Appendix — Hickel v. Oil Shale Corp.
Supreme Court brief1970
Ask Donna
What actually matters in this document.
Text
IN THE
Supreme Court of the United Stutes
OCTOBER TERM, 1969
| No. 221
WALTER J. HICKEL, Secretary of the Interior
e THE OiL SHALE CORPORATION, ET AL.
7 ON WRIT OF CERTIORARI TO THE UNITED STATES
4 COURT OF APPEALS FOR THE TENTH CIRCUIT
INDEX
Page
_ ll crehteariere tis natithincesiintdianenndtinnnnnnntandinicnntsenens eosin 1
| __ District Court tiipebceone . ~%
x Court of Appeals - pliaealiliibchalehhlas saphena laa hcialbins 1
3 No. 9581
' Defendant’s Motion to Dismiss lita PEE ne nee: Date is 16
_ Defendant’s Pre-Trial Statement - 28
* Memorandum Opinion and Order filed December 21, 1966 _. 26
» Judgment filed March 1, 1967 48
| Notice of Appeal of Defendant 51
| Transcript of the court reporter of the proceedings had in
' the trial to Court before the Honorable William E. hina
Judge, presiding, on July 18-19, 1966 52
INDEX
Page
Plaintiff’s Exhibits:
1—Memorandum for the Secretary of the Interior
4/20/20 — oom : fie 62
keel itis Reihiey of Oe teheer 68
8—Letter to Secretary of the Interior from Seiad,
sioner, dated March 7, 1927 _._._____ 64
4—Letter to the Commissioner per E. C. Wien. 65
56—Memorandum for the — * from C. L. ies
| ae 67
6—Letter to Mr. . See sé ‘De Rouen ‘juin » eet pow
6/16/39 aca 68
8—Letter to aaitne from Wm. Spey 1 12/10/27 | (Clers
Stee SERS 7 69
9—Letter to Restter pom Senate 5/4/28
(Clerk’s Note) iss 69
10—Letter to Register from Wm. Spry 12/10/21 (Clerk's
| ee 69
11—Letter to Register from Wm. Spry 5/4/28 (Clerk's
Note) - —— 69
12—Letter t to » Register eit wm. . Spry 12/10/27 (Clerk’s
Note) - i 69
18—Letter t to Register 1 pm Wm. Spry 5/4/28 (Clerk's
Note) - NEES RUSTE IE TAS es LOND Wee) Pee IT, 69
14—Letter t to » Register en aC. ©. Shciee 6/ 12/29 ‘(Clerk's
Note) - LD EEE SERA NE PORT RT ET 69
15—Report - the dialed of t the Diteibin eee pans 70
16—Telegram to Kelly from Moore 1/15/30. nae 70
17—Letter to Kelly from Moore 3/26/30 _ ae 71
18—Letter to Mr. R. S. cd from Cc C. siete
4/19/30 _ ee 72
‘e-ciiiatiaieest for the iain 9/29/30 te 74
20—Letter to the Secretary of Agriculture from 1 Ray
Lyman Wilbur 6/7/30_. aes 15
21—Report of the Secretary of the Interior _ acidic 76
22—Report of the Secretary of the Interior 1982 - ee 77
23—Report of the Secretary of the Interior 1933 _...__.___. 78
24—Letter to Register from C. C. Moore 7/8/80__...._____. 78
25—Letter to the Secretary of the Interior from C. C.
Moore dated 6/7/30 79
INDEX iii
Page
Plaintiff’s Exhibits—Continued
26—Letter to Kelley from Commissioner 6/19/30 _.__. 81
27—Telegram to Commissioner from Kelley 6/23/30
(Clerk’s Note) 81
28—Letter to Kelley from Moore 6/30/30 (Clerk’s Note) _ 81
29—Letter to Register from Moore 6/80/80 (Clerk’s |
Note) 82
30—Letter to Register from Moore “1/22/30 (Clerk’s
FR arengrsetensnetspenncnenaesimnereanenicnenapienesitinemete 82
31—Letter to Register from Moore 7/3/81 —___. 82
82—Letter to Register from acting Commissioner |
11/9/31 83
33—Letter to Register from Moore 6/30/80 (Clerk’s |
Note) 83
84—Letter to Register from acting Commissioner
RR RE oe oon a 83
85—Letter to Register from Moore 6/30/30 (Clerk’s
I ciliaiats heals loiienteihieiniataais 85 |
86—Letter to Register from acting Commissioner
10/20/81 _ ‘dian 85
87—Letter to Siesians of the tow pn Ray Lyman [
i 86 f
88—Letter to A. D, Hathaway from acting Commissioner
Re cicalechiieasei cctistasaapteietes 87 ;
$9—Letter to Walter Spencer from Moore 7/20/31
(Clerk’s Note) 88
40—Letter to Register from Moore 12/2/31 88
41—Appeal from the General Land Office 3/10/82 90
42—Photostat of letter to Register from Moore 1/20/32 |
RCE as a cient OR Li she AE 91 }
48—Letter to Attorney General from Harold Ickes |
ERS ee eae ke Se Male Ceres ne ee Sree 91 . '
44—Summaries of Bureau Rapaate a 93 ;
45—Appeal from General Land Office 8/13/35 _..___. 93
46—Letter to Doctor McKee from T.A. Walters 5/26/34 _ 95
47—Memo for the Press 2/12/31 96
48—Letter to Messrs. Thomas from John H. Edwards
| RE een ec ate 97
i
:
\
'
|
:
’
iv
INDEX
Plaintiff’s Exhibits—Continued
49—Letter to Eli F. Taylor from Harold Ickes 5/26/83 _
50—Letter to Attorney General from Harold Ickes
2/6/84
51—Letter to Jenson from Franklin Lane 10/28/18 __
52—Letter to Chris Dere from — Asst. Commis-
sioner 1/20/19 _ Saas
538—Letter to Cnune Ez Taylor pony pay ‘Gucties
6/2/33 aainmesceeneaiasnbenennsnnsedsbwainsunesinnbehnasamsaseap
54—Letter to W. J. Owen from Johnson 6/28/85 cae ais
55—Letter to Gowin from Johnson 7/25/85...
56—Letter to Van Dorsten from Johnson 7/26/85...
57—Letter to Willard Boeher from Johnson 7/20/35 ____
58—Letter to Stephen O. — from Johnson
7/20/85 _ waa _— ad Sree
59—Letter to inate Ecton on presen 2/ 11/48 er...
60—Decisions Relating to Public Lands =.= isoee
62—Letter to Phipps from Payne August 4, 1920...
63—Motion for Summary Judgment 4/15/55.
65—Letter to Commissioner from Register 6/15/85
66—Letter to Joseph Bellis from Johnson 6/24/85
67—Letter to E. P. Costigan from Jos. Ahearn 6/8/35 _
68—Letter to Costigan from Johnson 6/24/86
69—Motion for Rehearing 9/3/35 ea AS
70—Decisions of the Department of the Interior...__.__
71—Letter to Register from Commissioner 7/6/35
72—Letter to Register from Johnson 7/29/85 =
73—Letter to Register from Johnson 7/80/85... >=
74—Letter to Register from Johnson 7/81/35 _...__.
75—Certified copy of Letter to Register from Johnson
ee SINT a ate SRP eae NR omits eer SR Jame a
76—Appeal from the General Land Office 7/80/35 —_._.
ae a from General Land Office Re: U.S. Oil Shale
np es to eatiiee puny Site 8/1/35 De say ae:
79—Letter to Register from Johnson 8/19/35 _......__.
80—Letter to Register from Johnson 8/19/35
102
103
103
104
104
105
110
110
117
117
118
119
120
121
123
125
126
127
128
130
131
132
187
INDEX v
Page
Plaintiff’s Exhibits—Continued
82—Memorandum for the Register from Johnson
8/30/40 139
g3—Letter to Commissioner from Gardner 4/26/40 ____-. 140
84—Memo for Register 3/6/41 141
85—Memo for the Register 8/9/40 > _ 142
87—Memo for the Register 8/9/40 _...--_-»_>S >See 143
89—Memorandum for the Register from Commissioner
SIT dati ittnetadehnennsidieddacettbeitennecidlaliingsecherieadibetinndatiticcnpionasesin 144
91—Memo for the Supervisor from Waddell 6/5/42 145
91A-Memo for Wolfsohn from Havell 7/29/42... ==———s—(isi«‘i2 4
95—Oil Shale Claims patented on Applications filed __ 148
102—Photocopy of a Page 91 Description of tract (Clerk’s
RO STIS SL? RT ee he EL ee ea 158
108—Photocopy of a Page 9 96 § Description o of tract —
HIND scitenniciciiisinicgedighdseien tinea rtniennicisnacminn ; 158
104—Final Cert, of Mineral Entry a, aaa
114—Oil Shale Mineral Entries 2/27/50... == ——sst—<C«~iB
115—Decision 3/7/50...» pre eee —
117—Memo to Regional Administrator from intent
11/7/50 _ SERRA eee - CEO ee
119—Report 11/28/55 vee 162
120—Memo to Land Office e Manager from es Elliott 1 Hall
12/19/55 ited ines 164
121—Letter to aie from : ihn 2/3/56 ———
122—Final Cert. of Mineral Entry (Clerk’s Note) . Oe
123—Memo to Rose Beall from W. L. Shafer 6/15/56. 165
124—Final Cert. of Mineral Entry 9/4/56 (Clerk’s Note) 165
125—Memo of Valuation Engineer Sholes 2/12/57 _..._. 166
126—Memorandum to Director from Puckett 11/20/57 - 174
127—Memorandum to Director from J. Elliott Hall
1/27/58 - sa 175
128—Memo to State tends Mineral Officer 11/20/58 nate 175
129—Memo to State Land Office Mgr. 11/20/58 _ —
180—Memo to Director from Fox 12/30/58 177
131—Final Cert. of Mineral Entry 11/5/56 (Clerk’s
Note) 178
vi INDEX
Page
Plaintiff’s Exhibits—Continued
182—Memo to Land Office Mgr. 7/17/58 . ae
188—Memo to Chief, Patents Section 2/5/59 = 179
184—Mineral Report 6/11/58 - 180
185—Minerals Work Sheet 7/14/17 un
186—Memo to Director from Andrus 12/21/59 182
136A-Letter to Altenbern from Johnson 7/17/35 _..____. _ 188
188—Report 11/21/55 184
189—Mineral Work Sheet 11/25/57 (Clerk’s Note) _..____ 186
140—Final Cert. of Mineral Entry (Clerk’s Note) ._—s- 186
141—Memo to Chief, Patent Section from Shafer 6/26/58 _ 186
142—Mineral Report 11/7/58 187
144—Memo to Area Administrator 9/9/57 ___. wiitesls, 188
149—Memorandum to Director from Andrus 11/24/59 _. —s_: 189
151—Letter to Register from Moore 9/15/31 _ coe. a
154—Memo to Associate Director from Caplan 5/19/60 - 191
154A-Memo to Solicitor from Director 2/23/60. anions 191
156—Memo to State Supervisor from Kepford 12/11/59 192
157—Memo to Associate Solicitor from Regional Solicitor
7/6/61 193
175—Letter to Taylor from Commissioner 7/ 17/35 ee 194
176—Letter to Secretary of the Navy from Acting Secre-
tary of the interior 10/31/35 195
177—Letter to Secretary of the Navy from Harold Ickes
9/30/49 197
178—Memo to Director, Bureau of Mines 9/30/49 198
180—Letter to Ida Dere from Commissioner 5/4/36. 199
181—Letter to Commissioner General Land Office from
Ida Dere 4/22/56 200
182—Letter to the Commissioner of the General Land
Office from Alex Bowie 3/25/36... 201
183—Letter to Alexander Bowie from Commissioner
4/7/36 _.. 201
184—Letter to Register from Acting Commissioner
8/26/31 202
185—Letter to Register from Moore 5/29/31 ___._._____. pos 208
186—Letter to Register from Commissioner 1/9/32 _____. 205
INDEX vii
Page
Plaintiff’s Exhibits—Continued
187—Letter to John Murphy from Commissioner ______. ilies 206
188—Memo for Carpenter 6/10/36...» 206
189—Letter to Director from Johnson 3/1/37 _____ 207
190—Letter to the Commissioner from Julian Sears
PSE SRE RRS: Soe OC NO 208
191—Letter to Harold Ickes from Abe Murdock 6/9/41 _. 210
192—Letter to Abe Murdock from Harold Ickes 7/25/47. 211
198—Letter to C. H. Scholar from Oscar Chapman
RET A Re eee Ee ERT Ae ee EE 212
194—Letter to Mr. Vice President from Harold Ickes
ESS aie We FRE Se RE Or eee ON ST 213
195—Letter to Edwin C. Johnson from Oscar —
6/17/43 - ae 216
196—Letter to Warren Paddock from Johnson n 2/14/44 217
197—Letter to Hoffman from Nelson 6/15/44... 218
198—Letter to Nelson from Johnson 7/5/44 ss —t—<—«éi
199—Letter to Nelson from Johnson 7/4/44. 221
200—Letter to Dougherty from Johnson 7/26/45... isi 2283
202—Letter to Register from Moore 6/8/32... —(<ié
203—Memo for the Secretary from Forsling 12/3/45 ___ 225
204—Letter to Senator Myers from Chapman 3/21/46 227
205—Letter to Register from Acting Commissioner
RE ok Aner mal | hte Ral, A ee ae 228
207—Letter to Tupper, Smith & Holmes from Jo ohnson
3/27/46 : 229
209—Letter to Whatley from Doty 8/29/50 See RO Te 232
210—Letter to Whatley from Chapman 3/30/51 ee dances 235
211—Stipulation __ “ 235
212—Memo to Associate @ Solicitor # hei ‘Senes 8/20/59 237
215—Memo to Regional Solicitor from Bradshaw 12/3/59 _ 238
216—Memo to Land Office Mgr. from Hall 8/3/60... 239
217—Memo to Associate Solicitor from Kepford 9/18/61 _ .240
218—Teletype to Regl. Solicitor from Cavanaugh 9/22/61 +241
219—Memo to State Director Land Management from
Kepford 9/26/61 EL SOO Role Ai PILOT 242
viii INDEX
Page
Plaintiff's Exhibits—Continued
225—Letter to McEniry from Commissioner 1/28/18
I I lia
226—Letter to Attorney General from First Asst. Secy.
2/2/18 (Clerk’s Note)
227—Letter to Herwick from Lenenberger 10/19/18
(Clerk’s Note)
228—Deposition of Herwick 10/22/18 (Clerk’s Note) ___
229—Letter to Commissioner from Mineral Examiner G.
4 Rk tasers
230—Letter to Commissioner from Charles Dee 11/7/18 |
(Clerk’s Note) 249
231—Letter to Commissioner from Charles Duer 11/9/18
(Clerk’s Note) — i alata 249
232—Letter to Seeueiatenns from Chief, Denver Field
Div. 11/29/18 (Clerk’s Note) . as 249
236—JLetter to Commissioner from acting pa 1 17/25 249
242—Letter to Commissioner from Sholes 2/28/29... 250
244—Contest No. 12039 6/28/29 (Clerk’s Note)... sss 254
245—Letter to Index Shale Oil Co. 7/22/31 (Clerk’s
ee
254
248—Memo to Marion Clawson from Miller 10/11/48 ____ 254
250—Mineral Entry (Clerk’s Note) _.... __. saanediinn.
251—Memo to Land Office Mgr. from Hall 3/6/57 - wqueaniais 256
252—Letter to Puckett from East 10/12/59 — 257
258
259
260
261
E66 & B
254—Memo to Director from Puckett 2/13/61 —...._.___.
255—Mineral Report 4/12/61 _... >
256—Memo to Regional Director from Puckett 4/21 761 -
264—Case Record C-012327 - ;
283—Letter to the Cumniesener oun Subiee 1/24/81
ne ees oes 268
284—Contest No. 147 = —
286—Letter to R. D. George 9/6/17 weet i
288—Report of the Secretary of the Seteuten (1928) ae
289—Letter to Hazelwood from First Asst. Sey,
ee 271
292—Letter to Register fom Commies 6/28/85. 272
296—Description of Claim (Clerk’s Note)... =... 278
INDEX
Plaintiff's Exhibits—Continued
297—Description of Claim (Clerk’s Note)
306—Service Record of Altizer, Posey J.
307—Service Record of Chapman hie
$08—Deposition of J. Elliott Hall...
309—Deposition of William Shafer
$18—Plaintiffs’ Interrogatories, and Defendant’s Answers
Civ.
$14—Plaintiff’s Interrogatories and Defendant’s answers
Civ. 9202 Deine
Defendant’s Exhibits:
Or I
On
K—Docket Sheet, Minutes of Proceedings Bute #1- 18
incl. Oil Shale Placers Claims, 1/2/1928
Atlas #1-18, Oil Shale Claims, 12/26/1919
Camp Bird #1-20 incl. Oil Shale Placers, 1/2/1920
Oyler #1 to 4, Sept. 25, 1916
Carbon Nos. 1-12 incl. May 18, 1918
United States Land Office Schedule of Allowances.
NW; NE; SE, and SW, Oil Shale Placers, Contest
12972-1424895 “N” “RLW”, July 29, 1981 Oil Shale
Placers (Clerk’s Note)
L—Notation of prefatory pages from Synopsis of 1 meet-
ing of Department of Interior Oil Shale Advisory
Board and pages from Interim Report of Oil Shale
Advisory Board to Secretary of the Interior —.___.
S—Decision of September 30, 1927, directing cancella-
tion of the homestead entries because made upon
lands covered by prior valid mineral locations.
Decision of July 1, 1931, declaring the mining claims
nul! and void on an assessment work charge.
Decision of October 14, 1931, permitting the filing
of an application for the reinstatement of the can-
celled homestead entries
Decision of November 20, 1931, reinstating the home-
stead entries
The contest docket pages for Contest 12021, Contest
12022A and Contest 12178
serial register pages for serial No, 018827-082575 and
serial No. 018825-032576 involving homestead en-
tries re: Triumph Nos. 22 and 28, the F.D. No. 7,
the J.D. Nos. 1, 2, 8 and 5 oil shale placer mining
claims
332
x INDEX
Defendant’s Exhibits—Concinued
U—Decision of August 18, 1930, declaring the Lucy
Agnes No. 1 and No, 2 oil shale placer mining claims
null and void.
The contest docket page for Contest No. 12872 ix-
volving the Lucy Agnes claims.
The serial register page for serial No. 688956 invoiv-
ing the oil and gas prospecting permit and the oi! and
gas lease. $39
W—Decision of Department of Interior dated June 24,
1985 re: The Shale Oii Company,
The contest docket pages for Contest No. 12019 in-
volving the mining claims of The Shale Oil Com-
pany (Clerk’s Note) 840
X—Departmental decision of November 11, 1930 in-
volving the Federal Shale Oil Company and the Buck
Canyon placer No. 1
Decision of January 5, 1931 from the Commissioner |
of the General Land Office promulgating the Depart-
mental decision of November 11, 1930, and allowing ;
the mining claimants 30 days in which to file a proper ,
answer
Memorandum of February 27, 1981 from the Regis-
ter of the Land Office advising that no answer had
been filed
Decision of April 6, 1931 from the Commissioner of (
the General Land Office declaring the Buck Canyon
No. 1 oil shale placer null and void
The contest docket for Contest No. 12264 involving
the Buck Cauyon No. 1 oil shale placer (Clerk’s
Note) 840
Y—Francis D. Weaver case:
Departmental decisions of August 28, 1980 and De- !
cember 18, 1930 Instructions dated January 5, 1931,
‘
from the Commissioner relative to closing the case
Memorandum of May 4, 1934 transmitting the closed
case records to the Commissioner of the General
Land Office
The contest docket for Contest No. 122838 waneaniieed |
the Francis D. Weaver case (Clerk’s Note) i a
KK—Term Rental Permits and Billings for Ques Priv-
ileges and Licenses for Grazing Privileges _
E—Letter to Dr. Ertl from J. Elliott waned Acting State
Supervisor of December 16, 1960 -
s
a
INDEX xi
Page
Defendant’s Exhibits—Continued
No. 9582
Complaint with attached exhibits 342
Exhibit A-3—Written Decision, Union Oil Company of
California, et al. A-29560, rendered by the Solicitor
of the Department of Interior, 4/17/64 352
Answer 386
Judgment filed March 1, 1967 890
Notice of Appeal of Defendant 391
Clerk’s Certificate : Lichen tatnenehabnntone 391
No, 9583
RD, cere rcerenccnnsenctnnemnnmnrveennmnnncaranineesia tapas 892
SED CIES aciuneemicsesnnnsesendnssunmiqnineniiimincssannemanseente 404
Judgment filed March 1, 1967 __.. fete 405
Notice of Appeal of defendant —.. 407
Clerk's Certificate 407
No. 9584
Complaint . _— a — 408
an ae eto 417
Defendant’s Pre-Trial Statement 423
Supplement to defendant’s pre-trial statement 00.0.0... 426
Judgment filed March 1, 1967 427
Notice of Appeal of Defendant 432
Clerk’s Certificate . 483
Opinion of the Court of Appeals for the Tenth Circuit __... 434
Judgments of the Court of Appeals for the Tenth Circuit — 447
Order of the Supreme Court of the United States hucwonestin
a writ of certiorari 451
RELEVANT DOCKET ENTRIES
(Oil Shale Corporation, and Energy Resources
Technology Land, Inc. v. Walter J. Hickel, Sec-
retary of the Interior, No. 9581)
Date
7/10/64
12/ 7/64
3/28/66
12/21/66
8/ 1/67
4/26/67
10/22/67
T/ 9/68
2/ 4/69
3/12/69
Proceedings
Complaint filed. Issued 4 summons.
Answer filed.
Order on Deft’s. Motion for consolidation of No.
8680, No. 8685, No. 8691, and No. 9202.
Memorandum Opinion and Order of District Court
filed.
Judgment entered.
Notice of Appeal filed by U.S. Attorney.
Record Docketed, Court of Appeal.
Argument, and submission of case.
Opinion issued, Court of Appeals.
Judgment issued as mandate.
RELEVANT DOCKET ENTRIES
(Joseph B. Umpleby, and Wasatch Development
Co. v. Walter J. Hickel, Secretary of the Inter-
ior, No. 9582)
Date
7/13/64
9/11/64
3/28/66
12/21/66
3/ 1/67
4/26/67
10/22/67
7/ 9/68
2/ 4/69
3/12/69
Proceedings
Complaint filed. Issued 4 summons.
Answer filed.
Order on Deft’s. Motion for consolidation of No,
8680, No. 8685, No. 8691, and No. 9202.
Memorandum Opinion and Order of District Court
filed.
Judgment entered.
Notice of Appeal filed by U.S. Attorney.
Record Docketed, Court of Appeal.
Argument, and submission of case.
Opinion issued, Court of Appeals.
Judgment issued as mandate.
Date
1/15/64
9/11/64
3/28/66
12/21/66
3/ 1/67
4/26/67
10/22/67
1/ 9/68
2/ 4/69
3/12/69
RELEVANT DOCKET ENTRIES
(Barnette T. Napier, et al. v. Walter J. Hickel,
Secretary of the Interior, No. 9583)
Proceedings
Complaint filed. Issued 4 summons.
Answer filed.
Order on Deft’s. Motion for consolidation of No.
8680, No. 8685, No. 8691, and No. 9202.
Memorandum Opinion and Order of District Court
filed.
Judgment entered.
Notice of Appeal filed by U.S. Attorney.
Record Docketed, Court of Appeal.
Argument, and submission of case.
Opinion issued, Court of Appeals.
Judgment issued as mandate.
RELEVANT DOCKET ENTRIES
(Penelope Chase Brown, individually and as Trus-
tee, and The Oil Shale Corporation v. Walter J.
-Hickel, Secretary of the Interior, No. 9584)
Date Proceedings
6/14/65 Complaint filed. Issued 4 summons.
8/23/65 Answer filed.
8/28/66 Order on Deft’s. Motion for consolidation of No.
8680, No. 8685, No. 8691, and No. 9202.
12/21/66 Memorandum Opinion and Order of District Court
filed.
8/ 1/67 Judgment entered.
4/26/67 Notice of Appeal filed by U.S. Attorney.
10/22/67 Record Docketed, Court of Appeal.
7/ 9/68 Argument, and submission of case.
2/ 4/69 Opinion issued, Court of Appeals.
8/12/69 Judgment issued as mandate.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Pleas and proceedings before the Honorable Hatfield
Chilson, Judge of the United States District Court for
the District of Colorado, and the Honorable William E.
Doyle, Judge of the United States District Court for the
District of Colorado, presiding in the following entitled
cause:
THE OIL SHALE CORPORATION, and ENERGY RESOURCES
TECHNOLOGY LAND, INC., PLAINTIFFS
vs.
STEWART L. UDALL, Secretary of the Interior, DEFENDANT
No. 8680, Civil
[1]
COMPLAINT FoR RELIEF IN THE NATURE OF
MANDAMUS AND FOR DECLARATORY JUDGMENT
Plaintiffs The Oil Shale Corporation, et al., by their
attorneys, for their complaint, allege:
First Claim
1. Plaintiff The Oil Shale Corporation is a corporation
duly incorporated under and existing by virtue of the
laws of the State of Nevada having its principal office
and place of business at 680 Fifth Avenue, New York
City, New York. Plaintiff Energy Resources Technology
Land, Inc., is a corporation duly incorporated under and
existing by virtue of the laws of the State of Colorado
having its principal office and place of business at 305
South 39th Street, Boulder, Colorado.
2. The defendant, Stewart L. Udall, here sued in his
official capacity, is the duly qualified and acting Secre-
tary of the Interior of the United States, having his of-
ficial place of business at the seat of the government in
6
Washington, D. C. Under and by virtue of 9 Stat. 395;
5 U.S.C. § 485; 43 U.S.C. §§2,1201; 1950 Reorganiza-
tion Plan No. 8, 15 F. R. 3174, 6% Stat. 1262, the de
fendant is charged with the control, direction and super-
vision of all officers and employees of the Department
of [2] the Interior, the administration and enforcement
of all laws relating to the public lands and to mining
claims thereon, and the issuance of rules and regulations
relating thereto.
3. This action arises under the Constitution, more par-
ticularly the Fifth Amendment, and the laws of the
United States including 30 U.S.C. §§ 22-38, pursuant to
which plaintiffs claim vested rights in and to certain oil
shale placer mining claims, and involves both the rights
of the plaintiffs to enjoy and possess said mining claims
without regard to certain unauthorized and invalid De
partment of the Interior contest proceedings hereinafter
set forth, and the duty of the defendant owed to the
plaintiffs to administer the laws under which plaintiffs
claim said mining claims upon a proper construction of
those laws. The matter in controversy, exclusive of in-
terest and costs, exceeds in value the sum of $10,000,
The jurisdiction of this Court is invoked under 28 U.S.C.
§§ 1381 and 1861.
4, This is an action to obtain an order and a judg-
ment of this Court requiring the defendant to discharge
his duties under the mining laws of the United States
according to the requirements of those statutes as inter-
preted by the Supreme Court of the United States, and
more particularly, to require the defendant to withdraw
and expunge from the records of the Department of the
Interior and decisions or judgments in the unauthorized
and invalid contest proceedings more fully described here-
inafter.
5. Plaintiff Energy Resources Technology Land, Inc.,
owns the Bute Placer Mining Claims Nos. 1 through 19,
both inclusive, Nos. 21 through 28, both inclusive, and
Nos. 30, 31 and 32. Plaintiff The Oil Shale Corporation
owns the Bute Placer Mining Claims Nos. 33 through
48, both inclusive. Plaintiff Energy Resources Technol-
ogy Land, Inc., owns the Camp Bird Placer Mining
7
Claims Nos. 1 through 20, both inclusive, and the Atlas
Placer Mining Claims Nos, 1, 2, 3, 7, 9, 10, 12, 17 and
18. Plaintiff The Oil Shale Corporation is the [3] lessee,
with an option to purchase, of the foregoing claims
owned by Energy Resources Technology Land, Inc. The
said Bute Claims are situated in and encompass Sections
7 through 18, both inclusive, of Township 4 South, Range
96 West of the 6th Principal Meridian, with the excep-
tion of the Southeast quarter of Section 10 and the
Northeast quarter of Section 16. The said Camp Bird
Claims are situated in and encompass Sections 2, 3, 4,
9, 16, and the Southeast quarter of Section 17, of Town-
ship 4 Suuth, Range 95 West of the 6th P.M., with the
exception of the Northeast quarter of Section 2. The
said Atlas Claims are situated in and encompass the
Northwest quarter of Section 10, the Southwest quarter
of Section 12, the West half of Section 13, the East half
and Southwest quarter of Section 14, and the South half
of Section 15, of Township 4 South, Range 95 West of
the 6th P.M. All of the foregoing placer mining claims
contain valuable deposits of oil shale and are located in
Rio Blanco County, Colorado.
6. In 1927, the defendant’s predecessors in office in-
stituted and thereafter conducted Contests Nos, 11,757,
11,759, and 11,761 against the vested rights in and to
the mining claims referred to in Paragraph 5 above,
owned by plaintiffs’ predecessors in interest. The de-
fendant’s predecessors in office acted in those contests
through subordinate agents, including the Commissioner
of the General Land Office and the Register of the Den-
ver Land Office, all of whom were exercising the author-
ity of the defendant’s predecessors in office and were
subject to their supervision and control at all times. The
said contest proceedings were based solely upon the
charge that annual assessment work in the amount of
$100 had not been performed upon or for the benefit of
each of the above mining claims.
7. In initiating and conducting the contests, the [4]
subordinate agents purported to act pursuant to Depart-
mental Circular No. 460 “Manner of Proceeding in Con-
tests Initiated Upon a Report by a Representative of the
a
—
General Land Office’, 44 L.D. 572. The Commissioner
and the Register named as contestees in the contests per-
sons they regarded as being the then owners of the min-
ing claims and purported to effect service of contest upon
these contestees. In 1928 the Commissioner entered de
fault judgments in Contests Nos. 11,757, 11,759, and
11,761 purporting to declare the mining claims null and
void for failure to perform annual assessment work,
8. In the first case brought in the courts to challenge
the authority and jurisdiction of the Interior Depart-
ment to inquire on behalf of the United States whether
annual assessment work had been performed for the
benefit of a mining claim, the Supreme Court of the
United States held in Wilbur v. Krushnic, 280 U.S. 306
(1930), that failure to do annual assessment work did
not authorize the defendant’s predecessors in office to
declare mining claims null and void.
9. On or about June 7, 1930, the defendant’s prede-
cessor in office, as a result of the decision in Wilbur v.
Krushnic, supra, acknowledged the invalidity and nullity
of all prior contests in which the United States had
charged only failure to perform assessment work, includ-
ing Contests Nos. 11,757, 11,759, and 11,761, and in-
structed his subordinates to renew contest proceedings
against the mining claims referred to in Paragraph 5
above.
10. Thereafter, the Commissioner and the Register re-
newed Contests Nos, 11,757, 11,759, and 11,761. The
only difference between the original and the renewed con-
test proceedings was that in the latter the charge of
failure to perform assessment work was expanded to in-
clude a charge that performance of assessment work had
not been resumed prior to the assertion of challenges to
the [5] claims by the defendant’s predecessor in office.
11. The Commissioner and the Register prepared new
notices of contest, naming as contestees persons they ap-
parently thought owned the above mining claims. The
renewed proceedings were also purportedly conducted
pursuant to Department Circular No. 460. The Register
purported to effect service of notice of contest upon per-
sons he regarded as being the then owners of the mining
9
claims referred to in Paragraph 5 above, and in 1930
and 1931 the Commissioner from time to time declared
that, either to the extent of the interest of the contestees
served in Contests Nos. 11,757, 11,759 and 11,761 or in
their entirety, the mining claims referred to in Para-
graph 5 above were null and void for failure to perform
assessment work.
12. In the first case brought in the courts to chal-
lenge the authority and jurisdiction of the Interior De-
partment to conduct the renewed contest proceedings, the
Supreme Court of the United States in Ickes v. Virginia-
Colorado Development Corp., 295 U.S. 689 (1935), held
that no charge of failure to perform assessment work,
regardless whether performance of the work had been
resumed, could serve as a basis for invalidating mining
claims, and that the Department’s renewed challenges
of oil shale claims for failure to perform assessment
work, its institution and conduct of contests based on
failure to perform assessment work, and its decisions,
such as those in Contests Nos. 11,757, 11,759, and
11,761, declaring claims null and void for failure to per-
form assessment work, went beyond the authority con-
ferred by law upon the defendant’s predecessors in office.
13. Following the decision in Ickes v. Virginia-Colo-
rado Development Corp., supra, defendant’s predecessor
in office decided and declared that all prior decisions de-
claring mining claims null and void for failure to per-
form assessment work, including all the [6] decisions in
Contests 11,757, 11,759, and 11,761, were null and void
and had no effect; upon the validity of mining claims. Such
decision was publicly evidenced by, among other things,
the Department’s decision in The Oil Shale Co., 55 I.D.
287 (1935) (annexed as Exhibit A hereto and made a
part hereof) overruling all decisions holding the Depart-
ment had jurisdiction to challenge mining claims for
non-performance of assessment work and expressly re-
calling and vacating the Departmental instructions au-
thorizing the renewal of assessment work contests follow-
ing the decision in Wilbur v. Krushnic, supra, in 1980.
Pursuant to these decisions, Contests 11,757, 11,759, and
“taba were dismissed and closed adversely to the United
tates.
10
14. At no time prior to the termination of Contests
Nos. 11,757, 11,759, and 11,761 had any of the owners
of the above mining claims or anyone else made applica-
tion to the defendant's predecessors in office for patents
for the claims or for any other interest in the lands coy-
ered by the claims. Defendant’s predecessors in office
and their subordinates were therefore without authority
of law to enter upon said contest inquiries into the valid-
ity of any mining claims to such lands, and the Commis
sioner’s decisions in Contests Nos. 11,757, 11,759, and
11,761 were and are invalid.
15. The defendant and his predecessors in office have
at all times lacked authority to inquire or decide whether
assessment work has been performed. Consequently the
actions of the defendant and his predecessors in office in
instituting the Contests Nos. 11,757, 11,759, and 11,761
and in purporting to cancel the mining claims referred
to in Paragraph 5 above for failure to perform assess-
ment work were and are null and void and of no force
or effect.
16. At no time during the Contests Nos. 11,757, 11,-
759, and 11,761 did the defendant’s predecessors in of-
fice or their agents [7] serve the contestees
with notice of contest or follow the applicable Depart-
mental procedures for service of notice of contest, which
were set out in Circular No. 460. No contestees ever
entered an appearance in the contests. At no time did
the Department obtain personal jurisdiction over the con-
testees in the said contests, and the decisions in the said
contests were and are of no force and effect.
17. In originally bringing and subsequently renewing
Contests Nos. 11,757, 11,759, and 11,761, the defendant’s
predecessors in office failed and neglected to name as con-
testees or to effect service upon all of the then owners of
the mining claims involved in the said contests. All con-
testees and all the then co-owners of the said mining
claims were indispensable parties without whose presence
no valid judgment or decision in said contests affecting
said claims could be entered.
18. The Commissioner’s decisions, which were based
on an erroneous legal premise, became ripe for purposes
a
of judicial review when the time allowed for appeal to the
Secretary expired. Thereupon they became, and are now,
subject to judicial correction if in fact they have not
already been nullified by administrative action.
19. After Wilbur v. Krushnic, supra, in 1930, and
again after the 1935 decision in Ickes v. Virginia-Colo-
rado Development Corp., supra, the defendant’s predeces-
sors in office decided that all prior decisions invalidating
oil shale claims for failure to perform assessment work,
including all the decisions by the Commissioner in Con-
tests Nos. 11,757, 11,759, and 11,761 were null and void
and had no effect on such claims.
20. During the period 1935 through 1962, the defend-
ant, his predecessors in office and officials and employees
of the Department of the Interior repeatedly and publicly
affirmed that [8] the decisions in the assessment work
contest proceedings, including Contests Nos. 11,757, 11,-
759, and 11,761, were void and of no effect and did not
operate to invalidate or otherwise adversely affect the
interests of the plaintiffs, their predecessors in interest
and others similarly situated.
21. During the period 1935-1962, the defendant and
his predecessors in office issued land patents covering at
least 74,000 acres of oil shale claims which had been de-
clared null and void in assessment work proceedings such
as those here involved and which were in all respects of
fact and law the same as the mining claims referred to
in Paragraph 5 above, with full knowledge that such
contest proceedings had resulted in decisions adverse to
the claims, and in recognition of the invalidity of the
prior contest proceedings. The Department’s consistent
practice of issuing patents for oil shale claims which had
purportedly been invalidated by assessment work pro-
ceedings was widely known throughout the area in which
the claims were located, and was known both to the plain-
tiffs and to their predecessors in interest.
22. By reason of the facts set forth in Paragraph 19,
20, and 21 above, the Department has duly adopted a
rule of law, which cannot be retroactively altered, that
the assessment work contests, including Contests Nos.
11,757, 11,759 and 11,761, had no effect on the validity
of mining claims.
ll
12
23. From 1935 until 1962, the plaintiffs or their pred-
ecessors in interest both knew of and relied upon the con-
sistent policy of the defendant and his predecessors in
office of treating the decisions in the original and the
renewed assessment work contests, including the deci-
sions “» Contests Nos. 11,757, 11,759 and 11,761, as nulli-
ties with no force and effect. During that period the de
fendant and his predecessors, through their authorized
subordinates, made repeated representations to the [9]
plaintiffs, their predecessors in interests, their repre
sentatives, advisers, and neighbors, that the assessment
work contests had no effect on the validity of mining
claims, and the plaintiffs have justifiably relied upon
such representations in the expenditure of time and
money in acquiring, improving, and perfecting their
rights to the mining claims set out in Paragraph 5 above.
24. On February 16, 1962, the Manager of the Colo-
rado Land Office of the Bureau of Land Management is-
sued decisions rejecting patent applications for mining
claims which, while not involved in this Complaint, were
subject to contest proceedings prior to 1935 based upon
charges identical with those made by defendant’s prede-
cessors in office in Contests Nos. 11,757, 11,759 and 11,-
761. The Manager’s decisions for the first time asserted
on behalf of the defendant that decisions in the old as-
sessment work contests barred the patenting of the min-
ing claims involved in such contests.
25. On appeal from the Manager’s decisions, the So
licitor of the Department of the Interior, acting pursu-
ant to the direction and with the express authorization
of the defendant, ruled on April 17, 1964, that, although
the decisions in the old contest proceedings were errone-
ous in law, the defendant would now and in the future
assert decisions in the assessment work contests such as
Contests Nos. 11,757, 11,759 and 11,761 to bar the pat-
enting of mining claims provided only that notice of con-
test had been properly served therein.
26. Since 1930 and 1935, the defendant and his pred-
ecessors in office have treated the decisions in the old as-
sessment work proceedings identical with Contests Nos.
11,757, 11,759, and 11,761 as nullities. The arbitrary
13
and unreasonable change of position by the defendant on
April 17, 1964, pursuant to which legally erroneous and
long overruled decisions in old contest. [10] proceedings
are now for the first time being asserted to defeat the
vested property rights of the plaintiffs, violates the duty
owed by the defendant to the plaintiffs fairly and equit-
ably to administer the statutes of the United States re-
lating to public lands and the rules and regulations of
the Department of the Interior.
27. The defendant has a duty to the plaintiffs to with-
draw and expunge from the Department of the Interior
land records the erroneous decisions in Contests Nos. 11,-
757, 11,759, and 11,761, which purportedly now bar the
patenting of the mining claims set out in Paragraph 5
above by the plaintiffs. The resurrection by the defend-
ant and his subordinates of the erroneous decisions in old
contest proceedings, including the decisions in Contests
Nos. 11,757, 11,759 and 11,761, casts a serious cloud
upon the validity of the plaintiffs’ mining claims and
have directly and adversely affected the vested property
rights of the plaintiffs; and the defendant should be re-
strained from now asserting the validity or effect of the
erroneous decisions in Contests Nos. 11,757, 11,759 and
11,761.
Second Claim
28. This is a suit under the Federal Declaratory
Judgment Act, 28 U.S.C. § 2201, to obtain a declaration
of rights and other legal relations, including a declara-
tory judgment or decree herein, an order for injunctive
relief and for such other and further relief as may be
necessary or proper. A case of actual controversy exists
between plaintiffs and defendant which is definite, con-
crete, real and substantial and which touches the legal
relations of plaintiffs and defendant. The controversy
between the parties concerns the interpretation and the
application of the mining laws of the United States, in-
cluding 30 U.S.C. [11] §§ 22-38, and the validity and
effect on plaintiffs’ vested rights in oil shale claims of
decisions made by the defendant and his predecessors in
office and theix subordinates in assessment work con-
14
tests purportedly administering and interpreting said
laws. This case of actual controversy admits of an im.
mediate and definitive determination of the legal ri
of the parties and admits a specific relief through fina]
decree, as hereinafter more fully appears. The matter
in controversy exceeds the sum of $10,000, exclusive of
costs. Jurisdiction is conferred on this Court by 28
U.S.C. § 1331.
29. Plaintiffs repeat and reallege each and every al-
legation of Paragraphs numbered 1, 2 and 5 through 27
of the Complaint with the same force and effect as if
they were fully set forth herein.
30. Plaintiffs are subjected to and threatened with
an absolute bar, based upon the invalid assessment work
decisions in Contests Nos. 11,757, 11,759 and 11,761 as
given new effect by the defendant on April 17, 1964, in
securing patents to land in which they have vested rights
pursuant to the mining laws of the United States.
31. Plaintiffs’ property rights in and to such mining
claims have been and will continue to be seriously and
adversely affected by the defendant’s action in asserting
that the prior decisions in the assessment work con
including Contests Nos. 11,757, 11,759, and 11,761, de
stroyed the mining claims involved therein, including
those owned by the plaintiffs.
32. Plaintiffs’ injuries, actual and potential, will con-
tinue to occur and exist, and the injuries, doubts and
uncertainties raised by the defendants’ decisions of April
17, 1964, will continue to exist until this Court settles
the aforementioned controversy and grants plaintiffs the
relief they seek.
[12] 33. The Plaintiffs have no adequate remedy at
law.
Wherefore, plaintiffs pray the Court:
1. To issue its mandatory order compelling the de
fendant to perform the duty owed to the plaintiffs by
recalling, vacating, and expunging from the records of
the Department of the Interior any decisions, orders,
judgments or cancellations entered by the defendant or
his predecessors in office or their subordinates in Contests
15
Nos. 11,757, 11,759, and 11,761 with respect to the min-
ing claims of the plaintiffs.
2. To adjudge that any decisions, orders, judgments
or cancellations entered by the defendant or his predeces-
sors in office in Contests Nos. 11,757, 11,759, and 11,761
are erroneous, invalid and of no force or effect on the
mining claims involved therein and now owned by the
plaintiffs.
8. To adjudge that the defendant be restrained from
asserting the validity or effect of the decisions in Con-
tests Nos. 11,757, 11,759, and 11,761 to bar the patenting
by the plaintiffs of the mining claims referred to in
Paragraph 5 of this complaint.
4. To issue such other restraining orders, temporary
injunctions, and permanent injunctions as may be re-
quired to protect the statutory and constitutional rights
of plaintiffs, preserve the jurisdiction of the Court, and
assure the due and fair administration of justice.
5. To grant such cther and further relief as the Court
deems reasonable, just and proper.
Dated: Denver, Colorado July 10, 1964
Tweedy, Mosley, Sullivan & Young
By John B. Tweedy
Attorneys for Plaintiffs
Cleary, Gottlieb, Steen & Hamilton New York, New
York 10005 Of Counsel ‘
Filed July 10, 1964
16
[19]
DEFENDANT’S MOTION To DISMISS
Defendant Stewart L. Udall, Secretary of the Interior,
by his attorneys, Lawrence M. Henry, Esquire, United
States Attorney, and David Shedroff, Esquire, Assistant
United States Attorney, moves the Court as follows:
1. To dismiss the action because the complaint fails
to state a claim against defendant upon which relief can
be granted.
2. To dismiss the action on the grounds that it is pre
maturely filed and that plaintiffs have not exhausted
their administrative remedies.
8. To dismiss the action on the grounds that defend-
ant has primary authority to determine what conditions
bar the patenting of mining claims and this Court has
no jurisdiction to grant either declaratory or injunctive
relief with respect to the issuance of a mining patent
where no application therefor has been submitted to de
fendant and where legal title to the land remains in the
United States.
4. To dismiss the action on the ground that the United
States is an indispensable party.
Lawrence M. Henry
United States Attorney
By: David Shedroff
Assistant United States Attorney
Denver, Colorado 80201
Attorney for Defendant
Filed September 30, 1964
17
[29] ANSWER
Defendant Stewart L. Udall, Secretary of the Interior,
by his attorneys, Lawrence M. Henry, United States At-
torney, and David I. Shedroff, Assistant United States
Attorney, for his answer says:
First Defense
The complaint fails to state a claim upon which relief
can be granted.
Second Defense
The United States, a sovereign not amenable to suit,
is an indispensable party.
Third Defense
Plaintiffs have failed to exhaust their administrative
remedies and lack standing to sue.
Fourth Defense
As a result of notices by the holder of oil and gas
ieases Colorado 03189-A, 03190-B and 03191-A, published
pursuant to Section 7 of the Act of August 13, 1954, 68
Stat. 708, 30 U.S.C. sec. 527, and as a result of the veri-
fied statement filed pursuant to the provisions of that
Act by Energy Resources Technology Land, Inc., there
remains pending in the Department of the Interior a
proceeding involving the [30] validity of the so-called
unpatented oil shale placer claims designated as Bute
Nos. 5 to 8, 13 to 16, 21 to 24 and 30, 31 and 32, all of
which are referred to in paragraph 5 of the complaint
in this proceeding. The verified statement as to these
claims was rejected by the Manager of the Denver Land
Office on March 27, 1963, and an appeal was filed by
Energy Resources Technology Land, Inc., on April 26,
1968, and that appeal remains pending in the office of
the defendant.
18
Fifth Defense
First Claim
I. Defendant admits the allegations in paragraphs 1
and 2 of the complaint.
II. Defendant is without information sufficient t
form a belief with respect to the truth or falsity of the
allegation in paragraph 3 that the matter in controversy
exclusive of interest and costs, exceeds the sum of $10,-
000. The remaining allegations in paragraph 8 and the
allegations in paragraph 4 are conclusions of law which
require no answer.
III. With respect to the allegations in the first four
sentences of paragraph 5, defendant states that the min-
ing claims listed therein, having previously been declared
null and void, are no longer capable of ownership. De-
fendant is without information sufficient to form a be
lief with respect to the truth or falsity of the allegations
in these four sentences. Defendant admits that the claims,
when originally located, were situated in the areas de
scribed in sentences 5, 6 and 7 of paragraph 5 and that
the claims, as originally located, were situated [31] in
Rio Blanco County, Celorado. Defendant is without in-
formation sufficient to form a belief with respect to the
truth or falsity of the allegation that these claims con-
tain valuable deposits of oil shale.
IV. With respect to the allegations in paragraph 6,
defendant admits that in 1927 officials of the general
Land Office instituted Contests Nos. 11,757, 11,759 and
11,761 wherein the validity of the mining claims de
scribed in paragraph 5 of the complaint was challenged
on the ground that annual assessment work in the
amount of $100 had not been performed. Defendant de-
nies that these claims represented vested rights of the
plaintiffs or their predecessors in interest.
V. With respect to the allegations in paragraph 7,
defendant admits that the contest proceedings were con-
ducted pursuant to departmental Circular No. 460 by
the Commissioner of the General Land Office and that in
1928 default judgments were entered in Contests Nos.
11,757, 11,759 and 11,761 declaring the mining claims
19.
nuli and void. Defendant is without information suf-
ficient to form a belief with respect to whether the per-
sons named or served in those contests were the persons
that the Commissioner and the Register regarded as be-
ing the then owners of the mining claims.
VI. With respect to the allegations in paragraph 8,
defendant says that the decision of the Supreme Court
in Wilbur v. Krushnic, 280 U.S. 306, speaks for itself.
Defendant is without information sufficient to form a
belief as to the truth or falsity of the allegation that this
was the first case.
[32] VII. Defendant denies the allegations in para-
graph 9, except the allegation that orders were issued to
renew contest proceedings against the mining claims re-
ferred to in paragraph 5 of the complaint.
VIII. Defendant admits the allegations in paragraph
10.
IX. With respect to the allegations in paragraph 11,
defendant admits that contest proceedings were conducted
pursuant to departmental Circular No. 460, admits that
service was effected on the owners of the mining claims
and admits that in 1930 and 1931 the Commissioner of
the General Land Office entered default judgments de-
claring the mining claims referred to in paragraph 5 of
the complaint null and void. Defendant denies the alle-
gations in paragraph 11 not herein specifically admitted.
X. With respect to the allegations in paragraph 12,
defendant says that the decision of the Supreme Court in
Ickes v. Virginia-Colorado Development Corp., 295 U.S.
639, speaks for itself. Defendant specifically denies that
the Supreme Court held in that decision that the contest
proceedings therein involved went beyond the jurisdic-
tion of the Department of the Interior although it was
held that the contest proceedings had been erroneously
decided.
XI. Defendant denies the allegations in paragraph 13
of the complaint.
XII. Defendant admits the allegations in the first sen-
tence of paragraph 14 and denies the allegations in the
second sentence of that paragraph.
20
[83] XIII. Defendant denies the allegations in para-
graph 15 of the complaint.
XIV. Defendant denies the allegations in the first and
third sentences of paragraph 16 and admits the allega-
tions in the second sentence of that paragraph.
XV. With respect to the allegations in the first sen-
tence of paragraph 17, defendant says that the records
of the Department of the Interior indicate that service
was made on the contestees in Contests Nos. 11,757, 11,
759 and 11,761 and that the known owners of the mining
claims were named as contestees. The allegations in the
first sentence of paragraph 17 are therefore denied. In
his decision in a separate case involving other oil shale
mining claims, Union Oil Co. of California, et al., 71
I.D. 169 (1964), defendant has held that questions claim-
ants might wish to raise with respect to the legal ade
quacy of service in earlier contests will be reviewed upon
the filing of a proper application with defendant. De-
fendant denies the allegations in the second sentence of
paragraph 17.
XVI. With respect to the allegations in paragraph 18,
defendant says that plaintiffs’ alleged predecessors in
interest failed to appeal to the Secretary of the Interior
within the time permitted by the then existing regula-
tion and thus failed to exhaust their administrative reme-
dies. Defendant denies the allegations in the second sen-
tence of paragraph 18.
XVII. Defendant denies the allegations in paragraph
19 of the complaint.
[84] XVIII. Defendant is without information suff-
cient to form a belief with respect to the truth or falsity
of the allegations in paragraph 20 as they refer to indi-
viduals other than the defendant. As applied to the de
fendant, the allegations in that paragraph are denied.
XIX. As they relate to defendant, the allegations in
paragraph 21 are denied. Defendant admits that his pre-
decessors issued some patents based on oil shale placer
claims which had previously been declared null and void
for failure to perform assessment work. Defendant is
without information sufficient to form a belief with re
spect to the acreage involved in such patents or what
21
knowledge his predecessors might have had of the con-
test proceedings. Defendant is without information suf-
ficient to form a belief with respect to the truth or falsity
of the allegations in the last sentence of paragraph 21.
XX. Defendant denies the allegations in paragraph 22
of the complaint.
XXI. As they relate to defendant and his authorized
subordinates, the allegations in paragraph 23 are denied.
Defendant is without information sufficient to form a
belief with respect to the truth or falsity of the allega-
tions in this paragraph as they relate to other persons.
Defendant notes that despite the length of the complaint
it contains no allegation as to the dates on which plain-
tiffs purchased the alleged interests of the locators or the
manner in which they were acquired.
XXII. With respect to the allegations in paragraphs
24 and 25, defendant admits that the so-called Union
Oil Co. of California decision, 71 I.D. 169, was announced
on April 17, 1964. Defendant says that this decision
speaks for itself and any paraphrase thereof in para-
graph 25 is denied. Defendant admits that this decision
did not involve the mining claims described in paragraph
5 of the complaint. The allegations in the last sentence
of paragraph 24 are denied.
[35] XXIII. The allegations in paragraphs 26 and 27
of the complaint are denied.
Second Claim
XXIV. With respect to the allegations in paragraph
28, defendant is without information sufficient to form
a belief with respect to the truth or falsity of the allega-
tion that the matter in controversy exceeds the sum of
$10,000, exclusive of costs. The remaining allegations in
paragraph 28 are conclusions of law which require no
answer.
XXV. With respect to the allegations in paragraph
29, defendant adopts his answers to paragraphs 1, 2 and
5 through 27 of the complaint.
XXVI. Defendant denies the allegations in paragraphs
30, 31, 32 and 33 of the complaint.
ener
Se
a
MEET <r
¢
'
;
;
¢
i
‘
'
‘
22
Sixth Defense
The oil shale placer mining claims referred to in the
complaint were originally located in 1920 or earlier
years. These claims were held null and void in 1930 and
1931. No action was taken thereafter by plaintiffs’ pre
decessors in title or by plaintiffs to challenge the deci-
sions. In the meantime, the United States, relying on the
established invalidity of the claims, entered into oil and
gas leases covering much of the area involved and other-
wise administered the property as being free and clear
of plaintiffs’ claims. In view of the foregoing, plaintiffs,
under ordinary principles of laches and estoppel, are
estopped to maintain the present suit.
Wherefore, defendant demands that the complaint be
dismissed.
Lawrence M. Henry
United States Attorney
David I. Shedroff
Assistant United States
Attorney
Thomas L. McKevitt
Attorney, Department of
Justice
Washington, D. C. 20530
Attorneys for Defendant
Filed December 7, 1964
23
[108] DEFENDANT’S PRE-TRIAL STATEMENT
I. Statement Of Facts
This suit involves oil shale claims located on public
lands by unnamed individuals on undisclosed dates—
presumably prior to 1920. In 1930 and 19381, in Contest
numbers 11757, 11759 and 11761, the Commissioner of
the then General Land Office declared the claims involved
here null and void for failure to perform assessment work
or to resume assessment work prior to institution of the
contests. No appeals from these decisions were taken to
the Secretary of the Interior. The plaintiff Energy Re-
sources Technology Land, Inc., asserting that it is the
assignee or successor in interest to the original locators,
and the plaintiff Oil Shale Corporation, alleging that it
has an option to purchase the “claims,” instituted this
suit on July 10, 1964, seeking judicial review of the de-
cisions of the Commissioner handed down in 1931 and
1932 declaring the claims null and void. Neither of the
plaintiffs has applied to the defendant for issuance of a
patent or for review of the decisions of defendant’s pre-
decessor.
II. Witnesses
Because this is allegedly a suit to review the 1931 and
1932 decisions of an administrative officer, it is defend-
ant’s contention that the suit must be tried on the basis
of the administrative record. Accordingly, it is not con-
templated that any witnesses will be called on behalf of
defendant. However, should the plaintiffs be permitted
to submit de novo testimony, the defendant may ask au-
thority to call witnesses to meet such testimony.
III. Documentary Evidence
The burden of submitting the administrative record is
on the plaintiffs. However, the defendant will be pre-
pared to submit the following:
[109] 1. The departmental files relating to Contests
numbers 11757, 11759 and 11761.
The Court has already directed that additional docu-
ments may be designated up to twenty days before trial.
IV. Contentions
Defendant’s Statement of Contested Issues.
The defendant does not believe that there are any rele-
vant contested factual issues, other than the issue of
plaintiffs’ standing to sue. The case involves questions
of law. However, the plaintiffs, in their complaint, con-
tend that, after 1935, the decisions declaring the claims
void were cancelled. This is denied. Plaintiffs also con-
tend that after the decisions in the Krushnic and Vir-
ginia Development cases a number of patents were is-
sued to other parties whose claims had been previously
rejected for failure to do assessment work. This is con-
ceded although the number of patents in this category is
not known, Plaintiffs also contend that the Department
of the Interior developed a policy of conceding that all
earlier adjudications declaring claims invalid for failure
to do assessment work are null and void. This is denied.
Defendant’s Statement of Legal Issues.
1. Whether the Department of the Interior had svb-
ject-matter jurisdiction to render the cancellation deci-
sions in Contests numbers 11757, 11759 and 11761.
2. Whether said contest decisions were correct on the
merits notwithstanding the decisions in Wilbur v. Krush-
nic, 280 U. S. 306, and Ickes v. Virginia-Colorado De
velopment Corp., 295 U. S. 639.
8. Whether the plaintiffs are barred by laches and
estoppel due to failure of (a) the original owners of the
claim to exhaust their administrative remedies in the
original contest and failure of (b) the plaintiffs in this
action to first exhaust administrative remedies by apply-
ing for a patent or otherwise seeking administrative re-
view by the defendant of the earlier decisions of his pre
decessor. Whether the plaintiffs are barred from main-
taining this action by reason of the applicable Colorado
statute of limitations.
(110) 4. Whether the plaintiffs have any interest in
the claim and, if so, whether any relief can be obtained
going beyond their interest. Defendant recognizes that
the question of capacity to sue is normally a threshold
question rather than a substantive one. In this case,
however, the complaint questions the “assessment work”
proceedings per se, and in addition, in paragraph 17
questions service of process in those proceedings. Because
of this, and without interfering with the defendant’s
jurisdiction, within the Department of the Interior, as
explained in paragraph 5, infra, defendant is entitled to
all information which goes to the propriety of the “paper”
title.
5. Whether, even if plaintiffs can establish a title to
the claims, the Court is limited to a review of the Sec-
retary’s jurisdiction to issue the 1931 and 1932 determi-
nations in the contest proceedings. Defendant contends
that this Court could not, in any event, direct the issu-
ance of patents and in so doing pass upon the validity
of the claims on grounds that have not as yet been con-
sidered by the Department of the Interior. Such mat-
ters include the validity of the discovery, the factual is-
sue of abandonment and the proper location of the claims
as bona fide association placers.
6. Whether this case can be tried de novo or whether
judicial review must be limited to the administrative
record before the Department of the Interior.
7. Whether the United States is an indispensable party
in all proceedings.
8 Whether, even if some officials of the United States
may have publicly announced or acted in a manner which
indicated they believed all decisions declaring claims in-
valid for failure to do assessment work were null and
void, such announcements or actions create a rule of
-
property or constitute an estoppel against the United
States. United States v. California, 3832 U. S. 19, 89,
Respectfully submitted,
Lawrence M. Henry
United States Attorney for
the District of Colorado.
By David I. Shedroff
Assistant United States
Attorney.
Attorneys for Defendant.
Filed November 8, 1965
[409] Messrs. Tweedy, Mosley, Aley & Young, Attor-
neys at Law, * * * Denver, Colorado, for Plaintiffs in
Civil Actions Nos, 8680 and 9202. Messrs. Cleary, Gott-
lieb, Steen & Hamilton, * * * New York, New York, Of
Counsel in Civil Actions Nos. 8680 and 9202; Fred M.
Winner, Esquire, * * * Denver, Colorado, Of Counsel in
Civil Action No. 8680,
Mr. Edward N. Juhan, Attorney at Law, * * * Den-
ver, Colorado, and Mr. Fred M. Winner, Attorney at
Law, * * * Denver, Colorado, for Plaintiffs in Civil Ac
tion No. 8685.
Messrs. Schmidt and Van Cise, Attorneys at Law,
Richard L. Eason, Esquire, * * * Denver, Colorado, for
Plaintiffs in Civil Action No. 8691.
Mr. Lawrence M. Henry, United States Attorney for
the District of Colorado, * * * Denver, Colorado; Mr.
David I. Shedroff, Assistant United States Attorney, Den-
ver, Colorado; Mr. Thomas L. McKevitt, Attorney, De-
partment of Justice. Washington, D. C. for Stewart L.
Udall, Secretary of the Interior; Mr. Robert M. Mesch,
Attorney, Office of Regional Solicitor, Department of the
27
Interior, Denver, Colorado, and Mr. Lowell Madsen, At-
torney, Office of Regional Solicitor, Department of the
Interior, Denver, Colorado, Of Counsel for Defendant in
all actions.
MEMORANDUM OPINION AND ORDER
Doyle, Judge.
[410] The four above-named actions arise under the
Constitution and laws of the United States. Plaintiffs in
all four actions seek an adjudication that certain deci-
sions of the Department of the Interior, hereinafter the
Department, regarding oil shale placer mining claims in
Colorado are erroneous, invalid and without force and
effect. Plaintiffs in Civil Action Nos. 8685, 8691 and
9202 seek mandatory orders to compel the Department to
issue patents on several placer claims pursuant to certain
applications filed by plaintiffs. Plaintiffs in Civil Action
No, 8680 have not filed a patent application, but seek a
declaratory judgment regarding their alleged rights to
gain patents from the Department on several of the
Colorado oil shale mining claims. The trial was to the
Court. Extensive trial and post-trial briefs have been
filed, voluminous exhibits have been received in evidence,
and oral arguments have been presented. The case now
stands submitted.
There are few factual disputes. Most of the contro-
versy concerns the policies of the Department and certain
Supreme Court decisions relating to extensive oil shale
reserves in Colorado, Utah and Wyoming. For the sake
of clarity, the position of the plaintiffs in each of the
consolidated cases will be summarized at the outset. The
specific facts surrounding the claims in the several ac-
tions are related so as to clarify the issues and furnish
basis for the decisions.
{411] Civil Action No. 8680
Plaintiffs, The Oil Shale Corporation and Energy Re-
sources Technology Corporation, Inc. are, respectively,
Nevada and Colorado corporations. Energy Resources
allegedly owns certain oi] shale mining claims, referred
28
to as the Group A Bute Claims (officially entitled Bute
Placer Mining Claims Nos. 1-19, inclusive, 21-28 inely-
sive, and 30-32 inclusive). The Oil Shale Corporation aj-
legedly owns the Group B Bute Claims (officially en-
titled Bute Placer Mining Claims Nos. 33-48, inclusive),
the Camp Bird Claims (officially entitled Camp Bird
Placer Mining Claims Nos. 1-20, inclusive) and the Atlas
Claims (officially, the Atlas Placer Mining Claims Nos.
1, 2, 3, 7, 9, 10, 12, 17, 18). All of these claims are lo-
cated in Rio Blanco County, Colorado; all allegedly con-
tian valuable oil deposits.
Plaintiffs trace their interests in these claims
one Tell Ertl who, during the 1950’s, acquired them from
the original claimants and their successors in interest by
purchase and forfeiture proceedings under Title 30 U. SC.
§ 28. Hamilton v. Ertl, 146 Colo. 80, 360 P. 2d 660
(1961). All of the claims were allegedly located by the
original claimants during December, 1919 and January,
1920. Thus they predate enactment of the Mineral Leas-
ing Act of February 25, 1920, 41 Stat. 437, Title 30
U.S.C. § 181, et seq. This act changed the mining law
policy in that certain mineral lands were withdrawn from
location.
In 1927, the Department instituted certain contest
[412] proceedings, Contest Nos. 11,757, 11,759 and 11,
761 against the original claimants regarding the above
mining claims. On May 4, 1928, the Commissioner, Gen-
eral Land Office, issued letter decisions declaring the
claims null and void for the failure of the named con-
testees to appear upon notice and process p
served and answer charges alleging their failure to per-
form annual assessment work for the years ending July
1, 1921 to 1927, inclusive, as required by 30 U.S.C. § 28.
Plaintiffs contend that the Supreme Court has, on two
occasions, held that the Department lacked authority to
declare mining claims null and void for failure to per-
form annual assessment work. Wilbur v. United States
ex rel. Krushnic, 280 U.S. 306, 50 S. Ct. 103 (1930);
Ickes v. Virginia-Colorado Development Corporation, 295
U.S. 639, 55 S. Ct. 888 (1935). Their further contention
is that in any event the contestees were not given proper
df
29
notice of the contest proceedings. They allege that fol-
lowing the Supreme Court’s divisions in Wilbur v.
Krushnic, supra, and Ickes v. Virginia-Colorado Develop-
ment Corporation, supra, the defendant’s predecessors in
office and various officials and employees of the Depart-
ment repeatedly and publicly affirmed that the decisions
in the assessment work contest proceedings, including
Contests Nos. 11,757, 11,759 and 11,761, were null and
void; that from 1935 until 1962, the defendant and his
predecessors in office issued iand patents covering at
least 74,000 acres of oil shale claims which had been de-
clared null and void in assessment work [413] proceed-
ings such as those here involved, and which were in all
of fact and law the same as the mining claims
referred to above in which plaintiffs allege to have an
interest. Plaintiffs argue that by reason of these acts
the Department has adopted a rule of law, which cannot
be retroactively altered, that the assessment work con-
tests had no effect on the validity of mining claims. It
is further alleged that the plaintiffs and their predeces-
sors in interest have relied upon the rule of law pur-
portedly adopted by the Department.
In 1962, plaintiff Energy Resources and others applied
for patents on certain mining claims which had been the
subject of departmental contest proceedings during 1930-
1933 involving issues identical to those raised in Contest
Nos. 11,757, 11,759 and 11,761. On February 16, 1962,
the Manager of the Colorado Land Office, Bureau of
Land Management, issued an opinion rejecting the appli-
cations on the ground that while the original cancella-
tions may have been erroneous as a matter of law at the
time they were made, the principles of finality of admin-
istrative action, estoppel by adjudication, and res judi-
cata prevent their now being challenged and consequently
bar the patenting of such claims. The Manager’s decision
was affirmed by the Solicitor of the Department on April
17, 1964. Union Oil Company of California, et al., 71
ILD. 169 (1964). The plaintiffs assert that they have
exhausted their administrative remedies and that the
case is now ready for judicial review. They seek a man-
datory injunction compelling the Department to expunge
from Department re- [414] cords any decisions, orders,
30
judgments or cancellations entered with respect to the
mining claims of plaintiffs in Contests Nos. 11,757, 11,
759 and 11,761. They also seek a declaratory judgment
declaring such contest proceedings to be of no effect, and
an injunction barring the Department from relying upon
them to bar their patent applications, and any further
relief appropriate.
Civil Action No. 8685
Plaintiffs Umpleby, a Texas citizen, and Wasatch De
velopment Company, a Colorado corporation, seek simi-
lar relief in regard to certain mining claims in Garfield
County, Colorado, known as the Carbon and Elizabeth
claims. Plaintiff Umpleby is a successor in interest from
the original claimants and the alleged owner of an un-
divided thirteen and one-half per cent interest in the un-
patented Carbon Nos. 1 through 6 and Elizabeth Nos. 1
through 12 oil shale placer mining claims. Plaintiff Was-
atch Development Company is a successor in interest
from the original claimants and the alleged owner of an
undivided eighty-six and one-half percent interest in these
claims. The claims were allegedly located in 1918, prior
to the enactment of the Mineral Leasing Act.
These claims were also the subject of a contest pro-
ceeding, Contest No. 12029, initiated by the Department
against Umpleby and others in 1929, in which they were
declared invalid for failure to perform annual assessment
work. On September 8, 1959, plaintiffs filed application
for mineral patent (Colo. 030979) on the Carbon Nos. 1
through 4 and Elizabeth Nos. 1, 2, 4 through 12 claims.
[415] In Union Oil Company of California, et al., supra,
the Land Office Manager’s rejection of this patent appli-
cation was affirmed by the Solicitor. Plaintiffs make as-
sertions similar to those made by plaintiffs in Civil Action
No. 8680. They seek a declaration that the Union Oil
Company decision is void because of the Supreme Court’s
decisions in Wilbur v. Krushnic, supra, and Ickes v.
Virginia-Colorado Development Corporation, supra, and
the Department’s subsequent affirmance thereof, and
pray for a mandatory injunction compelling the Depart-
31
ment to take such action as is necessary to issue patents
to them.
Civil Action No. 8691
In this action, plaintiffs Napier and Grace Savage are
California citizens, and plaintiffs Joan Savage, M. B.
Farnum, Catlin, W. H. Farnum, J. R. Farnum, John
Savage and Mincer are Colorado citizens. Plaintiffs are
successors in interest and the alleged owners of three oil
shale placer mining claims in Garfield County, Colorado,
known as the Northwest, Northeast and Southeast claims.
These claims were allegedly located by plaintiffs’ prede-
cessors in 1918, prior to the enactment of the Mineral
Leasing Act. They also were the subject of a contest pro-
ceeding, Contest No. 12972, initiated by the Department
in 1931, wherein the claims were declared invalid for
failure to perform annual assessment work. On June 1,
1959, the plaintiffs applied for a patent on the claims in-
volved here. This application was also rejected by the
Manager of the Colorado Land Office and affirmed by the
Solicitor, Union Oil Company of Cali- [416] fornia, et
al, supra. Plaintiffs also contend that this decision is
contrary to law and the settled practice of the Depzit-
ment. They seek a mandatory injunction compelling the
Department to take such action as is necessary to issue
the patents applied fur, and a judgment declaring the de-
partmental decisions adversely affecting their claims to
be null and void, and other appropriate relief.
Civil Action No. 9202
Plaintiff Brown is a Colorado citizen, and is the suc-
cessor in interest and the alleged owner of certain oil
shale placer mining claims in Garfield County, Colorado,
known as the Oyler claims (officially the Oyler Oil Shale
Placer Mining Claims Nos. 1-4). Plaintiff The Oil Shale
Corporation is a Nevada corporation holding a lease and
option to purchase the Oyler claims. The Oyler claims
were allegedly located in 1916, prior to the enactment of
the Mineral Leasing Act. They too were the subject of
departmental investigations and contest proceedings prior
82
to the Supreme Court’s decision in Ickes v. Virginia-
Colorado Development Corporation, supra. The
ment concluded from an investigation in 1918 that the
claims had been properly located. A second investigation
in 1920 affirmed the continued validity of the claims, In
1929, a contest proceeding, Contest No. 12039, similar to
those discussed above, resulted in a declaration invalidat-
ing the claims for failure to perform annual assessment
work. In 1948, the sole surviving directors of the then
[417] record title holder of the claims, the Index Shale
Oil Company, a dissolved corporation, conveyed the
claims to plaintiff Brown and her husband. In 1955, the
Browns conveyed the claims to the Pacific Oil Company,
which filed a patent application in September of the same
year, Colorado No. 012327. This application was also re
jected by the Manager of the Colorado Land Office on
February 16, 1962, and affirmed by the Solicitor in Union
Oil Company of California, et al., supra. Apparently as
a result of the Land Office Manager’s decision in 1962,
the Pacific Oil Company reconveyed the claims to plain-
tiff Brown. The lease-option agreement with plaintiff
The Oil Shale Corporation was executed thereafter.
Plaintiffs here make the same assertions and seek similar
relief to that asked by plaintiffs in Civil Action No. 8680.
In summary, the plaintiffs assert at least three sepa-
rate and independent reasons for according the relief
sought in these consolidated actions:
1. The 1928-1933 contest proceedings of the Depart-
ment are void for lack of jurisdiction and can give no
basis for the Union Oil decision on any theory.
2. In 1935, the Department adopted a rule that the
1928-1933 contest decisions would be regarded as void
and without force and effect and this rule cannot be re
versed retroactively.
8. Even if the 1928-1933 decisions are regarded as
merely erroneous, but supported by subject matter juris-
diction, the plaintiffs in the circumstances above described
can now seek direct review and obtain their reversal.
418]
; The Assessment Work Issue: Departmental
View Prior to the Krushnic and
Virginia-Colorado Decision
The Department’s broad power over the public lands
gives it an undisputed jurisdiction over most aspects re-
lating to the validity of mining claims, e.g., marking of
claims, discovery, mineral character of the land, particu-
larly when a patent application has been filed. Cameron
y. United States, 252 U.S. 450, 40 S.Ct. 410 (1920);
Best v. Humboldt Placer Mining Company, 371 U.S. 334,
83 S.Ct. 879 (1963). In view of the scope of its ac-
knowledged powers, the Department has, in recent dec-
ades, been reluctant to accept the proposition that it lacks
power to question the sufficiency of assessment work
performance in order to take possession of claims for
the Government where such work is in default. Under
the mining laws, the penalty for failure to do assessment
work traditionally has been that other private parties are
empowered to enter onto the lands and relocate the claim.
E.g., Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 736 [419]
(1881) ; Swanson v. Sears, 229 U.S. 180, 32 S. Ct. 455
(1912); Knight v. Flat Top Mining Co., 6 Utah 2d 51,
305 P.2d 503 (1957). Where there are co-owners to a
mining claim, one co-owner can, by performing assess-
ment work where the others do not, obtain complete own-
ership of the claim through forfeiture proceedings under
30 U.S.C.A. §28. Hamilton v. Ertl, supra. In recent
years, the Department has asserted its thesis that relo-
1That a distinction has been made between the Department’s
power to invalidate claims for non-performance of assessment work
and its power to do so for other defects is illustrated by the follow-
ing extract from The Federal Shale Oil Company, 58 I.D. 218, 216
(1980) :
“Putting aside for the moment the question, whether depart-
mental authority exists to attack mining claims for failure to do
annual work, it can not be disputed that such authority exists to
determine whether a valid claim was initiated prior to the date of
the act by doing the acts the mining law prescribed, such as mark-
ing the boundaries so that they might be readily traced, making a
discovery of mineral prior to the act, or thereafter as a result of
work diligently in prosecution at its date.
Seerererow
ee
siatenideaintdemeinateahees eee
34
cation for assessment work default is also a remedy avail-
able to the Government, and within its jurisdiction. Byt
this has not always been its position.
In an early decision, P. Wolenberg, et al., 29 L.D. 302
(1899), the Secretary of the Interior recognized that the
Department had no jurisdiction under the pre-Mineral
Leasing Act mining laws to inquire into a charge of
failure to perform assessment work. The Secretary re
viewed the action of the Land Office Commissioner jn
ordering a hearing to determine whether annual assess-
ment work had been performed on a contested claim. In
vacating the order for a hearing on this question the
Secretary made the following comments:
“Ordinarily an order of your office directing a hearing,
being an interlocutory proceeding, will not be disturbed
upon appeal. Indeed, generally speaking, such an order
is not appealable. This rule, however, is not without ex-
ception, and where it is made to appear that the order
involves matters which the land department can not in-
quire into. . . the same may be considered and corrected
or wholly vacated when brought to the attention of the
Department, whether by direct appeal or otherwise.
“In the present case the order for a hearing, in so far
as it directs an inquiry into the charge of failure to
make an expenditure of one [420] hundred dollars, in
labor or improvements, on the Mascot claim during the
year 1896, and the alleged relocation of the claim by rea-
son thereof, clearly relates to matters over which the
land department is without authority. The annual ex-
penditure of one hundred dollars, in labor or improve
ments, required by section 2324 of the Revised Statutes,
is solely a matter between rival and adverse claimants to
the same mineral land, and goes only to the right of pos-
session, the determination of which is committed to the
courts, and not to the land department. In this respect
the requirement made by section 2324 is essentially dif-
ferent from that made by section 2325, which makes the
expenditure of five hundred dollars, in labor or improve-
ments, a condition to the issuance of patent, and there-
fore a matter between the applicant for patent and the
35
Government, the determination of which is committed to
the land department. * * *
“The action of your office in ordering a hearing to
determine whether the annual assessment work for 1896
had been done upon the Mascot, and, if not, whether work
upon that claim had been resumed before the alleged re-
location thereof, was erroneous.” 29 L.D. at 303-04.
See also Barklage et al. v. Russell, 29 L.D. 401 (1900) ;
Nielson v. Champagne Mining & Milling Co., 29 L.D. 491
(1900) ; Cain et al. v. Addenda Mining Co. (On Review),
29 L.D. 62 (1899).
Following these «arly decisions the Department took
a different view in cases involving the right of mining
claimants to lands subsequently withdrawn or reserved
from mining locations. Thus, in Navajo Indian Reserva-
tion, 30 L.D. 515 (1901), the Department held that a
valid mining location subsisting at the time of the reser-
vation of lands as an Indian Reservation was excepted
from the effect of the withdrwal and that such claim was
subject to relocation upon failure of the original claim-
ant to perform annual assessment work. The Secretary
refused to determine whether the original [421] loca-
tors had defaults, and whether the alleged relocators had
succeeded to their rights, holding this to be a matter for
the courts. However, he did consider the effect of the
withdrawal upon the subsequent default of prior claims.
Depending upon how the reservation was worded, the
Secretary concluded, it might attach upon default of an
existing claim so as to prevent relocation or it might
never attach, regardless of the subsequent default. If, for
example, the reservation did not flatly exclude the prior
claims, but merely exempted them for so long as they
are properly “maintained,” a default in such “mainte
nance” would bring the land under the withdrawal and
hence under the control of the Government.
The effect of a withdrawal under the reclamation act
for irrigation works, 32 Stat. 388, was considered in a
Departmental Instruction dated January 18, 1904, 32
L.D. 387. The Secretary noted that an unperfected min-
ing claim is merely a possessory right which is liable to
be divested for failure to maintain the claim in accord-
ee -
AREER Arp
Fo NORE ae AT ON Re Ie renege
is 2 a cree na a ome
36
ance with the mining laws and local regulations applica-
ble thereto. He then stated that the land department has
jurisdiction to determine whether the claimant has de
faulted and to declare by its judgment whether such
right has been divested so as to restore the land to the
control of the Government. A decade later, in E. C.
Kinney, 44 L.D. 580 (1916), this principle was followed
to support the asserted jurisdiction of the Department
to determine whether placer mining claims on withdrawn
lands were subsequently defaulted for failure [422] to
perform annual assessment work. In referring to the
January 13, 1904, Instruction, the Assistant Secretary
said:
“This is undoubtedly the true rule, for where a claim-
ant is in default so that his claim could be defeated by
another individual adverse claimant, surely the Govern-
ment, desiring to devote the land to an important public
use, may likewise take advantage of the defau't and di-
vest the claim so as to free the land for Government
use.” 44 L.D. at 582.
As has been mentioned, the Mineral Leasing Act of
1920 instituted a new policy with respect to certain min-
erals, including oil shale, by withdrawing them from lo
cation and patent. After its enactment, many prior lo
cators ceased doing annual assessment work on claims
for minerals included under the Act on the ground that
if such claims could no longer be located, neither could
they be relocated. An investigation by the Department
after the enactment of the Leasing Act showed that work
had stopped on many claims. Many contests were initi-
ated alleging that failure to perform the work resulted
in forfeiture of the claims to the United States. In bring-
ing these contest proceedings the Department took the
position that its jurisdiction to inquire into the validity
of mining claims was enhanced by the new policy pro-
pounded by the Act. The Department reasoned that the
provision of Section 37 of the Act, excepting from its
coverage valid existing claims thereafter “maintained in
compliance with the laws under which initiated,” im-
pliedly gave the Secretary the authority to determine
what lands are subject to lease and what lands are within
87
the exception of valid claims. In the Department’s [423]
view, maintenance “in compliance with the laws under
which initiated” included the performance of annual as-
sessment work; hence, the Secretary’s implied authority
to determine what claims fell within the exception neces-
sarily gave him jurisdiction to invalidate claims for non-
performance of such work.
The Supreme Court Decisions
The leading Department case enunciating this view-
point was Emil L. Krushnic, 52 L.D. 295 (1929). There,
the petitioner’s application in 1922 for patent to certain
oil shale placer claims was denied for failure to perform
assessment work during 1920, although he had resumed
such work in 1921 and 1922. The Commissioner ruled
that to maintain a claim “in compliance with the laws
under which initiated means, among other things, the
performance of $100 worth of annual labor and improve-
ment prescribed by section 2324, Revised Statutes... .,”
and that failure to fulfill this requirement automatically
terminated the claim and rendered it subject to disposi-
tion only under the leasing act. In affirming the Com-
missioner the Secretary emphasized the automatic nature
of the termination upon default in performing the yearly
labor.
“Section 37 [of the Leasing Act] at one blow destroyed
the right of relocation of such minerals and with it fell
the right of resumption. * * * The fair and obvious
meaning of section 37 is that if the annual work is not
done, all the rights of the claimant are gone.”
“The contention that the Federal Government must act
the part of an adverse claimant in this [424] and simi-
lar cases and be alert and vigilant and take some affirm-
ative action to terminate the rights of a defaulting claim-
ant before he resumes work, such as by physical reentry,
or institution of adverse proceedings in the department
or by bringing an ouster suit in the courts, is untenable.”
52 L.D. at 297, 301-03.
Sey ce Tae
38
Since he viewed the forfeiture to be automatic, imme-
diately vesting the Government with complete control
and ownership of the land, the Secretary was able to
distinguish between the Department’s jurisdiction under
the general mining laws to settle disputes over assess-
ment work performance between private adverse claim-
ants and its jurisdiction under the Leasing Act to invali-
date claims on its own initiative for failure to perform
the annual labor.
“The situation here is entirely different. The leasing
act, as stated, repealed as to shaie deposits the general
provisions of the mining law and withdrew them from
location and disposition thereunder and was a legislative
assertion of control and ownership thereof by the United
States, except as specifically provided in section 37 of the
act. It is the duty of the department to scrutinize claims
that are asserted to be within the exceptions and ascer-
tain whether the government or the individual has the
better right. The question is one of validity, and under
section 37 maintenance is an essential element of valid-
ity. Only controversies between adverse claimants under
conflicting mining locations of the same land, and which
relate solely to the right of possession are committed ex-
clusively to the courts... .” 52 L.D. at 303.
Following this ruling in Krushnic the land office in-
stituted numerous assessment work contests. Annual Re
port of the Secretary of the Interior, Fiscal Year 1928,
age 11. Included in these proceedings were Contest
Nos. 11757, 11759, 11761, 12029 and 12039, regarding
the placer claims in Civil Actions Nos. 8680, 8685 and
9202. Meanwhile, however, Krushnic found its [425]
way to the Supreme Court. The decision of the Depart-
ment was there reversed. The Supreme Court ruled that
the Secretary’s decision that cessation of assessment work
automatically terminates the claim “violates the plain
words of the excepting clause of the Leasing Act.” Wil-
bur v. United States ex rel. Krushnic, supra, 280 U.S. at
$18, 50 S.Ct. at 105. The reasoning was that while per-
formance of annual labor “maintains” a claim,
“the owner equally maintains his claim, within the
meaning of the Leasing Act, by a resumption of work,
unless at least some form of challenge on behalf of the
United States to the valid existence of the claim has
intervened .. .” 280 U.S. at 317-18, 50 S.Ct. at 105.
Failure to perform assessment work on a claim located
prior to the leasing act, the court concluded, only ren-
os it subject to loss by relocation and is without effect
so far as the Government is concerned.
“The owner [of a mining ciaim]i s not required to pur-
chase the claim or secure patent from the United States;
but, so long as he complies with the provisions of the
mining laws, his possessory right, for all practical pur-
of ownership, is as good as though secured by
patent. While he is required to perform labor of the value
of $100 annually, a failure to do so does not ipso facto
forfeit the claim, but only renders it subject to loss by
relocation. And the law is clear that no relocation can
be made if work be resumed after default and before
such relocation.
“Prior to the passage of the Leasing Act, annual per-
formance of labor was not necessary to preserve the pos-
sessory right, with all the incidents of ownership above
stated, as against the United States, but only as against
subsequent relocators. So far as the Government was con-
cerned, failure to do assessment work for any year was
without effect. Whenever $500 worth of labor in the
aggregate had been performed, other requirements aside,
the owner became entitled to a patent, even though in
some years annual assessment labor had been omitted.
P. Wolenberg, et al., 29 L.D. 302, 304; Nielsen v. Cham-
pagne Mining & M. Co., 29 L.D. 491, 493. 280 U.S. at
$17, 50 S.Ct. at 104-05.
[426] The decision in Krushnic did not put at rest the
problem of jurisdiction, at least not for the Department.
The Department’s interpretation was that it prohibited
the Government’s invalidating mining claims for failure
to perform assessment work only where the claimant has
resumed the assessment work before “some form of chal-
lenge on behalf of the United States to the valid existence
of the claim has intervened.” * The Department then un-
*The Federal Shale Oil Co., 58 I.D. 218, 220 (1980). See also,
Francis D. Weaver, 58 I.D. 175 (1930), On Rehearing, 53 I.D. 179
40
dertook to investigate the validity of oil shale claims
which assessment work had stopped and had not
resumed. It posted a notice on each such claim.
declared that the United States had taken possession
the land for its exclusive use and benefit. Numerous such
notices were posted; many contest proceedings were in-
stituted; and many claims covering hundreds of thov-
sands of acres were declared null and void. Annual Re-
port of the Secretary of the Interior, Fiscal Years 1930,
p. 14; 1931, p. 65; 1932, pp. 18, 58; 1983, p. 60.
“It is the department’s view that a challenge of an oil
shale claim which is in default for the nonperformance
of assessment work, by notice of the preferment of a
charge against the claim to that effect in a proceeding
instituted in accordance with the regulations of Febru-
ary 26, 1916, Circular No. 460 (44 L.D. 572), while such
default continues to exist, and a judgment by the depart-
ment that the charge is sustained after due notice and op-
portunity to be heard, has the same effect in the extin-
guishment of the claim as would a valid relocation of a
mining claim located on account of minerals other than
those mentioned in the leasing act.” The Federal Shale
Oil Company, supra, 53 I.D. at 221.
[427] On April 1, 1933, the Department suspended
these actions to await “court decisions on [the] jurisdic-
tion of the Department to challenge the validity of oil
shale locations for failure to perform annual labor there-
on.” Annual Report of the Secretary of the Interior,
Fiscal Year 1934, p. 65. The litigation referred to was
culminated in the Supreme Court’s decision in Ickes v.
Virginia-Colorado Development Corporation, supra.
In Virginia-Colorado, the Court reviewed a decree re-
quiring the Secretary of the Interior to vacate certain
adverse proceedings together with his decision declaring
certain placer claims of the plaintiff in that case to be
void. Plaintiff had alleged that he had located oil shale
placer claims on mineral lands of the United States in
(1980); Virginia-Colorado Development Corporation, 53 I.D. 666
(1982) ; State v. Madell, 53 I.D. 195 (1980) ; Instructions,
Government Proceedings Against Oil Shale Claims for Default
in Assessment Work, 58 I.D. 181 (1980).
4l
Colorado in June 1917. Annual assessment work had been
performed for each year through July 1, 1930, but none
had been done during 1931 when the Department initi-
ated adverse proceedings challenging the claim for non-
performance of the work and failure to resume prior to
the contest proceedings,
The Supreme Court affirmed this decree and in so do-
ing the opinion by Mr. Justice Hughes, declared and
clarified several points.
First, the decision reaffirmed the holding in Krushnic
as to the character of the right acquired. On this it
quoted :
(428) “... Restating the rule declared by many decisions,
we said in Wilbur v, U.S. ex rel. Krushnic, 280 U.S. 306,
316, 50 S.Ct. 108, 104, 74 L.Ed. 445, that such a loca-
tion, perfected under the law, ‘has the effect of a grant
by the United States of the right of present and exclusive
possession. The claim is property in the fullest sense of
that term.’ It is alienable, inheritable, and taxable.”
Secondly, it again spelled out the extent of the De-
partment’s authority as follows:
“There was authority in the Secretary of the Interior,
by appropriate proceedings, to determine that a claim
was invalid for lack of discovery, fraud, or other defect,
or that it was subject to cancellation by reason of aban-
donment. [Citing cases]
“The Leasing Act of 1920 inaugurated a new policy.
Instead of the acquisition of rights by location, the act
provided for leases. But by express provision, the act
saved existing valid claims ‘thereafter maintained in
compliance with the laws under which initiated, which
claims may be perfected under such laws.’ Section 37 of
the act (830 USCA § 193). What then was the status of
plaintiff’s claims under this exception? They were orig-
inally valid claims. No question is raised to the con-
trary. There is no suggestion of lack of discovery, fraud,
or other defect. There is no ground for a charge of aban-
donment. The allegations of the bill, admitted by the mo-
tion to dismiss, dispose of any such contention. Plaintiff
had lost no rights by failure to do the annual assessment
42
work; that failure gave the government no ground of
forfeiture. Wilbur v. U.S. ex rel. Krushnic, supra.”
Thirdly, it was held that the Saving Clause (Section 37
of the Leasing Act) preserved all rights acquired prior
to the enactment of the act, and that the reservation did
not enlarge the Department’s authority. On this it said:
“In this view, plaintiff came directly within the excep-
tion. The government invokes the new policy of the
Leasing Act abolishing the practice of location. But the
saving provision of section 37 is a part of the policy of
the act. Its terms explicitly declare the will of Congress
as to valid existing claims, with full understanding of
the status of such claims under the prior law.
[429] “The government refers to the reservation in the
opinion in Wilbur v. U. S. ex rel. Krushnic, supra, as to
the maintenance of a claim by a resumption of work ‘un-
less at least some form of challenge on behalf of the
United States to the valid existence of the claim has in-
tervened.’ But that was a reservation, not a decision,
and it does not aid the government in its contention here.
To be effective, the ‘challenge’ to the ‘valid existence’ of
a claim must have some proper basis. No such basis is
shown.
The Court’s conclusion was that “the Department’s
challenge, its adverse proceedings, and the decision set
forth in the bill went beyond the authority conferred by
law.”
Soon after the decision of the Supreme Court in Vir-
gina-Colorado, the Department issued its opinion in The
Shale Oil Company, 55 I.D. 287 (1935). This in a sense
implemented the Supreme Court’s ruling. The appeal to
the Secretary was from a Commissioner’s denial of pat-
ent application. The contention was that the Land De
partment was without jurisdiction and without legal au-
thority to question a placer claim owner’s failure to per-
form assessment work for any year. The First Assistant
Secretary reversed the decision and remanded the case
with instructions to reinstate the application and to dis-
pose of it unaffected by default in the performance of
assessment labor. In commenting on the Virginia-Colo-
rado opinion the Assistant Secretary noted that “the chal-
a s
lenge to the valid existence of the claims had no proper
basis; and that the Department’s challenge, its adverse
proceedings and the decision set forth in the Bill went
beyond the authority conferred by law.”
The Assistant Secretary went even further; he con-
[430] cluded that: “The above-mentioned decisions in the
cases of Francis D. Weaver and Federal Oil Shale Com-
pany and other departmental decisions in conflict with
this decision are hereby overruled.”
Thus, the Department not only clearly recognized its
lack of authority to deal with the assessment work prob-
lem in the case before it, but also it cleared the record by
overruling all prior inconsistent decisions.
There are other evidences that this was and continued
to be the viewpoint of the Department many, many years
following the Virginia-Colorado decisions. The view-
points of various officials, reflected in the correspondence,
show that they believed that prior decisions forfeiting
claims for failure to do assessment work were void.*
43
3 Letter of Secretary Lane dated October 23, 1918:
“T am in receipt of your letter dated October 2, 1918, and making
inquiry as to the necessity for performing annual assessment work
on some oil shale lands in Wyoming, which you and associates are
claiming under placer mining locations made in 1917 and 1918.
om a + os
“As a general rule matters involving questions of assessment
work on mining claims arise between adverse claimants to the
same mineral land and go only to the right of possession, the deter-
mination of which is committed exclusively to the courts.”
Letter of First Assistant Secretary Vogelsang dated January 20,
1919:
“The annual expenditure on unpatented mining location required
under Section 2324 U.S. Revised Statutes, and commonly cziied an-
nual assessment work, is, with the exception of certain phosphate
locations affected by a special act of Congress, solely a matter
between rival or adverse claimants to the same mineral land, and
goes only to the right of possession, the determination of which is
committed exclusively to the courts. In other words, the non-
performance of assessment work renders the land subject to adverse
relocation provided work is not resumed (40 Stat. 343).
Letter from Commissioner Fred W. Johnson dated June 28, 1935:
“Tt is possible if you left your claims in 1925 and have not since
performed assessment work thereon that they have been relocated,
4s
[431] The regulations governing the Bureau of Land
Management recognize this proposition also. See 43
C.F.R. § 3420.4 (1966). It provides:
“The annual expenditure of $100 in labor or improve.
ments on a mining claim, required by section 2324 of the
Revised Statutes (30 U.S.C. § 28), is, with the exception
of certain phosphate placer locations, validated by the
act of January 11, 1915 (38 Stat. 792; 30 U.S.C. 131),
under which regulations were issued March 31, 1915
(Cire. 396), 44 L.D. 46, solely a matter between rival or
adverse claimants to the same mineral land, and goes
only to the right of possession, the determination of which
is committed exclusively to the courts.” *
[432] Similarly, the annual reports of the Secretary of
the Interior also reflected the Department’s view in this
but as also stated in the paragraph referred to, “The determination
of the question of the right of possession between rival or adverse
claimants to the same mineral land is committed exclusively to the
court.’ Matters of trespass, thievery, etc., such as those referred to
in your letter, are also committed to the jurisdiction of the court,
being punishable only under the laws of the state,. As this office
has no jurisdiction in the matters mentioned in your letter it will
not undertake to advise you in that regard.”
Letter from Commissioner Johnson dated July 25, 1935:
“Replying to your letter of July 20, 1935, you are advised that
this office has no jurisdiction over questions relating to the per-
formance of annual assessment work on mining claims, such ques-
tions being committed exclusively to the courts.”
Letter from Under Secretary Chapman dated February 11, 1946:
“The failure to perform the annual assessment work for the
benefit of a valid mining location has no effect as against the
United States but only renders the claim subject to loss through
relocation by another claimant if the work is not commenced or
resumed before such relocation. Therefore, the question of whether
the work done is of a nature that would be considered assessment
work is not one within the jurisdiction of this Department but is for
the appropriate ccurt to determine should litigation arise between
the claim holder and another claimant making a relocation of the
same ground. See Ickes v. Virginia-Colorado Development Corp.,
295 U.S. 639.
See also, The Shale Oil Company, supra, pp. 20-21.
* See also 37 L.D. 757, 769 (1909) ; 49 L.D. 15, 73 (1922) showing
similar versions of the quoted regulation.
45
.» Moreover, the commentators have generally re-
garded the question as one of jurisdiction.*
Union Oil Company Decision
We turn now to consideration of the case which marked
a reversal of the Department’s viewpoint and attitude.
In Union Oil a number of applicants for patents to oil
shale placer mining claims which had been declared null
and void in the contest proceedings during 1930-1933
sought to have patents issue. The Manager [433] of the
Land Office denied these efforts. The Secretary, in his
exercise of supervisory jurisdiction, submitted the case to
the Solicitor of the Department for final decision. The
Manager’s decision was, of course, affirmed notwithstand-
ing that the Solicitor recognized the invalidity of the
1930-1933 rulings. He noted that failure to perform
annual assessment work was not a ground for cancella-
tion of oil shale placer claims by the Government. 71
LD. at 170. He held, however, that even though the
original cancellations were incorrect in law, that never-
theless under the principles of finality of administrative
action, estoppel by adjudication, and res judicata, these
rulings could not be challenged in the year 1962.
The Solicitor’s basic assumption in the Union Oil deci-
sion was that the Supreme Court had not denied the De-
5See Report of the Secretary of the Interior, Fiscal Year 1934,
page 65, and see also the Statement of Secretary Wilbur before the
Senate Committee on Public Lands, given on February 12, 1931.
S E.g.:
“Assessment work upon oil-shale claims is governed by the rules
of the general mining law and the claimant of a valid location prior
in time to the passage of the Leasing Act is not subject to any
forfeiture that did not apply to such law. In other words, fulfill-
ment of the annual ownership work each year is not a prerequisite
to continuing ownership as against the Government of the United
States, and, in the absence of an adverse relocation, work may be
resumed at any time.” Division of Mines, California Department
of Natural Resources, American Mining Law, Vol. 1, § 1051 (1948) ;
“Only a mining relocation can affect forfeiture, and the Federal
Government cannot question the failure to perform assessment
work.” 2 American Law of Mining, § 7.26 (1964).
46
partment’s jurisdiction with respect to the subject mat-
ter. He also construed The Shale Oil Company
supra, which had overruled all inconsistent decisions, as
not reinstating the claims previously declared forfeited,
In essence, he determined that the applicants were re
quired to take action to nullify these rulings at the time
and that their failure to exercise this initiative constj-
tuted something in the nature of an implied acquiescence,
The important emphasis in the decision was placed on
administrative finality and res judicata. Since this deci-
sion stands [434] in the way of a recognition of the
plaintiffs’ rights, we must consider and determine its
validity in the light of the Supreme Court decisions and
the narrow question is whether the Department had sub-
ject matter jurisdiction with respect to performance or
nonperformance of assessment work. In support of his
holding that there was such jurisdiction, the Solicitor
pointed to the language in Virginia-Colorado to the effect
that the Secretary had authority by appropriate proceed-
ings to determine that a claim was invalid for lack of
discovery, fraud, or other defect, or that it was subject
to cancellation by reason of abandonment. From this he
concluded that the Department at all times retained jur-
isdiction; that is, power over these claims. As we view
it, this was an unjustified interpretation of the decisions
of the Supreme Court. It overlooked the basic nature
in terms of property of a mining location. Both Krush-
nic and Virginia-Colorado proceeded on a fundamental
proposition that this creates a vested property right which
can be defeated only by a competitor. Historically, this
was the nature and character of the mining claim, and to
overlook it is to change a fundamental rule of property.
No amount of administrative legerdemain can overcome
this fundamental principle.
It is, of course, so fundamental as to require no docu-
mentation, that an adjudication by a tribunal lacking
subject matter jurisdiction is wholly nugatory, need not
be appealed, and can not be res judicata. When, as here,
the Department acted beyond the authority granted to it
by the law, it acted in the particular [435] area beyond
its jurisdiction. The Supreme Court told the Depart-
47
ment this in language as plain as legal language can be.
If Krushnic left some unresolved question, Virginia-
Colorado did not. It is clear from a reading of this opin-
ion that the Court was speaking on the question of the
Department’s jurisdiction. As to pre-1920 locations, the
Court held that they retained the legal status which they
had enjoyed prior to the adoption of the Leasing Act.
Both of these cases rule that prior to the adoption of
this Act the performance of assessment work was un-
necessary to the preservation of the locator’s possessory
right against the Government.
Virginia-Colorado clarified beyond question the propo-
sition that ‘he Government has never had a possessory
right to pre-Leasing Act mining claims defective only for
failure to perform assessment work. It follows from this
that the Department is wholly without jurisdiction to in-
quire into the status of assessment work performance.
It is also noteworthy that there has been no contention
here that plaintiffs have abandoned their claims and there
is a dearth of evidence to establish acquiescence, express
or implied, by plaintiffs in any assumption of jurisdic-
tion by the Department.
It follows, therefore, that the decision in Union Oil is
contrary to and irreconcilable with the decisions of the
Supreme Court of the United States. In so holding we
recognize that the Department of the [436] Interior is
in good faith advancing a policy. Congress has, of
course, granted the Department broad powers to protect
public lands and the Department undoubtedly considers
itself duty-bound to oppose the instant claims. This
Court, however, must follow the law as laid down by the
Supreme Court of the United States. It is upon this
basis that we conclude that the actions of the Department
in assuming jurisdiction over the failure to do assessment
work is void and of no effect whatever.
The plaintiffs are directed to submit forms of judg-
ments reflecting the views expressed in this opinion.
These judgments should be submitted to defendant for
approval as to form.
48
Dated at Denver, Colorado, this Twenty-first day of
December, A. D. 1966.
By The Court:
William E. Doyle, Judge
United States District Court
Filed December 21, 1966
* m * *
[439] JUDGMENT
This action came on for trial before the Court, Honor-
able William E. Doyle, District Judge, presiding, and the
issues having been duly tried and a decision having been
duly rendered,
It is Ordered and Adjudged:
1. That the decisions of the Commissioner of the Gen-
eral Land Office in Contest 11757 dated May 4, 1928,
July 3, 1931 and November 3, 1931, and any other deci-
sion in that contest, purporting to declare the Bute Placer
Mining Claims Nos. 1-19 inclusive, 21-28 inclusive, and
30-48 inclusive null and void for failure to perform an-
nual assessment work, were and are void, invalid and of
no force or effect whatever upon the validity of the afore-
said Bute Claims or of any interest or interests in said
claims or any of them. In the location certificates the
aforesaid Bute Claims are described as comprising the
following portions of Township 4 South, Range 96 West
of the Sixth Principal Meridian, in Rio Blanco County,
Colorado:
[440]
Bute No. 1 Section 12, northeast quarter
Bute No. 2 Section 12, northwest quarter
Bute No. 38 Section 12, southeast quarter
Bute No. 4 Section 12, southwest quarter
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
Bute No.
5 Section
6 Section
7 Section
8 Section
9 Section
10 Section
11 Section
12 Section
18 Section
14 Section
15 Section
16 Section
17 Section
18 Section
19 Section
21 Section
22 Section
23 Section
24 Section
25 Section
26 Section
27 Section
28 Section
80 Section
81 Section
82 Section
83 Section
84 Section
35 Section
86 Section
87 Section
88 Section
89 Section
40 Section
41 Section
42 Section
43 Section
44 Section
45 Section
46 Section
47 Section
48 Section
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
northeast quarter
northwest quarter
southeast quarter
southwest quarter
49
w! eee lade ie et oe
2. That the decisions of the Commissioner of the Gen-
eral Land Office in Contest 11759 dated May 4, 1928, and
October 8, 1931, and any other decision in that contest,
purporting to declare the Atlas Placer Mining Claims
Nos. [441] 1-3 inclusive, 7, 9, 10, 12, 17 and 18 null and
50
void for failure to perform annual assessment work,
were and are void, invalid and of no force or effect what-
ever upon the validity of the aforesaid Atlas Claims or
of any interest or interests in said claims or any of
them. In the location certificates the aforesaid Atlas
Claims are described as comprising the following por-
tions of Township 4 South, Range 95 West of the Sixth
Principal Meridian, Rio Blanco County, Colorado:
Atlas No. 1 Section 12, southwest quarter
Atlas No.
Atlas No.
Atlas No.
Atlas No.
Atlas No.
Atlas No.
Atlas No.
Atlas No.
2 Section 13,
8 Section 138,
7 Section 14,
9 Section 14,
10 Section 14,
12 Section 10,
17 Section 15,
18 Section 15,
northwest quarter
southwest quarter
northeast quarter
southeast quarter
southwest quarter
northwest quarter
southeast quarter
southwest quarter
3. That the decisions of the Commissioner of the Gen-
eral Land Office in Contest 11761 dated May 4, 1928 and
October 20, 1931, and any other decision in that contest,
purporting to declare the Camp Bird Placer Mining
Claims Nos. 1-20 inclusive null and void for failure to
perform annual assessment work, were and are void, in-
valid and of no force or effect whatever upon the validity
of the aforesaid Camp Bird Claims or of any interest or
interests in said claims or any of them. In the location
certificates the aforesaid Camp Bird Claims are de
scribed as comprising the following portions of Township
4 South, Range 95 West of the Sixth Principal Meridian,
in Rio Blanco County, Colorado:
Camp Bird No. 1 Section 2, northwest quarter
Camp Bird No. 2 Section 2, southeast quarter
Camp Bird No. 8 Section 2, southwest quarter
Camp Bird No. 4 Section 8, northeast quarter
[442]
Camp Bird No. 5 Section 3, northwest quarter
Camp Bird No. 6 Section 3, southeust quarter
Camp Bird No. 7 Section 3, southwest quarter
Camp Bird No. 8 Section 4, northeast quarter
Camp Bird No. 9 Section 4, northwest quarter
Camp Bird No. 10 Section 4, southeast quarter
Camp Bird No. 11 Section 4, southwest quarter
51
Camp Bird No. 12 Section 9, northeast quarter
Camp Bird No. 138 Section 9, northwest quarter
Camp Bird No. 14 Section 9, southeast quarter
Camp Bird No. 15 Section 9, southwest quarter
Camp Bird No. 16 Section 16, northeast quarter
Camp Bird No. 17 Section 16, northwest quarter
Camp Bird No. 18 Section 16, southeast quarter
Camp Bird No. 19 Section 16, southwest quarter
Camp Bird No. 20 Section 17, southeast quarter
4, That the defendant, his successors and his or their
agents and employees are forever enjoined and restrained
from asserting against the plaintiffs and their successors
in interest the validity of the decisions above referred
to.
Dated at Denver, Colorado, this 1st day of March, 1967.
William E. Doyle
United States District Judge
The foregoing judgment is approved as to form.
Maxwell Aley
Attorney for Plaintiffs
Attorney for Defendant
Filed March 1, 1967
[443] NoTIcE OF APPEAL
Notice is hereby given that the above-named defendant
by its attorneys, Lawrence M. Henry, United States At-
torney for the District of Colorado, and Richard T.
Spriggs, Assistant United States Attorney for the Dis-
trict of Colorado, hereby appeals to the United States
Court of Appeals for the Tenth Circuit from the final
judgment entered herein by the United States District
Court for the District of Colorado on the Ist of |
March, 1967.
Dated April 26, 1967.
Lawrence M. Henry
United States Attorney for
the District of Colorado
By Richard T. Spriggs
Assistant United States Attorney
for the District of Colorado
Denver, Colorado
Filed April 26, 1967
[773] REPORTER’S TRANSCRIPT
[774] Be it remembered that the above entitled matters
came on for trial to the Court before the Honorable Wil-
liam E. Doyle, Judge, presiding, at the hour of 9:30
o’clock, a.m., on Monday, July 18, 1966.
Appearances:
Fowler Hamilton, Esq., Attorney at Law, of Cleary,
Gottlieb, Steen & Hamilton, New York City, New York;
and, ’
Donald L: Morgan, Esq., Attorney at Law, of Cleary,
Gottlieb, Steen & Hamilton, Washington, D. C.; and,
Richard W: Hulbert, Esq., Attorney at Law, of Cleary,
Gottlieb, Steen & Hamilton, New York City, New York;
and,
John B: Tweedy, Esq., Attorney at Law, of Tweedy,
Mosley, Aley & Young, Denver, Colorado; and,
Maxwell Aley, Esq., Attorney at Law, of Tweedy, Mos-
ley, Aley & Young, Denver, Colorado, appearing on be-
half of the plaintiff, Oil Shale Corporation, Case No.
9680, and Brown, et al., Case No. 9202.
M. Winner, Esq., Attorney at Law, Denver, Colo-
Richard L: Eason, Esq., Attorney at Law, of Schmidt,
Van Cise, Freeman & Toolev, Denver, Colorado, appear-
ing on behalf of the plaintiff Barnette T. Napier, Et Al.,
Case No. 8691.
Thomas L. McKevitt, Esq., Attorney at Law, United
States Attorney, Washington, D. C.; and,
David I. Shedroff, Esq., Attorney at Law, Assistant
U. S. Attorney, Denver, Colorado; and,
[775] Robert Mesch, Esq., Attorney at Law, Regional
Solicitor’s Office, Denver, Colorado; and,
Lowell Madsen, Esq., Attorney at Law, Regional So-
licitor’s Office, Denver, Colorado, appearing on behalf of
the Defendant in Cases Nos. 8680, 8685, 8691 and 9202.
W-h-e-r-e-u-p-o-n, the following proceedings were had,
to-wit:
[883] MR. McKEVITT:
Now with that coming along, we again had a revival
of a number of people coming in and applying for pat-
ents, and between 1948 and 1955, there were a lot of pat-
ents [834] out of the Department of Interior in oil shale
lands, many of which did cover lands that had been de-
clared null and void in these earlier contests.
Now the evidence—we will go into that somewhat—we
will show how many lands were actually patented during
that period. There was somewhat of an issue as to wheth-
er Interior knew in every instance that the claims had
been declared null and void for failure to do assessment
work. Certainly the evidence will know she knew in cer-
tain some—toward the latter ones—but we contend the
great bulk of them because of the various ways proceed-
ings came along and lack of statements, they had been
declared nul] and void, and it wasn’t done.
Now we might mention just briefly here that in 1953
and 1954, this matter of having a lot of old nontermin-
54
able mining patents out on the public domain became a
problem. Well, I would say to a great extent to the min-
eral interest, people were interested in oil and gas who
might want to get an oil and gas permit on the public
domain, and they would say, “You go out here and try
to get an oil and gas lease. You don’t know whether there
was a mining claim out there or not. All the land looks
alike. Nothing on the land to show it is there. We can
go down and look at the records at the County Courthouse
and even there we will [835] have an awful time trying
to find out because of the survey problems.”
[876] MR. HAMILTON: Your Honor, there is one
question that arises and that has to do with this: In
view of the fact that Mr. McKevitt is going to made ad-
dition objection, the question arises in connection with
title and standing to sue.
Maybe I should make it clear by saying this: That is
there is no question about the record title, then at this
point we are prepared to rest as far as our prima facie
case is concerned. In other words, if I may state just a
moment about the title point.
We have furnished counsel for the Government with an
abstract of title. There is one supplemental part of it
that we will have later in the day that will bring it up
to the appropriate date. We have it now, as a matter of
fact.
Now,. if subject to his objection on relevancy, counsel
for the defendant is prepared to say that that abstract
is a proper abstract, prima facie, gives us title, why, then,
we are prepared as far as our prima facie case is con-
cerned, if I make myself clear?
MR. McKEVITT: What case are you talking about?
MR. HAMILTON: Toscoe and Brown; both of them.
MR. McKEVITT: Toscoe and Brown, as far as offer-
ing the abstracts?
{8771 MR. HAMILTON: Yes, as far as the two cases.
THE COURT: Well, I don’t think the Government
has ever contended that there are any other claimants
worthy of attention. In other words, it is only the Gov-
55
ernment’s objection or theories that are in the way of the
title; isn’t that right?
MR. McKEVITT: We want the abstract of title in,
your Honor. We want to be able to refer to some
of the title history of how these older claims came
down—
THE COURT: Have you tendered those?
MR. HAMILTON: Yes, sir, we have.
THE COURT: Those are a part of 308 or 9 exhibits;
ight?
rere. HAMILTON: Yes.
MR. McKEVITT: What do you want to know, spe-
cifically?
MR. HAMILTON: I want to know whether it is your
position now before I say I close, as far as the prima
facie case is concerned—the things { want to find out is
whether or not they contend that we have failed to make
a prima facie case or showing of legal title or whether
it will be necessary for me to put title counsel on the
stand and go through the abstract shows that it shows?
MR. McKEVITT: No, that won’t be necessary.
MR. HAMILTON: That won’t be necessary?
MR. McKEVITT: I am sure if you put Mr. Tweedy
on, [878] and we will leave it with the abstract, and
that’s plenty. There will be no need to put a technical
witness on the stand.
THE COURT: In other words, you are willing to
stipulate that if he called Mr. Tweedy, he would testify
that title—
MR. HAMILTON: Is in the plaintiff's.
THE COURT: Is in the plaintiff’s; right.
MR. McKEVITT: Right. So we are offering the ab-
stract as such will go into evidence.
THE COURT: All right.
MR. HAMILTON: If Your Honor, please, I am in-
formed by my colleagues there are six patent files that
are in front of Mr. Shedroff that have beeen designated—
Mr. Shedroff corrects me and says there are seven.
THE COURT: Very well.
MR. HAMILTON: We have just learned those are
available today. We indicated to the Clerk that we would
like to offer them, and they have been numbered, but
not marked. We would like to have them marked as a
of our case.
a COURT: These files? These are Department
es?
MR. HAMILTON: Yes.
THE COURT: Pertaining to these patents.
[879] MR. HAMILTON: To these patents.
— McKEVITT: Are you talking about the contents
es?
MR. HAMILTON: I am talking about these files
here. They relate not to claims involved in this case, but
to the claims we argue are analagous to those.
THE COURT: Oh. One of them is the LaPauz claim,
which was the first patented claim, and the other was the
Sheridan claim, the two being contiguous to the Oyler
claims involved in the Brown case. Do you object?
MR. McKEVITT: We do object. I see no relevancy
between these files on some other claims and the issue
before this Court.
THE COURT: Why do we need to clutter our rec-
ords with all of that material? Aren’t there facts in the
record now? I note that you have commented on these
cases in your brief. Why do you have to have this basic
raw material? What do they add? Can’t you take note
of the fact of their having those cases without having the
details of them in the record here?
MR. HAMILTON: The problem of proof, maybe we
are over scrupulous, Your Honor. The problem of proof
is La Pauz and the Sheridan and the Oyler claims, we
will argue were exactly the same posture as regards the
various points of the type that has been made upon the
patents were issued, [880] we would argue in the La
Pauz and Sheridan and case. We would try to offer or
show. In other words, it is difficult to show without the
records that there wasn’t some difference. We have the
files in there for the Oylers
[978] MR. HAMILTON: No use belaboring this to
Your Honor. Your Honor has been diligent enough to
read through the documents. We will set it out in our
57
documents a little more, but we will as we sum it up. We
have the point on jurisdiction.
We have a point on the rule which we urge should not
be changed retroactively. We have our construction of
the Oil Shale Company decision that it canceled and
overall as construed by the papers in the trial
brief and in the record showing that they were canceled,
set aside patents were granted.
We have our fourth point even if the decisions were
not void, they were erroneous and under the circum-
stances as we urge in Tosco, we are now entitled to an
a ,
ony Then I will touch briefly, if I may in Tosco, Your
Honor, upon points that are important but subordinate,
but I believe we would all agree to the main thrust of the
case and those are three in number.
(1) Coming to the relef that we seek in Brown. The
Brown cases, Your Honor will recall, is one that was one
of the early claims that was located in the Naval Reserve.
The Navy was naturally and properly interested in in to
see if there were any ways to clear these claims out.
There was an investigation in 1918 of the Brown Oyler
claims and of the two contiguous, the LaPauz and Sheri-
dan.
The Sheridan and the LaPauz and Oyler were held to
be valid claims at that time. LaPauz and Sheridan pro-
ceeded to patent.
Another investigation was held to these claims in 1927,
1928. It was there held that their claims were valid.
They had not been abandoned. They were properly lo-
cated and that there was a proper discovery, but the
assessment point was raised.
The decision adverse to the claim on the assessment
point was entered subsequently after Krushnic and sub-
sequently to Virginia-Colorado cases the record whows
was ignered.
Then in 1957 and 1958 after the patent application
had been filed in 1955, there was another [980] investi-
gation.
As the documents show, the mineral report was that
here is a valid claim. It is good. There was no ques-
——
58
tion of abandonment raised. There was no question of
improper location raised. And it was recommended that
patent issue.
The recommendation was approved by the superior of
the mineral examiner. The patent claim was clear listed
for patent. A certification note was made that the pat-
ent should issue. And it was caught up in this proceed-
ing.
Now, if Your Honor please, under those circumstances,
we feel a respectable argument could be made that there
should be ordered an issuance of a patent and that we
do not ask for.
We realize this is a difficult question. We think a very
powerful argument could be made on the basis of the Na-
tional Labor Relations Board against Atkins and other
cases, that the matter should be remanded to the Interior
with instructions to decide the case upou the basis of the
record as it existed in 1962, which was the record before
the Secretary which went up before the lower official on
appeal, and then to the Secretary on the basis of which
this claim was declared invalid in the Union case for fail-
ure to do assessment work, and our argument would be
there, that [981] they have exhausted their administra-
tive jurisdiction in argument that they turn around the
other way, of course, on us. But we are not asking for
that.
Although, we think a very powerful argument could be
made that if an administrative agency looks into every-
thing, raises every issue, and then denies the citizen right
on one ground that that should be enough; but we don’t
ask that.
THE COURT: If on a remand if you just tell the
agency to proceed in accordance with the views expressed,
which is an interpretation of the law, isn’t that as much
as you can do? You can’t design a procedure for them?
MR. HAMILTON: I think that’s right, Your Honor,
but we would suggest that there is one thing further that
would be appropriate for you to do—
THE COURT: In other words, you would interpret
laws as presented to you, and then if it calls for a re
59
mand, then they are to view the law as you find it, I
suppose?
MR. HAMILTON: Would not a decree in that case
leave one question open, and that would be this:
Maybe Your Honor already has this in mind, but would
a decree of that kind envisage, for example, because when
they went back, say, they could raise abandonment which
they have looked at three times and found it doesns’t
exist, and then if the claim were declared invalid [982]
for that, and we came up and got that set aside, then we
would be thrown back into the years and have to have
a look at the question of location, and then if we lose on
that, come back and assume we prevailed on judicial re-
view, and then could we—we would be thrown back on
discovery.
THE COURT: Do you have law that says that they
are precluded from proceeding or taking up any other
ground now? Do they have to limit themselves?
MR. HAMILTON: To assessment work. Do you
mean in this case?
THE COURT: Yes.
MR. HAMILTON: Well, we hadn’t asked. We were
not going that far. What we were going to ask Your
Honor to do was to tell or direct the Secretary to decide
or—either to have the record before him, or have another
hearing to come in with everything which he wanted,
which seems to me not unreasonable, but in other words,
let him have a look at everything, but not keep shooting
away at us to state it. Anyway, we will submit it on
authorities. We think that would be reasonable. We
also think it would be reasonable for us to request, and
to hope Your Honor would think it, to grasp the kind of
retention of jurisdiction under the circumstances to see
that the decree has been carried out which has been done
in some of the Labor Board decisions, which we will
present to you.
[988] THE COURT: Anyhow, the Brown case which
it involves as a patent, it calls for a different kind of
ine) than in the Oil Shale Corporation; isn’t that cor-
rect
_——
60
MR. HAMILTON: Of course, that then leaves me
only— :
THE COURT: What kind of relief are you requesting
in that?
MR. HAMILTON: In the Tosco case?
THE COURT: Yes.
MR. HAMILTON: There we are requesting that we
have a declaration from Your Honor that the old 1920—
I think it was decision 129, 130 and 131, be rescinded, ex-
punged, so ther can no longer be used as a bases for con-
tention by the Department that the claims are invalid,
because of those developments, a declaratory judgment
proceeeding, and that’s all. That’s the bit of relief we
seek there.
THE COURT: And then you would have to go into
the Department and apply for patent?
MR. HAMILTON: That’s correct, sir, and they could
raise every possible objection. We are not asking for any
other further relief there. We don’t think we are en-
titled to it, but we do think we are entitled to that on
the record.
Now, if Your Honor, please, I turn to the two remain-
ing points; one having to do with personal jurisdiction.
As your Honor will recall—
THE COURT: This applies to a limited—
[984] MR. HAMILTON: This applies only to the
Tosco case. ; :
[1020] MR. McKEVITT: True, they would have to
go to the Secretary and then after they went to the Secre-
tary there still existed this right to go to a court and this
is the matter that gets very interesting. This is what
Krushnic did. He went all the way through it. That
is what the Ickes vs. Colorado people did. Here was the
remedy. Every single one of these other people before
Krushnie who had wanted to come in and take that rem-
edy could have done it. Now, for one thing most of the
cases went off on failure to appear. There was so little
interest by a lot of these people in all these claims out
here where they were brought that many were so-called
default decisions, so I suppose they weren’t even inter-
61
ested enough to come in and appear but they were more
interested to go on to appeal. So, that’s the factual situa-
tion with thousands of these old claims which we are con-
cerned with in this particular res judicata situation.
These people could have come in. They could have gone
up to the Secretary and then they could have gone to
the court.
Now, I don’t know of any other—we have talked about
this before; to me they would have to go to the courts at
a reasonable time, but I don’t know of any statute of
limitations of going to a court.
There was the remedy for every one of these people.
Failing to do it, it was perfectly appropriate to apply
these principles of res judicata which, Your Honor, may
lead us to [1021] the second point and this is the thing
which Mr. Hamilton began with. He said, “Well, I want
jurisdiction—.” He said my second line, he says, after
the decision came down in Ickes vs. Virginia-Colorado,—I
say that is a matter of fact you actually vacated every
one of these earlier decisions. Now he talks about the
one little subsequent decision of the Secretary in 1935
and he is talking about hundreds of thousands—well, I
hate to get into that—let’s say fifty, sixty or seventy
thousand of these things which had been declared null and
void before, which there had been no appeal. They were
setting there. They were final. He says now, “Oh, but
you in fact are the man back in 1935 which would be
under Secretary Ickes—that he did in fact reverse all of
these. And we say he didn’t and that is one of the
things here.
62
[1511] PLAINTIFF’S EXHIBIT
(Stamp) Dept of the Interior Secy’s Off. Mails &
Files Received Apr 20 1920 (word illegible)
(words illegible) Washington April 20, 1920. 2-39
Mineral Lds.
Memorandum for the Secretary of the Interior.
We now have before us for consideration the first ap-
plication for patent for oil shale claims, the same being
Glenwood Springs 013847 by Verner Z. Reed and James
Doyle for fourteen placer claims covering 2240 acres
situated in the Naval Oil Shale Reserve No. 1 created by
Executive Order of December 6, 1916.
On Departmental sanction, we have written many
letters to inquirers stating that, thus far, neither the De
partment nor any court, so far as we know, has ever held
that oil shale lands and deposits are subject to the placer
mining laws. It is understood that a very large portion
of the oil shale lands in Colorado and Utah are covered
by placer claims; some in good faith, probably more oth-
erwise. In fact, we know of one large operation that
seems to be entirely fraudulent, and we have heard of
many others. Complaint even has been made that the
stockmen are taking up these claims to hold the lands for
grazing purposes.
The new leasing Act of February 25, 1920, provides
for the leasing of oil shale deposits, and provides further
(Sec. 21) “that any person having a valid claim to such
minerals under [1512] existing laws on January 1, 1919”
may transmute same into leases. Sec. 37 of the Act pro-
vides for the patenting of valid claims under preexisting
laws.
Discovery is easy as to those claims that are located
along the outcrops. There are doubtless many other
claims back from the outcrops on which no discovery will
appear. If we patent any oil shale placer claims, the
leasing act will be a (word illegible) letter as to oil shale
for some time. Note the language of Sec. 7 of the oil
shale regulations under the leasing act, which were de-
signed not to admit the existence of such a thing as a
valid claim under the placer laws.
68
The matter is deemed of sufficient importance to ask
for instructions, Submitted herewith is the report of a
Special Agent and Mineral Examiner of this office on
these locations, together with the record of the applica-
tions.
May 10, 1920 Answered Tallman
[1513] PLAINTIFF’S EXHIBIT 2
Report of the Secretary of the Interior
F.Y. 1927 29
Oil Shale
One of the important subjects before the department
during the year was that of oil shale, immense areas of
which exist in Colorado, Utah, and Wyoming. Prior to
February 25, 1920, these deposits were held to be subject
to location and entry under the placer mining laws. On
that date Congress passed the general leasing act, which
repealed the placer mining laws as applicable to such de-
posits, and provided that thereafter they would be sub-
ject to disposition only through lease. One of the con-
cluding sections of the act, however, provided “that valid
claims existent at date of passage of this act, and there-
after maintained in compliance with the laws under which
initiated” might be perfected under the prior existing
laws. Those prior laws required the claims to be located,
a valuable deposit of mineral discovered, that not less
than $100 worth of labor or improvements be placed upon
the claims each year, and that as a prerequisite to patent
not less than $500 should have been expended upon or for
the development of each location.
Immediately prior to the enactment of the leasing act,
numerous locations were made upon the shale areas under
the placer mining laws, and many of these locations have
been followed by applications for patent. It became the
duty of the department to consider these claims and to
64
determine whether the locators had complied with the re-
quirements of the general mining laws. A public hear.
ing, attended by many people interested, was held in the
department on December 1, 1926, and the subject was
thoroughly discussed. Following this hearing, after ex.
tended consideration by the department, decision was
rendered in the case of Freeman et al. v. Summers, in-
volving, primarily, the question of what constitutes suf.
ficiency of discovery upon certain shale placer mining
claims, The department applied [1514] the long-estab-
lished rule that when the locator had discovered mineral
within the limits of his claim in a situation and forma-
tion that the vein or deposit could be followed to depth,
with reasonable assurance that paying minerals will be
found, such discovery may form the basis of a patent,
where compliance with the law has been had in other re
spects.
Field investigation is being made of all shale claims,
to the end that valid rights may be protected and per-
mitted to be perfected, but that invalid claims, where
compliance with the laws has not been had, may be elimi-
nated and canceled. Many difficult questions of law and
of fact necessarily arise in these cases, and while general
rules of law may be applied, the facts of each case, as dis-
closed by investigation and evidence, must govern the de-
partment in the disposition of the cases.
[1515] PLAINTIFF’S EXHIBIT 3
Department of the Interior General Land Office Wash-
ington
In reply please refered to “A”CAO
Mar 7 1927 File as May 31, 1927-
Dep’t of the Interior Received Mar 8-1927 To So
licitor Bedy’s Off-Appts., Mails & Files (Stamp)
Proceedings in oil shale locations.
The Secretary of the Interior Sir:
* o * *
(1516] The question of the advisability of examining
all oil shale locations in the field where no application for
patent has been made nor any complaint filed against the
game or where no application for lease or otherwise for
the land has been filed has arisen. If such claims are to
be examined at the present time the matter of procedure
nst the same requires consideration. It is thought
possibly that by proceeding now against such locations
evidence may be gathered which might not be available
in the future should applications for patent be filed.
* * * ”
[1519] The situation is called to your attention with the
request that instructions be given by you as to the exam-
ination of the claims mentioned and as to the procedure
that may be properly followed to declare the claims in-
valid if the evidence so warrants.
Very respectfully,
William Spry
Commissioner.
4-me
4-7 mdo
May 31 1927 Answered
[1520] PLAINTIFF’S EXHIBIT 4
Department of the Interior Office of the Secretary
Washington M-21882 May 31, 1927.
The Commissioner of the General Land Office.
Dear Mr. Commissioner: I have your request for in-
structions in the matter of oil shale claims (March 7,
1927, A.- C.A.0.)
After careful consideration, it is the judgment of the
Department that all oil shale locations of record should be
examined and reported upon by inspectors of this De-
partment. The Navy has requested that this be done
iI
et mee =
with respect to all locations within the exterior limits of
the naval oil shale reserves.
On the unreserved public domain it seems advisable
that this course be pursued for numerous reasons, The
Department believes that bona fide claims, regularly lo
cated and maintained in accordance with law, should be
protected and be allowed to proceed pursuant to the pro-
visions of the law under which initiated, and section 37
of the leasing act. Paper locations and loca’ ocations not
maintained as required by law constitute a cloud upon
the public lands and interfere with their proper use a
disposition. Moreover, as time goes on, it may be more
and more difficult to ascertain and establish the facts
surrounding locations and the work performed by the lo-
mators and their successors in interest, or failure to per-
form work as required by law.
[1521] It seems important, therefore, that the exami-
nation be made as soon as practicable and the facts ascer-
tained be made of record and available to the Department
through the inspectors’ reports.
It is therefore directed that the division inspector be
instructed to proceed to examine and submit reports upon
all claims of record within the area described. Where
the reports are adverse and proceedings against the loca-
tions are contemplated, the propriety of proceeding im-
mediatley, or waiting until an application for patent has
been filed, or the protest submitted, may then be consid-
ered and further instructions asked for and received from
the Department.
In order to expedite this work, both in the interest of
bona fide claims, and in the interest of the Government
as to claims not valid, an effort will be made to give the
division inspector additional assistance for field work in
the near future.
Very truly yours,
(Signed) E. C. Finney.
First Assistant Secretary.
67
(1522) PLAINTIFF’Ss EXHIBIT 5
Address only the Commissioner of the General Land
Office
United States Department of the Interior General
Land Office Washington
Reply please refer to —......__.. May 7, 1930. 2-139
Oil shalee Memorandum for the Secretary.
After the leasing law was enacted, the matter of dis-
posing of the oil shale deposits and the lands containing
the same, presented a situation that required close study.
It was decided that the claims should be investigated in
the field for the purpose of determining whether or not
they were bona fide claims existing at the date of the act,
and also whether they had been maintained in accordance
with the mining laws. These investigations have since
been carried on and charges preferred against such loca-
tions as were reported to be invalid for any cause, such
as, lack of discovery, dummy locators and failure to per-
form annual assessment work, [1523] and where applica-
tions have been filed failure to perform the required pat-
ent expenditures. Proceedings were instituted against
claims reported in default in the performance of annual
assessment work on the belief that in order to maintain
a claim the locator must perform each year the required
annual labor, under section 2324 R.S., which provides
that on each claim not less than $100 worth of labor
shall be performed or improvements made during each
year.
68
{1525} PLAINTIFF’S EXHIBIT 6
oa Secretary of the Interior Washington Jun 16,
Hon. Rene L. De Rouen, Chairman, File copy
Committee on the Public Lands, House of Surname:
Representatives. Friedman
My dear Mr. De Rouen: Further refer- Thomas
ence is made to your request of June 2 Speck
for a report on H. R. 6560 entitled “A illegible
Bill relating to placer mining claims for illegible
deposits of phosphate, sodium, potassium, Terrett
oil, oil shale, or gas on the public do- Bradshaw
main.” Altizer
Since the recording of such mining locations was en-
trusted to the control of the miners of each mining dis-
trict in conformity with [1526] local law, and since no
complete examination of these records has ever been
made, accurate figures as to the number and extent of
such claims are not available. However, an examination
was made by the General Land Office in the years between
1920 and 1930 to determine the status of the oil shale
placer mining claims on and about the Green River shale
formation in Colorado, Wyoming, and Utah. That exam-
ination disclosed that more than 30,000 such claims, em-
bracing more than 4,000,000 acres of the public domain,
were not being maintained by the performance of annual
assessment work.
Conceiving that the Minera] Leasing Act conferred
such authority upon him, the Secretary of the Interior
challenged in departmental proceedings the validity of
thousands of these claims. After full hearing the claims
were declared void because of default in assessment
work. Appeal was taken from these proceedings and in
the cases of Wilbur v. Krushnic, 280 U. S. 306 (1930)
and Ickes v. Virginia-Colorado Development Corp., 295
U. S. 689 (1935) the Supreme Court held that the pro-
ceedings exceeded the authority of the Secretary and
were, therefore, without effect, From these decisions it
is apparent that, although the performance of annual
assessment work is expressly required by law, there is no
statutory authority to enforce that requirement.
- a * a
Section 3 would effect the termination of such claims as
are not maintained by the making of the assessment ex-
penditures required by section 2324 of the Revised Stat-
utes. The lands thereupon would be [1527] subject to
laws and executive Orders governing the administration
and disposition of public lands.
Sincerely yours,
(Sgd.) Harold L. Ickes
Secretary of the Interior.
ae * - -
Clerk’s Note: Plaintif’s Exhibits No. 8—Letter to Reg-
ister from Wm. Spry 12/10/27; No. 9—Letter to Register
from Commissioner 5/4/28; No. 10—Letter to Register
from Wm. Spry 12/10/27; No. 11—Letter to Register
from Wm. Spry 5/4/2&; No. 12—Letter to Register from
Wm. Spry 12/10/27; No. 13—Letter to Register from
Wm. Spry 5/4/28; No, 14—Letter to Register from C. C.
Moore 6/12/29,—appear in separate exhibit book.
-—
70
[1568] PLAINTIFF'S EXHIBIT 15
14 Report of the Secretary of the Interior, FY 1930
Oil Shale
Oil-shale lands, though having no immediate value for
oil, have received vigorous protection. During the past
year, commencing last spring, every mining engineer in
the General Land Office, save three, was called off other
work and under my personal orders assisted in identify-
ing, examining, and physically posting more than 6,400
oil-shale claims with notice of default to the United
States for failure of the claimant to perform assessment
work. This followed the Supreme Court decision of Wil-
bur v. Krushnic, which, although it reversed the depart-
ment and sustained the a2imant on the issue of assess-
ment work, and so swept aside the bulk of our defensive
procedure, left the possivility (though no certainty) that
if the remaining claims were posted before resumption of
work on the claim, a different result would follow. This
posting work will continue during the current year, and
the tremendous task of adjudicating these claims will get
under way. A second test case in the courts may be
expected. No leases have been issued under this admin-
istration. But oil-shale claims valid in 1920 can be taken
to patent under the mining law, without any discretion-
ary power in this department to decline to issue the pat-
ent. Accordingly about 42,000 acres have been patented.
* * * o
[1569] PLAINTIFF’S EXHIBIT 16
Telegram Official Business—Government Rates
From Interior Department Bureau Land Office Chg.
Appropriation (name illegible) Havell Hathaway L
P.J.A
R. S. Kelley, Chief of Field Division, G.L.O., Postoffice
Building, Denver, Colorado. Jan 15 1930
Your wire eleventh Krushnic decision you will submit
soon as possible reports in all cases where shale locators
i
defauted annual labor and no evidence of resumption of
work Stop You are also directed to as soon as prac-
ticable post notices on all such claims against which
charges not already issued notices to be addressed to rec-
ord claimants and to recite failure to perform assessment
work and failure to resume and that by reason of such
default the United States has taken possession of the land
for purpose of holding for lease under leasing act of
February twenty fifth nineteen twenty Stop Notice
should bear date be over your name and official title and
signed by the posting officer and credible witness Stop
Preserve copy for files with statement of date and place
posting
Approved: Jan 15 1930
(Sgd.) Edwards
Assistant Secretary
Moore
Received Jan 15 1930 G.L.O.
[1570 } PLAINTIFF’S EXHIBIT 17
United States Department of the Interior General
Land Office Washington
In Reply Please Refer to 1366293 “N” UEG, March
26, 1930 Instructions,
Mr. R. S. Kelley, Chief of Field Division, G.L.O. Den-
ver, Colorado, Sir:
* * aa *
[1571] Relative to posting notices on oil shale locations,
that the United States challenges the claimant’s right to
the possession of the lands within the claims, because of
a default in the performance of assessment work, such
posting should be made, to be followed by the direction
of. adverse proceedings by this office, in the usual way,
when it is more expeditious to do so, to head off resump-
tion of work, than: to wait until adverse proceedings are
directed by this office, and in those instances where the
addresses of all or some of the claimants are unknown,
72
so that notice of the default cannot be served on all or
some of the claimant by registered mail.
[1572] As to the second objection, the fact that an oil
shale claimant failed to perform sufficient or no assegs-
ment work for the year ending July 1, 1929, and prior
years, is of no consequence, if he resumes work before
notice is [1573] served on him by the Government and
completes such resumed work to the value of $100, with
reasonable diligence, as he has then maintained his claim
by the resumption of work before challenged by the Gov-
ernment. In order to constitute a good charge the Gov-
ernment must allege a default in the work, and also a
failure to res: ume work, and must assume the burden of
proving both allegations.
Very respectfully,
Sgd. C. C. Moore
Commissioner.
Approved: March 26, 1930
(Sgd.) Ray Lyman Wilbur
Secretary.
3-17-FJ
[1578] PLAINTIFF'S EXHIBIT 18
In Reply Please Refer To —-__ (names illegible)
Department of the Interior General Land Office
Washington Apr 19 1930 1364176 “L” PJA
Address only the Commissioner of the General Land
Office
Posting on oil shale claims. 2-139 oil shale
Mr. R. S. Kelley, Chief of Field Division, G.L.0O.,
Denver, Colorado:
Sir: Referring to the proceedings against oil shale ~
claims since the Krushnic decision, you have been directed
73
in a number of cases to post notices on the claims where
the report submitted by you did not furnish the post of-
fice addresses of all the claimants. You were also given
further general instructions in this respect by letter of
March 26, 1930 (1366293).
The direction given in the specific cases was done as a
precaution to post the claims after you had notice that
charges had been issued, if posting had not already been
done under the telegram of January 15, 1930. The tele-
gram directed that, as soon as practicable, you would
post notices on all claims against which charges had not
already been issued which are in default of annual assess-
ment work and no evidence of the resumption of work
Copy For Secretary’s Office To Be always left on top.
(Signed copy only rec’d in M. & F.) To Secretary
4/15/30 U.E.G.N. For signature (words illegible)
[1579] found. This of course included all claims not yet
reported on, and all claims reported in default where
charges had not been issued. Nothing in the letter of
March 26, 1930, is to be construed to change or modify
the telegraphic instructions, but it is desired that the
posting be proceeded with as rapidly as possible so as to
interpose the Government challenge against the resump-
tion of work,
While you are doubtless taking all necessary steps to
get notices to the claimants by posting and by furnishing
correct post office addresses, it has been thought advisable
to give you these further directions in order that you may
understand that the purpose is to give prompt notice by
appropriate charges and by posting in every proper case.
You are advised, further, that by Executive order of
April 15, 1930, the President withdrew all deposits of
oil shale, and lands containing such deposits, owned by
the United States, and reserved the same for the pur-
pose of investigation, examination and classification. You
will therefore, modify the wording of the notices to be
posted on claims in default of annual labor, referred to
in said telegraphic. instructions of January 15, 1930, so
as to omit
(handwritten notation) 2-153 General Oil Shale with
(word illegible)
ee
74
[1580] after the statement that “the United States has
taken possession of the lands”, the declaration of the pur-
pose of holding the same for lease under the leasing act
of February 25, 1920. In lieu thereof, you will state that
by reason of such default, “the United States has taken
possession of the lands for its own uses and purposes”.
Very respectfully,
C C Moore
Commissioner.
Approved: Apr 19 1930
(Sgd) Ray Lyman Wilbur
Secretary.
[1581] PLAINTIFF’S EXHIBIT 19
Department of the Interior Memorandum for the Press
Immediate Release September 29, 1930.
* * * +
It was stated at the department that no leases for oil
shale have been issued under this administration. The
President’s oil conservation policy was carried into effect
by order of the department on March 13, 1929, as to both
oil and oil shale, although oil shale has only a potential
value until some economical process for extracting the oil
is discovered.
However, the Secretary’s discretion to refuse to issue
leases does not, under the law, extend to claims located
under the old mining laws before the mineral leasing act
came into effect, in 1920. The mineral leasing act left
intact such claims so long as they were maintained in
accordance with the former law.
* * * *
[1582] However, because the adverse Krushnic decision
left open the question of whether the Department had the
right to declare these claims forfeited if such forfeiture
was demanded before the locator had resumed his assess-
75
ment work, Secretary Wilbur, immediately after the Su-
preme Court decision came down, directed that action be
taken against all claims then in default upon which
work had not yet been resumed. Accordingly, practically
every available man in the General Land Office field force
was assigned to the duty of posting notices on oil shale
claims that the Government claimed the land for default.
Approximately, 5,700 notices were posted during the
current season and these claims now await adjudication.
In addition, adverse proceedings were directed against
3,081 other oil shale placer locations. Of this number
2,078 have been adjudicated as null and void by the De-
partment after notices were served on the claimants of
default in [1583] assessment and failure to resume work.
Of the 5,700 oi! shale claims that have been posted there
are included about 912,000 acres, and in the 3,081 addi-
tional claims against which proceedings have been insti-
tuted, approximately 492,960 acres, making a total of
1,404,960 acres involved in such claims against which
challenge has issued on the orders of Secretary Wilbur.
* - * *
The right of the department to challenge locations, as
well as patent applications, for failure to do assessment
work has been vigorously denied by oil shale claimants.
Secretary Wilbur, however, has declined to recede from
the requirement that such work be done and there are
now pending in the department test cases which the lo-
eators asserted they plan to take into court.
* * * *
[1584] PLAINTIFF’S EXHIBIT 20
“A” CAO The Secretary of the Interior Washington
139 Obenchain Havell Jun 7 - 1930 2-139 Oil Shale Part 3
The Honorable The Secretary of Agriculture.
My dear Mr. Secretary: Since the decision of the U. S.
Supreme Court wa: rendered on January 6, 1930, in the
case of Ray Lyman Wilbur, as Secretary of the Interior,
petitioner, vs. United States on Relation of Emil L.
76
Krushnic, involving oil shale claims, efforts have been
made to give notice to the locators or their transferees
that the United States has taken possession of the land
for its own uses and purposes because of failure to per-
form annual assessment work and where such work had
not been resumed prior to the giving of such notices,
The field force of the General Land Office in Colorado,
Wyoming and Utah were,on January 15, 1930, directed
to submit, as soon as possible, reports in all cases where
shale locators defaulted in their annual labor and there
was no evidence of resumption of work, and also to
notices on all such claims against which charges had not
already been issued.
It has been found that it is impossible, without long
delay, to obtain service in these cases of the charges made
and, therefore, the posting of the claims on the land has
been resorted to. This posting is being carried on rapidly
so far as the claims on the public lands are concerned.
[1585] Very Truly yours,
(Sgd.) Ray Lyman Wilbur
[1586] PLAINTIFF'S EXHIBIT 21
Report of the Secretary of the Interior F.Y. 1931 29
Oil Shale
* - * *
[1589]
32 Report of the Secretary of the Interior
The oil-shale problem arises from the provision of sec-
tion 37 of the mineral leasing act which permits claims
located prior to the date of the act (February 25, 1920)
to proceed to patent in compliance with the mining laws
as they existed on that date. The principal requirements
77
are good faith of the locator, performance of assessment
work, and discovery.
Some months prior to Kelley’s resignation a Supreme
Court decision in the case of Wilbur v. Krushnic had
held that a locator in default in assessment work could
resume work at any time in the absence of a challenge by
the United States. Thereafter, convinced that many
claims were being held without compliance with the law’s
requirement of assessment work, the department in Janu-
ary, 1930, had undertaken the task of physically posting
notices of forfeiture on each claim as a preliminary step
to adjudication. This work had been under way many
months to the time of the Kelley matter. To date about
7,500 such claims have been posted; about 5,500 remain.
Where the law as to discovery, assessment work, and good
faith of locators has been complied with, patents issue on
completion of $500 of development work and application
for patent. About 195,000 acres have been patented in
all. The estimated oil-shale area in Colorado is about
1,496,027 acres, in Utah, 2,754,959, and in Wyoming,
4,006,805; 156,024 acres are included in two naval re-
serves.
[1590] PLAINTIFF’S EXHIBIT 22
18 Report of the Secretary of the Interior, 1932
Oil Shale
It was a tremendous task involving the filing of charges
and the preparation for trial of cases against about
22,000 claims, covering about 2,600,000 acres. When the
work was well under way, it may be recalled that one of
our employees at Denver, a man named Ralph §S. Kelley,
who apparently had been harb
This text is long and has been trimmed here. Open the source document for the complete record.
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.