although it was

both evident and abundant in supply at the time of grant-

ing), because the lands were situated in the relative

isolation of the Nevada desert. This state of affairs contin-

ued uninterrupted for more than five decades due to the

remoteness of this tract of land from any infrastructure

which would lend commercial viability to these otherwise

valueless common materials. It was not until the early

1990s, when sand and gravel extraction operations first

became profitable on these lands due to the expansion of

Las Vegas, that Interior asserted — for the first time — its

alleged right to the sand and gravel located on the prop-

erty pursuant to the patent reservation of coal and other

valuable minerals.

I. Sand and Gravel Were Not “Valuable Miner-

als” Intended to be Reserved to the United

States Under the Pittman Act

A. Western Nuclear Does Not Govern the De-

cision in This Case

This case presents an important opportunity for the

Court to revisit Western Nuclear and affirm the fundamen-

tal importance of certainty of title by ruling that sand and

gravel were not “valuable minerals” per se in 1919. As

argued in the Brief for Petitioners, the District Court and

the Ninth Circuit improperly relied on Western Nuclear as

a basis for its decisions in this case. See BedRoc Limited,

8

L.L.C. v. United States, 314 F.8d 1080, 1086-90 (9th Cir.

2002). Western Nuclear does not govern the determination

of this matter for a number of reasons, including the fact

that Western Nuclear concerned broader reservation

language under the Stock-Raising Homestead Act of 1916.

The central questions in this case — namely, the value of

the specific gravel at issue and when that value should be

determined — were neither raised nor decided in Western

Nuclear.

B. The Intention of Congress in 1919 Deter-

mines the Scope of the Reservation of

Valuable Minerals Under the Pittman Act

Unlike Section 9 of the Stock-Raising Homestead Act

of 1916 — addressed in Western Nuclear — in which Con-

gress reserved “all the coal and other minerals” to the

United States, Section 8 of the Pittman Act contained a

more limited reservation of “coal and other valuable

minerals,” requiring:

That all entries made and patents issued under

the provisions of this Act shall be subject to and

contain a reservation to the United States of all

the coal and other valuable minerals in the lands

so entered and patented, together with the right

to prospect for, mine, and remove the same. The

coal and other valuable mineral deposits in such

lands shall be subject to disposal by the United

States in accordance with the provisions of the

coal and mineral land laws in force at the time of

such disposal.

Pittman Act, § 8. Interior’s claim in this case is for owner-

ship of certain sand and gravel deposits that became

valuable in the 1990s, more than fifty years after the

grant. The plain meaning of the word “valuable minerals,”

as used in the Pittman Act in 1919, did not include the

sand and gravel at issue in this case because these miner-

als were not included within the contemporaneous defini-

tion of the term “mineral” when the Pittman Act was

passed, and did not have intrinsic value either then or at

the time of the grant.

In 1919, Interior used a two part test for determining

whether something was a “valuable mineral deposit.”

First, the substance must have been “recognized as a

mineral by the standard authorities,” and second, it must

have been present “in quantity and quality sufficient to

render the land more valuable on account thereof than for

agricultural purposes.” Pacific Coast Marble v. Northern

Pacific R. Co., 25 L.D. 233, 244-45 (1897). Sand and gravel

were not valuable minerals per se in 1919, nor is there

evidence that this deposit would have been deemed valu-

able under the test.

1. The Scope of the Estate Conveyed and

Reserved Under the Pittman Act Must

Be Determined at the Time of the

Grant

It is axiomatic that the scope of a conveyance of real

property must be determined at the time of the grant. See,

e.g., Amoco Prod. Co., 526 U.S. at 873 (“The question is not

whether, given what scientists know today, it makes sense

to regard CBM gas as a constituent of coal but whether

Congress so regarded it in 1909 and 1910.”); Leo Sheep Co.

v. United States, 440 U.S. 668, 669 (1979) (“[C]Jourts, in

construing a statute, may with propriety recur to the

history of the times when it was passed; and this is fre-

quently necessary, in order to ascertain the reason as well

10

as the meaning of the particular provisions in it.”).

“(U)nless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning .. .

at the time Congress enacted the statute ... .” Perrin v.

United States, 444 U.S. 37, 42 (1979) (emphasis added).

In this case Interior’s contemporaneous interpretation

of the term “minerals” answers the question of whether

sand and gravel were included within the definition of the

term “valuable minerals,” as used by Congress in 1919.

See generally Zimmerman v. Brunson, 39 L.D. 310 (1910);

Litch v. Scott, 40 L.D. 467 (1912); Hughes v. Florida, 42

L.D. 401 (1913). As discussed below, Congress is presumed

to have been aware of the contemporaneous decisions and

interpretations of agencies charged with the enforcement

of a relevant statute, and those decisions serve as an

important interpretive tool for determining congressional

intent.

2. Congress Is Presumed to Have Been

Aware of Existing Law, Common Law,

and Contemporary Administrative De-

cisions Excluding Sand and Gravel

From the Definition of the Term

“Valuable Minerals”

When interpreting statutes in their historical context

this Court has consistently imputed to Congress the

knowledge of contemporaneous legal decisions, adminis-

trative interpretations, and common usages of settled

terms at the time of passage to assist in the determination

of congressional intent. “It is always appropriate to as-

- sume that our elected representatives, like other citizens,

know the law.” Traynor v. Turnage, 485 U.S. 535, 546

11

(1988) (quoting Cannon v. University of Chicago, 441 U.S.

677, 696-97 (1979)); see also South Carolina State High-

way Dep't v. Barnwell Bros., 303 U.S. 177, 191 (1938)

(“Being a legislative judgment it is presumed to be sup-

ported by facts known to the Legislature unless facts

judicially known or proved preclude that possibility.”).

“Where Congress uses terms that have accumulated

settled meaning under either equity or the common law, a

court must infer, unless the statute otherwise dictates,

that Congress means to incorporate the established

meaning of these terms.” N.L.R.B. v. Amax Coal Co., 453

U.S. 322, 329 (1981).* With regard to statutory mineral

reservations, this Court has previously “emphasized that

Congress ‘was dealing with a practical subject in a practi-

cal way’ and that it intended the terms of the reservation

to be understood in ‘their ordinary and popular sense.’”

Amoco Prod. Co., 526 U.S. at 823 (quoting Burke v. South-

ern Pacific R. Co., 234 U.S. 669, 679 (1914)).

Contemporaneous decisions and interpretations by

the department charged with the enforcement of the

statutes at issue have frequently been cited as a presump-

tive source of knowledge for purposes of determining

congressional intent. For example, Traynor stated “we

must assume that Congress was aware of the Veterans’

* See also Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85

(1988) (“[W]e are unwilling to assume that Congress was ignorant of

the substantial number of States providing additional workers’

compensation awards” in 1936 when the statute at issue was passed);

Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429-30 (1946) (“[Iin

taking this action Congress must have had full knowledge of the nation-

wide existence of state systems of regulation and taxation. . . . Congress

could not have been unacquainted with these facts. . . .”).

12

Administration’s interpretation of ‘willful misconduct’ at

the time that it enacted §1662(a)(1), and that Congress

intended that the term receive the same meaning for

purposes of that statute as it had received for purposes of

other veterans’ benefits statutes.” Traynor v. Turnage, 485

U.S. at 546. In Morrison-Knudsen Const. Co. v. U.S. Dep't

of Labor, 461 U.S. 624, 632-33 (1983), this Court stated

that its determination of congressional intent was aided by

“the consistent policies of the agency charged with its

enforcement.” Similarly, in Bob Jones University v. U.S.,

461 U.S. 574, 590 (1983), this Court specifically relied

upon the presumption of congressional knowledge of

agency decisions, saying Congress had been made “acutely

aware” of relevant Internal Revenue Service rulings for a

dozen years before the legislation at issue was passed.

Finally, in United States Dep't of Labor v. Perini North

River Assoc., 459 U.S. 297, 320 a. 28 (1983), this Court

again affirmed the importance of contemporaneous agency

interpretations, saying “[iJn order to withdraw coverage

from employees, such as Churchill; who are maritime

employees injured in the course of their employment upon

the actual navigable waters, Congress would have had to

ignore the consistent interpretation given the Act before

1972, by the Director [of the Department of Labor], the

Deputy Commissioners, the courts, and the commenta-

tors.”

In accordance with these important principles of

statutory interpretation — that the scope of a statutory

grant must be determined at the time of enactment of the

statute, and that Congress is presumed to have knowledge

of contemporaneous administrative interpretations for

purposes of determining congressional intent — Interior

decisions such as Zimmerman and its progeny are highly

13

relevant to the determination of whether Congress in-

tended to include sand and gravel within the reservation

of “valuable minerals” in 1919 when enacting the Pittman

Act. These principles dictate that the term “valuable

minerals” as used by the Congress in the Pittman Act does

not include sand and gravel. In addition, to the extent that

the majority decision in Western Nuclear was based upon

the assumption that “it is most unlikely that many mem-

bers of Congress were aware of the ruling in Zimmerman,”

462 U.S. at 46, this Court’s decision in Western Nuclear

should be revisited.

3. Contemporaneous Authorities, Including

Zimmerman and its Progeny, Dictate

That Sand and Gravel Were Excluded

From the Definition of “Valuable Miner-

als” at the Time of the Pittman Act in

1919

Contemporaneous legal decisions, administrative

interpretations by Interior, and the common usage of the

term in 1919 all support the conclusion that sand and

gravel were excluded from the definition of “valuable

minerals” when the Pittman Act was passed. To determine

whether materials were “valuable mineral deposits” under

the Mining Act of 1872, 30 U.S.C. sections 21 and 22,

Interior relied on the tests set forth in Castle v. Womble,

19 L.D. 455, 457 (1894):

Where minerals have been found and the evi-

dence is of such a character that a person of ordi-

nary prudence would be justified in the further

expenditure of his labor and means, with a reason-

able prospect of success, in developing a valuable

14

mine, the requirements of the statute have been

met;

and in Pacific Coast Marble:

The Department, ... adheres to the rule: That

whatever is recognized as a mineral by the stan-

dard authorities on the subject, whether of me-

tallic or other substances, when the same is

found in the public lands in quantity and quality

sufficient to render the land more valuable on ac-

count thereof than for agricultural purposes,

should be treated as coming within the purview

of the mining laws.

Pacific Coast Marble v. Northern Pacific R. Co., 25 L.D.

233, 244-45 (1897).

With these tests in mind, Interior decided Zimmer-

man v. Brunson in 1910. In that case, Zimmerman con-

tested the validity of Brunson’s entry under the

Homestead Act, arguing that the land was valuable for its

gravel deposits. Interior considered the question of

whether the presence of sand and gravel deposits could

render lands “mineral in character,” that is, more valuable

for production of minerals than for agriculture, and thus

closed to homestead entry. Relying upon the tests set forth

above, Interior.made the following determination:

A search of the standard American authorities

has failed to disclose a single one which classifies

a deposit such as claimed in this case as mineral,

nor is the Department aware of any application

to purchase such a deposit under the mining

laws. This, taken into consideration with the fur-

ther fact that deposits of sand and gravel occur

with considerable frequency in the public do-

main, points rather to a general understanding

ee

15

that such deposits, unless they possess a peculiar

property or characteristic giving them a special

value, were not to be regarded as mineral.

Zimmerman v. Brunson, 39 L.D. 310, 312 (1910). After

reviewing a series of other Interior Decisions, the Secre-

tary concluded:

From the above resume it follows that the De-

partment, in the absence of specific legislatidn by

Congress, will refuse to classify as mineral land

containing a deposit of material not recognized

by standard authorities as such, whose sole use

is for general building purposes, and whose chief

value is its proximity to a town or city, in contra-

distinction to numerous other like deposits of the

same character in the public domain.

Id. at 313. This decision was followed by Litch v. Scott, 40

L.D. 467, 469 (1912), where Interior found that land that

was “almost entirely sand and gravel, and [from which]

said Scott is selling gravel continuously,” was not mineral

in character.

Thus, almost a decade before the Pittman Act was

passed in 1919, Interior’s stated policy was that sand and

gravel was not regarded as a mineral unless the particular

deposit possessed a “peculiar property or characteristic”

which gave it special value. Zimmerman, 39 L.D. at 312.

Moreover, six years prior to the passage of the Pittman

Act, Interior clarified that sand and gravel were not

considered mineral in character even where a market was

available and it had actually been removed for sale. Litch,

40 L.D. at 469. Given Interior’s per se rule classifying

lands from which sand and gravel were actually being sold

in 1912 as non-mineral, it is difficult to imagine anything

but the same conclusion regarding the deposit of sand and

16

gravel at issue in this case, for which no commercial

market existed when the Pittman Act was passed in 1919,

nor for more than seventy years thereafter.

II. Congress Did Not Intend that Sand and

Gravel Be Developed Concurrently with the

Surface of Pittman Act Lands or of Stock-

Raising Homestead Act Lands

Sand and gravel were not locatable in 1919 under the

Mining Act of 1872. As a result the Ninth Circuit’s im-

puted purpose of the mineral reservation in the Pittman

Act, concurrent development of surface and subsurface

resources, could not have been accomplished by including

sand and gravel in the reservation of “valuable minerals.”

This rationale was also relied on to justify the holding of

Western Nuclear. This Court stated there that “[slimply as

a matter of consistent interpretation of statutes concern-

ing the same subject matter, if gravel deposits constituted

‘mineral deposits’ that could be located under the mining

laws, then presumptively gravel should constitute a

‘mineral’ reserved to the United States under the SRHA.”

Western Nuclear, 462 U.S. at 59. The discussion in Section

I, above, makes it clear that sand and gravel deposits were

not “mineral deposits” at the time of enactment of the

Pittman Act or of the Stock-Raising Homestead Act.

Interior’s policy was to treat these deposits as non-

mineral; Zimmerman and Litch indicate that common

gravel deposits would not have supported a mineral entry

under the Mining Act of 1872.

17

A. Sand and Gravel Could Not Have Been

Developed Concurrently with the Surface

as a Valuable Mineral in 1919

The Western Nuclear majority reasoned that:

[slince Congress intended to facilitate develop-

ment of both surface and subsurface resources,

the determination of whether a particular sub-

stance is included in the surface estate or the

mineral estate should be made in light of the use

of the surface estate that Congress contem-

plated.... The reservation of minerals to the

United States should ... be construed by consid-

ering the purposes both of the grant and of the

reservation in terms of the use intended.

Western Nuclear, 462 U.S. at 52 (citation and internal

quote omitted). However, the majority failed to take note

of the fact that the Court’s stated purpose for reserving

minerals, to promote their development apart from graz-

ing uses of the surface, was not achievable with respect to

sand and gravel when the Stock-Raising Homestead Act

(and the Pittman Act) were passed. Sand and gravel were

not locatable under the Mining Act at that time, nor was

there a legal mechanism at that time by which a person

could obtain the right to develop sand and gravel on Stock-

Raising Homestead Act or Pittman Act patented lands.

In Poverty Flats, the Tenth Circuit pointed out that

BLM could not treat caliche as a “mineral” for purposes of

the reservation from the grant, and simultaneously

dispose of it as a “material” under the Surface Resources

Act of 1955, 30 U.S.C. section 611. Poverty Flats Land &

Cattle Co. v. U.S., 788 F.2d 676, 679-80 (10th Cir. 1986).

Congress knew in 1916 that sand and gravel were not

“minerals,” and this Court in Western Nuclear incorrectly

18

concluded in 1983 that there was a legislative intent in

1916 to promote the development of sand and gravel under

the Mining Act simultaneously with settlement of the

surface. The record of numerous contemporaneous deci-

sions shows that there was no provision in the Mining Act

for doing so. The same reasoning applies with respect to

the Pittman Act. There was no intent in 1916 (or in 1919)

to promote the development of the surface simultaneously

with the development of sand and gravel as “valuable

minerals.” Sand and gravel were not minerals for purposes

of entry under the Mining Act, and there was no legal

means by which to exploit them as materials.

B. There Was No Congressional Intent to De-

velop Sand and Gravel as Minerals on

Pittman Act Lands

Moreover, in contrast to the Stock-Raising Homestead

Act, the Pittman Act required that the Secretary of the

Interior determine lands to be “nonmineral” before they

were open for entry. Section 1 of the Pittman Act, 78 Stat.

293 (repealed 1964), provided that the Secretary was to

grant a permit on “unreserved, unappropriated, nonmin-

eral, nontimbered lands.” Section 2 of the Stock-Raising

Homestead Act authorized the Secretary to:

designate as stock-raising lands subject to entry

under this Act lands the surface of which is, in

his opinion, chiefly valuable for grazing and rais-

ing forage crops, do not contain merchantable

timber, are not susceptible of irrigation ... and

are of such character that six hundred and forty

acres are reasonably required for the support of a

family. ...

19

39 Stat. 862 (repealed 1976). Thus, while the Stock-

Raising Homestead Act did not require the lands be

classified as mineral or non-mineral, the Pittman Act did

require exclusion of mineral lands. Congress clearly

intended that lands available for entry under the Mining

Act of 1872 were to be excluded from entry under the

Pittman Act, and were not anticipated to be developed

_ simultaneously as grazing and mineral lands.

III. The Maxim of Interpretation that “Nothing

Passes Except What is Specifically Named”

was Applied Incorrectly in this Case Below

and in Western Nuclear

In holding that sand and gravel were reserved as

minerals from Pittman Act patents, the Interior Board of

Land Appeals (“IBLA”) in this case relied on an old maxim

of interpretation: “the established rule [is] that land

grants are construed favorably to the Government, that

nothing passes except what is conveyed in clear language,

and that if there are doubts they are resolved for the

Government, not against it.” Earl Williams, 140 IBLA 295,

314 (1997) (citing Western Nuclear, 462 U.S. at 59 (quoting

United States v. Union Pacific R. Co., 353 U.S. 112, 116

(1957)); Andrus v. Charlestone Stone Products Co., 436

U.S. 604, 617 (1978); Caldwell v. United States, 250 U.S.

14, 20-21 (1919); Northern Pacific R. Co. v. Soderberg, 188

U.S. 526, 534 (1903)). This maxim is frequently invoked by

Interior in cases involving the scope of grants from the

United States, such as Hess and Poverty Flats.

This approach is not well suited for interpreting

mineral reservations, however, and its invocation should

not dictate the outcome in this case. First, as demonstrated

above, the commonly accepted definition of “minerals,” and

20

prevailing Interior policy at the time, indicate that Con-

gress did not consider sand and gravel to be “valuable

minerals” subject to reservation when the Pittman Act was

passed. “The relevant intent of Congress is that existing at

the time the statute was enacted.” Western Nuclear, 462

U.S. at 62 (citing Charlestone Stone Products Inc., 436

U.S. at 611). The maxim that ambiguity should be resolved

in favor of the government does not carry the day in this

case; there is no ambiguity of congressional intent on

which to invoke it. Second, the application in this case of

the principle that “nothing passes except what is conveyed

in clear language, and if there are doubts they are resolved

for the Government,” would lead to manifest injustice, as

it did in Western Nuclear and as it threatened to do in

Poverty Flats and Hess. The doctrine is well suited for

interpreting grants, but when it is applied to mineral

reservations the exception swallows the grant.

Grants of land are made in general terms, while

reservations are specifically made. The issue in this case,

as it was in Western Nuclear, Hess, and Poverty Flats, is

whether “valuable minerals” means “everything that could

ever become valuable whether now or in the future.” It is

different than the issues presented in Caldwell, Northern

Pacific R. Co., and Union Pacific R. Co., where the maxim

received its early formulation and application to the

interpretation of federal grants.

In Caldwell v. United States, the issue was the scope

of a license to a railroad company of the right to use

“timber necessary for the construction of said railroad”

felled from the right of way on which the road was con-

structed. Caldwell v. United States, 250 U.S. 14, 20-21

(1919). The company argued that “timber” included slash

and other lumber, that is, everything that resulted from

21

taking the trees; the Court held that the term “timber

necessary for the construction of said railroad” was not a

grant of trees, but of timber actually used for railroad

construction, by the maxim that “grants must be con-

strued favorably to the government and that nothing

passes but what is conveyed in clear and explicit language

— inferences being resolved not against but for the gov-

ernment.” Jd. Although the railroad was not allowed to sell

the slash and other lumber, there was no question that it

was allowed to use timber for construction.

In Northern Pacific R. Co. v. Soderberg, the Court

considered whether certain lands were included in a

statutory land grant to the railroad, which by its terms did

not include minerals lands. Northern Pacific R. Co. v.

Soderberg, 188 U.S. 526, 534 (1903). If the lands were

mineral they could not be part of the land grant. The

question was whether the term “valuable rainerals” was

limited to metallic ores, or included a deposit of granite

suitable for use as a building stone. There was no split

estate issue presented; the issue for the Court was

whether the railroad received title to the land or the

United States kept it open to entry under the Mining Act

of 1872. The Court found the term “valuable mineral

deposit” to be not limited to metallic minerals, found

granite to be included in the term, and the lands at issue

were mineral lands and therefore not included in the

railroad land grant. Id.

In United States v. Union Pacific R. Co., the United

States sought to enjoin the railroad from drilling for oil

and gas in the right of way that had been granted to it by

Section 2 of the Act of July 1, 1862, 12 Stat. 489, 491.

United States v. Union Pacific R. Co., 353 U.S. 112, 116

(1957). The Act granted a right of way for the actual route.

22

It also gave the railroad every alternate section on each

side of the road, but reserved mineral lands from the

grant. It did not explicitly except minerals from the right

of way. The Court held that the grant of a right of way was

limited to the use of the surface for railroad purposes, and

that the congressional intent to reserve minerals (in that

case, oil and gas) under the right of way was demonstrated

by the fact that Congress excepted all mineral lands from

the grant of alternate sections. Jd. There was no issue of

whether or not oil and gas were “minerals” for purposes of

the reservation.

None of these cases addressed the issue presented by

Hess, Poverty Flats, Western Nuclear, and this case. Where

the substance in question makes up the whole of the

surface, as sand and gravel do in this case, the application

of the maxim that “grants must be construed favorably to

the government and that nothing passes but what is

conveyed in clear and explicit language — inferences being

resolved not against but for the government,” if literally

applied, would negate the entire grant. Reserving sand

and gravel as a mineral would leave the putative owner

with nothing except a bare license to use the surface, until

the United States permits someone to come in, develop

sand and gravel under the Materials Act, and destroy it.

By invoking this maxim to try to bring sand and gravel

within the scope of the reservation, the Government

attempts to use an inapposite guide to interpretation and

an alleged ambiguity to expand the reservation of “miner-

als,” so much so that the holders of bona fide patents risk

having their entire property destroyed. This cannot have

been the intent of Congress. The better rule was articu-

lated in Poverty Flats:

-_-_——— SS -

23

New BLM views as to mineral reservations ar-

rived at long after a patent issued, or revealed

long after a patent issued, cannot change the ti-

tle the patentee received under the then prevail-

ing practice and decisions. The result otherwise

would be a progressive series of changes depend-

ent on the changes in the views of the officials or

changes in personnel.

Poverty Flats, 788 F.2d at 683. As-the court recognized,

property owners require security of title so as to be able to

order their affairs with reasonable certainty.

Much has bee said about the stability of titles

and the Court in a case concerning such new

views on the reservation of rights of way said in

Leo Sheep Co. v. United States, 440 U.S. 668, 99

S.Ct. 1403, 59 L.Ed.2d 677: ‘Generations of land

patents have issued without any express reserva-

tion of the right now claimed by the Government.

Nor has a similar right been asserted before. .. .

This Court has traditionally recognized the spe-

cial need for certainty and predictability where

land titles are concerned, and we are unwilling to

upset settled expectations to accommodate some

ill-defined power to construct public thorough-

fares without compensation.’ The Court in Leo

Sheep Co. v. United States, reached such a con-

clusion after citing Andrus v. Charlestone Stone

Products Co., 436 U.S. 604, 98 S.Ct. 2002, 56

L.Ed.2d 570, and stating the doctrine that when

grants of federal lands are in issue doubts are re-

solved for the Government not against it.

Poverty Flats, 788 F.2d at 683.

The Court’s reasoning in Charlestone Stone Products

is also instructive:

24

The fact that water may be valuable or market-

able . Lh tency tp gee pews tg

those words, but must also be the type of valu-

able mineral that the 1872 Congress intended to

make the basis of a valid claim.

Charlestone Stone Products, 436 U.S. at 611.

The instant case does not involve the Mining Act of

1872, however, the definition of “valuable mineral” for the

purposes of that Act sheds light on the meaning of that

term as used in the Pittman Act. This Court in

Charlestone Stone Products, and the Tenth Circuit in

Poverty Flats, correctly perceived that a careful reading of

congressional intent, contemporaneous meaning, and

common sense were required. This case calls for no less.

NSSGA members across the western United States

look to a settled interpretation of statutory terms on which

to order their commercial affairs. Retroactive interpreta-

tions of statutory reservations made early in the twentieth

century threaten the settled expectations of innumerable

property owners in the twenty-first century, including

NSSGA members. This Court shouid promote security and

stability of title to lands patented under the federal public

lands statutes, and hold that sand and gravel are not

included as a matter of law in the term “valuable miner-

als,” where that term is part of a reservation of minerals to

the United States under the Pittman Act.

+

CONCLUSION

Amicus Curiae requests that this Court reverse the

judgment of the Ninth Circuit, and overturn Western

Nuclear.

R tfully submitted,

LAURA LINDLEY

Counsel of Record

CHRISTOPHER G. HAYES

BJoRK LINDLEY LITTLE PC

1600 Stout Street, Suite 1400

Denver, CO 80202

(303) 892-1400