# Petition for Writ of Certiorari — Honchok v. Butz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0649%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 406 U.S. 929 ## Text 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. . . - vg . . . . ‘ ; we . . id 4 et ° rs f - Y, . . 3 Meter. aera . . . , ‘ H 4 . ’ - 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 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 a 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 ~ f or 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 i] 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 ? Gt a * . Are public lands held in trust? . (— to . 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 t . 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 3 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: A -“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: _ . 4 _ “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 dispose of said lands, generally. or to permit the uses complained of, as the lands are owned by the Plaintiffs, or by the people, or by the United States, and 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. 8A 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 | the earth, and certain veins which extend beyond those lines.© 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 ae ‘ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0649%3A1. Public record. Not legal advice.