SETH, Circuit Judge.
These are appeals in four consolidated cases wherein the United States District Court for the District of Colorado entered judgments for the plaintiffs. These plaintiffs were asserting that the
In three of the cases the plaintiffs sought relief by mandamus, and in the fourth case a declaratory judgment was sought.
There follows a brief summary of the history of the four groups of claims in the consolidated cases:
When these placer claims were located the federal mining laws provided that upon a discovery of valuable mineral deposits upon the public domain, a mining claim could be established simply by marking the location so that its boundaries could be easily followed. The mining districts and the states added some additional requirements, but it was not necessary to secure the consent of any federal officials nor to even advise them of the location. Thus the discoverer could himself take steps immediately to protect his find. This was, of course, a practical and effective method for the prospector and miner, and it served to develop the mineral resources as was intended by Congress.
The markings at the location and state required notices served to advise other miners of the claim when they would go on the same ground. After the location was made it was required that the claimant perform a certain amount of work each year to demonstrate that he was holding it in good faith and to further advise others interested
The basic federal requirements, the staking, and the assessment work were all acts relating to the ground itself and to create some condition which could be observed by persons seeking to locate claims in the same area. It was an inter-miner-prospector matter, and the federal government was not initially involved. The claims could, of course, be held indefinitely against others, and the Government, and be mined without doing more than making a valid location and performing the required assessment work. Upon the valid location, a possessory title passed from the United States to the locator which was a property right universally recognized. A patent could thereafter be sought by making application to the Land Office, but this was not a required step. The states in various ways supplemented the methods of marking and added a variety of notice, recording or filing requirements.
As to the assessment work aspect of claims made at the times these in question were made, it is apparent that the issue as to whether the work had been performed was a matter between rival claimants. It was precipitated by an overstaking and the resultant dispute as to whether the ground was then open for location. The issue was decided by the courts between the individuals concerned. 17 Stat. 93; see the older Departmental Regulations, 37 L.D. 757 (1909). Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659. The current Regulations also expressly so provide. 43 C.F.R. § 3420.4.
It is important to consider the claims in question and the assessment work problems in this context of practice, district rules, and statutes alluded to above. The Federal Mining Leasing Act of 1920 (30 U.S.C. § 193, 41 Stat. 451) removed a few minerals including oil shale from the traditional method of location, and it must also be examined in this setting. As to those minerals not included in the Act, the traditional method generally prevails today. See Brennan v. Udall, 379 F.2d 803 (10th Cir.).
When the Mineral Leasing Act became effective, no new mining locations could be made for oil shale as there was substituted a leasing method. Thus those locators who already had made valid locations before the Act were not thereafter faced with the possibility of other locators overstaking their claims for oil shale if assessment work was not performed. Thus the assessment work requirement on pre-Mineral Leasing Act oil shale claims could not be "enforced" or tested by the acts of a second oil shale locator versus a prior locator. The pre-Act claims were thus placed in a unique position.
The General Land Office soon after the passage of the Mineral Leasing Act undertook an ambitious program to eliminate the pre-Mineral Leasing Act oil shale claims upon which assessment work had not been done. This program included the claims here in issue, and they were all cancelled by departmental action following contest proceedings directed against them for a failure to do assessment work. The program led to litigation to test the authority of the Department to cancel claims for such a reason. This culminated in Wilbur v.
It would not seem necessary to analyze at any length the two cases — Krushnic and Virginia-Colorado. They are treated by the trial court in its opinion at 261 F.Supp. 954, at 966, and in the literature on the subject of assessment work. 2 American Law of Mining, Title VII, § 7.1. It is sufficient to say that these cases held that the doctrine outlined above relative to assessment work and who could challenge locations for failure to do such work was not changed by the Mineral Leasing Act. The Court clearly held that the Department (Secretary) had no power or authority to cancel claims solely on the ground that the assessment work had not been done.
At the time of the Supreme Court decisions cited above, the administrative cancellation proceedings in the Land Office had, of course, progressed to various stages in different proceedings. Thus some proceedings had concluded and orders had been entered cancelling the claims, while in others the proceedings were still in progress. But, as indicated above, cancellation orders had been entered in the contest proceedings directed against the claims here in issue. In 1935, following the Virginia-Colorado opinion, the Secretary in his decision, The Shale Oil Company, at 55 I.D. 287, stated that the adverse proceedings and the decision of the Commissioner cancelling certain oil shale claims in the case before him for failure to perform assessment work were void. The decision for the Secretary said of the Virginia-Colorado case:
The Department for many years thereafter, as demonstrated by the record in these cases, adopted a policy that its prior cancellations and proceedings taken to cancel oil shale claims for failure to perform assessment work were invalid or were void. The expression of this policy continued until about the time of the decision in Union Oil of California, 71 I.D. 169, and 73 I.D. 313, which gave rise to this litigation.
It is well at this point to refer to the somewhat older (1920) case of Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410. There the Supreme Court upheld the right of the Land Office to challenge mining claims on the ground that a discovery had in fact not been made. The fact of discovery was and is the basic statutory fact required to support any mining claim. It has been referred to as the source of title and what segregates the claimed ground from the public domain. It must have taken place before any title passes from the Government to the claimant. The Court held in Cameron that the Land Office could challenge the mining claims there concerned as to this fact of discovery, but this was the extent of the decision. The claims there sought to be established were so located as to cover the Bright Angel Trail leading into the Grand Canyon. The issue was discovery and not assessment work. Also in Best v. Humboldt Mining Co., 371 U.S. 334, 83 S.Ct. 379,
The Government on this appeal would present the issue very broadly, as being the authority of the Secretary of the Interior as to entries and locations on the public land. If the question is so broadly stated there can be found any number of decisions where reference is made to the wide extent of his duties as to the public domain. See Boesche v. Udall, 373 U.S. 472, 83 S.Ct. 1373, 10 L.Ed.2d 491. However the issue cannot here be put in such broad terms. Instead the issue must be limited to the effect of the Krushnic and Virginia-Colorado cases upon the prior departmental cancellations of claims for failure to do assessment work. There are some variations on this question and some related problems, but it is the basic issue.
It must be recognized that the departmental decision in Union Oil Company of California, supra, represents a reversal of the expressed policy of the Department which had prevailed since the Virginia-Colorado decision and The Shale Oil Company case, 55 I.D. 287, both in 1935. The record shows that this policy was expressed in correspondence, public statements, annual reports, and in official action. This official action includes the patenting of a substantial number of oil shale claims during this interval which had been previously cancelled by the Department for failure to do assessment work. This reversal of policy also represents a determination by the Secretary to have the Krushnic and Virginia-Colorado cases revisited. The Government in its brief states that the subject matter of this litigation is the same that was before the Secretary thirty-five years ago in proceedings leading to the Krushnic and Virginia-Colorado cases.
It is apparent that the private "enforcement" of the assessment work requirement through the overstaking by others of the ground covered by prior claims on which the work had not been done was completely thwarted by the intervention of the Mineral Leasing Act as to competing locations for oil shale. The old claims were thus sheltered by the Act. However the ground could have been relocated by others for non-Mineral Leasing Act minerals had they been discovered (ignoring withdrawal problems). With the removal of relocation as the method to make the non-worked locations available, the Department undertook its campaign to cancel which was halted by the Krushnic and Virginia-Colorado cases, and has here again resumed its efforts. The Secretary in the Virginia-Colorado case argued the effect of the Act described above. The Government in its reply brief in the appeal before us states that the decision in Virginia-Colorado is "wrong" but suggests that since we are bound by it, "it should be confined to its exact facts * * *."
We find no change in the authority of the Secretary since the Supreme Court decisions referred to above. There has been some relatively minor statutory change but it does not affect this issue. The Supreme Court held in Virginia-Colorado that the Secretary was acting outside his statutory authority when he cancelled the claims for the reason he did. The Court said: "We think that the Department's challenge, its adverse proceedings, and the decision set forth in the bill went beyond the authority conferred by law." It was a clear and direct holding, and it followed the Krushnic decision and, of equal importance, it followed Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410. The decision must be taken by us to hold that the Secretary was without power or authority under the laws to bring the adverse proceedings on the ground it did, and to so cancel the claims. This in the administrative area must be taken to mean his actions were void and of no legal effect. They were beyond his authority conferred by law, and this is the
In West v. Standard Oil Co., 278 U.S. 200, 49 S.Ct. 138, 73 L.Ed. 265, the Court had before it an action against the Secretary of the Interior to enjoin proceedings in a local land office ordered by him to determine whether certain lands were known to be mineral at a certain time, and thus to attempt to determine whether title passed to the state under the Act of March 3, 1853. The Court found that the Secretary had no "affirmative duty" to the state or to a claimant. The Court said that Congress did give the Secretary the "power" to pass generally on the right of the state to the land. The Court said:
The Court concluded that the prior Secretary had acted without authority, and in substance that his order was of no effect. The Court placed the determination of power on the finding of a "duty." Under the circumstances before us the Court had also found no duty within the statutes. It is reasonable to conclude from the West opinion that the action of the Secretary there was void as it was here.
Thus we must hold, as did the trial court, that under the prevailing decisional and statutory law, the initial administrative proceedings as such and also the cancellation of the claims here in issue were of no effect. The Supreme Court decisions were handed down some thirty years ago and Congress has not extended the power of the Secretary as to this particular matter as well it could because it has been seriously concerned with oil shale development. In any event, if it was then deficient the acts then taken were void. As to whether the Secretary can now refuse to patent by reason of gaps in annual assessment work we feel bound by the Supreme Court's decisions and by the absence of Congressional action. The Secretary must follow those decisions on this point.
The Government here argues in effect that the Secretary has all the powers mentioned in the Constitution relating to public lands, but this cannot be. These powers are not in the Secretary, but are vested in Congress and he has what the statutes provide that he have and no more.
It must be borne in mind that these proceedings, derived as they are in part from the Union Oil of California case, 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.
The Supreme Court cases removed the issue with which we are here concerned from the administrative arena and decided, and said expressly, that the basic power and authority of the Secretary was lacking as to his cancellations; and equally important was lacking as to his
The Department proceeded initially on the proper course following the decisions as is shown in the record on this appeal. In many subsequent proceedings concerning other claims cancelled as these before us were, it ignored its prior administrative action; and it received applications to patent such claims, and patents were issued.
The land status in the area concerned has become somewhat complicated in that surface entries were received and processed; the Taylor Grazing Act has been administered in the same area as these and other claims of similar status; oil and gas leases have issued, and other entries have been processed by the Department. The Secretary advances this problem as an argument to support its refusal to patent, but these complications are not essentially different than in any area where there are a considerable number of unpatented mining claims. This is one of the Secretary's basic problems in administering lands where the general mining laws are applicable, and all the data as to the locations and claims may not be in the records of the Land Office. This involved land status is not the doing of the mining claimants, as the Department has proceeded to receive these other entries and to process them regardless of the unpatented claims. It is not a question of laches on either side. Time and the pressure for land utilization have complicated the land use on the one hand and have added administrative problems on the other. The Secretary is certainly equal to solving these problems as they are everywhere present.
These cases on appeal are like a voice out of the past with mining locations dating from 1918, with the clearly established legal propositions directly applicable to them and the matter thought to be at rest, but here we are some thirty or thirty-five years later and having progressed, or at least moved, somewhat out of the pick and shovel era faced with the same issues as to the same claims. It is, as stated above, the Virginia-Colorado issues and era revisited.
The appellees urge that we consider a contention presented to the trial court that the Department cannot retroactively change a "rule." However it appears that the problem is a more fundamental one than rule making, and is instead a reluctance by the Secretary to continue to follow the Supreme Court's decisions as his predecessors have before, and to seek a new interpretation or to ultimately have the Court modify them. This issue we have considered above and we need not treat this as a separate matter.
The Government urges that the same issues are present in all four cases. The relief sought is basically in the nature of mandamus and directed to the Secretary's action in the Union Oil case. 28 U.S.C. § 1361 gives the District Court jurisdiction in these proceedings. The Act of 1962 subjected the officers and employees of the Government to such actions in all the United States District Courts. The nature of these actions was defined by this court in Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir.). See also Smith v. United States, 333 F.2d 70 (10th Cir.); Motah v. United States, 402 F.2d 1 (10th Cir.); Pan
For the reasons indicated above we must hold that the Krushnic and Virginia-Colorado decisions of the Supreme Court control. These decisions must also be taken to mean that the prior cancellations for failure to do assessment work were void and are still void. Thus the Secretary was again without authority to attempt to base his actions on the same ground.