432 F.2d 328 | 9th Cir. | 1970
Lead Opinion
Except as noted, the District Court’s unreported opinion, set out at length, is adopted as the opinion of this court and its judgment is affirmed.
The only question in this case is whether an order of the Division of Lands and Mineral Management purporting to classify the lands as suitable for transfer under the Small Tract Act
The classification order of September 29, 1961 read in part as follows:
‘ * * * I hereby classify the following described public lands, totaling 40 acres in Lewis and Clark County, Montana, as suitable for transfer under the Small Tract Act of June 1, 1938 (52 Stat. 609, 43 U.S.C. 682a) as amended:
PRINCIPAL MERIDIAN MONTANA
T.9 N., R. 3 W., Sec. 14, SE i/4 SE y4. Containing 40 acres, of which 10 acres are now included in small tract leases M-031202 and M-031401.
2. Classification of the above-described lands by this order segregates them from all appropriations, including locations under the mining laws, except as to applications under the mineral leasing laws. * * * ’ (Emphasis added)
The order is in error in that the land actually lies in Jefferson County, and not Lewis and Clark County. The order, with the error uncorreeted, was published in the Federal Register October 5, 1961.
Plaintiffs claim that this order was invalid in that it does not show that the Bureau weighed the value of the land for small tract development against its value for mining purposes. Assuming,
Insofar as the order itself is concerned, the error in description did not invalidate it. There is but one Section 14, Township 9 North, Range 3 West, M. P.M. The erroneous designation of the county would not render a deed void
Insofar as notice is concerned, a different problem is posed. When notice is required and when a publication is relied upon to give such notice, a misstatement of the county in which the land is located might very well be fatal to the notice. A person scanning a legal publication to determine whether it included any land in which he was interested could very easily be misled by a misnomer of the county. The ordinary person interested in a parcel of land might very well forego any consideration of a notice relating to it on the basis of an incorrect county designation rather than pursue it on the basis of a correct section, township and range description. It is not necessary to reach that problem because there is no requirement that notice of withdrawal be given.
The United States owned the lands and could constitutionally manage them in any way that it saw fit.
Section 305 of Title 44 U.S.C.
Executive Order No. 10355, 17 Fed.Reg. 4831 (1952) relied upon by the plaintiffs does require publication of withdrawal orders. The withdrawal orders referred to in Executive Order No. 10355, however, are withdrawal orders made under an authority delegated initially to the President and by him delegated to the Secretary of the Interior. The order does not refer to withdrawals under authority delegated by Congress directly to the Secretary of the Interior as is the case with 43 U.S.C. 682a. For these reasons Executive Order 10355 is not applicable.
Assuming that the provisions of 43 U.S.C. §§ 1411 to 1418, have application to the Small Tract Act, still there are no notice requirements. § 1412 of the Act and the regulations following it
As to the Gold Seal claim (the relocated Gold Bond) which plaintiffs obtained from Mark and his wife, it is sufficient to note that whatever rights Mark had were relinquished to the United States; that by virtue of the recording of the deed plaintiffs had at least constructive notice thereof,
Plaintiffs advance another argument based on Mark’s location. Plaintiffs contend that since Mark had a possessory right based upon his mining location, the land was not vacant at the time the withdrawal order was entered and hence could not be withdrawn under 43 U.S.C. § 682a. The pertinent language of that section is;
‘The Secretary of the Interior, * * is authorized to sell or lease * * * a tract of not exceeding five acres of any vacant * * * public lands withdrawn or reserved by the Secretary of the Interior for any purpose, which the Secretary may classify as chiefly valuable for residence, recreation, business, or community site purposes, x- * x- >
It was the congressional intention in limiting the Secretary’s power under Section 682a to vacant (assuming that the word ‘vacant’ means something other than free of improvements) land to protect the interests of persons who had obtained valid right in the public land. The assertion of a claim should not prevent the Secretary from making the classification order. Such an order might be conditional because the one asserting the claim would be entitled to be heard and, if after a hearing it was determined that the asserted claim was good, the classification order would fall. If, however, the asserted claim fell, the mere fact that it had been asserted should not cause the classification order to fall. When in this case Mark relinquished his asserted mining rights, such relinquishment was equivalent, at least as between the United States and Mark, to a finding that his claims were not in fact valid. Once Mark was eliminated, no one had any standing to object to the classification order. It would serve no
Plaintiffs make some claims based upon an estoppel. Even if the United States were subject to an estoppel, there was no holding out by the United States in this case upon which the plaintiffs relied. They do not claim to have seen the erroneous publication in the Federal Register; they do not claim to have seen the order in the office of the Bureau of Land Management. No serious effort was made to determine whether the. land was open for mineral location. Plaintiffs took a chance and if their time and energy spent in locating the claim were wasted, it was not the fault of the Government. This opinion, together with the agreed Facts, constitutes the findings of fact and conclusions of law of the court.
IT IS ORDERED that the plaintiffs be denied all relief.
Dated this 6th day of June, 1968.
. The District Court lacked jurisdiction under the provisions of the Administrative Procedure Act (5 U.S.C. §§ 701-706) to review the classification order of the Secretary of the Interior with respect to the land covered by the Gold Seal No. 1 claim. Under the Small Tract Act (43 U.S.C. § 682a) the classification of public lands is a matter committed to the discretion of the Secretary. See Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969). The validity of his classification was thus not reviewable, since the order did not deprive appellants of a vested property right arising under
The date of relocation of the Gold Seal claim, stated in the opinion to be July 21, 1965, is corrected to read July 21, 1963.
. The court lias jurisdiction under 5 U.S.C. §§ 701-706. See Henault Mining Company v. Tysk, 271 F.Supp. 474 (D.Mont. 1967).
. The parties agree that all of the plaintiffs’ administrative rights have been exhausted.
. 43 U.S.C. § 682a
. The Gold Seal claim was a relocation of the Gold Bond claim.
. 26 Fed.Reg. 9387 (1961).
. Apparently the order here was in the form of that approved in Dredge Corporation v. Penny, 362 F.2d 889 (9 Cir. 1966).
. See, 26 C.J.S. Deeds § 30h (1956).
. ‘For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein, Congress “may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.” Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 42 L.Ed. 260; Light v. United States, 220 U.S. 523, 536, 31 S.Ct. 485, 55 L.Ed. 570. Like any other owner it may provide when, how and to whom its land can be sold. It can permit it to be withdrawn from sale.’ United States v. Midwest Oil Co., 236 U.S. 459 at 474, 35 S.Ct. 309, 59 L.Ed. 673 (1915).
. 30 U.S.C. § 21.
. This is the effect of Dredge Corporation v. Penny, supra, note 6.
. ‘(a) There shall be published in the Federal Register (1) all Presidential proclamations and Executive orders, except such as have no general applicability and legal effect or are effective only against Federal agencies or persons in their capacity as officers, agents or employees thereof; (2) such documents or classes of documents as the President shall determine from time to time have general ap
. 43 C.F.R. 2410.0-2 to 2411.2.
. R.C.M.1947, § 73-201 (Supp.1967).
. Black v. Elkhorn Mining Company, 163 U.S. 445, 16 S.Ct. 1101, 41 L.Ed. 221 (1896) ; Clark v. Clark, 126 Mont. 9, 242 P.2d 992 (1952).
Concurrence Opinion
(concurring):
I concur in the result reached by my Brothers, and I too, am favorably impressed by District Judge Smith’s discussion of the problems and the care with which he resolved them. As to the Mark location, however, I entertain some doubt about the significance attached to Mark’s so-called relinquishment of his claim. The appellants urged that Mark executed the relinquishing document because of fraudulent misrepresentations made to him by a representative of the Secretary, and the Secretary’s final decision recognizes, “It is true that a relinquishment must be voluntary and intentionally executed, and that a relinquishment that is secured through misrepresentation, fraud or deceit is void.” Insofar as I can ascertain, there is nothing in the record which adequately rebuts the declaration of Mark himself that “I would not have signed the relinquishment paper to the claim if I had known the truth and if I was not under the duress and threat I was violating the law.”
I therefore do not place such great reliance, as my Brothers and the District Court have done, upon the so-called relinquishment. Mark filed his certificate of location on September 26, 1961, and it should, I think, be reemphasized that his wife was not a co-locator. The land was withdrawn, by the Secretary’s Classification Order No. 503, on September 29, 1961. The record as a whole makes it quite clear that Mark had discovered no valuable mineral deposits on his claim before the issuance of the Classification Order and that he had made no recognizable investment toward that purpose. This being true, he .could have acquired no such vested rights as might have been impermissibly infringed by the order which issued three days after his claim was located. See Cameron v. United States, 252 U.S. 450, 456, 40 S.Ct. 410, 64 L.Ed. 659 (1920). It is this simpler approach which is more appealing to me.
