Brief in Opposition to Petition for Writ of Certiorari — Lewis v. United States

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INDEX

; Page

- Opinion OE SRE ay En: Cn emen yaes meyer ne mr

Juntetietee. ... cnc ccececnes Peas Preps Reet ee nora Rs Th

Question presented... .-_---------------------"-------

- Statutes involved_..------------------------- Limedeanuie

Statement_--..---.--------------+-----2---4-24--°2"

aAwndnd He

CITATIONS

Cases:

Great ‘Neate Ry. Co. v. United States, 315 US. 262>- 4

United States v. Union Pacific R. Co., 353 U.S. 112... 3,4

’ Statutes: cae

Act of July 1, 1362, (Gite OD. ..noccccdcsenennce,

Section 2, 12 Stat. ee ae oe

_ Section 3, 12 Stat. 492-_--------------- pamela

Act of July 2, 1864, 13 Stat. 356_-------- summit a *

| Section 4, 13 Stat. 358---.-.------------- ‘ehnininien oe

Act of March 3, 1875, 18 Stat. 482, 43 U.S. a 934___-

Act of July. 10, 1890, 26 Stat, 222......------------ 2,

Right of Way Leasing Act of May 21, 1930, 46 Stat.

373, BUSA. 301, 303. -....--=---- IPocceneceses % 3,4,

(1)

: 278-612—67—1

“

ae

an te Supreme Gow ft the ried nes

OcToBER ‘TERM, 1967

| No. 601 ; 7

| THE dive OF Wyoming AND Guus On, Conponatiox, ae

PETITIONERS =

uv, aus

Stewart L. ea: ET AL.

- ON PRTITION FOR A WRIT “OF OF IORARI TO THE UNITED

STATES. COURT OF APPEALS FOR THE TENTH CIRCUIT

| ‘IRIEF I OPPOSITION |

— j

OPINION —s

‘The opinion of. thé “oak of appeals (Pet. App. .

XXX-KXXIX)/ is reported at.379 F. 2d: 635.

| JURISDICTION | )

The judgment. of the court of appeals was entered,

on June 14, 1967 (Pet. App. x1). The petition for-a

writ of certiorari was filed on September 11, 1967.

_ The. jurisdiction of this Court is invoked under 28

U.S.C., a ) ay

enateles pumuwrep cee

Whether oil and gas deposits retained by ‘the

- United States in a railroad right of way grant under

os Ww

the Act of July 1, 1862, 12 Stat. 489, passed to the

_ State of Wyoming under the Act of July. 10, -4890,

Pe 26 Stat. 929. : |

fa STATUTES INVOLVED —

Insofar as is here relevant, the Act of J uly 10,

a 1890, 26 Stat. 222, ‘provides:

| Sec. 4° That. sections numbered sitiois and

thirty-six in every township of said proposed

State, and where such sections, or any parts

thereof, have been sold or otherwise disposed

of by. or under the atithority of any act of Con- »

gress, other lands equivalent thereto, * * *.

Sections 2 and 3 of the Act of July 1, 1862, 12 Stat.

489, 491-492, ‘Section 4 of the Act of July 2, 1864,

13 Stat. 356, 358, amending the Act of July 1, 1862,

and the pertinent provisions of the Right of Way

Leasing Act of May 21, 1930, 46 Stat. 373, 30 U.S.C. _

301, wm are panies: at Pet. 3-1.

at he? STATEMENT _ .

_ Pursuant to the Act of July 1, 1862, 12 Stat. 489,

as amended by the Act of July 2, 1864, 13 Stat. 356,

the- United States conveyed a right of way to a prede-

% PEE -Gessor of the Union Pacific Railroad Company. The

_ eonveyanee became effective on December 20, 1884,

sae : when the plat of survey. of the line was approved.

te Subsequently, the government’s title to: certain sec-

tions in each township passed to the State of Wy-

> oming: for ' school purposes upon -its admission. to

jy + the Union. Act of July 10, 1890, 26 Stat. 222. The

-right of way in question lies in siich a section.

On October 2, 1952, the State of Wyoming leased

the entire section for the removal of oil and gas to an

.

‘ . i

. e « . " .

mee es re

. « . .

‘individual who later assigned the lease to the Gulf

Oil Corporation. The lease made no reference to the

right of way, and: purported to embrace the. full

acreage in the section. _

In 1960, Union Pacific successfully auntie under

_ the provisions ‘of the Act of May 21, 1930, 46 Stat.

373, 30 U.S.C. 301, for a right of way oil and gas

lease. The Secretary of the Interior ruled that the

‘ mineral rights underlying the right of way had been

reserved to the United States in the right of way

_ grant and had not to the State by the Act of

July 10, 1890, admitting Wyoming to statehood.

This present action’ was then commenced in a fed-

eral district court, seeking relief from the Secyetary’s

decision. The district court dismissed the complaint

and, on appeal, the court of appeals affirmed. Thé

basis of its decision was—

that the congressional intent was that if part

of any section to be granted for school pur-

' poses had been disposed of under an act of

_ Congress, the.state on admission did not get

that part of the section. The right to select.

lieu lands. was given but the failure“to exercise |

that right does not enlarge the grant.

ARGUMENT

1. The decision of the court of appeals is correct.

It is true that: this Court in United States v. Union

Pacific R. Co., 353 U.S. 112,. held that the oil and ~

’. gas deposits underlying the right of way gtanted pur-

’ guant to the Acts of July 1, 1862, and July 4, 1864, did

not pass to the railroad, but were retained by’ the United

States. However, this does not mean that the con-

*

— —

veyance was of a mere surface easement. As the court

.of appeals pointed out (Pet. App. xxxviii), under

Section 4 of the 1864 Act the railroad was granted

the right to extract coal and iron, indicating that

more than a mere surface easement had been granted. :

No interest in the strip passed to the State. The dif-

ferent conclusion sought by petitioners—vesting in

them the rights to the underlying oil and gas—would,

‘ as noted by the court of appeals (Pet. App. xxxvi),

render nugatory subsequent statutes specifically dealing —

with the retained oil and gas deposits—including the

very Act (Act of May 21, 1930, 30 U.S.C. 301, 303)

under which the Secretary issued an oil, and ol lease

to Union Pacific in this case.

2. The decision is notin conflict with any decision —

of this Court or of any other court of appeals, and -

involves only the application of an historic distine-

‘ tion between 1862 and 1864 right of way grants, on

the one hand, and easements under the Act of March

3, 1875, 18 Stat. 482, 48 U.S.C. 934 et seq., on the

other. See Union Pacific, supra, and Great Northern

Ry. Co. v. United States, 315 U.S. 262. Moreover,

the precise extent: of these. nineteenth century grants

is of limited ee a

5

| | CONCLUSION .

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

- Respectfully submitted. |

: eck. Ratpu: S. SPRITZER, |

Acting Solicitor General.

_ Epwin L. WEIst, Jr.,

Assistant Attorney General. —

; Z ‘Rocrr P. Marquis,

a, A Epmunp B. C.arK,

3 _ 3 Attorneys.

OcTOBER 1967.

re

; U.S, GOVERNMENT PRINTING OFFICE: 1967