Opposition Brief — Hickel v. Oil Shale Corp.

JUL 44 1969

” DAVIS. CLERK

Supreme Court of the United States

Octoprr Term, 1969

<i —

Watters J. Hicker, Secretary of the Interior,

Petitioner,

—_—V —

Tue Om Sxatz Corporation, et al.,

Respondents.

a SSO.—NeSs=—SsSs._—ooooee

BRIEF IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

VIew{/naneS>SseSG6cS6“VcOcOCc)——Uy)OoOo>]€0208=_El™E™”™_D"™___——_—_—_—_—_—_——s

Fowier Hamitrox

Ricnarp W. Huiserr

Dowatp L. Morcan

52 Wall Street

New York, New York 10005

Attorneys for Respondents

The Oil Shale Corporation,

Energy Resources Tech-

nology Land, Inc. and

Penelope Chase Brown

TABLE OF CONTENTS

PAGE

Jurisdiction and Opinion Below of the District Court 2

Statutes and Regulations Involved 2

Questions Presented 4

Statement 5

The Origin of the Mining Claims in Suit 0. 6

Interior’s Investigation and Challenge of Oil Shale

Claims ... ; 8

Interior’s Response to the Prior Decisions of This

Court 13

The Department’s Change of Position -............. acs. 20

The Issues in the Courts Below 20

Reasons Why the Petition Should Be Denied .............. —

Conclusion 35

TABLE OF AUTHORITIES

CasEs :

Costello v. United States, 365 U.S. 265 30

Fribourg Navigation Co. v. Commissioner, 383 U.S. 272 34

Gabbs Exploration Co. v. Udall, 315 F.2d 37, cert. de-

nied, 375 U.S. 822 ... 9

Gutierrez v. Waterman Steamship Corp., 373 U.S. 206 30

PAGE

Ickes v. Virginia-Colorado Development Corp., 295

US. 639 12, 13, 22-25, 32

Lane v. Hoglund, 244 U.S. 174 ae

Logan v. Davis, 233 U.S. 613 34

Northern Pac. Ry. v. Boyd, 228 U.S. 482 .

United States v. Etcheverry, 230 F.2d 193 000. . 2%

United States v. Leslie Salt Co., 350 U.S. 383 20.

West v. Standard Oil Co., 278 U.S. 200 25-6

Wilbur v. Krushnic, 280 U.S. 306 6, 10, 22-24

Interior DEcIsIoNns:

The Clipper Min. Co. v. The Eli Min. & Land Co., 34

L.D. 401 1

David W. Harper, 74 I.D. 141 1

Emi L. Krushnic, 52 L.D. 282 10

Emil L. Krushnic (On Rehearing), 52 L.D. 295 ......... 10

The Shale Oil Company, 55 I.D. 287 15, 21

Standard Shales Prod. Co. (On Rehearing), 53 L.D. 42 %

Union Oil Company of California, 71 I.D. 169 ......5, 14, 2,

26-27, 31

Union Oil Company of California, Supplemental De-

cision, 72 I.D. 313 22, 8

Virginia-Colorado Development Corp., 53 I.D. 666 .... %4

PAGE

SraTuTES AND REGULATIONS:

Act of May 10, 1872, 17 Stat. 91, 30 U.S.C. 22 et seq. .. 6-7

Act of July 20, 1956, 70 Stat. 592, 30 U.S.C. 122 29

Mineral Leasing Act, 30 U.S.C. 181 et seq. -....2....-.-.---- 6

Multiple Mineral Development Act of 1954, 68 Stat.

708, 30 U.S.C. 521-531 9, 29

30 U.S.C. 28 7

30 U.S.C. 30 25

Instructions, 47 L.D. 548 8

Regulations, 37 L.D. 757 4

Regulations, 49 L.D. 58 4

43 C.F.R. § 3420.4 25

MISCELLANEOUS :

H. Rep. No. 2198, 84th Cong., 2d Sess. 29

§. Rep. No. 1610, 83rd Cong., 2d Sess. 29

§. Rep. No. 2524, 84th Cong., 2d Sess. 29

Tertiary Geology and Oil-Shale Resources of the

Piceance Creek Basin Between the Colorado and

White Rivers Northwestern Colorado, U.S.G.S. Bul-

letin 1082-L 8

In THE

Supreme Court of the United States

OctoBer TERM, 1969

No. 221

—_

Water J. Hicker, Secretary of the Interior,

Petitioner,

—-V.—

Tae Om SHaLe Corporation, et al.,

Respondents.

a

BRIEF IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

At the outset it is necessary to note a lack of clarity as

to the scope of the Petition. The opinion of the court of

appeals below covered four separate civil actions (App.

la-ba),’ and that court entered four separate judgments

which affirmed four separate judgments of the district

court. The argument in the Petition mentions all four

cases as if review were sought of all. However, had

that been intended, then pursuant to this Court’s Rule

23(j) the Petition would have set forth all four judg-

ments. In fact, the Petition entirely omits the judgments

in three of the cases, Nos. 9582, 9583, and 9584 in the

court of appeals, and includes only the judgment in No.

9581 (the “TOSCO” case).? This brief is submitted on be-

References to “App.” are to the Appendices to the Petition.

_* The two references at page 1 of the Petition to “the judgment”

likewise suggest an intention to obtain review only of one case.

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half of the oil shale claim owners in that case, and on behalf

of the owners in No. 9584 (the “Brown” case), withont

conceding that the latter case is properly before this Court

Jurisdiction and Opinion Below

of the District Court

In view of the omission from the Petition of the follow.

ing information called for by paragraphs 1(a) and 1(g)

of Rule 23 of this Court, respondents note that the opinion

of the district court (App. C to the Petition) is reported

at 261 F. Supp. 954, and that the bases for federal juris.

diction in the district court were 28 U.S.C. 1331, 1361 and

2201 and 5 U.S.C. 701-04.

Statutes and Regulations Involved

1. The General Mining Act of 1872. The Act of May 10,

1872, 17 Stat. 91, sections 22, 26, 28, and 29 of Title 30,

U.S.C. provides as follows:

“(All valuable mineral deposits in lands belonging to

the United States, both surveyed and unsurveyed, shall

be free and open to exploration and purchase, and the

lands in which they are found to occupation and pur.

chase, by citizens of the United States and those who

have declared their intention to become such, under

regulations prescribed by law, and according to the

local customs or rules of miners in the several mining

districts, so far as the same are applicable and not

inconsistent with the laws of the United States.”

“The locators of all mining locations made on any

mineral vein, lode or ledge, situated on the public

domain, their heirs and assigns, where no adverse

claim existed on the 10th day of May 1872 so long as

they comply with the laws of the United States gov-

erning their possessory title, shall have the exclusive

right of possession and enjoyment... .”

“On each claim located after the 10th day of May 1872,

and until a patent has been issued therefor, not less

than $100 worth of labor shall be performed or im-

provements made during each year .... [U]pon a

failure to comply with these conditions, the claim or

mine upon which such failure occurred shall be open

to relocation in the same manner as if no location of

the same had ever been made, provided that the origi-

nal locators, their heirs, assigns, or legal representa-

tives, have not resumed work upon the claim after

failure and before such location.”

“A patent for any land claimed and located for valu-

able deposits may be obtained in the following man-

ner.... The claimant at the time of filing this appli-

cation, or at any time thereafter, within the sixty days

of publication, shall file with the register a certificate

of the United States supervisor of surveys that $500

worth of labor has been expended or improvements

made upon the claim by himself or grantors....”

2, The Mineral Leasing Act of 1920. The Act of Feb-

ruary 25, 1920, 41 Stat. 445, sections 241 and 193 (the

excepting clause) of Title 30 U.S.C., provides as follows:

“The Secretary of the Interior is authorized to lease...

any deposits of oil shale belonging to the United

| ad

“The deposits of ... oil shale .. . herein referred to,

in land valuable for such minerals . . . shall be sub-

ject to disposition only in the form and manner pro-

vided in section... 241... of this title, except as to

valid claims existent on February 25, 1920, and there-

after maintained in compliance with the laws under

which initiated, which claims may be perfected under

such laws, including discovery.”

4

3. Interior Department Regulations. Section 3420.4 of

Title 43, C.F.R. (1969), provides as follows:

“The annual expenditure of $100 in labor or improve.

ments on a mining claim, required by section 2394 of

the Revised Statutes (30 U.S.C. 28), is, with the ey.

ception of certain phosphate placer locations, vali.

dated by the act of January 11, 1915 (38 Stat. 799,

30 U.S.C. 131), under which regulations were ixsyed

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 de.

termination of which is committed exclusively to the

courts.”

This regulation has long been in effect. See e.g., Regula.

tions, 37 L.D. 757, 769 (1909) ; Regulations, 49 L.D. 58, 73

(1922).

Questions Presented

The single question presented in the Petition consists

of or comprises the following more particular questicas,

which Respondents submit as more accurately reflecting

the terms and circumstances of the actions below.

1. Whether unaer federal statutes governing the dis-

position and management of public land, the Department

of the Interior had subject matter jurisdiction with respect

to the performance of annual work on unpatented mining

claims (so-called “assessment work”) so that it could in.

validate such claims for a default in performance of such,

work.

2. Whether, on the assumption that Interior had juris-

diction but erroneously interpreted the statutes in declar-

ing mining claims invalid for default in performance of

annual work, the owners of the claims are now barred by

laches from obtaining judicial relief from such legal error.

3, Whether this Court should now overthrow the estab-

lished construction of the statutes, including that in two

unanimous decisions of this Court, that default in perform-

ance of annual work does not terminate a mining claim.’

Statement

The Statement in the Petition misconceives the actions

taken in the present and prior proceedings and the facts

established by the evidence admitted at the trial in the dis-

trict court, and omits many material facts, thereby necessi-

tating this response.

*The Petition does not raise the following questions, all of which

have been presented below: Whether after losing two test cases in

this Court on the assessment work question, Interior itself took

remedial action to render ineffective prior administrative decisions

purportedly cancelling oil shale claims, including those involved

here, for failure to perform assessment work. Whether from 1935

until the 1960’s Interior promulgated and consistently maintained

and applied a rule that those assessment work decisions were in-

effective. Whether the assessment work decisions purportedly can-

celling the TOSCO claims were defective for failure to obtain

personal jurisdiction of some of the owners. Whether Union Oil

Company of California, 71 I.D. 169 (1964), could possibly con-

stitute a decision invalidating the TOSCO claims, inasmuch as

those claims were not involved in Union Oil. Whether Union Oil

is procedurally defective, and thus an ineffective adjudication, even

as to the claims that were involved in it, in that the claim owners

who were parties were given neither notice of the issues upon

which the decision was rested nor opportunity for a hearing to

present evidence in defense of their rights.

The Origin of the Mining Claims in Suit

The decision below concerns oil shale mining claims |o.

cated in northwestern Colorado pursuant to the mining

laws prior to enactment in 1920 of the Mineral Leasing

Act. That Act withdrew oil shale, and the other enumer.

ated minerals,‘ from claim location and patent under the

mining laws and as to them substituted a leasing system,

expressly preserving, however, pre-existing valid claims,

Under the mining laws thus applicable to the claims in suit,

as “established by innumerable decisions of this Court”

(Wilbur v. Krushnic, 280 U.S. 306, 316), the location of a

mining claim in conformity with 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; and may

be sold, transferred, mortgaged, and inherited with.

out infringing any right or title of the United States...

The owner is not required to purchase 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 purposes of own.

ership, is as good as though secured by patent” (id.

at 316-317).

The free grant of property thus provided for by statute

arises upon the discovery of a valuable mineral and the

location of the claim, that is, the marking off of the claim

on the ground and, where required by state law, the filing

of a certificate of location in the county office for real

estate records. As the Department of the Interior has lorg

recognized, there is not, and never has been, provision for

* Originally coal, phosphate, sodium, oil and gas.

7

any filing of a notice of a mining claim in any Federal

office, and the claim itself comes into existence without any

application to or intervention by any Federal department.‘

It is the statute and not the Department which grants the

public property to the citizen who complies with its terms.

The statutory scheme thus distinguishes between the

possessory right for mining purposes that arises from a

valid mining claim and the complete fee simple title that

arises from patent to the owner of the claim from the

United States. This latter title is obtained only upon appli-

cation therefor to the Department of the Interior and the

satisfaction of the statutory requirements for patent, in-

cluding evidence that at least $500 worth of work has been

performed for the benefit of each claim for which patent

is sought. The claim owner has never been obliged to apply

for patent, but if a claim owner who has not obtained

patent does not perform at least $100 of work annually on

his claim (assessment work), he runs the risk that it may

be relocated by another for the same or some other min-

eral. 30 U.S.C. 28.

Against this background the claims in suit were located

at various dates between 1915 and 1920, when interest in

oil shale in the so-called Green River Formation in north-

western Colorado and adjacent parts of Utah and Wyo-

ming was aroused by a complex of circumstances given

dramatic underscoring by the First World War: the

dependence of modern society on oil, the obviously finite

quantity of conventional well petroleum, the extraordinary

richness and thickness of the oil shale strata of the Green

‘David W. Harper, 74 1.D, 141, 150 (1967); The Clipper Min.

Co. v. The Eli Min, & Land Co., 34 L.D. 401, 410 (1906).

River Formation,‘ the contemporary success of the Scottish

oil shale industry, and various steps taken by the Unite

States Government which gave dimension to the economic

value of the Green River Formation—e.g., the classifies.

tion by the United States Geological Survey of the jj

shale lands as mineral lands on account of their oil shale

value and the segregation of portions of the area in Naya]

Oil Shale Reserves. Shortly after enactment of the Mineral

Leasing Act, the first application for patent to oil shale

claims in Colorado came before the Department for ad.

judication and the Department formally ruled that oj

shale of the Green River Formation was a valuable mip.

eral within the meaning of the mining law capable of

patent (Instructions, 47 L.D. 548 [1920]), and issued the

first of many oil shale patents.

Interior’s Investigation and Challenge of

Oil Shale Claims

During the latter 1920’s the Department inaugurated a

campaign to investigate oil shale claims in the Green River

* Investigations subsequent to enactment of the Mineral Leasing

Act have shown that the early evaluations of the oil content of

the richest portion of the Formation, the so-called Piceance Creek

Basin in Colorado, were very conservative. It has since appeared

that the subterranean deposits in the center and north-central parts

of the Basin are vastly thicker and richer than those exposed on

the cliffs at the southern margin. E.g., Tertiary Geology and Oi

Shale Resources of the Piceance Creek Basin Between the Colorado

and White Rivers Northwestern Colorado, U.S.G.S. Bulletin 1082-L

(1961), pp. 867-68. Because the valid location of a mining claim

requires an exposure of the mineral, claim location focused on the

southern portion of the Basin where the claims in suit lie, and

the richer portion was never the subject of oil shale claims. This

portion, which is unencumbered Federal land so far as pre-1920

oil shale claims are concerned, contains more than 80% of the

estimated oil content of the oil shale in Colorado (Deft. Ex. L, R

893, 7547 in No. 9581). It is unaffected by this litigation.

9

Formation and, where grounds therefor existed, to chal-

lenge the claims in administrative contest proceedings (PI.

Ex. 2, R. 1514; Pl. Ex. 3, R. 1516).". The grounds upon

which contests were brought included not only such famil-

iar bases for questioning the validity of any mining claim

as lack of a discovery, abandonment* and fraudulent loca-

tion, but also the ground that the claim had been forfeited

to the United States for failure to perform at least $100

of assessment work in each year since enactment of the

Mineral Leasing Act (Pl. Ex. 5, R. 1522-23; Deft. Ex. A, R.

882, 6015). This last ground was asserted by the Depart-

ment on the basis of the Mineral Leasing Act of 1920.

The Government argued that because it had a continuing

proprietary interest in leasing the lands and because the

Mineral Leasing Act had eliminated the possibility of a

relocation of oil shale claims,’ the consequence of a de-

fault in performance of annual assessment work should

be automatic termination of the claim in favor of the

"Each of the four cases below is represented by a separate

record. However, at the trial the evidence common to the four

cases was entered only in the record of the TOSCO case and thus

is to be found in the record of No. 9581 in the court of appeals.

Except as otherwise noted, references to the record below or to

“R.” are to the record in the court of appeals in No. 9581.

Plaintiffs’ Exhibits 1-307 were all received in evidence together

at R. 863, subject to objection to individual exhibits. Those rela-

tively few objections were uniformly overruled, R. 918-934. Ac-

cordingly, record references hereafter to any of these exhibits omit

the page at which they were admitted to avoid repetition of the

identical reference.

*See Gabbs Exploration Co. v. Udall, 315 F.2d 37 (D.C. Cir.),

cert. denied, 375 U.S. 822 (1963), for an example of a decision on

grounds including abandonment.

*But see the Multiple Mineral Development Act of 1954, 30

US.C. 521-531.

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Government, whether or not the work had been resumej

prior to the contest. This position was sharply contestej

by oil shale claimants, but the Department purported ty

cancel the claims for non-performance of the work. Emi]

L. Krushnic, 52 L.D. 282 (1927); On Rehearing, 52 Lp,

295 (1928).

Following the first Departmental decision in Krushnic,

the Commissioner of the General Land Office directed the

commencement of proceedings in Contests 11757, 11759

and 11761 against the Bute, Camp Bird, and Atlas claims,

respectively, involved in the TOSCO case below on the

single charge of a failure to do assessment work (PI. Ex,

8, R. 1554-55; Pl. Ex. 10, R. 1558-59; and Pl. Ex. 12, BR.

1562-63). On that same ground the Commissioner on May

4, 1928, declared the claims null and void (Pl. Ex. 9, RB

1556-57 ; Pl. Ex. 11, R. 1560-61; and Pl. Ex. 13, R. 1564-65),

Contest 12039 against the four Oyler claims involved in

the Brown case below was similarly initiated in 1929 on

the assessment work ground (Pl. Ex. 14, R. 1566-67; Pl.

Ex. 244, kk. 2255), but before any decision in that contest,

this Court in Wilbur v. Krushnic, 280 U.S. 306, unazi-

mously held that the Secretary’s decision in the Krushnic

case, supra, was “contrary to [the] explicit terms” of the

Mineral Leasing Act (td. at 319). This Court rejected the

argument that the Mineral Leasing Act conferred upon the

Government the status of a rival locator, and stated that

a mining claim was maintained, within the meaning of the

excepting clause of the Mineral Leasing Act, by resump-

tion of assessment work “unless at least some form of

challenge on behalf of the United States to the valid exist-

ence of the claim” intervened before resumption of the

work.

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The Department regarded Krushnic as a test case.*° Fol-

lowing that decision the Department accordingly recognized

that the pre-Krushnic decisions against the TOSCO claims

were “not tenable” (Pl. Ex. 25, R. 1597) and similarly

that further proceedings on the pre-Krushnic complaint

against the Brown claims would be “ineffective” (Pl. Ex.

37, R. 1621; Pl. Ex. 38, R. 1622-23).

As Secretary Wilbur stated, “in order to test out the

ex‘ent of authority (if any) left to us by the Supreme

Court decision,” ** the Department promptly renewed the

assessment work campaign on modified lines. The new

theory was that if the Land Office behaved as a rival locator,

and moved to take advantage of a continuing default in

annual work before the work was resumed, it could thereby

terminate an oil shale claim. Accordingly, new field in-

vestigations were conducted and, where it appeared that

annual work continued in default, three kinds of action

were taken. First, a hopefully timely and effective “chal.

lenge” was asserted by posting on each claim a printed

notice that the annual work was in default and that, during

such default, the United States had taken possession of

the claim. Second, a proceeding was brought, by the filing

and service of a contest complaint alleging the facts in the

first step. Third, a decision was rendered declaring the

claim null and void.

Secretary Wilbur testified as follows before the Senate Com-

mittee on Public Lands, 1931: “As to oil shale land, the question

of the Department’s jurisdiction was, when I took office, under

review by the Courts in the case of Wilbur v. Krushnic. The de-

cision of the Court of Appeals in that case had held on January 7,

1929, that the Department was without authority .... The Su-

preme Court decision in that case eame down on January 6, 1930,

aise the Court of Appeals . . . in that test case” (Pl. Ex. 47,

4 Loc. cit. supra, note 10.

12

In embarking upon this second phase of the assessment

work campaign, the Department recognized that its sub.

ject matter jurisdiction was in question, and that a second

test case would be taken to the courts.** When that test»

case (Virginia-Colorado) was taken to court, the Depart.

ment in 1933 suspended the entire annual work campaign

to await the outcome. The Department’s Annual Report for

1934 explained that the annual work campaign had been

suspended “awaiting court decision on jurisdiction of the

Department to challenge the validity of oil-shale locations

for failure to perform annual labor thereon” (emphasis

supplied) (Pl. Ex. 44, R. 1653).

Before Interior suspended the second phase of the as.

sessment work campaign, and in accordance with the re.

vised post-Krushnic procedures, the Commissioner of the

General Land Office directed renewed proceedings against

the TOSCO and Brown claims. It had proceeded to inves.

tigate anew the claims in controversy here, to post chal-

12 Interior’s statement of September 29, 1930 (Pl. Ex. 19, R.

1583) noted that “the right of the department to challenge loca-

tions . . . for failure to do assessment work has been vigorously

denied by oil shale claimants .. . . [T]here are now pending in

the department test cases which the locators asserted they plan

to take into court.” Interior’s Annual Report for 1930 noted that

Krushnic, although it “sustained the claimants on the issue of

assessment work . . . left the possibility (though no certainty)

that if the remaining claims were posted before resumption of

work on the claim, a different result would follow . . . . A second

test case in the courts may be expected” (Pl. Ex. 15, R. 1568).

13 After the trial court ruled in favor of the Virginia-Colorado

claimant, Secretary Ickes emphasized to the Attorney General the

importance of obtaining appellate review, saying the case “may

be regarded as a test case” (Pl. Ex. 43, R. 1651-52).

14 Similarly, action on a pending appeal within Interior was

suspended “in view of the pendency of [Virginia-Colorado] chal-

lenging the authority of the Department” with respect to assess

ment work (Pl. Ex. 45, R. 1658).

13

lenges on them, to bring contest proceedings against them,

and to declare, in 1930-1932, some, but not all, undivided

interests in them null and void.**

On June 3, 1935, this Court ruled broadly that all three

aspects of the second phase of the annual work campaign:

(1) the posting of the challenges on the claims, (2) the

institution of contest proceedings, and (3) the rendering of

decisions therein—“went beyond the authority conferred

by law.” Ickes v. Virginia-Colorado Development Corp.,

295 U.S. 639, 647.

Interior’s Response to the Prior Decisions

of This Court

The Petition states (p. 2) that, after Virginia-Colorado,

the TOSCO and Brown claims “remained cancelled on the

Department’s records,” but that is not so (except in the

sense that the prior papers were not destroyed).** En-

The Petition does not accurately state what happened in this

second phase. It gives 1931 as the last date for a “cancellation” ;

in fact, the Secretary’s ruling on the Brown claims came on March

10, 1982 (Pl. Ex. 41, R. 1639-41). It states that the claimants in

only one of the four actions below carried their cases to the Secre-

tary. In fact, two did: in Brown as just noted, and in Umpleby

(the decision of Assistant Secretary Edwards, L. Z. Harrison,

Joseph B. Umpleby et al., A-15072, Nov. 29, 1930, is Exhibit A-1

to the complaint, R. 14 in No. 9582). The Petition implies that

the TOSCO claims were “cancelled” entirely; in fact, as the Gov-

ernment conceded below (appendix to post-trial brief to the district

court, pp. 74-87), less than 50% of the interests therein were can-

celled before the entire annual work campaign was suspended.

* After Virginia-Colorado, Land Office officials in Washington

called in from the local land offices all of the official files of the

annual work contests (Pl. Ex. 71, R. 1741-42; Pl. Ex. 72, R. 1743-

45; Pl. Ex. 74, R. 1748-53), and they were placed in storage in

the Federal Records Center in Alexandria. They were thereafter

resorted to only in processing subsequent patent applications, since

14

larging on this groundless assertion, the Petition they

asserts (pp. 11, 12) that the Land Office subsequently

relied upon these cancellations, but that is not so, as the

evidence makes unmistakably clear and as the Govern.

ment itself conceded in the district court. The record js

replete with documents showing unequivocally that the

Land Office did not rely upon the annual work decisions,

but instead regarded them as void. The evidence gyb.

mitted at trial comprises more than 7,000 pages, and cannot

be fully stated here.” A few examples should suffice; there

is no contrary evidence whatsoever, and the evidence cop.

sists entirely of Land Office records, save for the deposi-

tions of two Land Office employees.

First, just as after this Court’s decision in Krushnic

the Department had recognized that, in fulfillment of its

obligation to administer the public lands in conformity

with law, its prior decisions contrary to the decision could

not stand, likewise after the Virginia-Colorado decision

the reports therein of field investigations often had useful infor-

mation as to discovery, the performance of patent work, ete. Ey,

Pl. Ex. 126, R. 1900; Pl. Ex. 127, R. 1901; Pl. Ex. 309, R. 871-74,

4914, 4933-34. Of course these files contained the annual work

decisions, but Land Office personnel who checked these files were

specifically instructed “if the charge of failure to do assessment

work was the only charge, it was to be ignored, and had been

ignored” (Pl. Ex. 309, R. 871-74, 4919).

17 The Petition plainly errs in describing this evidence as “frag-

mentary” (p. 9, n. 1). The reason for the error may be that the

reference was to the Union Oil decision of 1964, not to the evidence

presented at trial in 1966. Of course, the evidence in Union Oil

was fragmentary; there was no notice of charges, and no oppor

tunity for a hearing, and thus no evidence. (Ironically, although

Union Oil denied the patent applicants’ motion for an evidentiary

hearing, see App. 54a, it bolstered its rulings against them on

the ground that they had made “no clear showing” as to certain

facts. App. 72a.)

15

the Department acted to deprive of effect the assessment

work cases previously decided in the renewed campaign.

In a published decision three weeks after Virginia-Colo-

rado, Interior announced that the annual work decisions

were “without authority of law and void” and thus they

all were deprived of any effect. The Shale Oil Company,

55 LD. 287 (June 24, 1935) (Pl. Ex. 70, R. 1737-40). That

was followed by directions to the local Land Offices to

close out assessment work cases then pending there (PI.

Ex. 71, R. 1741-42; Pl. Ex. 72, R. 1743-45; Pl. Ex. 74, R.

1748-53; Pl. Ex. 82, R. 1792; Pl. Ex. 85, R. 1811; Pl. Ex.

87, R. 1818; Pl. Ex. 89, R. 1815; and Pl. Ex. 84, R. 1810),

and by the disposition on the authority of the Shale Ou

decision of appeals then pending either before the Com-

missioner of the General Land Office or the Secretary

(e.g., Pl. Ex. 76, R. 1754-55; Pl. Ex. 77, R. 1756-58; Pl. Ex.

78, R. 1759-73; Pl. Ex. 45, R. 1655-64; Pl. Ex. 79, R. 1774-

7; and Pl. Ex. 80, R. 1778-82).

The Department action was shown also in response to

inquiries as to the status of oil shale claims supposedly

invalidated for failure to perform assessment work. In

reply it was uniformly and consistently stated that the

Department had invalidated such decisions, as, for exam-

ple, the Commissioner wrote to an oil shale claimant on

July 17, 1935, “any declaration by [the Land Office] that

an oil shale placer claim is null and void based solely on a

charge that the claimant failed to perform annual assess-

ment work or resume work on the claim is void and does

not affect the right of the owner of the claim to maintain

his possession thereof under the mining laws” (Pl. Ex.

136-A, R. 1917). The point was also explicitly made that

no further administrative action was needed to undo the

16

prior decisions. For example, the Commissioner wrote ty

a claimant in 1936:

“This office considers that it would be unnecessary to

revoke its previous decision holding the Lucy Agnes

claims to be null and void. That decision being without

- authority of law is without any effect on the title

arising from the location of the claims” (Pl. Ex. 180,

R. 2024-25).

A third example is a letter from Acting Secretary West

on October 31, 1935, to the Secretary of the Navy that the

assessment work decision in Contest 12039 involving the

very Oyler claims in Brown was (with many other similar

decisions) “without effect and void” and that “the status

of the claims so far as this Department is concerned is

that they are subsisting claims” (Pl. Ex. 176, R. 2013; see

Pl. Ex. 177, R. 2014-19 for a list of the claims).

So, too, in 1939 (and in 1941, and 1943, see Pl. Ex. 191,

R. 2049-50; Pl. Ex. 194, R. 2054-55), Secretary Ickes wrote

to the Congress, in support of remedial legislation:

“Conceiving that the Mineral 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 hearings the

claims were declared void because of default in assess-

ment work. Appeal was taken from these proceedings

and in the cases of Wilbur v. Krushnic, 280 U.S. 306

(1930) and Iches v. Virginia-Colorado Development

Corp., 295 U.S. 639 (1935) the Supreme Court held

that the proceedings exceeded the authority of the

Secretary and were, therefore, without effect. From

these decisions it is apparent that, although the per-

formance of annual assessment work is expressly re-

quired by law, there is no statutory authority to enforce

that requirement” (Pl. Ex. 6, R. 1526).

17

In 1946, then Acting Secretary Chapman responded to an

inquiry from Senator Myers about a 1931 assessment work

decision (the same in all material respects as those here),

stating that shortly after Virginia-Colorado, “in the case

of the Oil Shale Company [sic] ... the Department...

overruled its action in other cases, including this one” (PI.

Ex. 204, R. 2070). In 1959, the Associate Solicitor for Pub-

lic Lands, Clarence Bradshaw, a veteran of the field investi-

gations in the assessment work campaign (see Pl. Ex. 283,

R. 4581-82) and conversant with the intervening land ad-

ministration (see Pl. Ex. 306, R. 4715; Pl. Ex. 309, R. 871-

74, 4918-19, 4949), rejected in a memorandum to the Denver

Regional Solicitor’s Office what would a few years later

be the Union Oil hypothesis:

“In view of the Supreme Court decisions mentioned,

the Department in its decision of June 24, 1935, in the

Shale Oil Company case (55 I.D. 287) held that in

that case the Commissioner’s decision was without au-

thority of law and void; recalled and vacated certain

cited departmental decisions and the departmental in-

structions of June 17, 1930 (53 LD. 131); and over-

ruled ‘other departmental decisions in conflict with

this decision.’ Thus in effect the decision of June 24,

1935, recalled and vacated all departmental decisions

declaring oil shale placer claims null and void solely

for failure of the claim owner to do the assessment

work, thus leaving the claims as if they never had

been contested” (Pl. Ex. 215, R. 2103-04; emphasis in

the original).

The record abounds with many similar statements (PI. Ex.

175, R. 2011-12; Pl. Ex. 192, R. 2050; Pl. Ex. 195, R. 2056;

Pl. Ex. 181, R. 2026; Pl. Ex. 180, R. 2024-25; Pl. Ex. 182,

R. 2027-28; Pl. Ex. 193, R. 2052; Pl. Ex. 196, R. 2057; Pl.

18

Ex. 197-199, R. 2058-62; Pl. Ex. 200, R. 2063; and Pl, Ry

207, R. 2075-76). In view of the wealth of evidence it jg

thus hardly surprising that, so far from insisting upop

the reliance suggested by the Petition, the Government's

post-trial brief to the district court (pp. 59-60) conceded:

“We do not contend that administration of the land was

affected by any particular reliance on the early dei.

sions. In fact, the administrators may not have know

of the decisions.”

The Petition errs also in asserting (pp. 5, 9, n. 4) that

the Land Office “for a time stood ready to reopen cancella.

tions,” refering to 74,000 acres of claims which were sub.

sequently patented, as if that “time” was severely limited,

As the foregoing examples show, the Department’s view

was (as early as July 1935) that no reopenings were neces.

sary or appropriate’ for the annual work decisions were

void and in any event had all been rendered ineffective by

broad remedial administrative action. Moreover, the 74,00

acres were patented, not soon after Virginia-Colorado,

but over the next 25 years, as patent applications were

filed and processed. The evidence shows that such patents

issued in every year from 1949 through 1960 for claims

that had been purportedly cancelled for failure to do

assessment work and that such claims constituted approxi-

mately two-thirds of the total of 768 oil shale claims

patented in Colorado on applications filed after the Shale

** The only example of administrative action to reopen a final

decision in an assessment work contest arose out of an inquiry re

ceived by the Department after Virginia-Colorado but before

promulgation of the Shale Oil decision; it was thus treated asa

pending case when the Shale Oil decision was announced (Joseph

D. Ahearn et al., A-16739, Pl. Ex. 69, R. 1735-36; see also Pl. Ex

67-68, R. 1729-1734).

19

Oil decision (Pl. Ex. 95, R. 1827-42). The Petition simply

misstates the evidence in suggesting that the Department’s

recognition of the invalidity and ineffectiveness of assess-

ment work contest decisions was confined to “the immediate

wake of Virginia-Colorado” (p. 15).

The Petition is thus wrong both in its assertion that the

Department was responsive to this Court’s declaration of

the law only briefly, and also in its assertion that the De-

partment had relied in administering the lands upon the

supposed validity of the assessment work decisions. In

1963, the Assistant Secretary for Public Land Manage-

ment, reviewing the entire period, concluded in these

terms :

“[Ajll prior adverse decisions, based on assessment

work, were ignored, and many patents issued without

any question being raised as to the finality of the Shale

Oil decision in cancelling all prior decisions which

were based on assessment work alone” (Pl. Ex. 211, R.

2093).”*

There is in short an utter absence of evidence that between

the Shale Oil decision in 1935 and the Union Oil proceed-

ings, referred to below, the Department or anyone else

ever acted upon the basis that an oil shale assessment

work decision was effective for any purpose.

* This statement appears in a letter from the Assistant Secre-

tary to Sen. Clinton Anderson that was introduced in evidence in

the district court pursuant to a stipulation in which counsel for

the Government agreed that “the matters referred to in the

[letter] fell within his jurisdiction as such Assistant Secretary,”

and that “He was, at the time, generally familiar with the mat-

ters referred to in the [letter]” (Pl. Ex. 211, R. 2088).

20

The Department’s Change of Position

The contrary view was first asserted in a series of de.

cisions by the Colorado Land Office Manager which wer

affirmed on appeal in April 1964. Union Oil Company of

California, 71 I.D. 169 (App. 47a-84a). In July 1964 the

plaintiffs in TOSCO initiated the first of the four cases

below. That complaint, which involved oil shale claims

none of which were before the Department in Union Oj,

sought only judicial review of the pre-1935 assessment

work decisions, and a judgment declaring those decisions

to have been without effect and enjoining the Secretary

from asserting their effectiveness. The complaint did not

seek a patent (no application had been filed for one), nor

did it seek any judgment which in any other respect would

have affected the Department’s power to challenge the

validity of the claims on any other ground. The other three

cases below were commenced later; the four were tried

together. Unlike TOSCO the other three cases below in.

volved claims ruled upon in Union Oil, patent applications

having been filed. In those three cases the plaintiffs thus

also sought judgments setting aside the Union Oil decision,

The Issues in the Courts Below

The plaintiffs presented in the district court, and re.

newed on appeal in support of the decision rendered by

the district court, three distinct grounds upon which they

were entitled to judicial relief from the pre-1935 assess.

ment work decisions (see App. 28a):

1. The decisions were rendered in excess of the subject

matter jurisdiction of the Department and were, in con-

21

sequence, themselves void. This argument rested upon the

decisions of this Court in Krushnic and Virginia-Colorado.

It presented the only issue passed upon by the district

court and the court of appeals.

9 The Department, following upon this Court’s de-

cisions in Krushnic and Virginia-Colorado, adopted and

thereafter consistently applied a rule, from which it may

not now retroactively depart, that the pre-1935 assessment

work decisions were themselves null and void and without

effect. This point would deprive the pre-1935 decisions of

present effect, whether or not the decisions in Krushnic

and Virginia-Colorado are regarded as rulings upon the

subject matter jurisdiction of the Department (and, in-

deed, whether or not Krushnic and Virginia-Colorado were

correctly decided on any basis).

3. Again without regard to whether Krushnic and

Virginia-Colorado were rulings upon jurisdiction, it is

clear that at least they were holdings that the Department

had committed legal error in purporting to cancel oil shale

claims for failure to perform assessment work. The pre-

1935 decisions being thus legally erroneous and adminis-

trative adjudications of the Department being admittedly

subject to judicial review and reversal, the plaintiffs are

entitled to judicial review and relief from the pre-1935

decisions affecting the claims in suit.

The plaintiffs advanced two further grounds below of

less general applicability.

4. The pre-1935 decisions touching the claims in TUSCO

were confessedly subject to procedural deficiencies in that

the then owners of substantial interests in each of the

22

claims were never joined as parties to the assessment wor

proceedings. As to those interests, the extent of which was

not disputed, the assessment work decisions can have no

consequence on any conceivable theory, as the Depart.

ment’s Supplemental Decision in Union Oil, 72 LD. 313

had made manifest as to other claims.

5. As to the four Oyler claims in Brown below (and the

claims in the other two cases below), the failure of the

Department in Union Oil to accord notice and an oppor.

tunity to be heard as to whether what was in substance

the affirmative defense of laches and estoppel, based on

events post-1935, could breathe life into the assessment

work decisions as the Union Oil decision asserted, required

that that decision be set aside, whatever the decision op

points I, 2 and 3, supra, as to the claims involved.

Reasons Why the Petition

Should Be Denied

1. The court of appeals, affirming the district court,

rightly construed and applied the prior unanimous de

cisions of this Court in the Krushnic and Virginia-Colo-

rado cases to hold that the administrative decisions ren-

dered in the period 1928-1932 were nullities. As the

Petition perforce recognizes (p. 7), an administrative de-

cision, no less than the decision of a court, is void if ren-

dered in the absence of subject matter jurisdiction.” The

20 As the Petition also recognizes (id.), a defect of process in

an administrative proceeding equally deprives the resulting de

cision of consequence. But it does not, as the Petition inconsist-

ently suggests (p. 7, n. 3), require an application to the

to validate the invalidity. The consequences of defective service

23

Petition argues, however, that the defect in the assessment

work decisions which a unanimous Court noted in Virginia-

Colorado did not go to the Department’s jurisdiction, but

only to the manner of exercise of its power. This argument

ignores the setting of the Virginia-Colorado decision,

which shows, as the language of Chief Justice Hughes’

decision itself strongly suggests, that it was presented to

this Court as a question of jurisdiction.

To appraise accurately the significance of Virginia-

Colorado, one must consider the earlier, and likewise unani-

mous, decision of this Court in Wilbur v. Krushnic, 280

US. 306 (1930), which the Petition all but ignores. In that

decision the Court rejected as “contrary to [the] explicit

terms” of the Mineral Leasing Act Interior’s contention

that a failure to perform annual assessment ipso facto

invalidated a claim as against the United States, 280 U.S.

at 319. The opinion noted that prior to the passage of the

Mineral Leasing Act “annual performance of labor was

not necessary to preserve the possessory right ... as

against the United States.” Directly contrary to the sug-

gestion (Petition, p. 16) that this Court was not apprised

of authorities holding that where the Department had a

competing interest in fact (as it did, under the Mineral

Leasing Act, as a prospective lessor of oil shale lands), the

Government could assert a right of relocation upon default

are not of merely academic interest, for, although the Petition

does not note it, and does not present the question, the Secretary

conceded in his post-trial brief to the district court that substan-

tial interests (from 7/16 to 13/16) in every one of the 75 mining

claims involved in TOSCO were wholly unaffected by the assess-

ment work decisions for this very reason, without regard to any

decision in this Court on the question which the Petition does raise.

24

in assessment work, this line of authority was urged Upon

this Court in Krushnic by the Secretary.”

While the Petition igmores the Krushnic decision, the

Secretary at the time was well aware that it had

“left the possibility (though no certainty)” * that if th

Department challenge intervened before the resumption of

assessment work a different result might follow. Accor.

ingly, the assessment work campaign was resumed jp

slightly altered form “im order to test out the extent of

authority (if any) left to us by the Supreme Court decision

[in Krushnic].”* It was in the resumed campaign that

the assessment work decisions against the claims in guit

were rendered. And it was in the course of the same re.

sumed campaign that the administrative decision, Virginia.

Colorado Development Corporation, 53 I.D. 666, was ren.

dered which became “the second test case in the courts”

which the Secretary’s 1930 Annual Report had said “may

be expected” (Pl. Ex. 15, R. 1568). When the claimants

in that case sought judicial review the Secretary on April

1, 1933, suspended all action in then pending oil shale con.

tests “awaiting court decision on jurisdiction of the De.

partment to challenge the validity of oil-shale locations for

failure to perform annual labor thereon” (Pl. Ex. 44, R.

1653). It would be difficult, indeed, to propose an analysis

21See 280 U.S. at 308 suminarizing the argument of counsel.

The Krushnic decision was obviously a rejection of this line of

authority. The Department itself so understood, for one of thes

supposedly “well-established” authorities was overruled following

the Krushnic decision. Standard Shales Prod. Co. (On Rehearing),

53 L.D. 42 (1930).

22 Annual Report of the Secretary for 1930 (Pl. Ex. 15, R. 1568).

*8 Testimony of Secretary Wilbur before the Senate Committe

on Public Lands, February 12, 1931 (Pl. Ex. 47, R. 1667).

25

jess apt than the suggestion advanced by the Petition that

the Virginia-Colorado case was not avowedly presented as

a test of jurisdiction.

The language employed by the Court in Virginia-Colo-

rado was appropriate as a vehicle for providing an answer

to the question thus put. The Court did not, as the Petition

suggests, confine its holding to the point that the “can-

cellations ‘went beyond the authority conferred by law’”

(Petition, p. 7). What it said was that not only the de-

cision but also “the Department’s challenge [and] its ad-

verse proceedings ... went beyond the authority conferred

by law,” 295 U.S. at 646-47, or, in the words of the Petition,

that there was “the absence of power in the agency to con-

sider the question put” (p. 7).

This reading of the decisions is not only the plain mean-

ing of the words employed. It is consistent with the

statutory provision which confers exclusive jurisdiction on

the courts (and hence deprives the Secretary of subject

matter jurisdiction) to adjudicate rival mining claims to

the same ground (30 U.S.C. 30), for it is to such competing

claims alone that assessment work has significance.* The

special statutory treatment of rival mining claims serves

to distinguish questions such as the performance of as-

sessment work, which relate only to that subject, from the

Secretary’s general authority to pass on the validity of

mining claims and the decisions of this Court on that dif-

ferent subject to which the Petition refers. This Court

in West v. Standard Oil Co., 278 U.S. 200 (1929), provided

the touchstone: the Secretary has power to make all

*That this is the focus of assessment work is recognized ex-

plicitly by the Department’s regulations. 43 C.F.R. § 3420.4

(quoted supra, p. 4).

26

necessary determinations of fact and law “essential to ty

performance of the duty specifically imposed” (id. at 219)*

By express statutory enactment the Secretary has no day

to adjudicate rival claims, and assessment work is relevant

to no other issue.

2. The Petition has attempted to portray a parade of

horribles with dire “implications for the public domain”

to give a factitious significance to the issues dealt with by

the courts below. This, like the suggestion that the nia.

ing claims are barred by laches (see pp. 30-32, infra),

can be sustained only by ignoring the extensive factns]

record which is wholly adverse to the Petition’s specu.

tions. The administrative practice of the Department fd.

lowing the final defeat of the assessment work campaign in

1935 was noted at some length by the district court (App.

40a-43a) and briefly by the court of appeals (App. 9a).

The evidence of this practice “as demonstrated by the

record in these cases” (App. 9a) is altogether different

from the impression, which the Petition attempts to con.

vey, that it is “fragmentary and inconclusive” (Pet. 9, n. 4).

Significantly, the Petition refers for this proposition, not

to the record in these cases, but only to the opinion in

Union Oil Company, where understandably enough the

record was scanty, for the Department in that case had

failed to give notice to the claim owners who were parties

that the matter was at issue or to afford them an oppor.

tunity to present evidence on the question in any system.

** The Government urged this same analysis, on the authority

of West, in Krushnic in support of its contrary conclusion. Brief

for Pet., p. 16. On the basis upon which the case was presented,

the Court’s conclusion that the Secretary had no duty would lead

directly to a holding that he lacked the power.

27

atic way.“ Thus the decision refers to six letters (App.

69a, note 30) as if that represented the sum of the matter,

whereas the evidence below comprises some 7000 pages, a

large part of which is directed to this point.”

Far from constituting either a “fragmentary” or “in-

condlusive” picture, the evidence shows that from the time

of the Department’s formal announcement of its acquies-

cence in and implementation of this Court’s decisions in

its own decision in The Shale Oil Company, 55 I.D. 287

(1935), down to the administrative decisions in February

1962, which were affirmed in Union Oil in 1964, the De-

partment openly, publicly and consistently treated the

assessment work decisions as nullities in any and every

context in which the issue of their effectiveness could arise.

Thus, there is nothing which has been said by the courts

below which creates any “implications for the public do-

main” (see Petition, p. 17) that are in the slightest degree

at variance with the policies for the public domain an-

nounced and implemented by a series of Secretaries begin-

ning with Secretary Ickes, whose devotion to the legitimate

interests of the public is open to no question. The facts in

the voluminous record, in short, conclusively rebut the sug-

gestion in the Petition that Department compliance with

*The Union Oil decision denied motions to set the matter for

hearing (the decisions of the Land Office Manager having been

rendered without any notice or hearing) on the ground that

hearings had been held, or had been available, in the old assess-

ment work decisions themselves (App. 48a, 52a-55a). On the

issues upon which the decision on the merits was rested, a hearing

prior to 1935 would have been immaterial, for the laches point

and the related “doctrine of finality of administrative action”

= App. 58a et seg.) depend entirely upon facts subsequent to

* Of the 317 exhibits offered by the plaintiffs in TOSCO, sub-

stantially more than half are directed to this issue.

a:

28

the rule of law announced in Virginia-Colorado and fore.

shadowed in Krushnic was a sometime or briefly continyeg

thing or the further suggestion that to permit the decision

below to stand would create in the administration of th

public lands altogether novel problems. The charge of

novelty would lie only if the Department were now allowa

to give conclusive effect to decisions admittedly erroneoys

when rendered, which in 1935 it deprived of all effect,

and which from 1935 until this litigation it treated as

nullities.

That there may be several interests in particular land

within a mining claim in the public domain under adminis.

tration by the Department arises from the fact that a

variety of public land statutes provide for differing in.

terests until a mining claim is patented, and none of the

claims in suit has been patented.** That circumstance does

not depend upon whether the Land Office declares a mining

claim null and void or whether, having done so, the Land

Office specifically vacates that declaration. For example,

Under Secretary West wrote in 1935, after noting that an

assessment work decision against certain oil shale claims

was “without authority of law and void,” that since no

patent application was pending,

[T]he matter will stand as if no adverse proceedings

had been brought ... . If and when application for

28 As the court of appeals noted, “the land status in this area

has become somewhat complicated . . . but these complications are

not essentially different than in any area where there are a con-

siderable number of mining claims. This is one of the Secretary's

basic problems in administering lands where the general mining

laws are applicable . . . . This involved land status is not the doing

of the mining claimants as the Department has proceeded to re

ceive these other [non-mining] entries and to process them regard-

less of the unpatented claims. It is not a question of laches on

either side” (App. 15a).

ee

29

patent shall be filed for these placer claims such ap-

plication will be considered on its merits.

In the meantime, so far as the records of the Land

Department are concerned, the lands involved appear

and are regarded as vacant and unappropriated public

lands” (Pl. Ex. 69, R. 1735-36).

The problems of differing uses of these public lands,

which were present before the assessment work campaign

and posed no great difficulties then, have not actually

proven to be of substantial difficulty since then. As noted

above, from 1935 through 1960, the Department processed

patent applications for oil shale claims, many of which

had been attacked in the assessment work campaign, and

valid ones proceeded to patent. Second, the Department

established, and apparently found quite workable, a pro-

cedure whereby it has regulated grazing on oil shale claims

until patent issues. See, e.g., Pl. Ex. 63, R. 1715-22; Pl. Ex.

203, R. 2067-69; Pl. Ex. 208, R. 2077; Pl. Ex. 209, R. 2078-

82; Pl. Ex. 210, R. 2083-86. See also, United States v.

Etcheverry, 230 F.2d 193 (10th Cir. 1956). At times the

Department turned to Congress for assistance in accom-

modating the differing interests. It supported the Mul-

tiple Mineral Development Act of 1954, 68 Stat. 708, 30

U.S.C. 521-531, which facilitates the ready determination

of the respective rights of federal mineral lessees and oil

shale mining claimants. See Sen. Rep. No. 1610, 83rd Cong.,

2d Sess. Similarly, the Department supported the Act

of July 20, 1956, 70 Stat. 592, 30 U.S.C. 122, which sim-

plified obtaining patent for the minerals by an oil shale

claimant where a patent for the surface had previously

been issued and remained outstanding. See Sen. Rep. No.

2524 and H. Rep. No. 2198, 84th Cong., 2d Sess. If, as the

Petition asserts (p. 15), “it is essential that there be some

stability to the status of the public domain ... ,” it was the

ee

30

Union Oi decision, not the decisions of the courts beloy,

which upset this established pattern of accommodation of

interests.

3. The “Secretary’s invocation of laches to bar the

present claims” (Petition, p. 13) provides no basis for ma.

terial distinction between the present case and Virginia.

Colorado, just as it provides no basis to question the

decisions below. It is of course true that judicial proceed.

ings in Virginia-Colorado followed upon the administra.

tive decision more quickly than has been true here, but if

that greater interval of time is to be given significance the

laches defense must be proved, not simply “invoked.”*

That choice of words in the Petition was not inadvertent,

for while the Secretary invoked laches in the district court,

by pleading it as an affirmative defense, it is conceded

that he did not prove it.*° The answer to the TOSCO

complaint in the district court asserted that “. . . the

United States, relying on the established invalidity of the

claims . . . administered the property as being free and

2° “Taches requires proof of (1) lack of diligence by the

against whom the defense is asserted, and (2) prejudice to the

party asserting the defense.” Costello v. United States, 365 US.

265, 282 (1961) ; see also Gutierrez v. Waterman Steamship Corp,

373 U.S. 206, 215 (1963); Northern Pac. Ry. v. Boyd, 228 US.

482, 509 (1913).

8° In its post-trial brief to the district court (pp. 59-60), counsel

for the Secretary stated: “We do not contend that administration

of the lands was affected by any particular reliance on the earlier

decisions. In fact, the administrators may not have known of the

decisions.” How adherence to decisions of which the relevant ad-

ministrators may have been altogether unaware can be essential

to the “certainty of [administrative] adjudications” (Petition,

p. 10) which, in turn, is “particularly essential in the context of

transactions affecting land” (id. at 11), the Petition does not er-

plain. Until the Department’s volte-face in 1964 in Union Oi,

there was no uncertainty in the matter whatever.

31

dear of plaintiffs’ claims ...” (R. 35), in terms quite simi-

lar to the assertions of the Petition. However, the Secre-

tary in answer to interrogatories addressed to that lan-

in the answer admitted that he “joes not know”

whether the United States had in fact so administered the

lands and, indeed, whether any party had ever entered a

transaction “in reliance upon the invalidity of the claims

in suit” (Pl. Ex. 313, R. 945, 5180). The answers to in-

terrogatories established beyond question that there is aot

one whit of evidence in the Department’s possession, or

in existence to its knowledge, as to any reliance by anyone

at any time in any respect on the supposed validity of any

of the assessment work decisions (Pl. Ex. 313, R. 945, 5176-

90; Pl. Ex. 314, R. 945, 5185-88). This, of course, is simply

another perspective upon the Department’s long-continued

practice of treating the assessment work decisions as nul-

lities and “thus leaving the claims as if they never had

been contested” (Pl. Ex. 215, R. 2104).

The Union Oil decision, to which presumably the Petition

refers in its reference to the invocation of laches, is in any

event of no consequence upon the litigation initiated by

the plaintiffs in TOSCO, for the claims involved in that

case were not before the Department in Union Oil." The

litigation in TOSCO is both in its procedural posture and

in the substantive issues raised by the complaint, a parallel

The claims in TOSCO have never been the subject of a patent

application. "he Petition (p. 6) is flatly in error in asserting that

the plaintiffs in that case “sought a declaratory judgment...

that the Secretary was required to issue patents on proper applica-

tio for the ostensibly cancelled claims” and flatly in error in

asserting /id.) that “the district court found that patents should

igue.” The plaintiffs sought only a declaration that the old assess-

ment work decisions were invalid and an injunction to restrain

reliance upon them (R. 12), and the judgment of the district court

was similarly confined (R. 439-442).

to the Virginia-Colorado case itself. Even if Virginig

Colorado were held to have found the assessment wor

decisions merely wrong in the exercise of power Possessed,

that error would be beyond the familiar power of a court tp

correct it only if suit for judicial review is barred by som

affirmative defense. The voluminous record below is deyoig

of evidence sustaining any such defense, and, had the dis

trict court felt it necessary to reach the issue, the plaintiffs

would have been entitled to judgment on this alternative

ground.”

4. The issue which the Petition tenders would neither

dispose of the four cases below (assuming arguendo that

the Petition intends, and is effective, to present all four)

nor would it control the broader question of the ultimate

validity of the underlying mining claims. Nor, because of

decisive procedural defects in both the pre-1935 assess.

ment work cases and in Union Oil itself, would any decision

which this Court might reach save the burden and expense

of further proceedings to which the Petition points (see,

e.g., p. 12). Beyond the usual reasons which would weigh

against a reconsideration by the Court of its two prior

decisions construing the relevant statutes there is, there.

fore, the further fact that no important issue would bk

resolved by doing so.*

32 Brown differs in its procedural posture from TOSCO in th

respect that in Brown an application for patent to the claims had

been rejected in Union Oil on the assessment work ground. The

complaint in Brown thus sought both judicial review of the Union

Oil decision and also direct review in the district court of the

pre-1935 assessment work decision rendered against the claims

(R. 1-11 in No. 9584). In its latter aspect, Brown presents the

same issues raised in TOSCO.

88 There is no suggestion in the Petition that the question pamed

on in Krushnic and Virginia-Colorado is broadly relevant to any

The prior assessment work decisions applicable to the 75

mining claims in TOSCO were conceded by counsel for the

Government in a post-trial brief to the district court (pp.

74.87 of the appendix thereto) to have been seriously de-

ficient under the standards enunciated recently by the

Department itself (Unton Oi Company of California,

Supplemental Decision, 72 I.D. 313) in respect of obtaining

personal jurisdiction over the then owners of the claims.

As a consequence of those deficiencies, the prior decisions

are admittedly ineffective as to substantial fractional in-

terests (from 7/16 to 13/16) in every such claim, irrespec-

tive of the merits or validity of the contest decisions them-

selves. If the validity of the substantial remaining inter-

ests is to be determined, further administrative proceed-

ings on other issues are required whatever decision this

Court might reach on the question tendered by the Peti-

tion.™*

The claims in the Brown case and in the other two cases

below were passed upon in Union Oil Company, but for

the reasons noted above (pp. 26-27) that decision cannot

significant number of mining claims of other kinds. Nor is there

any basis for expecting that it would be, in light of the circum-

stances that the issues considered in those cases are material only

to mining claims which were located prior to 1920 for Leasing Act

minerals and which have never been patented.

“Similar procedural deficiencies marked the assessment work

proceedings involving the claims that were before the Department

in Union Oil. In a supplemental decision in that case the Depart-

ment ruled that, of the 257 claims involved, personal service on

the claim owners in the assessment work proceedings was ineffec-

tive as to 218: wholly so as to 117 and partly so as to a further

101. Union Oil Company of California, Supplemental Decision,

72 LD. 313. As to those 218 claims, further proceedings are like-

wise inevitable, regardless of the merits of the assessment work

stand because of gross procedural deficiencies in its op,

duct, again regardless of the merits of the assessment wot

issue.

The Petition does not present the alternative ground fy

decision upon the merits of the assessment work issne,

which the plaintiffs advanced below (see page 21, supra),

that, even if arguendo it is assumed that the decisions jp

Krushnic and Virginia-Colorado did not go to the jurisdic.

tion of the Department, it is undisputed that following thog

cases the Department itself acted, as of course it had power

to do (indeed, the Petition insists upon the Secretary’

plenary power), to deprive of effect the prior assessment

work decisions. Having done that, and having then adhered

to the position thus enunciated, the Secretary may not now

retroactively alter the character and effect of the action

of his predecessors, upon familiar principles. See, eg,

Fribourg Navigation Co. v. Commissioner, 383 U.S. 279

(1966) ; United States v. Leslie Salt Co., 350 U.S. 383, 3%

(1956) ; Lane v. Hoglund, 244 U.S. 174 (1917); Logan y,

Davis, 233 U.S. 613 (1914).

Finally, a decision by this Court would fall still farther

short of resolving the ultimate validity of the claims in

suit. As the court of appeals noted explicitly, “It must

be borne in mind that these proceedings . . . are concerned

only with the annual assessment work problem, and not

with the many other hurdles which must be crossed by a

claimant on the way to patent” (App. 14a). The judg.

ments in the district court, which the court of appeals af-

firmed, offer no bar to the assertion by the Department

of any ground which can be established, including abandon-

ment, lack of discovery, fraud in the location, and the

other familiar bases upon which a mining claim can k

challenged. No such questions were presented to the lower

courts; the only matter that has been decided is that the

assessment work decisions do not afford a proper basis for

holding that the claims are inwalid. As the district court

noted, “there has been no contention that the plaintiffs

have abandoned their claims and there is a dearth of evi-

dence to establish acquiescence, express or implied, by

intiffs in any assumption of jurisdiction by the De-

t” (App. 46a).** The judgment in TOSCO goes no

further than to declare the assessment work decisions void

and to enjoin the Secretary from asserting them against

the claims (R. 439-42). The judgment in Brown, in addi-

tion, set aside the decision im Union Oil and simply re-

manded the patent applicatiom to the Secretary “for such

further proceedings thereon as may be appropriate” (R.

193-97 in No. 9584).

CONCLUSION

For the reasons stated the petition for a writ of

certiorari should be denied,

July, 1969

Respectfully submitted,

Fow.ier Hamitron

Ricuarp W. Hvu.sert

Donautp L. Morcan

“The repeated allegations of abandonment in the Petition

(eg., at p. 2, “thousands of oil shale claims were abandoned”)

have no basis whatsoever in the record. Similarly of no bearing

on any issue actually raised in the litigation is the matter of the

“reassertion” of the claims (Petition, p. 2). It is undisputed that

the owner of a mining claim never need “assert” it by filing a

patent application, so that a “delay” in doing so is immaterial.