BEST v. HUMBOLDT MINING CO.

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Argument of Roger P. Marquis

Chief Justice Earl Warren: Number 52, Raymond R. Best, et al., Petitioner, versus Humboldt Placer Mining Company, et al.

Mr. Marquis.

Mr. Roger P. Marquis: Mr. Chief Justice and Associate Justices.

This case presents the issue whether the filing of a proceeding to condemn lands to which the United States has legal title but as to which there may be there is asserted rights under the public domain, especially here the mining laws, deprives the Department of Interior of its ordinary jurisdiction to determine the validity of such claims.

We are dealing here with the question of power of the District Court, not as to exercise the discretion I believe because as I would trace in a minute the District Court exercised its discretion in favor of permitting the administrative proceeding to proceed in a normal manner.

The facts are few.

The United States is undertaking the Trinity River project, heart of the Central Valley project in California.

This is in the northernmost project.

It has been added to the project in recent years as another feature.

In January of 1957, condemnation proceedings were filed covering some 3000 acres of land for the purpose of that project.

The lands were for the most part, public domain on which there were many outstanding mineral entries under the mining laws.

In that proceeding, as the District Court has specifically found the right to retain administrative authority to proceed in the usual way to determination of validity of the claims was expressed expressly reserved.

The Department acting under the regulations and the procedure in 1958 instituted proceedings, of what is called a contest --

Justice Arthur J. Goldberg: Well, Mr. Marquis, what is significant to the fact that according to the respondent's brief here, that it's perfectly acceptable (Inaudible)

Mr. Roger P. Marquis: Well, I think it was put in the complaint simply -- so that it would not be read as an admission that all the mining claims were valid.

I don't think that was inconsistent with the specific finding that the right was retained to determine that validity.

I think there are two different things and I think it was simply making claim, which we often do in filing these complaints when for some reason or other, we have a claim but we want to condemn, in any event, to make that allegation in the condemnation case, so as to put the landowners on notice.

Actually, it isn't provided for in the Federal Rule.

The Rule 71A concerning the allegations of the condemnation complaint do not contemplates any pleadings on matters except right to take.

The matters of compensation are not the matter of ordinary pleading and the form in there, as you'll see, has no provision for it.

The only provision is statutory authority to take what the purpose, what title do we -- what are we condemning and as I say, we put these allegations in there so that people won't be misled, but a lot of times the -- it's the idea, that mere filing of a complaint admits the property right.

Of course, that was the subject of a 93 Acres case, not long ago in this Court where it was held that there was no such admission or election to treat the property right as valid.

Justice Potter Stewart: Except for the mining claims, there was nothing here to condemn, wasn't it?

Mr. Roger P. Marquis: I'm not certain --

Justice Potter Stewart: This was Government property.

The Government (Voice Overlap) --

Mr. Roger P. Marquis: On the entire 3,000 acres which was the subject of this condemnation case, I think there -- I think there were some outstanding other interest, I'm not certain.

But as to this Humboldt case because this comes up in collateral way, we brought the condemnation proceeding --

Justice Potter Stewart: Then there was an injunction?

Mr. Roger P. Marquis: Then the Humboldt Company brought a separate suit seeking an injunction against the administrative proceedings on the ground that -- as their complaint alleged, all questions of title and a right of the United States to the use and occupation of said premises are wholly and entirely within the exclusive jurisdiction of it, by the entitled court.

Justice Potter Stewart: But this was -- this was public land.

This is Government land.

Mr. Roger P. Marquis: That's right.

That's right and that was their theory that the institution of the proceedings had vested in the condemnation court, complete and exclusive jurisdiction and the obligation to determine all matters.

And that's what the issue is here, whether it does so or not.

Justice John M. Harlan: The way you could see it, as Mr. Justice Stewart proposed, the Government could do -- in order to get immediate possession, you have to file a suit?

Mr. Roger P. Marquis: But that's certainly the ordinary thing to do.

Justice John M. Harlan: And therefore, what you want to do is to run two parallel sets of proceedings so to speak -- one, to give you possession, two, to adjudicate administrative remedy for the mining company.

Mr. Roger P. Marquis: Well, then after the mining claim, it's -- the validity of it is determined and if we -- if --

Justice John M. Harlan: And (Voice Overlap).

Mr. Roger P. Marquis: If they find it's valid, then we go back to condemnation and determine the value.

Justice John M. Harlan: That's right.

Mr. Roger P. Marquis: That's right.

And what -- our view actually is as was done in this case and I say, has been done in many others that we file the proceeding, we obtain the possession, which is needed whether the claims are valid or not.

Then action is withheld in condemnation while the administrative proceedings proceed, then the administrative decision is brought back to the condemnation case, and appropriate proceedings then take it.

Justice John M. Harlan: If you would spell that all out, you won't say that that procedure could not have been (Inaudible)

Mr. Roger P. Marquis: I understand that's -- it's correct, that he says that we could not do it.

Justice John M. Harlan: Could not do that?

Mr. Roger P. Marquis: We could not do it, that there is no power to do it.

As I understand that's what the Court of Appeals -- as we read the Court of Appeals opinion.

That is what their holding is.

Justice John M. Harlan: Although the one (Inaudible)

Mr. Roger P. Marquis: Well, I know but I think -- I don't think they put it on election and they couldn't.

It's not unintentionally alleged.

So that I -- as I under -- as we read their opinion they put it on an election as a matter of law which follows from the fact they found in the complaint.

Justice John M. Harlan: Even though you disclaimed the --

Mr. Roger P. Marquis: Even though we disclaimed the intent to do so, I think they made it quite plain that their notion is that our intent makes no difference.

In the course of this discussion, I think we have summarized what the case is about and I will turn to -- first, the District Courts, it granted summary judgment for the United States.

On three basic ideas expressed in its opinion that invoking the principle of a court with jurisdiction over in the entire controversy, may defer its ruling, withhold action as to a particular matter while that matter is determined by some other special tribunal.

Second, that the Bureau of Land Management has special competency in determining, contesting claims to public lands, that the Star Chamber charged with the plaintiffs in the case had made against such procedures was unwarranted and that there was every reason to allow the agency to adjudicate these claims.

Finally, he pointed out -- he said, there was no multiplicity of trials because the Court will not try the issue of validity of the mining claim which is a different, much a different issue from the validity -- from the question which -- would ultimately be presented if the claim is valid as to the amount of compensation based on market value of the claim.

The Court of Appeals reversed.

It expressed this idea of election and I think its one sentence on page 40 of the record epitomizes its notion.

No statute or controlling authority has been called to our attention, indicating that the Administrative Tribunal was in the Department of the Interior, retains jurisdiction to adjudicate the validity of mining claims after the Secretary of the Interior has invoked the jurisdiction of the District Court by the filing of a condemnation action in which has raised the same issue.

Justice Hugo L. Black: What page did you say that was (Voice Overlap) --

Mr. Roger P. Marquis: That was on page 40.

Justice Hugo L. Black: 40?

Unknown Speaker: 40.

Mr. Roger P. Marquis: The a --

Unknown Speaker: Excuse me, I have (Inaudible)

Mr. Roger P. Marquis: No.

Sir, it starts at the third line from the top.

Justice Hugo L. Black: Well, I thought you said 4.

Mr. Roger P. Marquis: No, 40.

Our argument is four basic ideas.

First, the general principles was -- become known as primary jurisdiction.

The power of courts to defer to administrative agencies, to state courts is very well established.

Justice William J. Brennan: And is this I gather that aspect of primary jurisdiction which relies principally upon the so-called expertise?

Mr. Roger P. Marquis: I -- that is -- a great deal out of it, yes.

I think that expertise in the sense, not only of familiarity but I think also important here is expertise in the sense of having procedures adapted to the subject matter you're dealing with.

I think that's important because in condemnation courts, as I pointed out, there are no pleadings relating to other matters than right to take.

So the -- to the condemnation courts undertake the pass on these mining claims.

As we point out, a great many of them are dormant or stale.

The administrative procedures dispose of them by defaults or some sort of a ad hoc procedure would have to be adapted by the courts to set up some system of pleading, answer, publication, trial of the issue --

Justice William J. Brennan: But may I ask --

Mr. Roger P. Marquis: (Voice Overlap).

Justice William J. Brennan: Mr. Marquis, what are the provisions for review of the administrative determination?

Mr. Roger P. Marquis: The provision was in the Department are --

Justice Potter Stewart: On judicial review.

Mr. Roger P. Marquis: But as to judicial review, as I will summarize a little bit later, in land matters there has never been any general statute for court to review.

The exercise has been in terms of the narrow mandamus jurisdiction in the District of --

Justice William J. Brennan: Let me anticipate your argument --

Mr. Roger P. Marquis: No, (Voice Overlap) -- it's alright.

I might as well finish the subject now while I'm talking about it and call the Court's attention to a recent statute in October, which was primarily because of public land matters of various kinds in which Congress authorized as a matter of venue.

This is very general and we're going to have our problems but they authorized Federal District Courts throughout the country to (Inaudible) exercise the same power to review in the nature of mandamus which has been exercised here in the District of Colombia arising under the old common law --

Justice William J. Brennan: Well, could this be done then under this new arrangement in the condemnation court?

Mr. Roger P. Marquis: It would be the same court.

There we get into a question of a -- I don't know, I -- you get into procedural questions then, I suppose of whether it's a condemnation court as such or whether it was the same court in a proceeding unless that --

Justice William J. Brennan: And probably would be the same judge in any way, is that it?

Mr. Roger P. Marquis: I think, undoubtedly, it'd be assigned to the same judge.

I don't believe there's any reason can be given, why not and there are very many reasons why the rule of deferring to expertise, when available, should apply to condemnation cases.

Third, I will briefly deal with the thought of filing of a suit constituting an election and I think for reasons very similar to the 93 Acres case, and then a very short extension of that case to this, that such -- no such election should result from filing, simply from filing a condemnation case.

And fourth, we have developed in our brief in some detail the background of public land law makes it especially desirable.

I think that this power of the Department to determine these complex matters should be preserved.

I don't think I need to elaborate on the general principle of power to defer to states courts, to administrative agencies or particular matters but certainly this Court has had many cases on that general subject in various particulars in recent years.

The condemnation cases that we have noted in our brief, not infrequently, wait or could -- before concluding a condemnation case until state courts shall determine title matters or for instance, tax matters that may arise when there is a lien tax under complicated state laws, various subjects like that, matter over the title to real estate.

They may await the determination.

We see no reason why those general principles should not apply to condemnation cases.

A matter -- as a matter of fact, it seems to me that the -- this Court's decision in the County of Thibodaux case is very close to that, this -- that aspect.

If you recall, that was the case where the -- of the City of Thibodaux, Louisiana Power and Light case.

If you'll recall that was a case where a state condemnation case had been removed to federal court under diversity and this Court held that the problem there of whether there was a right of eminent domain in the particular circumstance by the city should be deferred until the state court could determine the matter.

Certainly, it seems to me --

Justice Hugo L. Black: That was a --

Mr. Roger P. Marquis: -- there, that that --

Justice Hugo L. Black: That was a court.

Mr. Roger P. Marquis: That's right.

That's right but I think that -- that demonstrates that there isn't this complete jurisdiction of a court, such of a condemnation court, since that it cannot await the decision of some other body and that -- I -- when we're dealing with the question of power, that is distinguished of whether the circumstances are appropriate for wait -- waiting.

And the question of power, I don't -- it didn't seem to me there's any difference whether we're dealing with the administrative agency or the head of Government or whether we're dealing with state courts or state administrative agencies if the problem arises.

Well, that has arisen in the Beaufort case about the --

Justice Tom C. Clark: Well, that might have something --

Mr. Roger P. Marquis: -- concerning the wrong (Voice Overlap) --

Justice Tom C. Clark: -- to do with the exercise of discretion too, might it not?

Mr. Roger P. Marquis: Yes.

Well, that's something else.

That's (Inaudible) -- that's the area as to exercise of discretion.

That is where the fact of the mining law, the public domain background and the broad powers that have been always vested in the Department of Interior and in the General Land-Offices since -- oh, 1812, I think it is.

The broad power to deal with the federal property becomes important.

But I think on the question of power these cases are in point.

Justice Hugo L. Black: Suppose this was a private property that has been granted the right to condemn and with the lawsuit between the private company and that owner of a mining claim, is it your idea that the lawsuit was kept to be held up under the Secretary of Interior to determine the validity of the mining claim?

Mr. Roger P. Marquis: Normally speaking, the validity of the mining claim, as against the United States, and as against third parties is there -- are two entirely different problems.

I think that's the one that would probably be the answer to Your Honor's case.

Justice Hugo L. Black: Well, what would that -- what could be the result there?

Mr. Roger P. Marquis: Well, the mining claim, so far it's a case of a right to possession against other people, the mining claim is, may be treated as valid or it may be -- may be investigated.

There have been cases where the courts have investigated the validity of mining claims.

Justice Hugo L. Black: Even after the court has tried it out?

Mr. Roger P. Marquis: Yes.

Justice Hugo L. Black: Of course, they are appropriate part of trial at that time, I think.

Mr. Roger P. Marquis: I would think so, I would think so.

But what's -- but none of those have been in cases and there is this.

There none have been over the objection of the United States and really I don't think you get into that because here the Court, in the exercise of his discretion has said, “Well, I will defer to the Departments”.

I certainly think that that is a justified.

I think the history of Public Land Law (Inaudible) -- not only the difficult factual problems you get into, the lack of procedure of the court as contrasted for the administrative procedure available, which is much more suitable to adjudicating these matters.

Justice Hugo L. Black: Adjudicating the title?

Mr. Roger P. Marquis: Whether the title -- whether some title of the United States has been transferred to the claimants.

That is our basic problem that this is -- this is the United States dealing with its own title.

I think that's the reason in that background why such broad authority, in terms of generalizations, have been given over the years to the Land Department and that's why this Court has over the years, many times said that the Land Department is a special tribunal constituted for this purpose, who's rulings and for example in many areas, and I won't go with the details, in many areas their ruling is conclusive.

When a patent is issued, it can't be attacked and there is a long history of administrative process and of wide administrative discretion and all implications, this is perhaps one of the rare fields where all implications of anything that ought to be done is in favor of power of the administrative authority unless some specific statute denies it.

Justice William J. Brennan: May I understand this Mr. Marquis, because I understand you to say that this question of the validity of a claim, that it may be valid only if it appears that there was a transfer by the United States of title that claimant?

Mr. Roger P. Marquis: Not of title, no sir.

Justice William J. Brennan: Or --

Mr. Roger P. Marquis: I mean --

Justice William J. Brennan: -- some interest --

Mr. Roger P. Marquis: I mean the issue is --

Justice William J. Brennan: Of an interest, whatever.

Mr. Roger P. Marquis: Well, the issue is whether -- let me put it this way, the issue is whether there have been qualification to the statutes under the statutory procedures, so as to obtain some vested right.

Justice William J. Brennan: But some vested right in something which belongs to the United States.

Mr. Roger P. Marquis: Yes.

Justice William J. Brennan: Is that it?

Mr. Roger P. Marquis: Oh, yes, oh, yes.

Justice William J. Brennan: I see.

Mr. Roger P. Marquis: Let me put it -- let me describe it this way.

Maybe a little bit of description of this rather unusual mining law procedure would be helpful.

There are three stages of the mining law procedure.

First is prospect, you can prospect as long as you go peaceably and you don't get into fights about the gold claims or something like that.

A person can -- first goes and prospects and his possession, in his prospect is a valid right as against third parties but is no right at all, the mere prospect is no vested right at all as against the United States.

He discovers his mineral.

The gold miners found their gold then there is the established procedure called location.

Whereas you put up monuments around your -- you state your claim, you file under local law in the County Recorder's Office or according to local requirements.

That's one of our difficulties.

That's the way the thing has grown up.

It still is true so that there's no notice on the federal records of these mining claims.

A proper discovery and location, you can then proceed to work that mine and you have a right, a vested right to that possession as against the United States as well as against the whole world.

Justice Byron R. White: And the patent?

Mr. Roger P. Marquis: Then you don't have to patent.

Justice Byron R. White: No, but you do -- you can't patent --

Mr. Roger P. Marquis: Well, then that's the third step, the final step.

Then patent, you have to follow procedures, publication.

You have to prove what -- claims to the Bureau and go through all of that procedure.

Payment of $500, I believe, I meant $5 per acre, goes through all those procedures then you obtain the patent.

Of course, there's a difference and it works both ways.

There are attempts to use a mining claim as a basis for securing a patent when actually you're going to use the property for some other purpose once you get the fee.

That's one aspect of the matter.

The opposite aspect of the matter is that if you're mining, if you have a mining claim, for example, you can use the timber on their land only to the extent that it can be used and contributes to your mining operations.

You're not a general owner of the timber, had the timber, so that -- but on the other hand, people may go on, mining for years without seeking a patent for tax or other reasons.

Because when their concentration is on the mineral, they don't need any more right in order to mine the mineral, so that we have a variation of types of rights that may be created as against the United States in this field.

So that's what I answer when I talk about title that's sort of a small answer to the matter.

Chief Justice Earl Warren: And in this case were there any patent issued?

Mr. Roger P. Marquis: In this case, they're all unpatented mining claims.

So we're in the area of where they're claiming that they made a location and made their discovery.

Now, that discovery is the complicated field that you get into because the general standard is and has been over the years, what a person of ordinary prudence would be justified in further expenditure of his labor and means with a reasonable prospect of success in developing in mind.

Having in mind all the physical situation of the quantity, quality, the available market, what kind of mineral you're talking about, all of which gets into a very complex subject of expertness.

The field manual, I think this is something, it's important to keep in mind in this case that when we're talking about mining laws today, where this is a real -- it's real vital today because these mining laws, as distinguished from the Mineral Leasing Act, whereby the federal properties are simply leased.

That applies to oil and gas and coal and three or four other minerals.

That mining law still apply today to all other minerals, Uranium, there's 14 -- there's a field manual for examiners that go out from the Department of Interior, to engineers to do the field of examination on all these assets, whether there is a valid mining claim or not.

In which at least, I think 14 pages of double columns of various kinds of minerals and their chemical content and their technical name and the like.

So it's -- that is the area which we're dealing today.

This particular claim of Humboldt is a placer claim from a -- for gold.

I don't know but I think it is one of the secondary recovery processes that have been going on in California that going up the streams where the 49'ers and the like they got out the gold that a lot of particles went down the river and now it becomes valuable enough to reclaim those.

The -- turning back just a moment to the question of whether there is anything that prohibits the trial court -- the condemnation court to permit the administrative agency to complete its pro -- proceed with its process.

There's nothing in the statute authorizing institution condemnation proceedings, it's just as -- it says nothing at all that can be construed that way, it's simply the general statute providing that the Federal District Court shall have jurisdiction and proceedings brought by the United States to condemn property.

I see nothing in there denying that normal power.

The Court of Appeals found something --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: There's nothing would permit or would deny.

Justice Arthur J. Goldberg: These claims are (Inaudible)

Mr. Roger P. Marquis: I don't know precisely but I think that it's the necessary field investigation preliminary to filing of these complaints.

If you recall the Bureau has no records of these locations, there was a mass of cases here.

The examiners have to be send out -- sent out, they have instructions that say, quite a substantial book called Field Handbook for Mineral Examiners.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: No, no not this.

There was another one which we just referred to as being existent which has no particular relevance.

This describes the kind of examination, the field examinations, the expertness, the matters that have to be gone into.

There have to be tests, samples taken, samples analyzed, let's say there have to be examination with local records, there have to be -- all of those matters.

Local recording records have to be looked into, the business situation has to be looked into to determine whether there is -- one of these questions, as one of the cases we have cited is whether there is presently a demand for this mineral, such as to justify the validation of the claim as distinguished from an attempt to get possession of the land to use it for some other purpose.

All of those matters, I think certainly in dealing with a matter of this size where we've got as many cases as this District Court had pending in its civil docket at the time certainly would explain the reasons for not acting any quicker in filing the complaint, because as you will see in the record, the administrative complaint, the procedure, the contest so-called, which can be started by the Government under the procedures starts on page 10 of the record and it's quite detailed.

At page 11, you have the particular claims and the location of their recording and they have particular matters that are dealt with, with respect to particular claim (Inaudible) number 2 at the bottom of page 13 and the allegation is that they are nonmineral in character, minerals have not been found within the -- insufficient quantities to constitute a valid reco -- discovery.

All those matters had to be predetermined in this process before this particular complaint as to Humboldt could be filed.

Justice Arthur J. Goldberg: What is the exact (Inaudible)

Mr. Roger P. Marquis: Well, of course if he has -- if he has a valid claim there is a taking at the time of possession and he secures 6% interest.

The market value of his claim is determined as of that date and he receives 6% interest as compensation for delay until final award is made.

That has always been considered by this Court to be adequate compensation for delays between possession and final payment of the money.

Justice Byron R. White: Wouldn't if you amend your complaint deserving jurisdiction in the condemnation action?

Mr. Roger P. Marquis: That was in --

Justice Byron R. White: I noticed the complaint in the amendment is not in these records.

Mr. Roger P. Marquis: No, it isn't.

The condemnation claim isn't in this record at all because we have the findings.

It was -- I -- as -- my figure I have is March of 1960.

Justice Byron R. White: So that the -- originally there's no reservation of jurisdiction printing as such.

I assume that you filed your condemnation action in the first place because you had noticed in some possession of the mining claim that a -- in a possession by a mining claim.

Mr. Roger P. Marquis: Well, with -- this was as we said some 39 -- over 3000 acres of land we knew of in the area, it was all go mining area, I think, and that we knew of existence of mining claims in the area and this is a process we have followed for a number of years.

Particularly, for example in the appendix, we refer to several cases in Southern California on the various marine bases and gunnery range in various federal projects --

Justice Byron R. White: Do you know of any other instances in which a questionable mining claim has been adjudicated outside the condemnation of it?

Mr. Roger P. Marquis: Oh yes, the appendix lists a multitude of them.

If you will turn to page 43 of --

Justice Byron R. White: But in any court decisions on it?

Mr. Roger P. Marquis: No, this is the case that raises the issue for the first time whether that practice was correct.

Justice Byron R. White: This is the first case that that has been -- where the practice has been touched and litigated?

Mr. Roger P. Marquis: That's right, I think that's right.

The -- it has been done, I mean, the (Inaudible) -- it has been the practice.

I think there may have been one District Court case, I'm not certain about that.

Justice Byron R. White: The District Courts at least have regularly waited some determination of the validity of the mining claim?

Mr. Roger P. Marquis: We've been regularly doing that in the south -- particularly in the Southern District of California where we have our military projects.

If you will see in the appendix, I think you can visualize the way they're preceding.

They're -- for instance, the first project is 291 unpatented claims, 121 not examined, 55 had been validated.

Soon as they're validated, then they go back to the court for determination conferences.

105 unvalidated, meaning they're invalidated, held to be invalid and two on which there (Inaudible) had been no departmental decision.

So, that we have -- that has been a regular practice --

Justice William J. Brennan: Mr. Marquis, sorry to bother you.

Mr. Roger P. Marquis: That's alright.

Justice William J. Brennan: I gather, you started this whole thing looking to condemn -- I understand for a dam, wasn't it --

Mr. Roger P. Marquis: Yes, that's right.

Justice William J. Brennan: Something like that --

Mr. Roger P. Marquis: Dam reservoir and --

Justice William J. Brennan: Now, how much have been -- of all -- you knew when you started that -- when you needed that 3000 acres for the dam site or whatever it was, you knew the area and you knew that there were doubtless number of outstanding mining claims, is that it?

Mr. Roger P. Marquis: That's right.

Justice William J. Brennan: Now, did you know much about those claims that you have to wait till they can -- until they were asserted.

Mr. Roger P. Marquis: We had -- we would -- we had no idea what the claims were (Voice Overlap) --

Justice William J. Brennan: Well then, when you filed your condemnation action was it in that action that this required -- these claimants to assert their claims, is that it?

Mr. Roger P. Marquis: No, no.

No, no.

The way it happened -- the way it preceded was this.

We filed the condemnation action then -- and that -- incidentally, this is two different Bureaus of the Department of Interior, the Bureau of Reclamation comes long and simply it needs the land for its project then we turn to the field staff of the Bureau of Land Management.

The first thing they do is they send out -- the first thing they do is send out examiners --

Justice William J. Brennan: And do they do this before you start your condemnation?

Mr. Roger P. Marquis: No, no we --

Justice William J. Brennan: Alright.

Mr. Roger P. Marquis: No, that's the whole point of this case --

Justice William J. Brennan: Yes, that's what I was trying to get at.

Mr. Roger P. Marquis: We bring our condemnation proceeding in order to get our possession --

Justice William J. Brennan: Yes.

Mr. Roger P. Marquis: -- so that the project can get going.

Justice William J. Brennan: Right.

Justice Byron R. White: You don't know the defendants in the action now, do you?

Mr. Roger P. Marquis: We know as best we can --

Justice Byron R. White: And you (Voice Overlap) some people?

Mr. Roger P. Marquis: It may -- (Inaudible) -- oh yes.

Justice Byron R. White: And you serve these --

Mr. Roger P. Marquis: And a --

Justice Byron R. White: -- these --

Mr. Roger P. Marquis: The record doesn't show whether we originally served them or not.

I (Inaudible) -- I think we did but sometimes and quite often we will find other claims and we will add to them.

Justice William J. Brennan: Well, that's what I'm trying to get to.

Before the condemnation action is started then there has to have been a lot of work done.

Mr. Roger P. Marquis: Well --

Justice William J. Brennan: To dig these claims up, (Voice Overlap)?

Mr. Roger P. Marquis: Well, they -- the claims themselves -- what we would do, undoubtedly is look to the county court recording office.

Justice Byron R. White: There are all -- record there?

Mr. Roger P. Marquis: Those -- that under the location rule there had to be record.

So there's something there in the record and of course there's a lot of times when there are over filings and overlapping in all manner of things.

So for our condemnation, we simply looked to our county court records and join those people.

Justice Byron R. White: And you may or may not have all of them that you should have?

Mr. Roger P. Marquis: And if we find more and this happens in condemnation a great deal that we find matters developed that somebody has been omitted and we add them.

That's the reason the rule provides that we could amend and add without court order.

That is the practical way that the matter precedes, so that we can work out all these detailed matters while we are in possession and proceeding with our project.

Chief Justice Earl Warren: Is there any pertinency to this statement in the judge's order, the District Judge's order?

He says, further it is not necessary to consider defendant's contention.

The plaintiffs have themselves instituted patent proceedings before the Bureau of Land Management prior to the filing of the condemnation suits.

Would that fact bear one way or the other on the case?

Mr. Roger P. Marquis: I don't think it bears on the issue before this case, before this Court --

Chief Justice Earl Warren: That's all I'm interested.

Mr. Roger P. Marquis: -- because I think the issue of this Court is whether the District Court has power to defer on any circumstances and that would be a matter -- that would be unless you could say that the plaintiffs had to stop themselves to challenging the power which would be going or rather far ahead.

So I don't think that that has really any bearing on the issue here.

Just a brief reference, as I said the statutes are silent with --the Court of Appeals ceased on the language of Rule 71A of the Federal Rules, the concluding sentence of Rule H which is determining the matter of method of trial.

As Your Honors may know when this rule was adopted in 1951, prior to it, there had been a great controversy as to just what method of trial should be adopted.

This rule was the result and that was the main thought that was being dealt with here and in great detail they spelled out which cases shall be in tried -- to be tried under these various alternative procedures on the issue of compensation, that's where all the focus was.

Just the issue of compensation and then simply on the end and make sure we're not going to have title matters go to a jury, it is the sentence, trial of all issues shall otherwise be by the Court.

We think it's clear there was nothing in the mind of the rule makers at the time and no warrant for reading part of the rule to exclude the -- as we say, the normal power of a court to defer to an expert body, administrative -- or administrative decision.

Justice John M. Harlan: How is the determination of the Department of Interior on the mining claim reviewed?

Mr. Roger P. Marquis: It goes to a -- at first is determined by hearing examiner under the administrative procedure statute.

There's a group of about, I think, its 13 or 14 hearing examiners who try the cases that get to --

Justice John M. Harlan: How do you get it into court eventually if we don't agree with the administration?

Mr. Roger P. Marquis: You appeal to the Bureau of Land Management in Washington, the Director of the Bureau of Land Management.

There is an appeal from his decision to the Solicitor of the Department of Interior to whom the Secretary has delegated the power to pass upon these matters then you go into the District Court of the District of Columbia under a proceeding in nature of mandamus.

As I say, under the new statute you can go -- I think you could go to the various District Courts throughout the country.

It's a venue provision which a new statute which it won't get into here.

But turning briefly to this matter of election, as I say -- I think the finding of the District Court makes it plain that there were no intentional of election to forego the administrative jurisdiction to pass on (Inaudible).

I submit that the -- there's no basis for saying in law there was a compulsory election.

In the 93 Acres case this Court held that there was no compulsory election or remedies when we brought a proceeding of property which we had leased and we argued alternatively, the lease was revoked and it -- if that had no right and alternatively that if they did have the right we would condemn it.

Lower courts had held that we elected our remedy by bringing the suit.

This Court refers to it and said we see no reason even justice or authority, why such a Hobson's choice either to give up our claim or to forego possession should be forced to -- should be imposed upon the Government.

Here we have the same basic problem.

First, I would like to note that we're dealing here generally with condemnation cases.

Its mere accident of allocation of responsibility that this condemnation case was filed by the Solicitor of the Department of Interior because it is a reclamation project, presumably no distinction can be made between cases as in Southern California filed on behalf of the Army and the Navy, Marines and the various other agencies.

And certainly, there isn't any way in which you could say that those officials of those agencies waved the authority which the Secretary of Interior has under the public domain laws.

The decision would present three choices.

First, postpone the project.

Postpone possession until it claims can be adjudicated under a departmental procedure.

This would certainly be prejudice of public interest in a lot of cases.

Second, to secure possession in the condemnation proceedings, waive the administrative authority which would then impose on the courts the burden of determining these myriad of claims and again I think it's plain that there would be great -- considerable delay in the matter of adjudicating the matters which would of course prejudice the United States in terms of interest liability and of claims getting old if there -- as they are processed.

Justice Arthur J. Goldberg: Why should there be such considerable delay?

We would still have to go through the same procedures in determining the point of this very rule that we have to investigate (Inaudible) could you try out in the District Court saying substantial issues that you have to try out in the Bureau (Inaudible) proceedings?

Mr. Roger P. Marquis: Well, the difficulties are -- and this is where we do come back to the matter of expertise and the matter of that this is the sole business of the administrative agency which is to adjudicate these matters.

They're familiar with them.

You don't have to educate them about molybdenum or something like that.

They are familiar with these matters, they have their set procedures.

A lot of these are taken care of by defaults in --

Justice Arthur J. Goldberg: That had to go through (Inaudible)

Mr. Roger P. Marquis: The trouble is we have -- we don't have any rules as such for handling -- the court handling of mining claims or for determining the validity of mining claims.

The court would have to invent a sort of a code for handling mining claims as it were.

There would be difficulties and --

Justice Arthur J. Goldberg: And you wouldn't have to do that review of (Inaudible)

Mr. Roger P. Marquis: No, no.

No, no because there, a great many things are worst out.

The factual findings of the Department under the public land laws are practically conclusive and it's just legal arguments they get into.

There is very narrow scope of review and there always has been in these public land matters because of course there didn't have to be any review at all.

This was simply the United States giving away -- disposing that public domain for its purposes and which as I have said, Congress has always given a very broad discretion to the agency and a very limited review.

Justice John M. Harlan: Are there any substantial number of these cases get to court?

Mr. Roger P. Marquis: We've had them coming to court more recently in the District of Columbia, let me say -- put it this way, we've had about 12 or 14, I think it is in the Court of Appeals for the District Columbia in the last year.

Justice John M. Harlan: How to -- how many (Voice Overlap) --

Mr. Roger P. Marquis: By the time you get to the secretarial level, I mean, as compared to where you start out, you may start out with 20,000 claims and they get distilled all the way along the line and you may down -- may be down to a smattering of a hundred decided by the Solicitor.

That is very rough, my statistics are just out of the air but that is very roughly -- as I say you -- at each step, as in all such procedures, some of your people see that -- well, they have no claim they give up or they see that the matter has been decided.

It's a factual matter that the hearing examiner decides and that's the end of it.

They take an appeal to the Bureau to decide, well, this is going far enough, that I'm just wasting my time so that on the whole process, the matter is distilled so a very small number actually come to the courts.

Justice Byron R. White: You're going to talk about the -- of the Solicitor's decision or not?

Mr. Roger P. Marquis: No, that's what I was describing.

Justice Byron R. White: Well, I know, what if the -- after the Solicitor makes his decision?

Mr. Roger P. Marquis: Well then, they file a suit in the District -- up to October.

It was a suit in the District of Columbia in the nature of mandamus, in which the suit against the Secretary and the Solicitor.

In which they challenged the validity of the Secretary's decision but those are on the very narrow.

This isn't a general review, never has been since the last 170 years.

It's the very narrow review of the common law mandamus that is where it's arbitrary and capricious alike.

Justice William J. Brennan: Was there any -- in other words, suppose this thing is in Universal Camera, will you allow it?

Mr. Roger P. Marquis: No --

Justice William J. Brennan: Something like that on this (Voice Overlap) --

Mr. Roger P. Marquis: No, no.

In fact in -- that time and time again they say that there -- as to the facts, it's conclusive.

Justice William J. Brennan: Now, since October, I gather, the scope of review hasn't been enlarged, it's only that other business ventures --

Mr. Roger P. Marquis: The venue --

Justice William J. Brennan: -- now they had obtained comparable --

Mr. Roger P. Marquis: That --

Justice William J. Brennan: -- applications, is that it?

Mr. Roger P. Marquis: That's our understanding of the statute, it's simply a venue statute and that this very limited review that as always been emphasized by this Court, time and time again, still prevails as to these public land matters.

Justice William J. Brennan: Justified I gather because this is -- these are claims against property of the United States, is that your point?

Mr. Roger P. Marquis: Well, I think it goes back to the history of it.

And as this Court has said many times that this is a special tribunal dealing with the land matters and it's the function of the Department of Interior to adjudicate between claimants and to protect the rights of United States and to get the policies carried out which was, of course, to have the lands developed for the general economy of the country.

So that having in mind all of those aspects, there was always the broad discretion given to the Department and the General Land-Office which was described often as a special tribunal to handle these matters with a special competency to do it.

That is a history --

Justice William J. Brennan: And that's (Inaudible) -- are the proceedings often in real adversary proceedings?

Mr. Roger P. Marquis: Oh yes, oh yes.

There's a very -- one of the many functions and that's one of the peculiarities of these cases that we get in the District of Columbia that there are two claimants, very often.

Say to an oil and gas lease, yet, we're in a case as a defendant defending the Secretary's decision.

Quite often, the other parties will come in and we will find -- we'll have (Inaudible) in essence, a three-party controversy that way.

Justice Hugo L. Black: What if --

Mr. Roger P. Marquis: So --

Justice Hugo L. Black: -- the statute go with authority for this (Inaudible) is there any?

Mr. Roger P. Marquis: The very general authority is in the power to -- it actually traces back in the earliest days to the general authority to make rules and regulations for the public domain.

It's rather startling how broad.

A general definition was given in the very early days to the General Land-Office which then proceeded as matter of history to devise its procedures.

I think you'll find that one of the most interesting spelling out of all these matters as to -- particularly as to mining claims is as sought in the case.

Mr. Justice Van Devanter in the Cameron case which we have cited, he spelled out in detail what all these are and I was just turning to it to see whether he had given the citation for this question you asked.

He's -- it goes back to Catholic Bishop of Nisqually --

Justice Hugo L. Black: Of what?

Mr. Roger P. Marquis: -- of Catholic Bishop of Nisqually in 158 U.S. is quoted in Cameron.

While there may be no specific reference in the Act of 1848 of questions arising under this grant to the Land Department, it's that administration comes within the scope of the general powers vested in that department.

It may be laid down as a general rule in the absence of some specific provision of the contrary.

To the contrary, in respect to any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction to the Commissioner of General Land-Office under the supervision of Secretary of the Interior.

Now, that's the source and then over the years the processes were developed whereby the procedures --

Justice Hugo L. Black: Brought up without expressed statutory authority, hasn't it?

Mr. Roger P. Marquis: The practice came and then the statute is really what is --

Justice Hugo L. Black: Then the statute, well, where is that --

Mr. Roger P. Marquis: The -- I'd -- I just don't recall Your Honor whether there is any special statute on that matter or not.

It's been so well settled over the years and actually --

Justice Hugo L. Black: Why do you look to it to determine what is within the jurisdiction of this tribunal?

Mr. Roger P. Marquis: Anything concerning public land matters is within its jurisdiction unless denied it.

Justice Hugo L. Black: Suppose a man has been living on a property for 10 years, claims that, he claims it under one patent and then another claims it on another patent or claims to have it such truthfully.

They get in a lawsuit but one of them hold the matter up until he got it to a tribunal decision by the (Voice Overlap) --

Mr. Roger P. Marquis: The line --

Justice Hugo L. Black: -- Secretary of Interior?

Mr. Roger P. Marquis: No, no.

No, no.

The line is drawn.

This administration continues until title leaves the United States.

Justice Hugo L. Black: But then the state is (Voice Overlap) --

Mr. Roger P. Marquis: Then his jurisdiction --

Justice Hugo L. Black: -- the title having left.

Mr. Roger P. Marquis: Then the jurisdiction ceases.

Justice Hugo L. Black: Suppose there's dispute?

One of them says the --

Mr. Roger P. Marquis: Well, there couldn't be much --

Justice Hugo L. Black: (Voice Overlap)

Mr. Roger P. Marquis: I mean that is -- that rest on the United States' patent and the United States' patent is conclusive.

So that all these jurisdiction we're talking about is up to the time that the title leaves the United States.

Justice Hugo L. Black: Anything preceding the issues of the patent, you would say is that --

Mr. Roger P. Marquis: That is within -- that's within the competency of this special administrative --

Justice Hugo L. Black: But that's what I was trying to find out -- the Court was --

Mr. Roger P. Marquis: That's right, I mean, up to the time the title leaves the -- the Department of Interior is charged with management and handling administration and disposal of this federal property.

This is the theory of it.

Justice Hugo L. Black: Suppose there has been a contract, can you have a contract to do some mining on the government land without having a patent?

Mr. Roger P. Marquis: I suppose you could -- I suppose a locator could contract with someone else.

Yes, because by law -- a valid location rights to possess the land arise.

There are many variations of that sort of -- of those problems.

Justice Hugo L. Black: What is this person claiming on here?

Mr. Roger P. Marquis: This person is claiming a right to mine for gold.

Justice Hugo L. Black: Based on what?

Mr. Roger P. Marquis: Based on the discovery on the gold and location of his mining claim.

Justice Hugo L. Black: Any paper from the Government on which it's based?

Mr. Roger P. Marquis: No, there's no paper from the United States.

It's based on conforming to these requirements of the law as to staking, filing a --

Justice Hugo L. Black: Was it like --

Mr. Roger P. Marquis: -- plat and the like in the local county recording office.

Justice Hugo L. Black: Now, just from what you said that he could make out enough to show that he'd complied with the law whatever it is, to get the mining interest that he could go into the Secretary and ask for it, but the Secretary decided against him then into a court for mandamus, is that the --

Mr. Roger P. Marquis: To review it, that's right.

Justice Byron R. White: Well, does the condemnation court ever know that the -- that this administrative determination of an issue of a condemnation action is going on, dispose this condemnation court on this case knows that you have gone along with this case.

Mr. Roger P. Marquis: Well, of course this Court here knew it.

The --

Justice Byron R. White: Well, I know it but -- you never go to the condemnation court and say that there's an issue about the validity of the mining claim here and we take it to be determined by an administrative agency --

Mr. Roger P. Marquis: Oh yes.

Justice Byron R. White: And this Court orders it?

Mr. Roger P. Marquis: Oh yes, the Court -- that's -- as I say in the Southern District of California.

That's been the regular procedure.

Justice Byron R. White: Will that -- is that -- is that what happens to this case?

Mr. Roger P. Marquis: It is to defer and yes that's right, up until the time that this collateral proceeding was brought challenging --

Justice Byron R. White: But there was a court order (Voice Overlap) --

Mr. Roger P. Marquis: Well, I don't know.

I don't know whether there were -- I don't recall any exact order.

The judge knew they were (Inaudible) -- there were mining claims and that the administrative process were going forward.

So it is simply that no order was issued.

Justice Byron R. White: But there's no order in this record indicating or any -- anything of record indicating that the condemnation court of the -- was aware of what was going on, on and approve of it.

Mr. Roger P. Marquis: Well, yes.

There's the court's opinion in which it states that it will defer to the administrative procedure.

Justice Byron R. White: The same court?

Mr. Roger P. Marquis: Oh yes, this is the same judge.

Justice Byron R. White: Same judge?

Mr. Roger P. Marquis: Same judge.

On record 19 in the bottom, assuming that this Court has the power to enjoin further proceedings in the contest which are now at issue, there's no good reason for the exercise of such power.

To the current trade there is every reason to allow the issues of the contest to be resolved by the administrative agency with his special experience and expertise in these matters.

Justice Byron R. White: But was the condemnation act at the time of that particular judge for the Southern District of California?

Mr. Roger P. Marquis: Well, this case -- this is the Northern District of California in Sacramento where there -- there is --

Justice Byron R. White: Or at that time, a particular (Voice Overlap) --

Mr. Roger P. Marquis: There is a special assignment and particular judge, yes Your Honor.

And of course --

Justice Hugo L. Black: Does your argument as to the power of this tribunal or the Secretary of Interior make the final disposition over the -- of questions of this kind any time a pat -- before a patent to his interest base to any extent as a rule that the Government is immune from suits?

Mr. Roger P. Marquis: No, I can't say -- I don't -- haven't thought of immunity as having anything to do with this.

This matter --

Justice Hugo L. Black: Is it based on the idea then that the -- there has sprung up some kind of administrative agency in general has to pass something?

Mr. Roger P. Marquis: Well, it's a --

Justice Hugo L. Black: Primary -- a matter of primary jurisdiction?

Mr. Roger P. Marquis: Its -- well, it's down to this particular matter of public domain, as I say stems -- the origin was the original General Land-Office which is in fact, the real estate agent of the United States handling the public domain.

And that's the kind of agency that we're dealing with here.

Thank you.

Chief Justice Earl Warren: Mr. Gilmore.

Argument of Charles L. Gilmore

Mr. Charles L. Gilmore: Mr. Chief Justice, may it please the Court.

There are a few things that I would like to bring to the attention of the Court that have been omitted by counsel for the petitioner.

This Court, beginning back in about 1874 determined the question of the character of a mining location upon the public domain and throughout all of the time down to the latest case, wherever that question has been in litigation and has reached this Court.

This Court has held that that mining location, as long as it is a subsisting matter of record is in a state of inheritance, it may be bartered and sold as any other form of real estate.

The person who owns that mining location or his successors in interest may mine that property until the mineral is totally exhausted and still never have to acquire a patent.

That character of a title to a mining location is unique.

Let us not confound it to a mineral lease under the Act of 1920, because it bears no -- none of those earmarks.

This record of a mining location is made wholly and entirely in the County Recorder's Office of the county of that particular state in which the mining location is situated.

Now, to argue for the -- before this tribunal, points of law that refer to some other form of holding could not possibly be germane to this particular issue.

This people were in possession of these mining claims.

It is not in the record but in as much as we've been arguing beyond the record and all over the map in this particular case, I might as well call the Court's attention to the fact that of the claims that are involved in this particular condemnation proceedings and this is only one of five that's against this company are a matter of a patent application that was pending for two years, that whatever filed in the condemnation proceeding when they try to bring to this Court the statement the they didn't know anything about the claim, while that county was overrun with experts from the Bureau of Land Management and Forest Service.

Justice Byron R. White: How long has the -- how long is the filing generally in the county?

Mr. Charles L. Gilmore: The county?

Justice Byron R. White: Of the mining claims.

Mr. Charles L. Gilmore: Some of these locations, there is a -- I go back to the early 90's.

This is an immense area in -- and --

Justice Byron R. White: You mean some of the locations (Voice Overlap) --

Mr. Charles L. Gilmore: Some of the locations go way back --

Justice Byron R. White: -- that are actually in the Condemnation Act?

Mr. Charles L. Gilmore: Actually in the Condemnation Act.

Justice Byron R. White: Has there ever been a mining that went on?

Mr. Charles L. Gilmore: Well, mine -- continuously up until 1942.

Did you know then the Gold Closing Act closed the mines down?

Since that time --

Justice Byron R. White: No, the issue -- well the issue before the -- in the -- the issue in the administrative proceeding would be what?

Mr. Charles L. Gilmore: Will be nothing, as far as this people are concerned because, frankly, I can write that decision.

It's going to be eventually written by the Solicitor for the Department of the Interior for he has already said and he determined and they're defensive and their particular defense in this case is predicated upon the principles that the Solicitor for the Department of the Interior has declared the claims invalid.

That's where we start from.

We have not had any hearing at -- to determine anything about these mining claims and as long as they are a subsisting matter of record and until they are cancelled they are real property and they're our property.

They don't belong to the Bureau of Land Management and it doesn't belong to the United States because this Court, in any number of cases, has said that the individual in the possession of that mining claim cannot be interfered in his possession.

You must get rid of him by some other process.

You can't go in and arbitrarily take it.

The United States in it's -- because of its powers under eminent domain has the right to go in and take any kind of property for it chooses.

Now, we admit that and the statute so provides.

Justice Byron R. White: But the Department also has the authority on the statutes to adjudicate the validity of the mining claim.

Mr. Charles L. Gilmore: Well, I can't find any such statute.

Justice Byron R. White: Oh, that's part of your cases that had been at --

Mr. Charles L. Gilmore: It's been an assumption.

It's been on assumption.

Justice Byron R. White: The part of your case here is the Department has no authority anyway, is there, under any statute to adjudicate the validity of mining claims?

Mr. Charles L. Gilmore: The only time they've ever had any authority is when they took it and they talk about the Cameron case, the Cameron case this Court was careful to state at its outset that Cameron went into the -- into that case without objection before the Land Department.

But some 30 odd years later, the Department of the Interior had to change forces, put up a new rule because in the case of O'Leary and Moore the Secretary of the Interior ruled that there was no statute providing for a hearing and in the contest against the mining claim.

And Congress does not pass any statutes since that time.

I don't -- to my knowledge and counsel has not pointed out any statute either.

We're not dealing with a license.

In the brief that has been filed here in the petition for this writ, counsel has stated that a mining location is a gratuity from the United States.

It is not a gratuity.

It is a grant, it is a grant.

A grant of this full and complete as if a patent had issued to it, as long as that man complies with the law, does his annual labor and he doesn't even have to ever get the patent.

There's our -- there's the question, we stop right there.

There is no analogy between that and such cases are -- as are cited here.

We -- let us go back and take the situation with ration -- with relation to a matter of eminent domain.

In 28 U.S.C. (a) 13 -- Section 1358 is a very short section that says, “The District Courts shall have original jurisdiction of all proceedings to condemn real estate of the use of the United States or its departments or agencies”.

It's about shortest act of Congress that I know of and that what is very clear is very succinct.

It means what is says.

When the United States filed its condemnation proceedings in that District Court then that District Court has a original jurisdiction of all those proceedings, there is no exception.

Justice John M. Harlan: Supposing all condemnation proceedings were filed in the Department had to go in and started this contest, would you have said that that was improper?

Mr. Charles L. Gilmore: I think so.

Justice John M. Harlan: The Court of Appeals indicated that contrary thought.

Mr. Charles L. Gilmore: Well --

Justice John M. Harlan: The Court of Appeals said, absent of filing and the pendency of the condemnation action, the appellants, who are your client concedes the United States might initiate a contest proceeding before the Bureau of Land Management for the purpose of having adjudicated the legality and the validity of an unpatented mining claim on the public land.

Mr. Charles L. Gilmore: Yes, but the --

Justice John M. Harlan: Is that wrong?

Mr. Charles L. Gilmore: That's -- that -- I think the Court was in error in my statement and argument.

That is also in my brief before the sup -- before the appellate court --

Justice Byron R. White: Well, the --

Mr. Charles L. Gilmore: -- that it has the power to question the validity of the mining claim.

There's a difference between the language that is used.

It can question it but it's got to question it before some other tribunal one -- other than one of its own creation.

Justice Byron R. White: So the --

Mr. Charles L. Gilmore: You see -- pardon me.

Justice Byron R. White: Is it the -- if you apply for a patent in adverse wouldn't you say that the administrative proceedings --

Mr. Charles L. Gilmore: I have submitted myself to the jurisdiction --

Justice John M. Harlan: Yes.

Mr. Charles L. Gilmore: -- but that's a different thing, Your Honor.

Justice Byron R. White: But what if there's a patent (Voice Overlap) these claims.

Mr. Charles L. Gilmore: Well, but that's an adverse claim.

That goes into the local courts and decides it there.

Justice Byron R. White: This situations then the Bureau has the power there.

Mr. Charles L. Gilmore: Pardon?

Justice Byron R. White: In those kind of -- in that kind of situation, the Bureau has the power --

Mr. Charles L. Gilmore: Over that, the Bureau of Land Management has no power in the case of adverse claims.

That's -- that has to be referred to a court of competent jurisdiction to try the rights between the two parties because of Section 52 of the Code, 3 U.S.C (a) says, that in actions between private individuals, the fact that the -- that this -- the paramount title may be in the United States has nothing to do with the case.

It's settled without that because there are -- they're based upon peculiarity of the mining law.

It's either one that's claiming under a grant and therefore the determination of a right of the title of two parties in conflict with each other must be referred to a court of competent jurisdiction.

And that is a policy, that's always -- the Bureau of Land Management has never even tried to assume jurisdiction in such cases.

Chief Justice Earl Warren: Mr. Gilmore, are we in -- is it a fact that -- that your people did initiate a proceeding before the Bureau of Land Management before the filing of these condemnation suits?

Mr. Charles L. Gilmore: Patent (Inaudible) -- patent application was filed.

Chief Justice Earl Warren: Alright.

Now, in those proceedings, could not the Government have raised these issues that we're talking about here?

Mr. Charles L. Gilmore: Certainly, Your Honor.

They could've done so a long time ago.

Chief Justice Earl Warren: Well, what is the status of those (Voice Overlap) --

Mr. Charles L. Gilmore: Still laying in the United States Land Office at Sacramento, California, right there.

Chief Justice Earl Warren: You press on their view?

Mr. Charles L. Gilmore: Yes, but we can't the press against the Government, Your Honor.

They didn't just --

Chief Justice Earl Warren: Yes.

Mr. Charles L. Gilmore: -- don't do anything.

We can't take adverse proceedings against the Government.

Chief Justice Earl Warren: When were these proceedings first started, that -- with relation to the condemnation proceedings?

Mr. Charles L. Gilmore: It first started by a letter of June 5th, 1957 from the Solicitor from the Department of Interior directed to the Attorney General, requesting him to institute proceedings for condemnation of these lands.

Now, I'm following at -- that on 24th day of June 1957, the instant condemnation suit was filed in the District Court of Sacramento.

That's on one of the files, Your Honor, as I said before but --

Chief Justice Earl Warren: Yes.

Mr. Charles L. Gilmore: -- since -- at that day on that 24th day of June, the writ of possession was issued, the declaration of taking was filed and we have been out of possession since the 24th day of June, 1957.

Chief Justice Earl Warren: But what I was trying to get at, Mr. Gilmore was when was your proceeding before the Bureau of Land Management started?

Mr. Charles L. Gilmore: I don't have the date, Your Honor, but it was --

Chief Justice Earl Warren: Well (Voice Overlap) --

Mr. Charles L. Gilmore: -- preceding then, it was --

Chief Justice Earl Warren: How long?

Mr. Charles L. Gilmore: Oh, I don't know.

I think it must have been a year, a year-and-half or something.

I'm not sure (Voice Overlap) --

Chief Justice Earl Warren: Before 1957?

Mr. Charles L. Gilmore: I didn't start those proceedings.

Another attorney did and he withdrew from the case.

So I have -- have had little to do with that because this matter came on and I had to take up this proceeding.

This was the pressing one.

We were faced with adverse proceedings.

Justice William J. Brennan: Now, those proceedings, as I understand it, sought the issuance of a patent, is that it?

Mr. Charles L. Gilmore: Well, eventually.

Justice William J. Brennan: Yes, but I mean that's what you --

Mr. Charles L. Gilmore: That's right.

Justice William J. Brennan: -- you sought.

Mr. Charles L. Gilmore: That's right.

Justice William J. Brennan: And you've -- and you have said, I think, that you concede that the Bureau has jurisdiction of that kind of proceeding.

Mr. Charles L. Gilmore: Yes, but that it --

Justice William J. Brennan: But that they have not moved, you say because the Government has it moot?

Mr. Charles L. Gilmore: Not a part of it.

Justice William J. Brennan: Is that right?

Mr. Charles L. Gilmore: Not a part of it.

Justice William J. Brennan: But you deny that they have jurisdiction to initiate a contest proceeding for the purpose of deciding the validity of unpatented lands, is that it?

Mr. Charles L. Gilmore: In this particular case, yes.

Justice William J. Brennan: Yes.

Mr. Charles L. Gilmore: Because we don't -- there is no, I can make myself clear on that point.

Justice William J. Brennan: I wish you would because I don't quite understand, if I may just state what bothers me, Mr. Gilmore.

Mr. Charles L. Gilmore: Well --

Justice William J. Brennan: What it -- what you said to Mr. Justice Harlan was the mistake made by the Court of Appeals in saying that you'd made this concession before that court.

Mr. Charles L. Gilmore: I said that they had the right to inquire into it because they had the right to inquire into it under our patent application.

But not to intervene in this particular condemnation suit, this is indifferent, entirely different proceeding.

In other words, they took possession of our land under their writ of possession on the 24th day of June, 1957.

Now, on the 18th day of April, the respondents here filed their proceeding in the District Court.

There was (Inaudible) -- they got a temporary restraining order to restrain the officials from proceeding any further with any contest because they had just filed a contest on -- I think, it was the 19th day of March of 1960.

So, they filed -- so when they filed that contest, then the proceeding before the Department -- before the courts had in existence for two years and eight months and we had been out of possession by the time that contest was filed.Most of these properties were under a hundred feet of water.

And by this time, around five or 600 feet of water, and we can't comply with the rule to proceed -- of evidence that's laid down on the Bureau of Land Management today.

Justice William J. Brennan: What is that --

Mr. Charles L. Gilmore: We can't do it.

Justice William J. Brennan: What's that rule of evidence?

Mr. Charles L. Gilmore: Because we can't go and point out our discovery points on each one of those claims, it's under a vast reservoir.

And if we can't point out our discovery point, we're out of the picture and they ruled it that way.

Justice John M. Harlan: Mr. Gilmore, supposing the Government had filed no contest at all and you got into trial in the District Court, and District Court said, “Well, so far as this mining claim is concerned, I'm going to withhold jurisdiction.

I'm going to send this, remit this under the doctrine of primary jurisdiction to the Department of Interior, the Land Division to get its expertise”.

Would the District Court have had power to do that?

Mr. Charles L. Gilmore: Perhaps it had.

I've had that -- point I have never considered, Your Honor, (Voice Overlap) --

Justice John M. Harlan: Well, that's basic isn't it, that this issue were being concerned --

Mr. Charles L. Gilmore: No.

What we're -- pardon me, Your Honor, but what -- but the -- that didn't -- that isn't the question.

That is -- I suppose, that would be within the general powers of the District Court.

I don't know, I wouldn't want to make that statement as to whether it is within the power or not.

Frankly, I just -- I don't know, we have a case similar and that's pending now on a petition for writ before this Court where that particular question is involved.

But if the Bureau of Land Management has had the opportunity over the period of years to institute its proceeding in -- to contest the validity of this claim, under these claims, and if they believe they had the right then why wait for two years and eight months after the federal court had been asked by the chief law officer of the Department of Interior to bring these proceedings in eminent domain.

Now, the chief law officer is the Solicitor for the Department, he has said in his letter to the United States Attorney General that the claims are invalid.

This whole case rests upon that statement, using that as the basis.

We are charged of withholding claims of -- that are invalid.

Property that belongs to the United States, properties to which we have no title, we've have never an opportunity yet to have the question of our title determined by anybody, anytime or any place.

It should be determined, I believe, in the District Court which was importuned in the first place by the Department.

If we go into a contest before the so-called hearing examiner system invoked under the Bureau of Land Management at the present time, the prosecuting attorney sitting right there is an Assistant Solicitor for the Department of the Interior.

That hearing examiner works under direct instructions from the Sec -- from the Solicitor for the Department.

Now, just what kind of opportunity do we have to present our case to an impartial tribunal?

Justice John M. Harlan: Oh, that's a different question because if you choose, if you don't get a fair hearing before the Department, you got a court review?

Mr. Charles L. Gilmore: Yes, but the question is how far can the Court go on a review in such cases?

I don't know.

I have no -- we've never reached that far yet in the Department of the Interior with this present day set up.

Up until 1956, hearings were conducted by the register and receiver, later by the managers of the Land-Offices until the case of the O'Leary-Moore and then -- when this one, Secretary Seaton decided in that case in 1956 that there was no statute providing for hearings in mining location -- mining claim cases.

And therefore, the Department would have to comply with the Administrative Procedure Act but the Department has not complied with the Administrative Procedure Act.

Their appointment and their methods of handling cases to this hearing examiner system of their own does not comply with the Act because the hearing examiner is not an independent judge, if you put it that way, is not independent.

He's under the domination and under the direction, and under the control of the Solicitor for the Department of the Interior.

Chief Justice Earl Warren: Mr. Gilmore, can you tell me approximately when these claims were staked out and when they were filed in the County Clerk's Office?

Mr. Charles L. Gilmore: Well, as I say, there's some of them date far as back as in to the 90s, Your Honor.

Chief Justice Earl Warren: Those that are involved in this particular case?

Mr. Charles L. Gilmore: That's right.

That's right.

Then the -- as I say, the -- for Your Honor's information, the -- we are only -- this is only one of five condemnation cases in which properties of this company are involved.

We have a lot of other properties in there because if there's a -- of the vast builders and all time hydraulic mining operation, where you put water up against the bank and wash her out and get the gold.

Purely a gold producing matter, we have alleged it in our complaint in the injunction suit that their valuable claims were -- they were being worked for their gold content and -- but we've had no -- we've got no -- nothing to reshoot that.

We still maintain that we have valid existing mining claims and on the decisions of this Court, they constitute grants from the United States and they can't be taken from us except by due process of law.

Now then, if have to go back into a hearing before the Bureau of Land Management, we are prohibited the right to have the question of compensation, determined by a jury and in -- so, in that respect we are denied due process of law.

Chief Justice Earl Warren: Mr. Gilmore, one of -- this is a thing that's bothering me.

Suppose you had prevailed -- suppose you had a hearing before the Land Management Division or on your proceedings that you initiated in 1957 and the Government would just -- decided against you.

Would you be in any different position then than you would be in this case if the Land Management Division now decides against you?

Mr. Charles L. Gilmore: Well, we would have had the right of review a long time ago.

Chief Justice Earl Warren: Well, (Voice Overlap) --

Mr. Charles L. Gilmore: We had our rights --

Chief Justice Earl Warren: Of course, that --

Mr. Charles L. Gilmore: We would have had our rights determined.

Chief Justice Earl Warren: We can't wipe time out but it means --

Mr. Charles L. Gilmore: But it --

Chief Justice Earl Warren: -- so far as your rights and the value of your -- of whatever your property is.

Would you be in any different position than you are now?

Mr. Charles L. Gilmore: Most assuredly, Your Honor.

Because at the present time we cannot go in there and prove we've got a dime's worth of value because we're under six or seven, or 5 or 600 feet of water.

Chief Justice Earl Warren: Well, if they can't prove it before the Land Division, how can they prove it before the District Court?

Mr. Charles L. Gilmore: Well, but we can prove -- we can have a different rule of evidence before the District Court in the condemnation suit because we can prove value as of the date of taking and this Court has decided that case.

That rule has the date of the taking on the 24th day of June 1957 but before the Department of the Interior, we can't put that sort of a rule into effect, they will not recognize it.

It will be as of the date of the hearing.

Justice William J. Brennan: But Mr. Gilmore, you still have to prove that something was taken, don't you?

Mr. Charles L. Gilmore: Something was taken.

Certainly, it was taken.

Our property was taken.

Justice William J. Brennan: Well, I know but you have to prove that your property was taken.

Mr. Charles L. Gilmore: We have (Voice Overlap) --

Justice William J. Brennan: I gather the Chief Justice is asking, how are you in any different now in the District Court on truth then you would be before the Bureau?

Mr. Charles L. Gilmore: We can prove by witnesses and by our records of location that we did have a location on that property and we maintain them throughout the years.

We paid tax.

Justice William J. Brennan: But you have to prove something more than that before the Bureau?

Mr. Charles L. Gilmore: We have been taxed.

Yes, we would have to at the present time and before a hearing, before the Bureau of Land Management.

But we could prove at the time what we had in -- on the 24th day of June, 1957 in the condemnation hearing.

That would be the value at the time they took it but it --

Justice William J. Brennan: Well --

Mr. Charles L. Gilmore: -- under the Land Office hearing --

Justice William J. Brennan: But that isn't the question, is it?

It is whether something was taken.

It's not what the value of what was taken.

It --

Mr. Charles L. Gilmore: Well, they do (Voice Overlap) --

Justice William J. Brennan: I don't gather -- I gather the Government --

Mr. Charles L. Gilmore: They took the (Voice Overlap) --

Justice William J. Brennan: -- doesn't concede that anything was taken.

Mr. Charles L. Gilmore: They'd -- well, they've took our mining locations and they were grants from the United States.

I don't know.

It --

Justice Byron R. White: The question whether they are now -- and would you really have the same problem before the Bureau of Land Management in proving that you had a valid mining claim, as you would have in proving before the District Court that you had a valid mining claim?

Mr. Charles L. Gilmore: No.

No, Your Honor.

Justice Byron R. White: Not the placement of value (Inaudible).

Mr. Charles L. Gilmore: We had them -- but we can prove a valid mining claim under rules of evidence that would be recognizable in the courts as of the date of the taking.

Justice Byron R. White: But why wouldn't you prove the same thing before the Bureau of Land Management?

Mr. Charles L. Gilmore: We have different rules of evidence, Your Honor.

Justice Byron R. White: Well what is their rule of evidence?

Mr. Charles L. Gilmore: As I explained, we have to prove, as of the date whenever we have that hearing.

Whenever we go to a hearing if we're required to go to a hearing, as of the date of that hearing then our right impinges upon that date as to whether at that time we had a discovery point we could show, we can't do it.

The one point alone would defeat our right.

Justice Byron R. White: I have a -- I thought the Government's position was that the condemnation court in aiding it to determine whether anything was taken and the value of it would refer the matter to administrative agency.

The question that is certainly is referred is whether there -- anything was taken at the time it was -- that possession was ordered?

Mr. Charles L. Gilmore: Well, I --

Justice Byron R. White: I'm not certain but (Voice Overlap)

Mr. Charles L. Gilmore: I think Your Honor that we've -- we are thinking of two different things.

There's the difficulty as I -- as this Court has said of mining location, in mining location just the mining location itself as long as it is a subsisting matter of record.

Justice Byron R. White: Well, I've litigated for the Bureau of Land Management about several --

Mr. Charles L. Gilmore: Well, it can involved difficulty and is getting tougher all the time, I ensure you.

The thing is that it is a grant, that mining claim is a grant.

We don't ever have to get a patent to it.

We don't have to do anything.

We'll mine it forever, as long as we want to.

We don't even have to mine it as long as we do the annual labor.

Justice Byron R. White: Assume you had a discovery --

Mr. Charles L. Gilmore: Yes.

Justice Byron R. White: -- and they have mineral property, that's what exactly what the Government denied?

Mr. Charles L. Gilmore: That's right, but the burden of proof is on us in the Bureau of Land Management.

According to them, we laid the -- they laid -- they laid down the rules of evidence but they're different in the rules that we have fight -- have to fight -- meet in the District Court.

Justice Byron R. White: But what it -- that's what we're really been wondering but how are they really different?

Mr. Charles L. Gilmore: The time in the first instance.

Justice Byron R. White: I don't get that.

Mr. Charles L. Gilmore: Well, the value, I think of the property taken is fixed as of the date of the taking.

Justice Byron R. White: Yes, but the Bureau won't get -- even get to the principal of value.

Mr. Charles L. Gilmore: Well, I know but the value of it is based upon in a court, it would be.

But in the Bureau of Land Management the question is was there a discovery.

Well, we can't find out the discovery points, Your Honor, and therefore we don't have a discovery.

We lose on one point, we can't point it out.

We're under 600 feet of water.

Justice Byron R. White: Well, is that the same problem you have in the District Court?

They could (Voice Overlap) --

Mr. Charles L. Gilmore: No --

-- no, no.

I will not have that at all.

Justice Byron R. White: But by evidence in -- by evidence in the District Court, you could prove that you did have a discovery?

Mr. Charles L. Gilmore: Absolutely.

Justice Byron R. White: You say you could do that before the Bureau?

Mr. Charles L. Gilmore: No, sir because they will not accept that proof.

They have a different rule, different settlements --

Justice William J. Brennan: I suppose, Mr. Gilmore that you're right that on judicial review whether or not that rule is arbitrary and capricious under the circumstances that bother you would be before the District Court, wouldn't it?

Mr. Charles L. Gilmore: Yes, but then that brings us right back to the another point your --

Justice William J. Brennan: I must say to me it sounds pretty arbitrary and capricious to flood you with 600 feet of water.

And then say in consequence you can't prove a case, I can't read the view of it.

Mr. Charles L. Gilmore: Well, I know but that un --

Justice William J. Brennan: I hope not.

Mr. Charles L. Gilmore: -- unfortunately that's the rule of evidence.

Chief Justice Earl Warren: Well, is there any rule -- have you cited any authority for that Act in your brief that that is the rule that the --

Mr. Charles L. Gilmore: No, it didn't -- I didn't think -- I didn't --

Chief Justice Earl Warren: -- Bureau applies?

Mr. Charles L. Gilmore: I didn't think that it was the time or place to do so.

I didn't think so.

The rule speaks for itself.

The decisions of the Department themselves speaks for itself -- themselves.

Chief Justice Earl Warren: Well --

Mr. Charles L. Gilmore: They say that you must prove the -- that if you lost your discovery point, you've lost your claim.

We're not concerned at the present time with the Bureau of Land Management is going to rule when it gets up there, or if it ever gets there.

The thing is if what we're trying to do at the present time is to determine which place has jurisdiction and administrative view or the federal court, the federal court being the one that was applied to first.

Justice Hugo L. Black: Is that your whole claim?

Are you directing only on the fact that they apply that in the courts first?

Mr. Charles L. Gilmore: Yes, my -- that's not my whole -- (Voice Overlap) that's not -- that's not my whole case, no.

Justice Hugo L. Black: What happens to you if this -- if the Court of Appeals' judgment is reversed?

Mr. Charles L. Gilmore: We'll be right back in and the -- to the --

Justice Tom C. Clark: Where are you?

Mr. Charles L. Gilmore: We're lost.

Justice Hugo L. Black: Well, you've lost what though, what have you lost --

Mr. Charles L. Gilmore: We've lost our mining claims because it will be utterly used -- it will be utterly used --

Justice Hugo L. Black: Or have you merely lost your right to have the validity of your claim determined in the courts first?

Mr. Charles L. Gilmore: No.

But the Court wouldn't have right to do -- the Court will not determine the validity of the claims.

Justice Hugo L. Black: But are you saying that the judgment here is reversed and if the judgment of the District Court is reins -- restored that you cannot still go into the Land Division and have this matter determined and then subject it to judicial review?

Or is it --

Mr. Charles L. Gilmore: Oh, yes, that --

Justice Hugo L. Black: Is that what you are saying?

Mr. Charles L. Gilmore: -- I can do that but I don't --

Justice Hugo L. Black: What's that?

Mr. Charles L. Gilmore: I don't see how you could --

Justice Hugo L. Black: You'd have --

Mr. Charles L. Gilmore: I don't think --

Justice Hugo L. Black: Do you think you can or cannot do that?

Mr. Charles L. Gilmore: I don't think I can.

I don't see --

Justice Hugo L. Black: You don't think its (Voice Overlap) --

Mr. Charles L. Gilmore: I don't think I can.

Justice Hugo L. Black: -- but you think the judgment cut you off from a --

Mr. Charles L. Gilmore: I think --

Justice Hugo L. Black: -- a hearing before the (Voice Overlap) --

Mr. Charles L. Gilmore: I think the ruling of the Solicitor for the Department would cut us off.

Justice Hugo L. Black: Well, if -- you mean, cut you off from having it litigated there or try that?

Mr. Charles L. Gilmore: No, it will cut -- he will (Voice Overlap) --

Justice Hugo L. Black: But the thing is they'll decide against you.

Mr. Charles L. Gilmore: No -- yes, they will because he's already decided against us Your Honor.

He's already decided the case against us.

Justice Hugo L. Black: Suppose they decide against you on a bad ground, what then?

On illegal ground, do you then -- do you think that you will have no right to have that reversed?

Mr. Charles L. Gilmore: I can if he says that the land is not mineral in character and there has been no discovery, I -- would this -- I -- I'm not going to ask the court a question, (Inaudible) partly yes, I mean, and (Voice Overlap) --

Chief Justice Earl Warren: Mr. Gilmore, may I ask this question, could you and counsel give us a short memorandum on this question, what is it that you can prove to satisfy your claim in the District Court that you cannot use before the Bureau of Land Management.

Mr. Charles L. Gilmore: I'll be glad to Your Honor.

Chief Justice Earl Warren: And further, what different rules of evidence are there in the Bureau and in the District Court on that question?

Mr. Charles L. Gilmore: I will be glad to.

Chief Justice Earl Warren: Would you in the -- in -- just a short memorandum.

I don't want you writing out a brief on it if necessary.

Mr. Charles L. Gilmore: Your Honor could I have time enough, I'm a long way from home, in my office --

Chief Justice Earl Warren: Yes, you may.

Mr. Charles L. Gilmore: And the --

Chief Justice Earl Warren: You may take -- you may take the time that they reserved for.

Mr. Charles L. Gilmore: Thank you very much.