Petition for Writ of Certiorari — Honchok v. Butz

Supreme Court brief1972

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IN THE

Supreme Court of the Unites States:

October Term, 197]

— ~

G. PETER HONCHOK and R. DOYLE GRABAREK, °

individually, and = as President of THE -NORTH

AMERICAN HABITAT PRESERVATION SOCIETY,

a citizens conservation organization, and in behalf of

all others similarly situated, | Sos

. . Petitioners, »

Vv.

CLIFFORD M. HARDIN, Secretary of Agriculture of

the United States, a Maryland resident; AMERICAN

SMELTING & REFINING COMPANY, a Delaware —

corporation, © ; .

oe - Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

’ STATES CIRCUIT COURT OF APPEALS ic

’ FOURTH. CIRCUIT

~ LEONARD J. KERPELMAN,

2403 Rogers Building

‘Baltimore, Maryland 21209 ©

_ SA 7-8700 - |

Attorney for Petitioners.

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INDEX

TABLE OF CONTENTS

(AP REPORTS BRILOW. erase ae ay

(B) GROUNDS FOR INVOKING JURISDICTION . .

OF THIS COURT placate gay ee ssl Roe Erin es

(©) QUESTIONS PRESENTED FOR REVIEW ... A eee

* (D) CONSTITUTIONAL PROVISIONS AND.

STATUTES Pave Vey pEE es a een Sari ie

(E)STAT EMENT OF THE CASE... yee bogie bac R Ae 4

(G). FEDERAL JURISDICTION IN COURT a

at Ue SPOR PROM sarge Ss Sle aise ah ae ee ae

ARGUMENT:—

LS eae Bet Dae, ee perastch ee te es ie ss

Gifford Pinchot on.the Subject Ree pg ee cg es 10

These Lands are Held in Trust . pee sh nee RO a ers 11

The Nature of this Trust ........ ean Ce ear 12

This May Be a New Type of Trust

in Which the Purposes Change

UE tap Bigites! bre Actes gan ee <a ee

Ran ee BO COR ee as 8 oe ee ea 16. .

All the Peach Trees and Potatoes ce

Have Been Planted ........ aan eS ASIN per aek & 4)

Article IV,'Cl..2, May Be Simply a :

<r SY S ERNIE 5 ok pa totes ys SOE

*-Due Process; Absence of Standards:

PUMICE OE. TINS os a. a os eS ae te ee 8 18

What Are “Valuable Mineral Deposits” 9 Pe aa are 18

Public Opinion Has Changed ..:....0........-4 19

- Ninth Amendment Argument....... ieee ee Sees. 3B

Page

COMETUSION: os ote): Oe tee 228

APPENDIX: : |

District Court Opinion ...... ee Eira ee tet ae . 1A

Fourth Circuit Court Opinion ... . . ee Be eee

TABLE OF CITATIONS

Cases

Adams v. U.S., C.A. Calif. 1963, 318 F.2d 861 ......%-.. 18 |

Amory. v. Attorney General, 179 Mass: 69 ..:... 72.03... .15-

City of Englewood v.Allyson, 1957. 133 A.2d 680 ...... 216

Coleman v. U.S., C:.A. Calif. 1966. 363 F.2d 100°... .\°. 218 -

Morgan County National Bank v. Nelson, 1943,

ES pce WOW AMUN es a a ee ee ee

.. Pruess v. Reyes, D.C., Oreg. 1968. 286 r. ae 138°

_ Aff. 410 F.2d 750, _Cert. Dén., 90 S. Ct. 446,

PEE OE Sk oh ee eels bees Sure 18

- Rolfe and Rumford v. Lefebre, 69°n. i" 238. 45 A. 1087- .15

'. Sauvage v. Gallaway, 1947, 73 N-E. 2d 133 (ill.) 2.20.2. .16

a. rea, Sac US IS ee a -- 21215,17

Statutes, Constitutional Provisions

and Texts

Article IV, CL bE Pa Wee ee en shen eee

Bogert, rae Or the baw OF Press, | ee. 12

Bogert on Trusts, 3d Edition, Chapter II, "i. a 14

CO. CUMMINGS 6 2S ka LE are et eee k ere aera re ete

Fifth Amendment -............ Steg ny pa ON atest PESTS 3

Gifford Pinchot, ‘The ee ee ee es en 10.

‘Hon. Jchn P.-Saylor, M.C.,. Penna. .:..:2... Pee an,

ees ae Oe oe oe ee ee Se ee 311,18

Ninth Amendment... ... she ke Sh az Cs ee pate eee oP

IN THE

Supreme Court of the United States.

October Term. 1971 -

ie +

G. PETER. HONCHOK end R. DOYLE GRABARCK.

individually, and as President of THE NORTH.

AMERICAN HABITAT PRESERVATION SOCIETY,

_ a citizens conservation. ‘organization, and in behalf of

all others similarly situated, —

Peti sienna

CLIFFORD M. HARDIN, Secretary of Nipitubbins of

the United States, a Maryland resident: AMERICAN

SMELTING & REFINING COMPANY. a Delaware

corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

_ STATES CIRCUIT COURT OF APPEALS

‘FOURTH CIRCUIT ~

A. REPORTS BELOW

- The “opinion of the United States Disttict Court-

‘Thomsen, J., is reported at 326 F. Supp. 988. That opinion is °

also Sepended hereto; the Per Curiam Opinion of the United

States. Circuit Court of Appeals, Fourth Circuit, is reported at

Fad. and is appended hereto. also, immediately

following Judge Thomsen’s Opinion.

B. GROUNDS FOR INVOKING ~~...

JURISDICTION OF THIS COURT

nae. eae) es

The judgment of the United States Court of Appeals for

-the Fourth, Circuit - was rendered on December 2.1971, and,

entered the same day. It was a two line Per Curiain Opinion.

No re-hearing was requested, .nor .any Order granting an

extension of time within which to file a petition for certiorari;

jurisdiction of this Court is believed to be conferted pursuant _

te 28 U.S.C... 1257(3), there having. been asserted. below and_

claimed here, denials of rights, privileges, and immunities

‘secured by the Fifth and. Ninth Amendments to the

Constitution of the United States. The United States Court of

Appeals forthe Fourth Circuit ruled-upon these said matters of ©

denial of ‘rights, privileges and immunities Unfavorably to the —

Petitioners. | ) ;

C. THE QUESTIONS PRESENTED FOR REVIEW

Can a land law passed by Congress in 1872 for the

‘ purpose of enabling a “settler” to “... build (his)

little home... raise his peach tiees and potatoes and

conduct his mining and farming operations... .”,

now be used without restraint for’ the stockholder.

profits of a huge corporation and as an

instrumentality in raping the lands of a breathtakingly

beautiful national forest? . o

a *

. Are public lands held in trust? . (—

. What are the terms of the trust?

3.. Does constitutionally valid administration , of the

Mining Act of 1872 require: that the Secretary of Agriculture

~ take preliminary ‘action .to, evaluate proposed destructive

schemes before permitting fheir operation on public lands _

under his control?

4. Has the Mining Act of 1872, by virtue of the passage

of time and disappearance of natural unspoiled areas of publié

land, become constitutionally invalid on its face under the ~

Fifth and Ninth Amendments? Pe

. Does the .Fifth Amendment prohibit a land- destructive

sdee which. will effectuate the collection of a billion dollars :

worth of. molybdenum - for the primary benefit of / ‘some

private stockholders of a Delaware corporation at the expense

of the despoilation of- one of the. most beautiful areas of

Idaho? te

6. Does aS Ninth Amendment, reserving certain rights to

the people prohibit the aemeene

. ‘

7. Does not every trust, specifically’a trust-held property

interest of the United States, have limitations upon the

wasting of the corpus of the trust, so that where Congress has ©

ostensibly granted statutory authority for ‘such waste, it has

. enacted only P nugatory statute? |

. a . - 2b

e . - e : . .

. ‘ . ‘

$2 pid The Secretary y Agriculture crroncously fail to

_= Fequire a showing by the Defendant, American Smelting, that

* the mineral deposits sought were “valuable”, as defined in |

Title 30, Section 29, and does not that Section neeessarily

define “valuable”, by implication, as taking into account both

the benefit to the public, and the detriment? _ .

9. Did not the Secretary of Agriculture utterly and

illegajly fail to pass Regulations and enforce standards which —

would properly protect the’ public. lands as the corpus of a

i os as | aes =

10. Is not the proper interpretation of U.S. Constitution, |

Art. IV, Sec. 3, Cl. 2 WCongress shall have power_to

dispose...) merely a conveyancing device, to provide

simply for authorization for someone to validly sign Deeds?

ee ED CT LE

Pt ee re ee on ee Wee ee

a CONSTITUTIONAL PROVISIONS

_-AND STATUTES INVOLVED

The case involves the following:

[. A portion’ of the Fifth Amendment _to. the

Constitution. of the United States:

“No person shall...be deprived. of life.

‘liberty, or property, without due process of -

”

Rs Sas 5 4 ae

2. The Ninth Amendment to the Constitution of he

wees states:

-“The enumeration in the Constitution of

‘ certain rights, shall not be construed to deny

of disparage others retained by the People.”

‘ ; P

3. Article IV, Section 3. Ch 2. of the Constitution of

the vanes States:

“The G ongress shall have aon to ini of —

‘and make all needfwl Rules and Regulations

respecting the _ Territory—or- other Property ;

belonging to the — anaes .

(The Plaintiffs peace that this is a mere conveyancing

device; the Courts have invariably held it was far more — a

complete dispositive power vested in Cc ongress. The clause

‘does not say full power.) .

4. That suai a the Mining Act of 1872. which

provides:

_ “Except = ctherwiseprovided.—alt-vatuabte———

ae mineral ~. osits in lands belong to the .

Unite’ St es, both surveyed and unsurveyed,

- shall be free and open to exploration and .

_ purchase, and’ the lands in’ which they are

fourm to vecapatie.: and purchase, by

citizens of +e United States, and those who

have «\‘clared their intention to become such

unde regulatious - prescribed by law and :

according to locri customs or rules of miners

“- jn .s2 several mining districts, so far as the

same ... applicel e¢ 2nd not inconsistent with .

the laws of the iuted States.”

The statute is 'r' ond at 30 U.S.C., Sec. 22 (1964). |

E. S AEMENT OF THE CASE

In 1872, almu <xactly one’ hundred ‘years ago, Congress

passed an Act, tieseafter called the Mining Act of 1872. |

which, : in the course of the debates, was characterized in -

purpose as fuilows: . |

“Now, Sir, this iegislation -was originally an

experiment... Some thought .... the

government. . ought to keep control of the precious

metals, and hence it was rot advisable for the mines

to pass out of its own hands into the ‘hands of its

people. But it was argued that these people were to a

great extent no.nadic and unsettled, in one section

this year and ‘next year in some other place, and it

was necessary to attach them to the soil so that they

_ would. make ‘sore permanent improvements and

acquire for themselves lands which they could

improve, upow <hich they could build their little

homes. Where agr cultural land was cofinécted with

mining lands, and these are almost inextricably

intermixed, the miner would make his improvements,

cultivate his. land, raise his peach trees and potatoes,

and conduct his mining and farming operations at the

same time, or at different: times of the year, and the

result would be a more settled community, and the

creation of more taxable property to the benefit of

-* both the States and General Governments.” (Emph.

Supp.) —The Congressional Globe, January 23, 1872,

page 534.

Subsequently, Lo and Behold!, ‘the nation did expand

wearteand, the western territories were settled, prospectors did

enter the public lands, some of them giving up their former

wayward and nomadic form of life, and establishing settled

communities. Meanwhile, others in. the same society were

busy forming corporations, conglomerating, floating stock

issues, expanding, buying up mining claims, and, in general,

these others were becoming huge and powerful and politically

influential corporations, which is by all means, not to say that

they did not cause also, great economic benefit to society.

But now, westward expansion of the nation has been

___conchuded—and—“interior™ expansion also, which is to say that

substantially all available exploitable lands have become taken

up by private, frequently corporate, interests. ©

Meanwhile, also, and much more recently, people began

to gaze about them and find that one could no longer see the

clear and distant horizon for the smog; one could no longer

expand one’s chest to suck in the pure air of nature; one

could. no longer. in -many instances, see a tree at all, since the

billboards were notoriously ill-inclined to fall, being supported

by. strong economic buttresses; and suddenly one found

Yellowstone Park paved wall to wail with: trailers and

6 as ?

campers, nature trails paved with: beer cans,- people

everywhere, nature shrinking and shrivelling in dismay, and

‘ee. cummings being led to exclaim, “... This world, is all ;

* aleak/And life preservers there are none.”

So that when American Smelting & Refining Company,

‘with the blessirig of the Secretary. of Agriculture, both —

Defendants here, decided it was time ‘to construct a huge

open pit (strip) mine in the forefront of beautiful Castle Peak

in the White Clouds. Mountains in. Idaho, in the Challis-

National Forest, the Plaintiffs were so aghast that they sued,

claiming that the congressional enactment, with the passage of .

time, had become a taking up of property equitably owned

by the Plaintiffs as cestui que trust in common with all other

citizeris of the United States, and that the taking was without

Due Process of law, “and: without just compensation, in

violation of. the Fifth and Ninth Amendments: they also

complained about the non-existent niceties (absence of

Regulations) in the Secretary’s administration of the Mining

Act of 1872. The 1872 Mining Act, it should be said,

purportedly gave everyone the right to prospect, perfect, and

work any mining claim which turned up “valuable mineral

deposits” in the public lands.

Plaintiffs are a citizen of West Virginia and a citizen of

Maryland; the latter sues-individually, and as, President of The

North American Habitat Preservation Society, a Pennsylvania

corporation (also a Plaintiff). The corporation is alleged to be

a conservation organization with over four thousand members,

moily young, who are interested in the preservation of a

“viable habitat and environment” , and who have and will

participate in “all the valid uses of the national forest, including

recreational, environment-preservation uses, and just looking

and having.” (Paragraph 3 of the Complaint.)

ee eS oe

The Plaintiffs sue in their own behalf, and on behalf of

all others similarly situated.

The Plaintiffs allege that the corporate Defendant was

preparing to mine molybdenum in the Challis National Forest,

and had applied to the Secretary for-a “road permit”, which —

the Secretary intended to grant. |

The Plaintiffs sought (1) a Declaratory Judgment that the

Mining “Act of 1872 (Act of May 10, 1872, c. 152.17 Stat.

91, 30° U.S.C.A. 21, ets. seq.) is unconstitutional; (2) an

Injunction restraining the~ Secretary of Agriculture or

American Smelting and Refining Company, Defendants, from

implementing arfy mining or other claim validation provisions

of said Act, because of “repugnance to the Constitution of

‘the United States, and that the Secretary be restrained and

enjoined from trespassing upon the Challis National Forest for

the purpose of conducting mining operations or explorations”;

(3) a Mandatory Iniunction directing the Secretary “‘to

exercise his ministerial duty which exists, of preventing:

destructive trespasses upon any national forest, and more

particularly, upon the C hallis National Forest, and to prevent

~-the-entry~of -persons whose intention is to mine or prospect

thereon”; and (4) for such other and further relief as the

nature of the case may require.

The complaint also alleged facts, such as the following,

which, on the state of the pleadings, and for the purposes of

the case, are assumed to be true, such as:

A. (See Complaint, Para. 5) *

- | 8

The Defendant company is engaged in the

despoilation by prospecting of Challis National Forest

lands: its plans include digging, scraping, dumping of |

hundreds of millions of tons of soil and rock, and.

tailings, road building, factory construction, ore

smelting, all ‘in the national forest. . me

B. (See Complaint, Para. 6.)

/ p i?

In 1872, there was a_ necessity which was in

-furtherance of the public welfare to develop. these.

lands.

C. (See Complaint, Para. 7.)

Today, there are left in the United States, but few

wilderness -. areas, virgin forests, — undisturbed

woodlands, wild lands, and forests of various sorts

which have not as yet been “developed”, and which,

in fact, have become a rarity, while the population of

the United States has increased from 41,972,000 in

- 1872, to 203,000,000 in 1970.

D. (See Complaint, Para. 8)

There is presently in the United States a one hundred

year known reserve supply of the ore of

molybdenum, which is the mineral sought by the’

Defendant company. =

The court below, in its consideration of the ‘case, in

terms, stated that it considered tiic Plaintiffs to have relied on

the Fifth and Ninth Amendments. (Order of June 9, 1971.)

9 °

ns Ree

G., FEDERAL JURISDICTION IN THE

COURT OF FIRST INSTANCE

Jurisdiction below was claimed under 28 U.S.C. 1331(a),

1332(a), and 1361, venue under 28 U.S.C. 1391(a), (b). (c),

and (e): A Three Judge Court was requested under 28 U‘S.C.

2282.

It was alleged that the Sicpkeny of Agriculture resided in °

Maryland, and that the corporate Defendant. a Delaware

. corporation, with its principal office in New York, regularly

carries on business in Maryland; the Secretary moved. to

dismiss for lack of jurisdiction and venue.for lack of standing,

“and on the merits. The corporate Defendant did not question

jurisdiction or “venue, but moved to dismiss. for lack of

standing, and lack of a substantial constitutional question.

(See also* the Court’s Opinion (Thomsen, J.), pp. 1-3, for

substantially a reiteration of the Statement of Facts by the

Court).

ARGUMENT

In General

In a. paper entitled ‘Myths Surrounding the Public Land

_Law Review Commission’s Work”, by Hon. John P. Saylor,

M.C., Pennsylvania, which is attached hereto in the Appendix

to the Plaintiff's Brief below, Representative Saylor had this

to say: |

_ “The Constitution of the United States is nearly two

hundred years old and it is still a sound. workable

document. The Mining Law is nearly one hundred °

vears on and it is an abomination, an insult to the

people of the United States... (emphasis supplied)

“Human Nature has not changed much since the

Constitution was written, so there is little need to

change that document. The | technology = and

economics of the mineral . industry “today are «

unbelievably different from those prevailing when’ the.

- Mining Law was adopted.”

Gifford Pinchot on the Subject

Gifford Pinchot was the father -of our-national forests and

‘parks. , |

In the foreward to a simple and homely children’s book

‘called “The Land We Live In”, by Price (whom Pinchot

characterizes as “for many “years my right hand in the Forest

Service’), Pinchot addresses the young people of his country,

‘ for whom he had estattished ‘the marvelous inheritance which

our public lands still, thankfully, largely constitute. It does

this Court honor, Counsel js sure,: to quote that same

statement, directed by Pinchot to the nation’ s chiJdren:

. Most of our boys and ‘girls éiready’ understand

that this is their country just .as much as it is the

country of their fathers and mothers. But that is not ~

the whole truth. For ‘this country of ours belongs far

more truly to the boys and girls than it does to us

older people. They will live in it and enjoy it longer

than we shall; and everthing that happens in it, every

bit of waste, and every saving of waste, will effect

their lives more than it does ours. We are only the

trustees, -taking care of the country for them until

they are ready to take care of it themselves. And

when that time comes, they will then become in their

turn what we are now-—trustees for those who are —

coming afterward.”’ (Emphasis Supplied)

In TOTTI!”

_ What a splendid statement, yet in the simplest of terms,

of the basic and fundamental characteristic of this

trusteeship—the statement that ti:c trust ownership, excludes

consumption or expenditure of the trust property.

That is the fundamental question of this appéal. Does

Congress have a fee interest in the public lands, or a trust

interest? If a fee interest, the 1872 Mining Act is,

constitutional; if a trust. interest, then it is respectfully

suggested that the 1872 Mining Act, though constitutional in

1872, is clearly unconstitutional now, as applied to the

‘wasting of lands in the Challis National Forest.

The Court -is respectfully urged to note that the

constitutional provision in question (Art. IV, Sec: 3, Cl. 2),

while giving Congress power over United State’s lands, does

not, in terms, give “FULL”’ power. .

These Lands Are Held in Trust

' Due oe, oe

In 1947, Mr. Justice Black, speaking for the Court in the °

case of United States v. California, 332 U.S. 19, said:

“The government which holds its interests here as

elsewhere in trust for all the people, is not to be

‘deprived of those interests by the ordinary court -rules

designed particularly for private disputes over

individually owned pieces of property: and .officers

who have no authority at all to dispose of

Government property cannot by their conduct cause

the Government to lose its valuable fights: by their

acquiescense, laches, or failure to act.”

12°)

United States v. California was an offshore lands case. By

its trust language, it implies a number of Pan posniane which

are of assistance to the Plaintiffs including: .

“iW

1. The United States holds all interests in lands

trust for all the people.”

2. Ordinary rules and ofdinary applications would

seem to not apply to government lands which are

held, “in trust for all the people” but they -are-

given a special, a privileged consideration.

It is the Plaintiffs theory that this consideration should

govern in the present case, and that this consideration requires

that the lands not be dissipated.and frittered away for private

purposes nor, in fact, for any purpose which is opposed to

the interest of “all the people”

The Nature of This Trust

In United-Siates ¥. California, supra, the Supréme Court

stated that public lands. are held in trust, without indicating

anything about the nature of the trust.

However, once the fact of a trust is assumed, its nature is

very well set out by Common Law.

“A trust is a fiduciary relationship in which one

person is the holder of the title to property, subject

‘to‘an equitable obligation to keep or use the property

for the benefit of another.’

Handbook of the Law of Trusts, Bogert, sec. I.

“The trustee holds the property ‘for the benefit of .

the beneficiary...The duty. of the trustee is

enforceable by the beneficiary ... Many definers of

the trust make enforceability in a court of chancery

or equity, a part of their definition.”

' dbid.,

“A trustee’s powers . ..,are called ‘implied’ if they are

not set forth in the trust instrument in so many

words, but are deemed by equity to have‘ been

intended by the settlor because convenient. or-

necessary to the accomplishment of his trust

purposes.” a

Ibid., Sec. 88.

Any -Trustee. ie a se to Keep the Trust: “Property

Safely.

_-““Having obtained possession of the trust property, it

is the duty of the trustee to protect it. If there is

trespass upon or waste of the trust property, he

should bring the appropriate action...If real

property of the trust is en occupied, he

should eject the trespasser . ;

Ibid., Sec. 99.

These details of the trust question have never been

treated of by any Court. It is respectfully urged, mast

. strongly ‘urged, that the time has now come, when they

should be. :

Perhaps the Crucial Question

| Perhaps the crucial question is whether grant of a power

of sale to the trustee, the Congress, gives blanket os wast! to

sell whenever and wherever the trustee pleases. |

| |

| » Metiavataleitertwe @- geo «

14.

Certainly, the cestui has the right to raise the question.

“The cestui que trust can raise the question of the

power of the trustee to sell the trust property or the ©

propriety of the sale as conducted.”

Bogert ‘on Trusts, 3rd Ed., Chapter 15, p. 514.

“A court of equity has inherent power .to order or

forbid a sale of trust property: notwithstanding any

direction of the settlor, _

““The court of equity has inherent power to do

whatever is necessary to insure that the trust purpose

of the settlor, if lawful, is carried out.”

Ibid., Chapter 15, page 515.

\ ¥

See also Restatement, Trusts, Sec. 190.

Thus, although C ongress has the power of sale, this Court

has the distinct, in fact, inherent power to oversee that sale,

to see that the purposes of the trust are carried out.

This question has never been determined by a Court.

This May Be a New Type of Trust

in Which the Purposes Change With Time

Obviously, the land laws were instituted so. that the

citizens of the United States would get the best possible

benefit and use out of those lands which Congress had power _

_over.-

“45

At the time of passage of the law in question, the. lands

were being used to finance schools, to reimburse war veterans

for services, to expand the economy. — |

Obviously, those purposes, appropriate then, are not

nearly so appropriate now, as the saving of lands, thes

posserwatton intact and wild, and theig protection.

lh is feapectfully suggested that this is a trust in which

over the long period of time during which the trust subsists, it

could change, did change, and will change further, and that

the Court, as implied in U.S. v. California, should never allow

the. corpus to. be_used in ways which are inimical to the

interests of the cestui. i

Inherent power cases:

Amory y. Attorney General, 179 Mass. 69: Rolfe and

Rumford vy. —s 69 N.H. 238, 45 A. 1087.

Also note: As part of the same general control over trusts

which chancery has, it may forbid a sale, even though

directed by the settlor.. Bogert, Chapter 15, page 516, _— .

101 Md. 686, Bertron, et al v. Polke:

_ “The trustee has a duty to protect the trust property

against injury or destruction. He is obligated to the

. cestui to do all acts necessary for the -preservation of

the trust res which would be performed by a

reasonably prudent man employing his own like

property for ends similar to those of the trust.”

Ibid., Chapter 29, page 216.

’ PEPE E om

’ .

“The court has power to restrain a trustee from

' exercising a pow + of «ale which he has... ..”

Ibid., Chapter 35. page 587.

“Where a trustee has a power to sell realty, but

threatens to use it in such a way as to injure the

trust... by way of arbitrary or unreasonable action, ~

he may be enjoined from selling on application of a

beneficiary.”

Sauvage v. Gallaway, '947, 73 N.E.2d 133 (Illinois).

And see City of Englewood vy. Allyson; 1957, 133 A.2d

680 (N.J.). in which a trust was established to “maintain and

preserve the -integral beauty of the palisades in Englewood

Cliffs...~. and the Court by Order prohibited sale of the

property which was to have been used to maintam and

preserve the beauty o the palisades.

The inherent j».#er theory has never been treated of by

this Court. ,

Lack of Trust’ Directives

The absence of specific dire¢tion to the Congress

concerning this trust, it 1s respectfully argued, must mean that

the Court must supervise all dispositions of property when

requested by the cestui raising substantial objection -or

question. ‘

See Morgan County National Bank-v. Nelson, 1943, 13

So.2d 765 (Ala.). | ;

P— 2k 0 ORL, se

- This question has never been treated of by this Court.

All the ‘Peach Trees and

Potatoes Have Been Planted

The interests which “all the people” (see United States v.

California, supra) had in the passage of the original legislation

in question here, namely, the 1872 Mining Act, have run their

course, and have ended. It now is incumbent upon this Court,

as implied in U.S. v. California, to so indicate.

Article IV, Cl. 2. May Be .

‘Simply a Conveyancer’s Device

The “difficulty” of Art. IV, Sec. 3, Cl. 2 (Congress’

‘ .

power to “dispose’’) is readily resolved, too, moreover, when

it is remembered that the Farmers could readily see that it

was necessary to lodge the power of disposal of property, and

of executing valid conveyances, with some branch. of

government. Otherwise, property, real and personal, once

lodged in the United States, could never have been. divested. -

Thus, Clause 2 simply expresses the rational and practical

solution to the problem of which branch of government

would perform conveyancing, and does not,‘ it is respectfully

suggested, indicate, by any means, particularly when one

considers the state of mind of the Farmers, an intention to

give unfettered power to Congress to dispose of @roperties.

Certainly, that issue is resolved once and for all by the

adoption of the Fifth Amendment prohibiting Government

from depriving any person of property without Due Process

of Law. :

This question has never been treated of by this Court.

Due Process; Absence of Standards:

Absence of Regulations

To meet Due Process requirements, the Secretary of

Agriculture, who is charged with the disposal of ‘property in

this instance, must set some standards (which: he has. not

done,)}.or must make some requirements (which he has not

done), or conduct some hearings on public benefit (which he

has not done), to satisfy the frust under which title to the

land is undoubtedly held, as: expressed in U.S. v. California,

"supra. : |

This question, as to the Mining Act of 1872, has never

been treated of by this Court.

What Are “Valuable Mineral Deposits”?

_“AIl mining claims, to be valid, must meet the test, with

respect to the determination of whether there has been -

discovery of a valuable mineral deposit’. See Coleman vy.

United -- States, C.A. Calif. 1966, 363 F.2d 100; Adams yr.

United States, C.A. Calif. 1963, 318 F.2d 861; Pruess v.

Reyes, D.C. Oreg. 1968, 286 F. Supp. 138, Aff. 410 F.2d

750, Cert. Den., 90 S. Ct. 446, 396 U.S. 967. |

Those cases define a valuable mineral deposit as one of

such character that “a person of ordinary prudence would be

justified in further expenditure of labot and means, with

reasonable prospect of success, in developing a valuable

mine.”

~~ °

But what person of ordinary prudence?

An ordinarily prudent captain of industry?

An ordinarily prudent stockholder in American Smelting?

. ° /

An ordinarily prudent Parks and Forest Ranger?

An ordinarily prudent eastern, southern, or northwestern

United States citizen who never saw a mine?

Or a judicial officer, who sits to judge controversies

-among ail citizens, and is of ordinary prudence, so that he

would be inclined to take into account the public benefit to

all 203,000,000 Americans, as balanced up against the public

detriment. to 203,000,000 Americans, including those living in

a country over-expanded in population, suddenly

under-supplied with wild ‘and natural areas. and areas of

aesthetic beauty, recreation and repose?

Certainly, it is time to recortsider the question of what is

a “valuable deposit” in terms of meaningfulness to all.

This Court has never treated of this question.

- Public Opinion Has C hanged

It is significant that these lands lie in Idaho. and that in

Idaho in the last election for Governor, in 1970, Governor

Samuelson, who favored the exploitation— for whatever reason

he may have had—of these lands, was ousted from _public

office by an angry populace who ae the present

Governor. Hon. Cecil D. Andrus, on. an environmentalist

platform, which zeroed in on ane issue: The rape of the

White Clouds. This rape.

Surely the. citizens of Idaho are reasonably prudent.

Surely they know a valuable mineral deposit when they see

one—their economy depends on mining! Surely they know a

‘ more valuable ‘national forest when they see one. They

‘discharged a non-environmental Governor.

—

Ninth Amendment Argument

Some of the aforegoing is surely a Ninth Amendment

argument. It is that ‘the conveyance of lands which are more

valuable as a national park than as an open pit mine has been

_ reserved out of the hands of Congress, and is not included

within the terms of the trust.

CONCLUSION

Thus, it is respectfully urged, in keeping with this —

Honorable Court’s Rule 19.1.(b), the Fourth Circuit has, in

essence, refused to decide, and no other circuit has. ever

decided, a nuniber of important questions of federal law

which have not been, but should be, settled by this Court,

relating to trusts and public lands. The Fourth Circuit and the

District Court contended that all of these matters had been

heretofore settled, by cases which had touched upon the

question of the dispositive power of Congress.

Actually, it is respectfully urged, these questions if they

have been reached at all, have clearly never-been reached |

under modern . fact circumstances, circumstances related to

growing . population pressures, disappearing public ‘land

resources, and, particularly, have never been decided in the

light the demands of modern biological understanding.

It is respectfully urged that these questions have come to

be ripe for determination, and, in fact, that ‘here is a

desperate need to re-examine them, and that the Courts below,

erred in automatically following old cases (circ; 1940 and

before) which did not, in fact, treat of the troublesome

problems presented herein in terms of present conditions.

WHEREFORE, the Petitioners pray a Writ of Certiorari

be issued to the United States Court of Appeals for the

Fourth Circuit, that. these questions may be goné into. ;

Respectfully submitted,

LEONARD J. KERPELMAN,

2403 Rogers Building |

Baltimore, Maryland 21209

(301) SA 7-8706

Attorney for Petitioners.

- APPENDIX

IN THE UNITED STATES DISTRICT COURT

” FOR THE DISTRICT OF MARYLAND

CIVIL ACTION NO. 70-942T ©

G. PETER HONCHOK, et al

Plaintiffs,

CLIFFORD M. HARDIN, Secretary, et al

, Defendants

- OPINION OF COURT (THOMSEN, J. (RET.) )

Leonard J. Kerpelman, Baltimore, Md., for plaintiffs.

George Beall, U.S. Atty., and J. Frederick Motz, Asst.

U.S. Atty., Baltimore, Md., and Frederick L. Miller, Jr.. =

Dept. of Justice, for Secretary of Agriculture.

Lewis A. Noonberg and Piper & Marbury, Baltimore, Md.,

and Daniel M. Gribbon, Richard B. Herzog and Covington &

Burling, Washington, D.C., for American Smelting & Refining

ae =

THOMSEN, District Judge.

This is an action brought against the Secretary of

Agriculture and American Smelting and Refining Company

seeking to protect the Challis National Forest in -the State of

Idaho. ,

- Plaintiffs are a citizen of West Virginia and a citizen of |

Maryland; the latter sues individually and as President of the

_ North American Habitat Preservation Society, a Pennsylvania

corporation. I They sue on their own behalf and on behalf of |

others similarly situated.

Plaintiffs seek (1) a delaratory judgment that the General

Mining Law of 1872 (Act of May 10, 1872, c. 152, 17 Stat.

91, 30 U.S.C.A. § 21 et seq.) is unconstitutional; (2) an

injunction restraining the Secretary of Agriculture, one of the

defendants, from implementing any mining or other claim

validation provisions of said law and, particularly, from

permitting the other defendant, American Smelting and

Refining Company, or anyone else, from “trespassing” upon

the Challis National Forest, in the State of Idaho, for the

purpose of conducting mining operations or explorations; and

(3) a mandatory injunction directing the Secretary “‘to ~

exercise his ministerial duty which éxists, of preventing

destructive trespasses upon any national forest, and, more

particularly, upon the Challis National Forest, and to prevent

the entry of persans- whose intention is to mine or prospect

thereon.” Plaintiffs allege that the corporate defendant is

preparing to mine molybdenum in the Challis National Forst,~

and has applied to the Secretary for a “road permit” which

he intends to grant.

Jurisdiction is claimed under 28 U.S.C. §§ 1331 (a),

1332(a)-and 1361, venue under 28 U.S.C. § 1391(a), (b), (c)

and (e). A three-judge court is requested. 28 U.S.C. §.2282

The corporation is alleged to be a conservation organization

with over 4,000 members, mostly young, who are interested

in the preservation of a “viable habitat and environment” and _

have and will participate in * ‘all the valid uses of the National

Forest, including recreational, environment- ‘preservation uses,

and just looking and having.” ;

2Molybdenum deposits in the Challis National Forest are

‘ discussed in the United States Geological Survey Bulletin No.

11-82-E, “Investigations of Molybdenum Deposits in

Conterminous United States, 1942-60”, §2 (U.S. Government .

Printing Office, 1965).

‘“ .

The Secretary of Agriculture ‘is said to reside in Maryland.

The corporate defendant, a Delaware corporation with its

principal office.in New York, regularly | carries on business in

Maryland.

- The Secretary has moved to dismiss the complaint for

lack of jurisdiction and venue, for lack of standing, and on

the merits. The\ corporate . defendant does not , question

- jurisdiction or vehwe, but has moved to dismiss for: lack of

standing and lack of a substantial constitutional question.

[1]. A single| judge to whom an application for. an

injunction is presented must determine whether a substantial .

- constitutional question is raised before notifying the Chief

Judge of the Circuit that a statutory three-judge court should -

be constituted. Jacobs v. ,Tawes, 250 F. 2d 611, 614-615 (4

Cir. 1957); rth Citizens for a Representative General

Assembly v. Governor of Maryland, 429 F.. 2d 606, 611 (4

Cir. 1970); Ex parte Poresky; 290 U.S. 30, 54 S. Ct. 3, 78 L.

Ed. 152 (1933); Idstein v. Cox, 396 U.S. 471, 478, 90 S.

Ct. 671, 24 L. Ed.2d 663 (1970); Britton. v. Bullen, 275 F.

Supp. 756, 760-761 (D. Md. 1967), mandamus denied, sub.

nom. Britton v. Thomsen, 390 U.S. 979, 88 S. Ct. 1110, 19

L. Ed.2d 1287 (1968). | In the en Citizens ‘case, the

Fourth Circuit os

““** * Ingubstantiality in the claim may appear

because of absence of federal jurisdiction, Iack of

substantive merit in the constitutional claim, or

because injunctive relief is otherwise unavailable. Such

insubstantiality may be evident from the frivolous .

nature of the claim or from previous decisions of the

_ Supreme Court which . require an adverse answer.

When it thus appears that there is- no substantial

question for a three-judge court to:answer, dismissal

of the claim for injunctive relief by the single district

——-

A ee re ee ee “

4A fs :

judge * is consistent with the purpose ‘of the

three-judge statutes, and it avoids the waste and delay -

inherent in a cumbersome procedure.” 429 F.2d at

611. |

|2] Although the Secretary of Agriculture may have a

residence in Maryland, he is not being sued individually, but

in his official capacity: as a federal official. His official

residence is in the District of Columbia: he is not a citizens of

Maryland within the meaning of 28 U.S.C. §§ .1332(a) or

r39}(a) and (b). Butterworth y. Hill, 114 U.S. 128, 132.5 S.

Ct. 796, 29 L. Ed. 119 91885): Stroud v. Benson, 254 F.2d

448. 451-452 (4 Cir. 1958); Berlinsky v. Woods, 178 F.2d

265 (4 Cir. 1949), cert. den., 339 U.S. 949, 70 S. Ct. 805, 94

L. Ed. 1363 (1950); Walters v. Payne, 292 F. 124, 126

Cir.1923). Section 1391(c) does not apply: becauge “each

defendant” is not an officer or employee ‘of the United

States.

The motion to dismiss filed On behalf of the Secrets

must, therefore, be granted and the case dismissed as to him.

|3:4] With the Secretary out of the. case, we have as

plaintiffs a West Virginia citizens, a Maryland citizen, and a

Pennsylvania corporation with its principal office in

3Since the Secretary must be dismissed, the Court need not

decide whether jurisdiction would lie under 28 U.S.C. § 1361.

A mandamus will ordinarily be issued against an officer of the

United States only to perform a ministerial duty and not ot

exercise his discretion in a particular way. Wilbur v. United

States ex rel. Kadric, 281 U.S. 206, 50 S. Ct. 320, 74 L. Ed.

809 (1930); Prairie Band of Pottawatomie Tribe of Indians v.

Udall, 355 F. 20 364 (10 Cir.) cert., den., 385 U.S. 831, 87

S. Ct. 70.17 L. Bd.2d 67 (1966).

Maryland,and as the sole remaining defendant a Delaware

corporation with its principal office in New York. Diversity

jurisdiction, therefore, exists. The complaint also raises a

federal question. There is now no problem as to venue,

because the corporate defendant carries on business in

Maryland, and has not challenged venue. 28 US.C. § 1391(c).

The United States, through the United States Attorney, |

has agreed that it received adequate notice of the fearing held ~

on April 22, 1971.

15] The issue of standing leads into a rapidly developing

. field. See Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20

L.Ed.2d 947 (1968); Ass'n of Data Processing Services v.

Camp, 397 US. 150, 90 S. Ct. 827, 25 L. Ed:2d 184 (1970):

Barlow v. Collins, 397 U.S. 159, 90 §. Ct. 832, 25 L..Ed.2d

192 (1970); Citizens to Preserve Overton Park, Inc. v. Volpe.

401 U.S. 402, 91 S. Ct. 814, 28 L. Ed.2d 136 (1971): West

Virginia Highlands Conservancy v. Island Creek Coal Co., 441

F.2d 232 (4 Cir. 1971), and cases and law review articles

cited therein, particularly Sierra Club v. Hickel, 433 F.2d 24

(9 Cir. 1970), cert. granted, 401 U.S. 907, 91 S. Ct. 870, 28

L. Ed.2d 805 (1971). The Federal Government has been

encouraging the citizens of all the States to use and enjoy the

National Parks, National Forests and National Seashores. This

Court is loath to dismiss such a case as this for lack of

standing until the Supreme Court decides Sierra Club v.

Hickle or the Fourth Circuit issues a controlling decision.

16] The complaint must, however. be dismissed on the

“merits because the constitutional claim “is insubstantial.

Plaintif’s do not specify what provision of the Constitution is

beifig violated. Their complaint alleges merely that: “Challis

National Forest is public land owned by all the people of the

- 6A

United States, w common, and it is held in trust for them,

along with other public iands, by the United States for public

beneficial uses only. sad for no uses which would not have

been allowed to the surcr en of lands which he held jus

publicum according to the common law of England, as that

law was understood in 1781; by virtue of which fact it is

uncon: titutonal today for the Defendant Hardin to permit the

acts complained of ***”: and that! “It is unconstitutional for

_ the Defendant Hardin > dispose of said lands, generally. or to

permit the uses complained of, as the lands are owned by the

lands are not owned by any of the Defendants.”

Plaintiffs’ briefs are no more enlightening. Indeed, in the

first case they cite United States v. San Francisco, 310 U.S.

16, 60 S. Ct. 749, 84 L. Ed. 1050 (1940), the controlling

principle is stated flatiy: “And it is not for the courts to say

how that trust shail be administered. That is for Congress to

determine™. 310 U.S. at 29-30, 60 S. Ct. at 756. This ruling,

reiterated in later cases, also answers plaintiffs’ concluding

point. which revs in its entirety: “And what about the Ninth,

Amendment? Has not the power to give away. or dispose of,

lands of this nature been reserved in the people, os that

Congress does not have #””

[7] The di.position of minerals in lands owned by the

United States is by express constitutional grant the

responsibility of Congress. Art. 4, § 3, cl. 2 of the

Constitution. In Alabama v. Texas, 347.U.S. 272, 74 S. Ct.

481. 98 L. Ed. 689 (1954). the Court said:

“*** The power of Congress to. dispose of any

kind of property belonging to the United States ‘is

vested in Congress without limitation.” United States

v. Midwest Oil Company. 236 U.S. 459, 474 [35 S.

Ct. 309, 59 L. Ed. 673]: ‘For it must be borne in

mind that ungress not only has a legislative power

over the public domain. but it also exercises the

TA.

powers of the proprietor therein. Congress “may deal

‘ with such lands precisely as a private individual may

deal with his farming property. It may sell or

withhold them from sale.” Camfield v. United States,

167 U.S. [518] 524 [17 S. Ct. 864, 42 L.Ed. 260];

Light v. Unitea States,220 U.S. [523] 536 [31 S. Ct.

485, 55 L. Ed. 570]; United States v. San Franciso,

310 U.S. 16, 29-30 [60 S. Ct. 749, 84 L. Ed. 1050];

‘Article 4, §3, Cl. 2 of the Constitution provides that

“The Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting the

Territory and other Property belonging to the United ~

States.” The - power over the public -land thus

entrusted to Congress is without limitations. “And it

is not for the courts to say how that trust shall be

administered. That is for Congress to determine.” *

United States v. California, 332 U.S. 19, 27 [67 S.

Ct. 1658, 91 L. Ed. 1889] **.” 347 U.S. at 273, 74

S.Ct. at 481.4

In United States v. Coleman, 390 U.S. 599, 88 S. Ct.

1327, 20 L. Ed.2d 170 (1968), rehearing denied, 391 U.S.

961, 88 S. Ct. 1834, 20 L. Ed.2d 875 (1968), the Court

Stated, in footnote 1: “the cornerstone of federal legislation

dealing with mineral land is the Act of May 10, 1872, 17

Stat. 91, 30 U.S.C. §22, which provides in § | that citizens

may enter and explore the public domain and. if they find

‘valuable mineral deposits, may obtain title to the land on

which such deposits are located by application to the

4 Mr. Justice Reed concurring, added: “The United States

holds resources and territory in trust for its citizens in one

sense, but not in the sense that a private trustee holds for a

cestui que trust. The responsibility of Congress is to utilize

the assets that come into its hands as sovereign in the way

that it decides is best for the future of the Nation. ***” 347

U.S. at 277, 74 S. Ct. at 483.

Department of the Interior. The Secretary of the Interiof is

‘charged with. seeing *** that valid claims *** [are]

‘recognized invalid ones, eliminated, and the rights of the

public preserved.’ Cameron v. United States, 252 U.S. 450,

460 [40 S. Ct. 410, 412, 64 L: Ed. 659}.” 390 U.S. at 600,

88 S. Ct. at 1329. .

Under the ren Act of 1872, as amended from time to

time, the locator of a “valuable mineral deposit” obtains a

possessory interest which includes (1) certain rights in a

surface area around ‘the deposit, within statutorily described —

cimensions,5 and (2) most, but not all, minerals lying within”

the surface boundary lines extended vertically’ downward into |

Unless the locator. performs a certain dollar amount of labor

or improvements each year, the claim becomes subject to

relocation by others.? When ‘the investment in a claim has

reached a specified aggregate amount, the locator may apply

for a patent to the land. which ordinarily is a fee simple

title.8 Surface rights on certain claims are, however, still

limited after patent to mining activities. See for example, the

provisions with respect to patents issued under the mining

laws affecting lands within certain national forests, 16 U.S.C.

§§ 482, 482a-p. Challis National Forest is not one of those

so protected. And see the Wilderness Act of 1964, 78 Stat.

890, 893, 16 U.S.C. §§ 1131, 1133 (d) (3).

530. U.S.C. §§ 23, 28, 35, 36. For limitations on use of the

surface to mining-related activities. see United States v.

Coleman, supra, 390 U.S. at 602, 88 S. Ct. 1327, 20 L. Ed.2d

170; Multiple Surface Use Act of 1955, 69 Stat. 368, 30.

U.S.C. § 612(a): United States. v. Rizzinelli, 182 F. 675,

680-682 (N.D. Idaho 1910).

630 U.S.C. § §35-36. See also 30 U.S.C. $181 et seq.

730 U.S.C. § $28, 28-1.

530 U.S.C. §29.

Sa Cee ska Se

‘ The President is authorized by _ statute to declare

forest-bearing lands owned by the United “States to be

national forests, for the purposes of.improving and protecting

the forests, securing favorable conditions for water flows, and

furnishing a continuous supply of timber for the use and

necessities of citizens. 16 U.S.C. §§ 471, 475. It is “not the

purpose of intent -of these provisions *** to authorize the

inclusion [in national forests] of lands more valuable for the

mineral therein, or for agricultural purposes, than for forest

purposes.” 16 U.S.C. §475. Accordingly, mineral iands,

“subject to entry under the existing mining laws ***shall

continue to be subject to such location and entry ***,"16

U.S.C. §482, and persons may not be prohibited from

entering forests for all “lawful purposes” including specifically

“prospecting; locating and developing the mineral resources

thereof”.? Activities carried out by such persons on lands

which have the status of national forest and which are outside

the. surface boundaries of a claim must be in accordance with

the rules and regulations covering the national forest. 10 Thus,

if a mineral locator wishes to gain access to his claim by

means of a road across national forest lands not within the

boundaries of his claim, he must first obtain a permit for such

activity from the Forest Service in the Department of

Agriculture.!!

, While wilderness and recreational values may result from

the creation of national forests, and Congress has recognized —

this fact, see 16 U.S.C. § 497, the purposes for which

national forests may be created, and in accordance with which

they are to be “as far as practicable controlled and

administered”, 16 U.S.C. §475. contrast with the express .

references to recreational and wilderness values found in the

statues creating the National Park Service to administer

national parks, 39 Stat. 535 (1916), 16 U.S.C. §1, and the

9 16 U.S.C. $478.

10-16 U.S.C. §§ 472,478, 551.

Il-See 16 U.S.C. § 551: 36 CER. §251.1.

ce ae ee

10A

Wilderness Preservation ‘System, 78 Stat. 890 (1964), 16

U.S.C. §1131. The methods chosen by Congress to achieve

the objective of the development of the mineral resources of

- the nation have varied from time to time. Although particular

aspects of the 1872 Act have been modified, Congress has

repeatedly affirmed the desirability of its basic ccanayte and

principles. 12

[8] The exercise of the power of Congress under Art. 4,

§3, cl. 2-of the Constitution involves. economic, technological

and philosophic considerations, often requiring choice (1)

among various surface uses, such as _ grazing, . irrigation,

hydroelectric- power, forest management, wildlife refuge,

watershed management, and various recretational facilities to

serve a wide range of abilities and tastes; and (2) between

surface and subsurface uses (mineral developments) where

such uses are mutually exclusive.13

Choices involving these issues are reflected not only in the

General Mining Law of 1872; but in subsequent enactments

by Congress. some of which are quite recent, which have

affected the development of mineral resources by limiting the

right of private persons to. develop such resources in certain

geographic areas (see 16 U.S.C. §§ 482, 482a-p, discussed

12. See. e.g, 48 Stat. 1269, 1272 (1934), 43 U.S.C. § 315,

31Se (lands established as grazing districts remain open to

mineral discovery); 30 Stat. 34, 36 (1897), 16 U.S.C. § $475,

478 (lands declared to be national forests remain open to

mineral discovery); 69 Stat. 368, (1955), 30 U.S.C. §612(b)

‘(giving United States the right to manage surface vegetative

resources on certain mining claims prior to patent so long as

there is no material interference with mining).

134 choice among various subsurface uses may ‘also. be

involved. See Multiple Mineral Development Act, 68 Stat. 708

(1954), 30 U.S.C. §531 et seq.

4 GEE oe ee aa

11A

above), !4 or with respect to certain minerals, or time periods.

See ¢.g., 62 Stat. 580 (1948), 16 U.S.C. §678a (congressional

grant of authority to prohibit mining .in specified areas within

Harney National Forest); Mineral“Lands Leasing Act of 1920,

41 Stat. 437, 451 (1920), 30 U.S.C. §§181, 193 (removing

oil, and certain names hard minerals, from coverage of 1872

Act); Common Varieties Act, 69 Stat. 368 (1955), 30 U.S.C.

_ $611 (removing common varieties of certain substances from

coverage of 1872 Act); Wilderness Act of 1964, 78 Stat. 893, ”

895, 16 U-S.C.§ 1133 (d) (3) (1872 Act not to apply after

midnight, December 31, 1983, in areas designated as

_ “wilderness’’). ; :

[9] Plaintiffs note that the legislative history of the 1872

Act indicates that it was intended for a simpler time than the

14.This pattern is as old as the Genéral Mining Law itself. for

two months before it was passed (17 Stat. 91) the same

Congress created by statute Yellowstone National Park. in

which mining was not allowed. 17 Stat. 32 (1872).

15.This Act was passed “to assure that an increasing

population *** [and] expanding settlement *** does not

*** modify all-areas within the United States *** leaving no

lands *** in their natural condition *** .” 78 Stat. 890. 16

U.S.C.§1131(a). At passange, approximately nine million

acres were set aside as “wilderness areas” to be maintained so

that) “the imprint) of man’s work [is] substantially

unnoticeable”, for example, without roads. 78 Stat. 891, 894,

16 U.S.C. §§1131(c), 1133(c); H.R.Rep.-No. 1538, 88th

“Cong.2d Sess.1964, in 2 1964 U.S. Code Cong. and Admin.

News pp. 3615-17. At least another five million acres. are. by

express congressional directive, under review by the

Secretaries of Interior and Agriculture to determine suitability

for “wilderness” status under the Act. 78 Stat. 891-892, 16

U.S.C. § 1132(b), (c), 1964 U.S.Code Cong. and Admin.

News, at pp. 3616-18.

pki 8 I PLIERS OS at ance REGRET OPE LLING A PF ee GONE BE

12A

present. !6 It is true that certain problems with respect to

conservation and environment have arisen .in. recent years

. which were not foreseen a century ago. Congress may well

3 wish to reevaluate the priorities between the conflicing

’ - interests exemplified by the present case, but under the

Constitution that review is for Congress and not the courts.

The statutes discussed above and the other statutes passed by

Congress with respect to Mineral Rights and Mining, 30

U.S.C., and Conservation, 16 U.S.C., and Conservation, 16

U.S.C., are not unreasonable means of dealing with the

responsibilities of Congress in these areas.

A judgment dismissing the complaint will be entered.

16. See Congressional Globe for January 23, 1872, Volume

45, p. $32. .

13A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 71-1726.

OPINION OF COURT

- PER CURIAM:

Upon examination and consideration of the record and

Briefs, we find no error. Accordingly, we dispense with all

argument and affirm the judgment below.

AFFIRMED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.