Appendix — Gabbs Exploration Co. v. Udall

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- APPENDIX A

OPINION BELOW i

UNITED STATES COURT OF APPEALS \

FOR THE DISTRICT OF-COLUMBIA CIRCUIT be

«

No. 16,803 —-

GabBg Exploration CoMPANY, APPELLANT +

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V.

‘.

Stewart L. Upany, Secretary of the Interior

. oe sa

pec ome

Appeal from the United States Distriet Court .

for the District of Columbia

.

Decided February 14, 196:

Mr, Peoterich Bernays Wiener, with whom Mr. Fred H.

Evans was on the brief, for appellant.

Mr, Thomas L. McKevitt, Attorney, Department of Jus-

tice, with whom Assistant Attorney General Clark, and

Messrs, Roger P. Marquis and Harold S. Harrison, Attor-

neys, Department of Justice, were on the brief, for appel-

‘lee, Mr. S. Billingsley Hill, Attorney, Department of Jus-

-tice, also entered an appearance for appellee. |

Before Wizpur K. MILLER, Bastiax and Beran, Cireuit.

Judges. pet |

Bastian, Circuit Judge: This is an appeal froma judg-

ment of the District Court dismissing plaintiff's [appel-

Jant’s] complaint for dee ‘laratory judgment and for “relie#

in the nature of mandamus.’* The plaintiff sought a judg-

~ ment declaring invalid two contest proceedings involving

property heremafter referred to; a judgment that the de-

cisions of defendant’s [appellee’s] predecessor ca. celling

————cx“~-

enim tacenenen ccm mg

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_ certain mineral entries are‘null and void; a judgment en-

‘joining defendant from rejecting plaintiff’s applications

for patents; and a judgment directing defendant to deter-.

‘mine the right of plaintiff to patents for certain mining

claims, without regard-to the contests.

On July 24, 1918, plaintiff’ s peebiemnih | in title located

eight oil placer chem in Rio Blanco County, Colorado

(Mullins claims). On March 30, 1929, the then Secretary .

of the Interior instituted against the record owners of

these claims a contest, No. 11977, in which it was charged:

‘2. That there has not been expended upon each

and every one of the claims labor and improvements of

a reasonable value of.$100 for the assessment years

ending July 1, 1921, to July 1, 192 28, merunIve, and the

clainis have been abandoned.” >

The record owners were served with the contest notice,

but ‘they fited-no objection and, in fact, made no appear-

anee, Thereafter, on June 5, 1929, the Commi<sioner of

the General Land Office, with the approval of the Secretary

of the Interior, declared the contested oil shale’ locations

null and void, and notified the contestees accordingly. No

further action appears to have been taken until April 14,

1956, when plaintiff purchased, by quitclaim deeds the min-

ing claims in question, Thereafter, plaintiff made appli-

cations for patents on all of said claims, which were duly

rejected. ae

The second cause of action set forth in the eomplaint

is known as the Sibbald-Cora! claims. In December 1917

and February 1918, plaintiff’s predecessor in titie located

eighteen oil placer claims in Garfield County, Colorado.

On December 31, 1929, defendant’s predecessor. in office

caused a contest, No. 12111, to be instituted against the

record owner of the said claims, in which it was charged:

‘*1, That there has been no assessment work per-

_ formed upon any of the above described placer mining

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claims for the assessment years een July 1,-1921, up

to and including July 1, 1929. ;

“9. That each and every one of said claims has been

abandoned. sie

On January 13, 1930, the record owner of the dalle was -

. served a copy of the contest notice but failed to file an

answer within the time allowed by the regulations of the .

Department of the Interior governing contests. Accord- .

‘ingly, on May, 19, 1930, the Commissioner of the General

land Office, with the approval of the Secretary of the In-

terior, declared the contested oil shale locations null and

void, and the contestee was duly notified. On. March 21;

_ 1956, plaintiff purchased, by quitelaim deed, the mining

_ claims in question and duly applied for a patent covering

all said claims. The application was rejected, after which

_ the present suit was instituted.

On cross- motions for summary sediniaend. the District

Court entered judgntent granting defendayt’s motion for

summary judgment and denying that of plaintiff, and dis-

missed the complaint. This appeal followed. We affirm.

the judgment of the District Court.

Plaintiff's ease is pite ‘hed lar cely on three grounds. It

argues that the proceedings resulting in the cancellation *

of the claims were null and void, first, bee ause the Supreme

Court has held that a charge of failure to perform assess-

ment work may not be a basis for declaring unpatented

mining claims invalid ;' second, because of the Secretary of

the Interor lacks authority to declare unpatented mining —

claims invalid by reason of abandonment; and finally, be-

cause, even if the Secretary does have. such authority, the

charges of abandonment in this case are invalid sinee they

_ were not supported by an allegation of the partic ‘ular fae ‘ts

‘Ickes v. Development Corp., 295 U.S. 639 (1935); Wilbur ®

v. Krushnic, 250 U.S. 306 (1930).

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constituting abandonment, as equired under the rules of

the Department of the Interior. -

It is true that the Supreme Court: did hold that failure

to perform assessment work may not be the basis for hold-

ing unpatented mimng claims invalid: however, this does

not affeci the charge that plaintiff's anining claims had

neen abandoned. The two charges: are separate and dis-

tinet. And we find no merit in the contention that the Seec-

retary lacked authority to cancel the mining claims by

reason of abandonment. In fact, in Ickes y.. Development

Corp., 295 U.S. 689 (1935), one of the cases relied upon by

plaintiff and having to do with the charge of failure to

perform assessment work, the Supreme Court said: ©

‘‘There was authority in the Secretary of the ~~

terior, by appropriate proceeditigs, to determine that a

claim was invalid for lack of discovery, fraud or other

‘defect, or that it w ds subject to cancellation by reason.

of abandonment.’ 295 VS. at. 640.. [Emphasis sup-

plied.|

Plaintiff contends that this expression, quoted from Mr.

Chief Justice Hughes’s 6pinion, is obiter dictum. We are-

unable to say that that is the case, because it seems t@ us

that the quoted language was in fact material to the devi-

sion. Asstumingitwas dictum; however, we recognize the

fact that, although a- decisign ot fin appellate court is con-.

trolling only to the extent of the actual facts involved, and

an expression as to the law based on other facts is re-

garded as dic tum and not controlling on lower courts, such

dictum certainly deserves serious vonsideration. That,

indeed, is the general rule in federal courts. ;

“If these conclusions were dicta,git does not neces-

sarily follow that they were wrong, and certainly dicta

of the United States Supreme Court should he very

persuasive.” Fouts v. Maryland Casualty Co., 30

F.2d 357, at 309 (4th C ooh 1929), reversing. 27 F.2d 423,

cert, denied, 279 U.S. 852 (192 9), he

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‘The considered dietaof a court of last resort are

entitled to the respectful recogmition of interior courts

_Within the same judicial system.’’ United States v,

‘Roemia, 52 F “Supp. 857, at “861. (N-D. Towa 1943),

“Tt. [the quotation] declares thé view of the Court -

nd States bgprny Court] and has strong per-

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1945 ).

“The sn the Mullins and the Sibbald-Coral claims

were not denied due provess in the original contests, for it

rs clear that they had adequate notice of the contest against

them, they were offered-a hearing, and they were informed

of the cancellation of their claims. In view of what we have

previously stated, there was no jurisdictional defect in the

1929 contests. The only defect that plaintiff ean point.

to in those initial contests is the failure of the complaint to

allege the facts of abandonment and the lack of supporting

affidavits. Plaintiff urges that these’ defeets render the

original judgments void. We do not think so.

Plaintiffs predecessors in interest might have corrected

these errors or defects, if errors or defects there were, by

timely appeal to the Seeretary of the Interior from the

decision of the Commissioner of the General Land: Office.

As timely appeal was not taken then, it is now too late for

plaintiff to seek to correct any errors or defects by col-

lateral attack.

“None of the cases cited by plaintiff bear out its position

that the alleged defeets in the 1929. prareedings rendered

those proceedings void, All of those cases were timely

appeals «from decisions of the Commissioner of the Gen-

eral Land Office. Two of the cases do not even involve the

2 Fosdick *. Shackleford, 47 L.D. 558; Raber v. Smith, Leight,

Intervener, 51 L.D: 46; Roark v. Tarkington, McCracken, Inter-

. vener, 51 L.D. 183; The Shale OU Company, 55 LD. 287; J.C.

_ Nelson, et al.,.64 1.D. 103.

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‘ question of abandonment ;? and the remaining cases involve

the question whether a good and sufficient affidavit of ‘con-

test had been filed; or whether a demurrer to a complaint of

abandonment ‘vhich alleged no facts and contained no affi-

davit should have been sustained. The latter cases show

that a demurrer to the original complaints herein might

have been sustained, but do not show that the judgments

were void. Plaintiff’s predecessors not only did not inter- .

pose a demurrer, but failed to appeal from the decision

against them. Any defect could have been and should

have been cured upon ‘appeal. Because of the policy of

the Department of the, Interior to ‘allow amendments to

the complaint fréely, there is all the more reason why

; plaintiff ’s predecessors should have. sought immediate’ re-

view of the original determination.*’ As it was not done

then, it should not be done now by collateral attack where

no jurisdictional defect appears whieh pines overturn-

ing a settled decision.*

Plaintiff points out that so long as the _ Department of

the Interior retains jurisdiction over the land in question,

prior departmental decisions are not strictly res ‘judicata.

O7 course, this is correct, for there have been cases in

which the Secretary of the Interior has reopened prior

decisions in order to correct error. E.g., West v. Stqnd-

ard Oil Co., 278 US. 200 (1929). Plaintiff argues that,

‘since the Secretary has-.retained jurisdiction over the dis-

puted land in-this case, it follows ineluctably that he must.

reopen the 1929 decisions’ and correct any errors there ap-

-. pearing. The premise does not. beget the conclusion.

We need not consider whether the power to reopen prior

decision is merely discretionary with the Seeretary® or

8 The Shaie Oil Company; J. C. Nelson, et al.3 both supra note 2.

. Fosdick v. Shackleford, supra note 2. |

* Cf. 3 FREZMAN, Jupements, § 1297 (5th ed. 1925).

6 Johnnie E. Whitted, Bill Smith, 61.1.D. 172. _

2 hb eee

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whether, jridecd, the errors wea by plaintiff demonstrate

that ‘‘manifest injustice has been done or the law clearly

misapplied.’” as is required. for reopening. Even if we,

“assume that Gabbs has met these threshold objections,

plaintiff’s argument cannot prevail. The Department of

‘the Interior, which has recognized the right of the Secre-

tary to reconsider certain’ prior decisions," has also recog. -

nized that there must be some fime limit-on such reconsid-

eration. As Assistant, Attorney General Van Devanter

said in Aspen Consolidated. Mining aa v. WwW illiams, 27-L. D.

1, at 11: ,

>

‘*The parties remain thesame and the one complaining

of the former decision. has, taken timely and decisive ~

action to have the alleged wrong corrected.”’

Here neither plaintiff nor its predecessors in interest

took timely action to have the wrong righted, and plaintiff »

cannot complain of the Seeretary’s failure to reopen the

ease. It is significant also that in all the cases cited to us

in, which a prior decision was reopened the longest period

elapsing before’ reconsideration was three years. Here

twenty-seven years have elapsed between the alleged rong

(1929) and plaintiff's attempt to have it correctefl (1956).

There might be some reason-to impel the Secretary to re-

open a prior decision in order to purge an incorrect deter-

mination, but the passage of time might prevent or greatly

hinder a-proper determination of the initial question, ia

which case it would be inappropriate for him to reopen

4

7 Parcher vy. Gillen, 26 L.D. 34, at 43: .

8 Gage v. Atwater, 21 L.D. 211; Osborn v. Knight, 23 L D. 216;

Parcher v. Gillen, supra note 7; Cagle v. Mendenhall, 26 L.D. 177;

Seiras v. Glazier, 26 L.D. 49; Aspen Consolidated Mining Co. v.

Williams, 27 L.D..1; Ernest .B. Gates (on rehearing), 41° L.D. 384;

Howard A. Robinson, 43 L.D. 221; The Shale Oil Company, supra

note 3; Earl C..Presley, David Esplin, et al., Interveners, is distin-

guishable since the case did not involvé reconsideration. of a prior

adjudication, but rather the impropriety of the original granting

of a license.

“AS

the case even though he. retains jurisdiction over the land

‘in dispute. This is such a case, for it is now ‘difficult, if

- not impossible, for the Secretary to determine the facts

‘as to the original abandonment in E929. Further, nowhere

does plaintiff offer any facts showing that its predeces-

sors in interest had not abandoned the claims in 1929. This

is certainly not & case in which the court should order re-

opening of the initial contest. Nothing in West v. Stand:

ard Owl Comp ompany, supra, casts the — coment on this

conclusion. : =

. It follows that tlie judgment of the District Court must

be ms is .

: ° _ Affirmed

: APPENDIX B-

JUDGMENTS BELOW

“ (1) Judgment of Affirmance

[Capt ion Omitted]

PPEAL . FROM the United States District Court. for the

Di trict of Columbie. °

. J —-

enn

Tris CAUSE came on to becheard on the record on appeal

from the United States: District Court for the District of

Columbia, ‘and was argued by counsel. —

Ox, CONSIDERATION WHEREOF It. is ordered and adjudged

"by ‘this Court that the judgment of the Distriet Court

ppealed from in this cause be, and it is hereby, affirmed. -

. | Per c ireuit Judge Bastian.

Dated: FEB 14 1963

Before: Ww ilbur_K. Miller, ‘Bastian amd cli Cirguit ©

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Reb aay See ae

s (2) Order Denying Rehearing

[Caption Omitted |

Before: “‘Bazelon, Chief Judge, and Edgerton, Miller,

Fahy, W ashington, Danaher, Bastian, iad and W /rigat,

Cireuit one | in Chambers.

ORDER .

On conSdderation of appellant’ s petition for rehearing

en bane, itis . .

Onperep*by the court en bane that the petition is hereby

denied. oe 7

‘Per Curiam

Dated: MAR 26 1963 |

APPENDIX C ee

STATUTES INVOLVED

1. RS. § 28: o4. as ifmended, now 30 U.S.C. -§ 28, provides

in pertinent part as follows : Sues

Ҥ 28. Mining district regulations by miners; annual labor

_ on Claims pending issue of a eats expenditure on tunnels’

" considered ’ :

“The miners of each mining district may make

regulations not in conflict witl? the laws of the United.

States, or with the laws of ‘the State or Territéry

in which the district is situated, governing the loea-

tion, manner of recording, amount of work necessary

to hold possession of a mining claim, subject’ to the.

following requirements: The location must bey dis

tinetly marked on the ground so that its beiiibelen

ean be readily traced. All records of mining ‘claims

made after May 10, IS72, shall contain the name or

mames of the locators, the date of the location, and

such.a description of the clafin or claims located “by

reference to some natural object or permanent nonu-

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‘ment as will identify the claim. On each claim located

after the 10th day of May 1872, and until a patent

»has been issued therefor, not less than $100. worth of

labor shall"be performed or improvements made during

each year. On all claims located prior to tne 10th

day of May 1872, $10 worth of labor shall he porforméd

or improvements made each year, for each one hundred’

eet-in length along the vein until a patent has been |

isstfed therefor; but where such claims are held in

common, such expenditure may be made upon any one

élaim; and upon a failure-to. comply with these con-

‘ ditions, the claim .or mine rpon which such failure

occurred shall be open to relocation in the same manner

Yas if no location of the same had evér been made,

‘provided that the origitial-locators, their heirs, assigns,

‘or legal representatives, haveenot resumed work upon

-the claim after failure:and before such location, Upon

the failure of any one of several coowners to eon-

tribute his proportion of the expenditures required

-hereby, tiie coowners who. have performed the labor |

or made the improvements may, at the expiration of

the year, give such delinquent coowner personal notice

in writing or notice by publication in the newspaper

published nearest the: claim, for. at least once a week

for ninety days, and if at the expiration of ninety

days after, such notice in writing ‘or by, , publicatgon

such delinquent should fail or refuse to contribute his

proportion of the expenditure required by this see-

tion, his interest in the claim shall become the property

of his coowners who have made the required expendi-

tures. The period within which the work required to

be done annually on al! unpatented mineral claims

Jocated since May 10, 1872, including such elaims in

‘the Territory of Alaska, shall commence at 12 0’cloek -

meridian on the Ist day of July succeeding the date of

locationof such claim. Woe

; one

are ae ay ao

2. RS. 2326, now 30.0.S.¢ 5 30, provides as fait

"s 90. Adverse claim: proceedings and subsequent filing of

' judgment gee 1 by successful claimant

‘*Where an adverse claim is filed during the period

of publication, it shall be upon oath of the person or

persons making the.same, and shall show the nature,

‘boundaries, and ‘extent of ‘such adverse claim, and: all

proceedings, except? the publi&tion of notice ‘and mak- -

ing and filing of the affidavit thereof, shall be stay ed.

until the controversy. shall have been settled or decided

by a court of competent jurisdiction, or the adverse

claim waived. It shall be the duty of the adverse.

claimant, within thirty days after filing his claim, to

-commence proceedings ‘in a court of competent juris-

diction, to determine thé question of? the wright of

possession, and prosecute the same with, reasonable,

diligence to final judgment; and a failure so to do.

» a ¢

Shall be a waiver of his adverse elaim. After sach

judgment shall have been rendered, the party entitled

to the possession of*the claim, or any portion thereot,

may, Without‘giving further notice, file‘a certified eopy

of the judgment, roll with the register of the land office,

together with the certificate of the United States‘super-

visor of surveys that the requisite amount of -labor

has been expended or improvements made thereon,

and the description required in other cases, and shall

pay, to the register $5 per acre tor his elaim, together

wit} the proper fees, w hereupon the whole proceedings

and the judgment roll shall be certified by the register

to the Commissioner of the General Land Office, and

a patent shall issue thereon for the elaim, or such

portion thereof as the applicant shall appear, from

the decision of ‘the court, to. rightly possess. If it

appears, from the decision of the court that several

parties am entitted to separate. and ditferent: portions

of the claim, each party may pay for his portion of

the claim, with the proper fees, and file the certificate

.

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and description by the United rere supervisor of

surveys, Whereupon the register shall certify the .pro-

ceedings. and judgment roll@® the Commissioner of

the General Land Office, as in the’ preceding case, and

patents shall issue ‘to the several parties according

to their respective rights. Nothing herein containede

shall be construed to prevent the ‘alienation of the

title conveyed by a patent-for a mining claim to any

person whatever.”’

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