# Appendix — Gabbs Exploration Co. v. Udall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1104%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1963 - **Citation:** 375 U.S. 822 ## Text Al - APPENDIX A OPINION BELOW i UNITED STATES COURT OF APPEALS \ FOR THE DISTRICT OF-COLUMBIA CIRCUIT be « No. 16,803 —- GabBg Exploration CoMPANY, APPELLANT + j > 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 A2 _ 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 & | Ad ‘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- bi Pog srg a 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. A6 ‘ 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 AZT 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 © ae . a) é 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 “§ 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- 2 . * A10_ ‘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 . «y os we ™ f 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.”’ Al2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1104%3A3. Public record. Not legal advice.