This suit was filed by G. C. Mulkern, to whose interest the appellant Juanita Mulkern has succeeded, to enjoin the appellee, Hammitt, who is the Manager of the Nevada Land Office, Bureau of Land Management of the United States Department of the Interior, from cancelling the appellant’s placer mining claims for gypsum and sand on public lands of the United States in Nevаda. The United States District Court denied the injunction, and this appeal was brought.
The claims which are the subject of this suit were located by the appellant’s predecessor in title on December 23, 1922, at which time the land here in question was open for such a location. The claims were not exploited by any commercial mining of the gypsum or sand, by G. C. Mulkem’s predecessor, from 1922 to 1941 when G. C. Mulkern became the owner of the claims, nor did G. C. Mulkern thereafter exploit the claims. In 1944 the United Stаtes filed proceedings the purpose of which was to nullify the claims. This proceeding was, for reasons not here relevant, delayed, and the hearing which resulted in the departmental decision here in question was not held until 1957. The question at issue in the hearing was whether a valid discovery had been made between 1922 and 1926 or during 1928 and 1929. The significance of those years is thаt the United States, by a series of withdrawals after the year 1926 had incorporated the land in the area into the Boulder Canyon National Wildlife Reserve and thus removed it from future location of mineral claims upon it.
The “location” of a mineral claim upon the public lands of the United States is, in effect, a unilateral act by the locator. It indicates that, in his оpinion, there are minerals upon the land which are susceptible of profitable exploitation. That opiniоn may, of course, be, upon examination by less optimistic persons, regarded as ill-founded. If it is, the Government must have the right to clear the title and the right to the possession of its land from a useless and annoying incumbrance. The proceeding hеre under review was instituted by the Government because, it contended, the land in question did not contain minerals susceptible tо profitable exploitation.
The parties are in substantial agreement that the proper test to be applied in determining whether a location of a mining claim is valid is the test stated by the Department of the Interior in 1894, in the case of Castle v. Womble, 19 Land Decisions 455, 457. The language there used is:
“ * * * where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means with а reasonable prospect of success in developing a valuable mine, the requirements of the statute havе been met.”
Perhaps the basic difference between the parties in this ease relates to the time as of which the Castle v. Womble test should be applied. In the departmental hearing in the instant case in 1957, the only witness for the Government, аn expert witness, did not give any very important testimony about the situation existing in 1922 and the years immediately following that year. His testimоny was that in the period including the year 1957, when he testified, the nature of the minerals, the cost of extracting and transporting them, the extent of the market and its distance from the land, were such that “a. prudent man would not be warranted in expending his time аnd money on the claims.”
The appellant urges that she is entitled to hold the claims in question because there are mineral waters upon the land. G. C. Mulkern testified in the administrative hearing that he nevеr tried to do anything with the mineral water. The Acting Director of the Bureau of Land Management, in his decision affirming the decision оf the Hearing Examiner, agreed with the Hearing Examiner that mineral water is not locatable under the mining laws. In the appeal from the Acting Director’s decision to the Secretary of the Interior, the part of the decision relating to the minerаl water was not included in the appeal. The Secretary’s decision noted that fact, and did not consider the questiоn. Because of the failure of the appellant’s predecessor, G. C. Mulkern, to exhaust his administrative remedy, we do nоt consider or decide the question concerning the mineral waters. The administrative decision was, therefore, properly allowed to stand undisturbed by the District Court.
The decision of the District Court, in its entirety, is affirmed.