HICKEL v. OIL SHALE CORP.

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Argument of Peter L. Strauss

Chief Justice Warren E. Burger: We’ll hear arguments in Number 25, Hickel against the Oil Shale Company.

Mr. Strauss you may proceed whenever you’re ready.

Mr. Peter L. Strauss: Thank you.

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

That Court decided that in passing on certain applications to purchase public lands in containing Oil Shale, the Secretary of Interior must ignore administrative actions which became final almost 40 years ago.

Actions which purported to cancel the claims to possession on which the applications were based.

If the clients were effectively canceled, there could be no right to purchase these lands today.

For 50 years, the lands have been available to new claimants, only by lease.

The statute which made that change.

The Mineral Leasing Act of 1920 provided however that existing valid claims could still qualify for purchase under the old law.

Only if the clients were, and “thereafter maintained in compliance with the laws under which initiated.”

The old law was the General Mining Act of 1872 and it conferred an exclusive possessory right on persons who made the discovery of valuable minerals on the public domain and then performed certain technical functions on the land and at the local County Courthouse.

That claim remained valid for as long as the individual complied with the requirements of the United States Law.

In particular, the law required the annual performance of $100.00 worth of so called assessment work every year.

That requirement is the only one under the law that might be thought that have to do with maintaining a claim once it is made.

In terms, the statute states only that failure to do the work opens the land to relocation by another prospector.

But in my argument, I shall show that the Government too, often re-acquired possessory rights in this land.

During the 1920’s, the Secretary discovered that assessment work was not being done on a vast bulk of Oil Shale claims.

At first, he sought to treat any failure to do the required work however technical as automatically canceling the claims and then a case which vividly illustrated the resulting inequities, Wilbur versus Krushnic.

This Court held that that drastic rule is improper.

It left open however the possibility that claims could be canceled by direct Government action during a period while assessment work at last.

The Secretary took that hint and during the following three years, brought actions against over 20,000 of these claims covering an area of over 2,800,000 acres in Colorado, Wyoming, and Utah.

To cancel those claims for failure to do the required maintenance.

In each of these cases, the Secretary was prepared to show that the assessment work was not being done up to the very moment when he acted.

And that the Government had physically inspected and posted the claims in reclaiming them much as a private individual might have done.

Many claimants did not even respond to the Secretary’s process, not include 75% of the lands at issue in this particular case.

Other claimants responded to the process but permitted the proceedings against them to become final at the administrative level.

That’s the remainder of the land at issue in this case.

One set of claimants however, had been doing their assessment work up to the very date of the Krushnic decision, and promptly offered to resume doing that work.

That case came to this Court as Ickes versus The Virginia-Colorado Development Corporation.

And the Court decided that that offer was sufficient to show that the claimants were maintaining their claims as the statute required.

In its opinion at page 646, that ask how could the valid claims of the plaintiff be thereafter maintained in compliance with the laws under which initiated manifestly by a resumption of work.

Plaintiff was entitled to resume and the bill alleged that plaintiff had made arrangements for resumption and that work would have been resumed if the Department of Interior had not intervened.

To my knowledge, that fully distinguishes all the claims in this case.

Now respondents will probably examine the subsequent history in much greater detail.

But let me say this, in the ensuing 25 years, few, if any persons worked the claims as few if any had worked then since 1920.

Justice Lewis F. Powell: I ask Mr. Strauss, if all that’s required to do assessment work, not less than a $100.00 worth of labor shall be performed or improvements made during each year?

Mr. Peter L. Strauss: That’s right.

Justice Lewis F. Powell: That’s all.

Mr. Peter L. Strauss: That’s it.

While the Secretary did state following Virginia-Colorado on the basis of language appearing in that decision that he felt constrained to regard his prior decisions as void.

There were very few claimants who sought reopening or corresponded within regarding this.

There were 20,000 cancelled claims.

In the first ten years following the decision in Virginia-Colorado so far as the record in this case shows, five private claimants wrote to the Secretary inquiring about the status of their claims.

And it was not until 1950, 15 years after Virginia-Colorado that the first patent involving a canceled claim was issued and that appears from Exhibit 95, plaintiff’s Exhibit 95 at page 148 of the record.

From that year until 1960, patents were issued on only 74,000 acres of the almost 3 million acres of land involved in these cancellations.

In 1962, in the administrative proceedings challenged here, the Secretary decided that Virginia-Colorado did not require him to ignore cancellations which had become final before that case was decided.

Of respondent’s numerous contentions, only one is properly here that Virginia-Colorado held that the administrative cancellations of the 1930’s were alter various of the Secretary’s authority and hence that their claims survive these proceedings unimpaired.

The District Court and Court of Appeals agreed with that contention, it was the only contention those Court’s passed.

It held that the old cancellations must be regarded as void.

This Court granted certiorari in the case on October 13th of last year.

Thus we find ourself in the situation where a claim to an exclusive possessory right, that’s the claim, it is granted by the statute, made in 1919, may have to be honored today even though for 30 or 40 years the claimants may never have set foot on the land.

It is the United States which in fact has been the exclusive possessor of these premises for most of this time and which has used the land for many purposes, this is set out in our brief at page 43.

Indeed, the Government’s effective possession of these lands has been foreign access of the Colorado prescription period of 18 years even if one starts to count in 1931, or 1932, when it asserted its right to proceed in these proceedings.

The significance to the case is substantial.

When Congress passed the Mineral Leasing Act in 1920, it shows leasing over private ownership as the preferable means of developing Government land including these minerals.

It did so in order to avoid monopolization and the sequestration of fuel resources, to assure a commensurate return to the Government and perhaps particularly important today to promote environmental interests.

Under a lease, the Government can control the mode of production far more effectively than if this land were in private ownership.

This factor, indeed all of these factors remain relevant to that.

The Mineral Leasing Act as I said before did provide as an exception that claims would be patented, could be reduced to private ownership, if they had been maintained under the prior law.

But again, it’s the only requirement under the 1872 Act that had anything to do with maintaining a location.

Once it was made, once the technical requirements of filing the location had been followed out was the requirement that you do a $100.00 worth of work a year on the claim.

The proponent of that requirement Senator Cole of California told the Senate in 1872 and this is said out at page 13 of our amended reply brief, that the provision was intended and I quote “to ensure good faith in the working of the mines, to prevent there being held by owners an indefinite length of time without working, to require the miner to use a little diligence or exertion in the working of its mine or else leave it subject to a beneficial use by some other party.”

Of course, if you did make a valuable discovery on the lands you would want to do that work, otherwise somebody come in and take it away it from you.

The conceptual framework of that process relocation is interesting.

As it shown by this Court’s opinion in 1005 in volume 104 of the reports which is cited in respondent’s brief at page 10 and which was a principal precedent in both the Krushnic and the Virginia-Colorado decisions.

The interest which the relocator acquired, required not from the previous possessor but from the United States which had to receive it in some fashion and as we note in our reply at page 14, this Court has frequently acquitted failure to do assessment work with abandonment of the claims.

To this extent, the remark which appears in the Virginia-Colorado decision, that failure to do assessment work gives the Government no ground of forfeiture on abandonment grounds as plainly incorrect.

It may have been correct in that case where 15 months after there was a failure to do assessment work the claimants came forward and said, “we’re going to start right up again” but it certainly was not correct as a statement of general law.

Now it is true that in general, the maintenance requirements were privately enforced.

That was because in general, the United States had no need for this land but there are cases in which the Government does want its land.

It may want to create a national park or an irrigation project.

And in cases like that, there was an established body of law set out in our brief beginning at page 52 to the effect that the Secretary could withdraw the land from further location and in that circumstance, the assessment work was not done, the Government could retrieve the land for its own use.

This is not a small matter either.

In the recent construction of the Grand Canyon dam, there were over 7,000 of these old claims on the land there.

The claims which had to be cleared off the land and it was necessary for the Government to go to considerable expense because this Court had said in Virginia-Colorado that it could place no reliance on the fact that the claimants of those lands hadn’t been doing and recording their assessment work as the statute requires for many years since.

As I say the Secretary did rule in a small but consistent body of law that in these situations where the Government had a special use for land.

Private planes would remain valid only as long as they were maintained and then they would revert back to the public for the purpose for which the land around it had been withdrawn.

Sometimes he used the word --

Justice Potter Stewart: Can maintenance be carried out only by assessment?

Mr. Peter L. Strauss: I’m not quite sure how to respond to that.

The only thing in the prior law that has to do with maintenance is the requirement of assessment work.

There is no other provision of the prior law that says anything about continuing to work the claim.

Justice Potter Stewart: So, occupancy and continued prospecting would not be equivalent to maintenance?

Mr. Peter L. Strauss: Well I think occupancy in continued prospect, at least the continued prospecting part of it might very well be considered as maintenance or assessment work as the Court is aware from the Coleman case.

There have been many situations where persons have taken the Government’s land extensively for mineral purposes and actually wanted it for a seaside resort or something of that sort.

Justice Potter Stewart: What maintenance and assessment of (Inaudible)?

Mr. Peter L. Strauss: That would be the government’s -- the government’s position here is that one can only understand the provision that these claims had to be maintained as referring to assessment work because there is no other provision of the prior law that gave any notion whatever about maintenance.

Justice Potter Stewart: Do I understand that in the history of this where actually some claims were patented even though they had previously been -- the claims had previously been canceled for one of assessment work?

Mr. Peter L. Strauss: Beginning in 1950, somewhat, something in the neighborhood of 2% of the total amount of land redone, I think it began perhaps almost inadvertently.

People in the Denver office saw these things coming in.

They saw the situation in which the lands were being obtained and they gradually came to be pressured.

The pressure on Washington from the District, well this is a terrible thing we’re doing.

Why do we have to give the land to away like this?

And then in these kinds of circumstances and it was --

Justice Potter Stewart: Well they held circumstances that they’re only in validity to the fact?

Mr. Peter L. Strauss: Whether there is a 6 year statute of limitations on the patents and that 6 years has long since passed.

And unless there were some sort of fraud in the inducement or something of that sort the Government cannot reopen.

Justice Harry A. Blackmun: Mr. Strauss, perhaps you’d commented on this but if so I missed it.

Am I correct in understanding that there was a time when the Secretary issued an order voiding all the prior cancellations?

Mr. Peter L. Strauss: Well that is respondent’s contention.

That’s not actually what he said Mr. Justice Blackmun.

The opinion on which they rely is an opinion called the Shale Oil Company which appears in the Volume 55 of the Department’s reports, and at page 290 is the language they’re concerned with.

They say the say the above mentioned decision and instructions involved in Virginia-Colorado that is.

I hereby recalled and vacated two other specific decisions and other departmental decisions in conflict with this decision, I hereby overruled the Commission’s decision is reversed and the record in this case is remanded with instructions to reinstate the application.

And there did follow from that, we can’t deny it.

There was a period of time when the Secretary used the words like void in talking about his view of what this Court had done.

But I think it’s well established in the law that on the State, the Secretary may make in interpreting the provisions of the statute and I would say as well of this Court’s holding.

That he may make a legal mistake of that sort, can hardly forfeit for all time, the Government’s interest in the land involved.

Justice Harry A. Blackmun: 1637.

Mr. Peter L. Strauss: Well that’s what at issue in this case I believe.

Justice Harry A. Blackmun: This is your interpretation about 1647 Secretary.

Mr. Peter L. Strauss: That’s right.

Justice Harry A. Blackmun: A legal mistake.

Mr. Peter L. Strauss: That’s right.

Justice Harry A. Blackmun: Is that 55 I.D. 287?

Mr. Peter L. Strauss: Yes that’s right, at page 290.

Justice Harry A. Blackmun: Well currently the Court of Appeals did rely on that in its opinion, didn't they?

Mr. Peter L. Strauss: The Court of Appeals did rely on in its opinion and of course it does give some trouble but as I said before, I think Mr. Justice Black established for the Court in United States versus California and United States versus San Francisco, that even where there may have been substantial investments made and by and large, that’s not the case in these proceedings.

Individual Secretaries by mistakes they may make in construing the law simply can’t forfeit the government’s right in the public lands. We’re dealing with 3 Million acres of public land here.

Today, only 74,000 acres of that land has been reduced to patent.

The first of those patents was issued in 1950 and I really think that the Court would have no difficulty in dealing with that situation.

As I was saying, sometimes in this body of law which permitted the Government to retrieve land which it needed for specific purposes.

Sometimes, the Secretary used the words assessment work.

Sometimes he just talks about maintaining the claim and respondent say, “Well therefore those opinions didn’t have anything to do with assessment work” But again, the only provision in the statute which in any way relates the maintaining of claim is the provision for assessment work.

There simply is nothing else in the statute relevant on that issue.

Now, in our view the Leasing Act is just like a withdrawal for a national park or a fort.

It reflects the Congressional judgment about how the public lands ought to be used.

And so, in our view, it gives the Government the same right.

And now, the significant aspect is that that act ended, eliminated the possibility that some private individual could come in to the lands that were affected and put a claim on them, that would end this old claims.

Because the Act withdrew not only the minerals, not only the Oil Shale from location, it withdrew the lands themselves.

Even if you found gold or copper on the land, you could get it only by lease.

As we show in our Amended reply brief at pages 9 to 10.

It seems to us that there are four ways that one could interpret this provision of the 1920 Law.

First one could say, that assessment work must be done and as soon as it’s not done for any period of time, however brief, whether or not the Government finds out about it at that time, the land is automatically retrieved for Government’s use.

That is what this Court rejected in Wilbur versus Krushnic and we don’t urge it today.

The second possibility is the government’s position in Virginia-Colorado.

That the Secretary could act as a private relocator could.

Where he has a specific need for the land where it is been withdrawn for particular Government purpose.

He may go on and if he finds land where assessment work isn’t being done at that time, he stakes it, brings an adversary proceeding to cancel the claim.

The third possibility is what we think this Court said in Virginia-Colorado, which is that the Government can go around periodically and more or less make demands on the holder to these claims to come forward.

That was what the claimants in Virginia-Colorado did.

This Court said that they did it and relied on there having done it.

The Court said, they wanted to resume their work.

They would have resumed their work if the Government hadn’t been there.

That is a -- perhaps a very fine line to draw.

It isn’t fully adequate but it’s certainly better than the fourth interpretation of the statute which is respondent’s interpretation of the statute, and that is that there is no requirement of maintenance at all, that the government has no interest in whether a claimant develops this land or not.

When somebody went out in the winter of 1919 and staked 30,000 acres over a five day period, that’s perhaps too large and I think it was -- there were several that were 2,000, 3,000, 4,000 acres over that period of time.

That that was the end of the government’s interest in the Oil Shale on that land and there is simply no way that the Government can retrieve it.

The best short comment I know on that position was offered in the house by Representative Taylor in Colorado.

His credentials on land issues are impeccable and are vouched for by respondents themselves.

They made these remarks after Virginia-Colorado was decided in an evident disagreement with it.

He said, people have been holding it -- that is the Oil Shale lands for years and years without complying that the law.

That is the assessment work law, and without being entitled to it.

This is to require than to comply with the law.

That is to maintain their claims or else let the land revert back.

Respondents make Section 37 --

Unknown Speaker: You said this is to require them to --

Mr. Peter L. Strauss: He was at the time talking to a statute that was before the house.

Unknown Speaker: A bill did not pass --

Chief Justice Warren E. Burger: But what Congress do with it?

Mr. Peter L. Strauss: It disappeared.

That is to say it was not finally acted upon.

There was no voting it down, but it didn’t pass.

I might point out in that regard if I may that I think Congress has always labored in this area under a substantial difficulty of the Court’s decision in Virginia-Colorado in a sense declared property rights.

Congress would interfere with those rights if indeed those were the rights only at its Constitutional parole.

And in any event, the Congress could hardly do anything about period of non-work which had been observed prior to the Court’s decision in Virginia-Colorado from 1920 to 1933, there’s nothing that Congress could have done to revive the disuse or to revive the Government proceedings if indeed as well as sometimes felt at the time they had been in the sense voided by this Court’s decision.

Chief Justice Warren E. Burger: Well must we not reasonably assume that the sponsors of that bill thought that Congress had the power to take corrective actions, corrective in the sense that you were discussing?

Mr. Peter L. Strauss: Well I think we point out in our reply brief.

There was an extraordinary, in the legislative history of those bills.

There is a rather an extraordinary amount of care about their prospectivity.

This particular bill was only a perspective bill.

It would only have acted for the future, about the limitations on what the Government could do.

I don’t believe that the bill has said that in the future.

You must do assessment work because I think Congress felt that would be changing the conditions of the property ownership.

There was something in there about why you have to come in and register the lands.

They felt they could go that far.

Justice William J. Brennan: Well did Virginia-Colorado; was it responsible for any introduction on that bill?

Was it decision in Virginia-Colorado the reason of the bill?

Mr. Peter L. Strauss: I think in substantial part it is Mr. Justice Brennan, we’ve set out in our brief on page 18, a number of remarks by Congressman.

All of them addressed to what they considered to be the error of this Court in that case and expressing surprise that the way it had interpreted the land law, and I think you will find in the legislative history of those bills some alarm about whether Congress, could the Congress could ever said it right.

This Court clearly enough could do so.

Respondent’s view of the bill makes it into a good deal more than a savings clause because in their view, it creates an indefeasible possessory right in public land regarding which they have no effective obligation of care, or maintenance, or development.

No such right ever existed under these nations mining laws and respondents can point to no statement and Congress or elsewhere suggesting that that would be the just or desirable way to dispose off our lands.

75% of the lands involved in this case would never work on.

So far as the record shows from 1920 until they were bought in 1954 for pennies an acre.

And the Congress would provide only five rent free years of listing Oil Shale lands, certainly did not entertain the notion.

That it was enabling persons simply to sit on existing claims for decade after decade without investment or obligations or fear of loss.

The entire lack of justification, either illegal or equitable for that position demonstrates the fallacy of the claim.

Now whether or not this Court would overrule Virginia-Colorado, that seems indisputable to us that the Secretary had subject matter jurisdiction over those old cancellation proceedings when they were brought and to those which became final before Virginia-Colorado was decided can be given effect today.

Justice William J. Brennan: Do you feel Virginia-Colorado has to be overruled?

Mr. Peter L. Strauss: We would certainly prefer that it'd be overruled in the sense that it would remove what has been a substantial incubus on the administration of the public lands and would permit considerably more rational approach to this issue of failure to do assessment work.

In particular, I think, the particular language which I find the most unfortunate, is the Court’s remark in the opinion that failure to do assessment work gave no ground for a holding of abandonment in the case.

Justice William J. Brennan: Would you read that as an interpretation of the statute?

Mr. Peter L. Strauss: It reads as if it were.

I know the Tenth Circuit believes that it is and the other District Judges believe that it is.

Justice William J. Brennan: Was that because of overruling?

Mr. Peter L. Strauss: Excuse me?

Justice William J. Brennan: Well, does that believe as overruling the statutory interpretation?

We ordinarily leave Congress to (Inaudible)

Mr. Peter L. Strauss: Yes but as I was remarking to Justice Burger -- to the Chief Justice, Mr. Justice in this circumstance because it is involved with property.

Because the Fifth Amendment inevitably gets in when you start changing the conditions of property, really that statutory holding has something of a constitutional pass to it and I don’t believe you can [Voice Overlap]

Justice William J. Brennan: Well we have to overrule decisions.

Mr. Peter L. Strauss: You certainly have.

Justice William J. Brennan: Statutory interpretation.

Mr. Peter L. Strauss: That’s right.

Justice William J. Brennan: Ordinarily you do that.

Mr. Peter L. Strauss: Ordinarily you do not.

Justice William J. Brennan: But here you do have apparently a statutory -- though it was introduced, I gather with the -- how much of way you described it.

If it didn’t overrule Virginia-Colorado it certainly would have cut out of the deal that it had it passed.

Mr. Peter L. Strauss: If the bill had passed, it would have provided that the list for federal registration of these claims and I don’t --frankly don’t recall what the remainder of the bill was.

One --

Justice Potter Stewart: Was it passed as reference to this Court’s -- I mean open, connection to this Court’s opinion in Virginia-Colorado case?

Mr. Peter L. Strauss: Certainly in the legislative history, there is mentioned of that decision and what it had done.

Yes.

Justice Potter Stewart: And was it an effort to undo what the decision had done?

Mr. Peter L. Strauss: No, as I have explained, Congress didn’t feel it could undo the decision.

It felt it could make some corrections for the future but because land is involved here, there are some constitutional inhibitions about Congress taking it away by statute.

That this Court had made a mistake, I think the Court could correct it.

Justice Potter Stewart: Suppose this case should be overruled, would effect would it have on people going the same position as so you owned the land here.

Mr. Peter L. Strauss: Well, I think there would be a number of effects.

First, as to those lands which have already been patented, which have already been sold to private individuals, I should think that be no effect.

Justice Potter Stewart: Why?

Mr. Peter L. Strauss: Because the transaction is done there, it’s a six year statute of limitations on undoing the transactions, six years has passed.

Second as to the period before the decision and it’s the period before 1935, I should think an overruling would permit the Government to rely on a failure to do assessment work at that time.

I should think an overruling would have no effect on what was done to the land between the date of this Court’s decision in 1935 and the date of its decision overruling the opinion.

But certainly the opinion was there and one can’t deny its presence in that sense.

A more difficult question would arise as to certain claims.

There are claims for example, the (Inaudible) claims and the Oiler claims in this case represent about a thousand acres of the land involved.

A thousand out of 18,000 acres for the land involved in this case which were rather diligently most of the Oil Shale claims involved here.

Most of the Oil Shale claims involved here simply want to look that between 1920 and a time in the 1950’s when a speculator came around, brought up shares in them, very small amounts of money.

But those that were rather diligently worked and those that show some continuity of title, I should think there might be some equitable considerations involved there which would govern the Government’s use of the failure to do the work even before 1935, this Court has entertained that kind of relief in Simpson versus Union Oil Company.

It seems to me a very apt case of 377 U.S 13, page 24 and 25 of the opinion, the Court reserved the question whether when all the facts are known, there maybe any equities that would warrant only perspective application and damage suits of the rule governing price fixing.

We announced today, the Court referred to that opinion again last year in the Donnelly case.

Certainly there are some similar disposition would be appropriate here.

We don’t deny that, the Secretary in fact in the administrative opinion.

The Secretary indicated that he would reopen claims, when for particular claims, they were equitable or legal grounds to do so.

That has not yet been a point of dispute in these cases so far as I understand.

No one has yet suggested that they have such special equitable grounds and I think certainly they should be available to them.

Justice Thurgood Marshall: Was Mr. Taylor’s bill did not pass?

The only one that was offered in Congress in connection with this problem quarterbacked by the Virginia-Carolina case.

Mr. Peter L. Strauss: As I recall, there were two or three during that period of time in which Secretary Akies (ph) was seeking to have the effect of that decision limited.

Justice Thurgood Marshall: In which one?

Mr. Peter L. Strauss: Secretary Akies (ph) was seeking to have the effect of that decision limited.

Justice Potter Stewart: Mr. Strauss.

Mr. Peter L. Strauss: Yes.

Justice Potter Stewart: I gather looking at the Virginia-Colorado again, that opinion relies rather heavily on (Inaudible)

Mr. Peter L. Strauss: It does.

Justice Potter Stewart: Well that wouldn’t be enough for you, would it?

Just to overrule Virginia-Colorado which you also want Krushnic overruled?

That’s the flat one at least that was read in Virginia-Colorado that plaintiff had lost no rights but failure to do the annual assessment work.

That failure gave the Government no ground of forfeiture, signing Krushnic.

Mr. Peter L. Strauss: I don’t recall that questioning establishes the proposition that flatly to the extent that it does.

Justice Potter Stewart: All I’m saying is that this Court seems to be -- if it read it that way in Virginia --

Mr. Peter L. Strauss: If it did.

We would have to ask for its overruling but I do suggest to the Court that the facts of Krushnic were rather special and the Government really has no complaint, indeed concedes that it maybe considerably fairer on the whole, to have the Krushnic decision on the boards.

What happened in that case was that individuals had been working their land, continued to work their land, applied for patent.

And the Secretary decided on a very technical basis.

That in one year, a year after which they continued to work and that which no one took any notice at that time.

In one year, there had been a lapse on one of the pieces of land and therefore you can’t have a patent to that land.

That’s a pretty inequitable result.

The Court and the Secretaries generally have avoided canceling public land claims on that kind of basis and the Government doesn’t want to be able to do so in particular.

I think on that sort of basis, we’d be very happy to have Krushnic continued in effect.

I do want to talk briefly about this issue of subject matter jurisdiction, that is whether Virginia-Colorado requires the Court to treat these old claims as void.

That was the only issue which was presented and decide -- not presented but which was decided in the courts below.

The courts below never had to reach these questions of the administrative practice because they concluded that Virginia-Colorado in itself was sufficient to show that the claims were void.

But we think the contrary conclusion follows very strongly from the fact that the 1920 Act saving clause, authorized the Secretary to patent only certain claims.

Those claims which were valid before February 25, 1920 and which had been maintained since that date in accordance with the laws under which they were made.

When an application for patent was made, then the Secretary would have to determine two things.

First, was the claim valid on February 25, 1920?

Second, has it been maintained since that time?

And if he didn’t make that second determination, he might dispose off the public domain to a party not entitled to.

In West versus Standard Oil, this Court said, “whereby by the terms of an Act, the Secretary is required upon application of the claimant to issue a patent.

Congress by implication confers upon the Secretary, the power to make all the determinations of law as well as the fact which are essential to the duty, to the performance to the duties specifically imposed” Here, the duty was to patent lands on which they were existing valid claims which had been thereafter maintained.

And there obviously was much of a duty to inquire into the question, what constituted maintenance and whether it had been done because there was to ask what was required for validity, and whether the existing claim was valid.

And this Court recognized that in the Krushnic decision.

At page 318 of this Court’s report, it specifically refers to the necessity that the Officer, the Secretary in this case read the law and therefore in a certain sense construe it in order to form a judgment.

And the Court there specifically noted that there was a question left open as to the meaning of this law.

It said that the question left open was whether the United States could proceed against these claims.

If there is a form of challenge on behalf of the United States for the valid existence of the claim which was intervening.

And that of course is the precise situation in these proceedings.

The Secretary acted within the range left open by the Court in Krushnic.

He acted and ordered to determine whether these claims had been maintained.

On this analysis, the only possible objection to subject matter jurisdiction is the issue of timing, the challenged cancellations arose not out of patent applications but out of contest which the Secretary brought before patent applications were made.

And applications need never be made under the law.

The Secretary brought these proceedings to clear the land while evidence remain fresh.

And that seems to me a perfectly appropriate thing for him to do.

Respondents seem to argue that even if the Secretary would have subject matter jurisdiction to consider these issues when they were brought to him on a claim for patent, he had no power to be aggressive about them but that question was settled by the Cameron case as we show on our brief at pages 36 to 37, where the summary of argument in this Court shows precisely the same argument to have been made.

That case did involve discovery not maintenance, but we’ve already shown that at least at the stage of an application for patent, the Secretary would have to consider both issues under the 1920 Act.

If I may, I’ll reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Hamilton.

Argument of Fowler Hamilton

Mr. Fowler Hamilton: Mr. Chief Justice, may it please the Court.

I shall address my argument to only three points.

The first two are the points that I understand from Mr. Strauss’s argument are crucial to the Government’s case.

First, one of those points is a procedural point and another is a point that goes to the merits.

As I understood him to say on the procedural point that it is the view of the Government that the only question now before this Court is the jurisdictional question.

That is to say, did the Secretary of interior have jurisdiction to cancel claims for assessment work as he purported to do on two separate occasions in the late 20’s and early 30’s.

We are -- it is our view that that is incorrect.

That is that that procedural point is incorrect.

It is our view to state it very summarily before development.

The only questions before this Court are precisely the questions that we raised in the District Court, but which the District Court or one of which it did not have to consider.

In the District Court, we object it, rather sought review of the Secretary's order.

Speaking very broadly upon three grounds that went to the merits.

One upon the ground that this Court had held that the Secretary had no jurisdiction to the -- very broadly the medaled and assessment work matters.

Secondly, that even if that construction of this Court’s decision in Krushnic and in Virginia-Colorado was not correct.

Those decisions clearly held that it was error for the Secretary to cancel claims for failures to do assessment work, even if that was not a jurisdictional matter.

And in the third place we argued, that the undisputed facts as to the course of administrative conduct, from the period of 1935 until the proceedings that ultimately issued in this case here were such that they had those -- that administrative conduct had established an administrative rule which could not be changed retroactively.

Now the District Court having found that in its view, the Secretary under Virginia-Colorado had no jurisdiction as to assess the court matters, quite naturally did not go to the other due points.

The Court of Appeals in affirming the District Court took the same position.

That is the procedure, so that it is argued that there is no available for consideration by the Court are three alternate and independent positions that go to the merits.

Secondly, we take the opposite view of course that the Government’s position because the Government’s position as we understand it hinges upon its contention that the word maintenance in the saving clause of the 1920 Leasing Act confers rights upon the Government with respect to claims and reference to assessment work that did not therefore exist.

I believe in response to question counsel almost said that they construed the word maintenance to meet an assessment work.

Justice Potter Stewart: But is there a word that thereafter maintained --

Mr. Fowler Hamilton: Thereafter maintained.

Thank you very much.

Thereafter maintained as I understand it, it is the gist of their case that that means that assessment work must be done.

We dispute that.

Thirdly and in conclusion, I shall endeavor to establish that even if the question were now open, if you should as we do not but you should but if you should respond to the government's request, to reconsider the Virginia-Colorado case that that case correctly decided that the Secretary has no jurisdiction as to assessment work matters.

Before coming to develop those points in some what more detail, if I may, I should like to advert briefly the three aspects of the background that a pertinent, we submit to the consideration of those three questions.

One has to do with the development in respect of Oil Shale in the early days.

Another has to do with certain broad historical circumstances that relates to the development of the mining laws in general.

The place of the Oil Shale question in perspective and the third has to do --

Justice Thurgood Marshall: Is the Shale Oil achieved the cause of contention?

Mr. Fowler Hamilton: The sole cause of contention Your Honor.

Yes, the lands, the public lands that contain Shale Oil or the some of them, a limited amount that is all cause of contention, yes sir, within that historical background.

Between 1950 and 1920, they develop a great interest in Oil Shale because there was widespread conviction that our country was running out of hydrocarbon energy because of the great draft of the war and because of the great draft upon our requirements it was put by the development of the automobile and the use of petroleum instead of coal and number of industrial uses.

An Oil Shale industry had existed in the world since the 17th century.

The Scott’s had quite an active one in the 19 -- in the 20th centuries and there was great boom as all sides can see it out on the coast.

Now, in the Western slope of the continental divide, Colorado primarily some in Utah and some in Wyoming.

People went out to State and develop these claims.

This activity continued down through the 1920’s.

Prior to 1920, a number of claims were staked for Oil Shale.

The development work continued down until the depression in the early 1930’s.

Now, coming against that background to the mining laws themselves, and while Mr. Justice Black this case only considered, it deals with Oil Shale.

The law that is applicable, it nowhere speaks expressly of Oil Shale.

We’re dealing broadly with the whole scope of the mining laws.

And as you will recall, the mining laws are the principle law taken in connection with the Home State Act.

Under which approximately 2/3 of the total of 2 Billion acres at the various times our Government has owned has passed from public ownership into private ownership because as the country expanded westward, the Government found itself with increasingly large quantities of public land on its hands and they had a problem of disposing them.

The principle law was the mining law.

Indeed, when Gold was struck in California in 1848, President Polk -- we refer to it in our brief, made a great speech about it, and that produced the gold rush at 49.

There were no mining laws.

No laws to deal with federal land of any kind.

These miners went out there and they developed customs and they enforced these customs by vigilante measures.

All the people who developed the gold in California were trespassers.

The early cases even held that their possessory rights which were developed by custom and enforced by vigilante measures, that the Federal Courts had no jurisdiction over these rival claims because they -- the land belonged to the Federal Government.

The Federal Government didn’t recognize the right before mining the ground on a large scale that the Federal Court had no jurisdiction.

So the first mining law of consequence, it was perhaps was passed in 1865.

And the purpose of it was two-fold, the purpose was to get peace and to provide some kind of the federal supervision.

The only thing it provided as to mining claims was that Federal Court should have jurisdiction of a claim.

Even though the Federal Government owned the land.

Secondly, it provided that the law of possession, that is to say the custom of the miners would determine who is entitled to what, in connection with these possessory rights?

There was no provision for a patent.

There was no provision for the Secretary of Interior or any other Government agency doing anything.

Although the federal land office in the Department of Interior of course have been established back in 1810.

The next step was a passage of the series of three statutes between 1866 and 1872, and those in essence constitute the framework with which this Court will decide this case as interpreted in the Court.

On essence, what that statutory framework provided was that a claim would be granted, this is the first time there was a reference to the granting of claim.

Anyone who discovered valuable minerals on the land could comment and state the claim and he got a possessory right which as this Court said in Krushnic, without any action of any Government agency at all, he could mortgage, he could sell, he could dispose off, he could leave by inheritance.

There was not then and there never has been, any place in the Federal Government where you can even find out where these mineral claims are.

The policing of whether or not the claims were developed and how they are dealt with was left solely to another provision of the statutory framework.

And that brings us to the assessment work provision.

Thus the framework provided that if a man did a $100.00 worth of assessment work on each claim per year.

Justice Thurgood Marshall: What do you mean precise by assessment work?

Mr. Fowler Hamilton: What the statute says is that if a man will do a $100.00 worth of work on each claim in each year, that is called assessment work.

Justice Thurgood Marshall: Each claim about how many acres?

Mr. Fowler Hamilton: A claim could only be for 20 acres but eight men could go together and claim a quarter or section of land.

Claim a 160 acres and that became a claim.

If one man located 20 acres, that was a claim.

But if eight men went in and pooled their resources and that was always done.

They could get a 160 acres and that would be a claim.

So what the statute said was that if these people spent a $100.00 per claim per year in assessment work, their claim can’t be jumped.

What that meant was this.

If they didn’t spend the assessment work, somebody else could come in and locate on that claim.

Either for the same mineral or for another mineral.

And the question is to who owned the claim if there was a question between rival claimants was expressly reserved for the State Court.

Justice Potter Stewart: What was the evidence of actual assessment that was prospective to claim that one dug holes and one built something?

What was the actual evidence?

Mr. Fowler Hamilton: Well, trenching, digging holes, putting up posts, if you were mining, building a rudimentary temple or running of head in --.

Justice Potter Stewart: Is there a history of the word assessment?

Mr. Fowler Hamilton: No, we’ve not been able to find anything.

We looked up at all the dictionaries but we just can’t find anything.

I assume because it is just a matter of conjecture, that probably means that there was something that would show that attacked some validity claims and this sort of (Inaudible) like a county assessor.

But I just don’t know, these claims didn’t have to be recorded even the county court announced.

Chief Justice Warren E. Burger: How could this maintenance differ if it does from the kind of maintenance that sometimes occupancy that it was required on --

Mr. Fowler Hamilton: On the first place Mr. Chief Justice, we dissent most strongly from the view that this is maintenance.

This is the only way to think that maintenance can be -- We think if do your assessment work --

Chief Justice Warren E. Burger: Is it conceptually the same basic idea though --

Mr. Fowler Hamilton: No Sir.

Chief Justice Warren E. Burger: The requirement that a man who went out the state got farms.

Mr. Fowler Hamilton: That’s right.

Chief Justice Warren E. Burger: The Government had live on it for how many months or work on it.

Mr. Fowler Hamilton: No, there was marked difference in this regard and we think it's a fairly good difference.

In the case of the Homestead Act and a number of other Acts, the Department of Interior has to decide who is qualified.

They can determine the conditions on which the man lives.

They can throw him off at any time and he does not get a property right in the land until he has fulfilled their requirements who lived there five years, anytime between then and the time he gets his patent.

He could be showing off.

In other words there, the graph of the property runs from the Department of Interior to the homesteader.

Here, the graph of the property runs under the Congressional Act directly to the claimant and the Department of Interior not only has no authority in the area as to assessment work.

Whether it doesn’t even know about it.

Chief Justice Warren E. Burger: Understanding the difference in the mechanism, I was wondering if what was the difference in the conception.

Mr. Fowler Hamilton: Yes Sir.

The difference in conception is this.

The case of the homesteader, the Department of Interior polices to see whether or not the homesteader is in fact fulfilling his obligations by living on the land and developing.

The philosophy and principle of assessment work established by the Congress was that interior would have nothing to say about it, that they would rely solely on competition between competing miners.

To see to it that claims were developed and in order to make that competition effective what they said to the claimant, to whom the statute that granted the claim.

If you don’t do a $100.00 worth of assessment work per year, not that your claim isn’t forfeited, no one would ever contended that before the contentions that was in 1920 case.

But somebody else can come in and take this claim away from and relocate it, either for the mineral you’ve got or for the mineral -- some other mineral and they went further in order to have this policed by competition.

They said that if one of a locators wants to protect his claim from being located by somebody else and the other fellows would not put up their share or the money.

He can give them notice by publishing in the newspaper and know that it was mine.

Then he can pay, then he can forfeit the amount, their interest out and he can then go ahead and do the assessment work, and keep the claim alive, and keep other people from coming.

Unknown Speaker: You’re telling Mr. Hamilton, I gather if one does the assessment work then the claim is maintained --

Mr. Fowler Hamilton: Yes.

Unknown Speaker: -- within that claim.

Mr. Fowler Hamilton: That’s right.

But the converse is not necessarily true in our view.

Unknown Speaker: Well, what I want to get is, you suggest that in addition to doing the assessment work, their claim may be maintained by doing something else, is that right?

Mr. Fowler Hamilton: Absolutely and even though assessment work is not being done at all.

Unknown Speaker: Now, what is that something else?

Mr. Fowler Hamilton: Well, it’s -- I’d read his extensive argument on that, it goes in to the legislative history and would it be agreeable if I came to deal with that separately after I get through this background?

Chief Justice Warren E. Burger: Couldn’t have it -- see if I have it clear.

Mr. Fowler Hamilton: Yes.

Chief Justice Warren E. Burger: It opens it to other claimants?

Mr. Fowler Hamilton: Yes Sir.

Chief Justice Warren E. Burger: It doesn’t alter all the relationship with the Government?

Mr. Fowler Hamilton: No, the only relationship that the claim owner has for the government is that he owns the property and the claim at that point.

There was no relationship in the Department of Interior at all.

He owns the claim.

And if he doesn’t do assessment work and no one comes along and tries to relocate, he still owns it.

That was the thrust of the language in this Court as we have construe it in both the Krushnic case and in Virginia-Colorado.

The Court was saying, if you get us along at anytime and revise it, the claim is maintained because no one can relocate it, even though he has not done it for 10 years if you think somebody is going to relocate.

He then comes in and reestablishes assessment work and then the other people can come in.

So that all he had to do under the statute of the statutory scheme was to state a claim, now that the Department of Interior did come in at certain areas.

In other words, if the man abandoned the claim and there is no charge in this proceeding at all despite some of the record.

The slightest suggestion that any of these claims have ever been abandoned, that matter if we prevail in this case, will still be open for the Department of Interior to raise when we go back.

If they think these claims have been abandoned.

If there had not been a discovery of a valuable mineral then there would never be a valid claim and the Department of Interior could refuse a patent.

Even if there had been the discovery of a gold mine, and assessment work had been done.

And no patent have been applied for.

And at 20 years, the gold mine had been worked out and the man who wanted to come in and patent because he wanted to set up a hotel or something.

There would not be a valuable mineral on the land at that time and interior could buy property saying no patenting.

Chief Justice Warren E. Burger: How did the order get his title from the Government?

Mr. Fowler Hamilton: He didn’t have anything sir from the Government in the case of a claim.

He state the claim, he usually as a matter of precaution, recorded it in the county recorder’s office.

That was all.

It was recognized -- do you see this?

We’re still -- so to speak at the (Inaudible) law in custom, when he state the claim, everybody recognized.

Justice Potter Stewart: And the state was nothing more than a possessory.

Mr. Fowler Hamilton: Exactly and it came directly to him under the statute.

It was a full property right as is being conceded here this morning.

Justice Potter Stewart: Because the lands were federal lands?

Mr. Fowler Hamilton: Every acre of the two billion acres were federal lands.

Unknown Speaker: He just got a possessory interest which was --

Mr. Fowler Hamilton: Which he could take the patent or not as he chose and most of them had ever took the patent because most of them worked out at mine and went away.

So that --

Justice William J. Brennan: What constitutes abandonment?

And that’s a question of fact in each case.

Mr. Fowler Hamilton: It’s a question of fact in each case, yes sir.

That is if we prevail in this case, then send it back to the Department of Interior, if they think they can show abandonment.

Of course there’ll be opportunity to sell.

Similarly if they can show a problem.

Justice Hugo L. Black: That law was passed in 1870?

Mr. Fowler Hamilton: The first law which simply gave the federal courts jurisdiction to deal with these possessory rights was kind of implicit recognition of them.

It was passed in 1865 Mr. Justice Black.

Then between 1866 and 1872, a series of Acts were passed, the Placer Mining Act and those Acts are the ones that established the framework of the Mining laws in which Oil Shale is simply a part until we come to 1920 Act.

Justice Hugo L. Black: What I understand is that if a man went out under 1870 Act, 1871 --

Mr. Fowler Hamilton: Yes Sir.

Justice Hugo L. Black: He stated the place and he finds him guilty.

That was his of course the Government --

Mr. Fowler Hamilton: Private interior people came on.

They’ve been trespassers.

Justice Hugo L. Black: And nothing could be done by --

Mr. Fowler Hamilton: Not a thing, but he couldn’t get a patent sir.

He could couldn’t get a patent, if he abandoned it or if he hadn’t discovered a valuable mineral, or if he discovered one and worked it out.

Justice Hugo L. Black: But as far as the Government was concerned -- the Government said it was known --

Mr. Fowler Hamilton: Yes sir.

If he met the conditions of the statute, yes sir.

Justice Hugo L. Black: And it remained that way until some other man would come in and some competitor, in the exportation.

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: And assert his claim and take it all.

Mr. Fowler Hamilton: And if there was the dispute between them, they went to the State Court.

They didn’t go to the Department of Interior because the statute expressly said, all those matters should be dealt with the state because obviously they want the local people to pass on.

Justice Hugo L. Black: What was the objective of the statement in the bill and the requirements in the bill as certain things to be done in the way of assessment?

Mr. Fowler Hamilton: So that the man could determine whether or not he could keep some locator of his claiming on.

Otherwise, the statute said --

Justice Hugo L. Black: It's only to protect other people who wanted the land.

Mr. Fowler Hamilton: Exactly and to provide a standard so you could determine which among these competing miners would be entitled to work the claim.

Justice Hugo L. Black: It seems to me that that’s about what the old case held.

Mr. Fowler Hamilton: That is exactly in our view what the old case held.

I think it’d be clear that no one would ever dispute by description of the law until it becomes in 1920.

And even today on minerals that are not in the Mineral Act, the Department of Interior doesn’t argue that you --

Justice Hugo L. Black: Up to that point at least the assessment requirement or a failure to perform the assessment work had nothing what ever to do with your submission.

Mr. Fowler Hamilton: And even to --

Justice Hugo L. Black: Where his right says --

Mr. Fowler Hamilton: And even today there are non-Mineral Act Leases.

Justice Hugo L. Black: As between him and the Government.

Mr. Fowler Hamilton: Yes sir.

Chief Justice Warren E. Burger: Thank you, we’ll recess now.

Mr. Hamilton you may continue.

Mr. Fowler Hamilton: Thank you Sir.

I may conclude the observations that I’ve presented on the history of the mining laws insofar as it relates to the assessment work question if I may.

By stating that it has never been seriously contented before this litigation that and say for the litigation that culminated in the Krushnic case and in the Virginia-Colorado case.

That assessment work was the matter of any concern of the Federal Government.

I refer in this regard to a regulation of the Department of Interior which is quoted on the first page of our brief to this Court.

This regulation is in virtually the same form as it appeared since at least 1899.

And what it says is this.

The annual expenditure of $100.00 in labor or improvements in mining -- on a mining claim required by citing the statute, is with the exception of certain phosphate placer locations validated by certain Acts and pursuant to certain regulations.

Solely a matter between rival or adverse claimants to the same mineral land and goes only to the right of possession.

The determination of which is committed exclusively to the Courts.

Justice Hugo L. Black: What is that from which you are reading?

Mr. Fowler Hamilton: This is a regulation which is now in effect sir.

Justice Hugo L. Black: When was it putted?

Mr. Fowler Hamilton: It has been in effect since at least 1899 in this same form and substance.

It’s a regulation of the Department of Interior as the statement of their position down through the years.

You would have noted Mr. Justice black that it refers to an Act relating to phosphates.

Prior to the admission of Alaska and of the union, there was also an Act that related to Alaska and the Phosphate Act and the Alaska Act provide in substance, that if assessment work were not done, then the claims were forfeited to the Federal Government from which we argue of course that when Congress intended to cause a forfeiture for assessment work.

It said so as it did in the Alaska Act which became obsolete when Alaska had been a state and it has in the Phosphate Act which is recognized by the department to be an exemption to this general doctrine.

That the Federal Government has no concern or responsibility, or rights in respect to assessment work and that leads to one final point and that is the suggestion was made this morning that it would be in some way unconstitutional for the Congress to make any change affecting the assessment work on claims that are already vested.

We submit that as to law called the Multiple Mineral Development Act which is discussed in our brief, in which Congress did precisely that.

The Congress provided there that as to minerals that are covered by the Mineral Leasing Act.

That is there are claims that are covered to the Mineral Leasing Act.

Anyone could go in and locate on top of those claims.

If no assessment work had been done, so long as they were locating for a non-mineral leasing Act mineral.

For example, gold is not a mineral leasing Act mineral.

Tomorrow, if the claimants involved in this case had not as they are doing, had not been doing their assessment work.

They’re dong it because of this very statute that I’m discussing.

If they had not been doing their assessment work, tomorrow, the prospector could go out and he if he found gold there, he could locate that claim for gold.

Likewise with uranium may very well be the record is not clear that much of your -- that some of the uranium that was discovered, it was discovered on these claims which were subject to the Mineral Leasing Act but as to which assessment work had not been done.

Justice Hugo L. Black: That is a rather strange law at issue.

Mr. Fowler Hamilton: Which one Sir?

Justice Hugo L. Black: That a man could stake all, put stake on a mining on 1871, do nothing else and then come in and claim title for that land in 1970.

Mr. Fowler Hamilton: Not if he’d abandon sir, he couldn’t.

Justice Hugo L. Black: What did you say?

Mr. Fowler Hamilton: If he had abandoned it and he could not.

Justice Hugo L. Black: Well if he would have abandoned it, he just had to develop.

It was in the duty on his part to develop it, then it seems to me like your argument blues is a part of its course.

Mr. Fowler Hamilton: Yes sir but with due respect, the use of the word duty, it sends back the question if I may say so respectfully because the duty was that Congress, the way Congress said the duty would be enforced we submit, was by competition between rival claimants.

I suppose the real problem was how to get rid of the large part of the two billion acres of land that the Government found itself only.

Justice Hugo L. Black: I gather that they want to get rid of it, by people who were developing.

Mr. Fowler Hamilton: Yes sir, but they did not make it a requirement in the law.

That in order to keep it, a man had to do the assessment work.

They didn’t make it a requirement at the law that he had to discover a valuable mineral.

Chief Justice Warren E. Burger: What facts would constitute on abandonment in a hypothetical case that Justice Black gave you, in 1872.

Mr. Fowler Hamilton: I suppose that if the land be taxable and the man hadn’t paid taxes.

That if he demonstrated, that he had never shown the slightest interest in doing anything about it.

That he had never referred to it.

That he hadn’t deviced it in his will, but he had had ranch land.

He’d made provision for the disposition of his ranch among his family.

And he’d ignore this land that one would built up the case along those lines depending upon the actual circumstances.

I should of course point out that abandonment is not an issue here.

Chief Justice Warren E. Burger: No.

Mr. Fowler Hamilton: The department has not challenged it.

Chief Justice Warren E. Burger: I was trying to put in focus --

Mr. Fowler Hamilton: I would suppose that if he’d completely ignored it for a long period of time and taken positive action to deal with analogous property and he’d done nothing with this if that would be a basis to argue to the finders of fact that the man had intended to abandon it.

Justice Hugo L. Black: But I understand from you that the argument, I mean by means of the cases have been decided.

You would say the Government has no right to challenge the fact that he is offended.

Mr. Fowler Hamilton: Oh no Sir, I didn’t make myself clear.

The Government in these very cases should you hold as we urge, you should hold, that they can’t challenge them for failure to assessment work.

We would then have to go back to the Department of Interior and apply for a patent and then when these very claims came up, the department could say, “These claims are invalid.

We will not give you a patent because in fact you have abandoned them.”

Justice Hugo L. Black: Then on your judgment, the government does has -- have a remedy.

Mr. Fowler Hamilton: Absolutely, in these very cases.

Even if we figure --

Justice Hugo L. Black: Or in any cases of that kind.

Mr. Fowler Hamilton: Absolutely sir.

Yes sir.

You have to --

Justice Hugo L. Black: And it can decline to give a patent?

Mr. Fowler Hamilton: Absolutely.

Justice Hugo L. Black: Then they will not only?

Mr. Fowler Hamilton: That is correct Sir.

They can decline to get a patent on the ground that has been abandoned.

Upon the ground that there is no discovery -- has been no discovery of a valuable mineral upon the ground that it was fraudulently located or upon the ground that it’s been worked out.

So that is no longer a valuable for mineral.

So the public interest can be protected in the case on the record.

Justice Hugo L. Black: Mr. Hamilton, may I ask getting back, I think you had said this morning that all that one who located one of these claims back in 1870, acquired that was a possessory interest.

Mr. Fowler Hamilton: That is --yes --

Justice Hugo L. Black: Was that subject to condemnation?

Mr. Fowler Hamilton: Yes sir it was.

They have been condemned.

Justice Hugo L. Black: And yet you say, you thought that Congress could do as -- and he get told us the issue was in 1951?

Permit someone, go locate on top of an existing possessory claim?

Mr. Fowler Hamilton: If the assessment work had not been done.

Justice Hugo L. Black: Well, If you premise that the assessment work is unrelated to the possessory interest that’s acquired because I thought --

Mr. Fowler Hamilton: No sir.

I didn’t make myself clear.

My position here is that the assessment work is vital to maintain the possessory interest.

Justice Hugo L. Black: As against someone else.

Mr. Fowler Hamilton: As against the other locators.

Justice Hugo L. Black: No but I’m -- as against the Government however, it isn’t necessary --

Mr. Fowler Hamilton: That is correct sir, yes.

Justice Hugo L. Black: Well then how can the Government locate something on top of a possessory interest which is valid as against the Government.

Mr. Fowler Hamilton: It cannot do it unless it condemns and it pays for and then --

Justice Hugo L. Black: Well I thought you told us it was a 1951 statute which permitted or if you locate on top of that --

Mr. Fowler Hamilton: The Multiple Mineral Development Act of 1954 was passed to permit people to come on these Oil Shale claims and locate them, not the Government.

Justice Hugo L. Black: No, I know.

Mr. Fowler Hamilton: But other locators to locate them for non-Mineral Leasing Act minerals.

Justice Hugo L. Black: And if one did, he would oust.

Mr. Fowler Hamilton: He would oust.

Justice Hugo L. Black: The original claim.

Mr. Fowler Hamilton: Just as though the Mineral Leasing Act had never been passed.

Chief Justice Warren E. Burger: And generally, what metals are covered by the Mineral Leasing Act?

Mr. Fowler Hamilton: Oil, gas, sodium, oil shale.

Chief Justice Warren E. Burger: Oil, what?

Mr. Fowler Hamilton: Oil, gas --

Chief Justice Warren E. Burger: Looking at it on the other side of the exceptions.

Then you said that if he --

Mr. Fowler Hamilton: Well, the gold for example is not covered.

Uranium is not covered.

Aluminum is not covered.

Chief Justice Warren E. Burger: Well, could there be two locators on the same land?

Mr. Fowler Hamilton: No sir.

Chief Justice Warren E. Burger: If you have this other situation you mentioned?

Suppose someone --

Mr. Fowler Hamilton: Because under the statute, the new locator would be locating ex hypothesi on a claim where there had been no -- where there had been a failure to assessment work.

So that claim then was subject to location so that the man who discovered gold could come in and get the claim not just for gold but for everything.

Justice Hugo L. Black: For everything.

Mr. Fowler Hamilton: Yes sir.

It was just as the same situation that existed as to all of these claims before 1920.

Chief Justice Warren E. Burger: He would oust the prior locator.

Mr. Fowler Hamilton: Yes sir that’s right.

He would indeed.

And then in turn if he didn’t do assessment work and somebody came along and wanted for uranium, they could oust him.

Chief Justice Warren E. Burger: In what form are those claims --

Mr. Fowler Hamilton: State Courts.

Chief Justice Warren E. Burger: In the State Courts?

Mr. Fowler Hamilton: Because they are between private claimants presumably because of the policy of keeping the cases originally in the State Courts where the fact went out.

Justice Hugo L. Black: You are going to get the --

Mr. Fowler Hamilton: You are making us question, yes sir I am.

I only wanted one point to touch on and that is, between 1935 and 1961, that is to say, after the decision of this Court in the Virginia-Carolina case, the Department of Interior and we submit that the evidences is uncontradicted the uncontradictable administered these lands as it stated time and time again upon the principle, that the old assessment work decisions were invalid, void, and have no effect.

As quoted in our brief, the Government’s response to our interrogatories in which they said they had no evidence that any government official had ever taken any act or had done anything on the assumption that these claims were in any way tinged within validity because of the old assessment work decisions.

Furthermore, we described in detail in our brief the circumstances that show that the existence of these claims did not in any way impair the use of land for public parks.

The use of it for reservoirs or for any other purpose, because these claims just like any other claims are always generally accepted.

Whenever there is a reservation of Government land.

The Government says, “This reservation shall apply only to the public land that is not encumbered by claims” Now as I mentioned earlier, there is no way for the Government to know what land has claims or not unless he goes out and searches the local county offices.

So that the practice is always been, whenever a grant is made of public lands for any of the purposes, they are discussed in the Government’s brief to contain a reservation.

For example in 1916, oil shale as it refers tend to be valuable minerals.

The geological survey said, we do not want them reserved because we want to keep them open for location and grant because we want to have these possesses developed to get the shale out.

The Navy wanted a reservation of oil shale land.

In recognition of the fact that the reservation would not cover claims.

They ask and got a reservation of twice as much land as they thought they needed because they anticipated that about half of them would be covered with claims.

That is our response spelled out in our brief to the Government's contention that the existence of these claims in any way has interfered with the operation of these public lands.

These claims haven’t done it anymore than any other claims such as claims Uranium etcetera that are not covered by the Mineral Leasing Act.

Justice Hugo L. Black: Can I ask you one other question?

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: About my hypothetically claimant in 1871.

Suppose he were to get in a controversy with the Government or Government claimed to have a controversy.

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: In 1969?

Could the Government sue him, say he had abandoned him?

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: They could sue him and take a demand.

So there is that much interest in the government.

Mr. Fowler Hamilton: The Government -- if the Government goes out and finds a man on Government property and they say he has no right to it, they can -- he’s a trespasser and they can evict him, then if he wants to litigate presumably, he has a right to a hearing some place because he’s claiming they’re taking his property.

And then they can litigate out the question of whether or not he infact abandoned it.

Justice Hugo L. Black: In some of the language then in the Colorado-Virginia case are little too broad?

Mr. Fowler Hamilton: No sir, because they cannot evict him for a failure to do assessment work.

Justice Hugo L. Black: I know the assessment work.

Mr. Fowler Hamilton: But they can evict him.

Justice Hugo L. Black: Because he hasn’t developed it.

He has abandoned.

Mr. Fowler Hamilton: Sir?

He's abandoned.

Justice Hugo L. Black: Well that’s the other side of the Court.

Mr. Fowler Hamilton: But the language, that is correct sir.

But Mr. Justice Black, I submit that the language in the Virginia-Colorado case speaks only the question of the assessment work.

It doesn’t talk about other ways of maintaining a claim.

Justice Hugo L. Black: But that still remains a duty on his part not to abandon it which the Government can enforce.

Mr. Fowler Hamilton: Absolutely.

Justice Hugo L. Black: And a right of its own.

Mr. Fowler Hamilton: Yes sir and he gets no right unless he has discovered valuable minerals in series of companion cases we’re litigating that with the Government now.

Justice Hugo L. Black: So you limit, Virginia-Carolina -- Virginia-Colorado holding to the question of assessment.

Mr. Fowler Hamilton: Absolutely sir, yes sir.

Justice Hugo L. Black: When is the right time?

Mr. Fowler Hamilton: Once you have a valid claim, then you have to do $500.00 worth of work.

You can do it in one year or 40 and then you file an application for a patent.

Justice Hugo L. Black: Whether or not you discovered something.

Mr. Fowler Hamilton: No sir.

You have to have discovered.

You file an application for a patent and you allege that you have a valid claim and that you have made a discovery of a valuable mineral.

Then the Department of Interior people send people out as they did on this Penelope Baron’s case three times and found she had a valid claim.

They’d look at it if the inspector thinks it’s been abandoned, he writes a report and they don’t grant the patent.

He acquires in the community.

He says, “Who owns this thing or they are done about it” If the mineral showing is not sufficient to constitute, the discovery of a valuable mineral, he writes a report and recommends against it.

And then the patent claim is rejected.

Justice Hugo L. Black: The Government can confess that far --

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: -- as to say that you didn’t comply with Act and paid $500.00 or to make the discovery.

Mr. Fowler Hamilton: Right.

Justice Hugo L. Black: Therefore you do not own the land and never asked.

Mr. Fowler Hamilton: Yes sir and since about 1927, it can go forward and do it on its motion.

In other words, if it wants to build a dam, I think there’s a lot of a valueless claim out there.

It confined the claimants, make publication, and clear this land of claims.

And if they don’t come in and defend it, which I suppose in practical matters one of the ways on abandonment Mr. Chief Justice.

Justice Hugo L. Black: And perhaps that I -- I gather that you --

Mr. Fowler Hamilton: And they’d --

Justice Hugo L. Black: Patent gives a free sample?

Mr. Fowler Hamilton: Yes sir.

Justice Hugo L. Black: And to what?

Mr. Fowler Hamilton: To the land, all of it.

Justice Hugo L. Black: Well, I mean 20, you have told us earlier, this thing all started with (Voice Overlap) --

Mr. Fowler Hamilton: However, many acres are covered by claims sir.

In this case, here for example, what happened was that there were 18 claims pending under the Department of Interior, 18 applications for patents covering about 250 claims of 160 acres each so that that’s about 35,000 acres.

And what happened was that the Solicitor of Interior issued instructions to the field office to reject these applications upon the ground that these old assessment work decisions were res judicata.

He did so.

Then the solicitor took -- there was no notice to anybody about this.

No operative will be heard, nothing.

Then the Solicitor took the cases up, reviewed them on appeal and confirmed his original instruction in a decision called the Union Oil Case which is the one which is involved here.

In which he conceded that the -- there was a right of appeal in 1935 to the courts but he held that there had been latches.

The trial in the court below was solely on the question of latches because we introduced voluminous evidence all from the Government files to show this unbroken conduct where they had recognized the validity of these claims.

In our briefs, we have set forth the number of acres that were patented on page 40 in a map.

By far the greater part of the land has been patented in Colorado and it’s the big part of the land that’s been patented for oil share was covered by these decisions.

So I don’t think it’s really disputable that there is no latches.

The District Court found there was no latches, they said there's been a dearth of any evidence and the Tenth Circuit confirmed that.

Chief Justice Warren E. Burger: Mr. Hamilton, taking it up to the point that Justice Black just described in his hypothesis.

The Government -- interior man reports that there is no valuable mineral and the claimant says there is a valuable mineral.

Mr. Fowler Hamilton: I see.

Chief Justice Warren E. Burger: Where does he contest the documentary?

Mr. Fowler Hamilton: They have a hearing in the Department.

They have a hearing within the Department of Interior.

Chief Justice Warren E. Burger: So where do they go from there?

Mr. Fowler Hamilton: Then, he can appeal either to the Land Office or what is usually the practice in large cases for the Secretary of Interior to hear the appeal himself or have it heard by someone to whom he delegates it.

And within the last year there has been set up in the Department, an appeals board for the purpose of hearing appeals from mineral examiners.

After the hearing there is a record made before the examiner.

Then you can go up intermediately to the head of the Land Office or as its usually done in large cases, directly to the Secretary who up until a year ago had the matter decided by the Solicitor, that’s what happened in this case, the same gentleman who gave these instructions then wrote the opinion in the Union Oil Case.

Now the Secretary has set up an appeals board, then you go the appeals board, then it is reviewed by the courts.

Chief Justice Warren E. Burger: Not the state court this time, is it?

Mr. Fowler Hamilton: No, the federal courts, that’s right sir.

Then it goes to the federal courts.

Now --

Justice Hugo L. Black: And this would be a controversy arising out of an application for a patent?

Mr. Fowler Hamilton: That is right sir.

Or, since recent years where this Court has sustained the right of the Interior to attack patents at its own initiative, originally that was not clear.

Now, they can go out and challenge claims and force the claimant to come in and defend his claim.

Chief Justice Warren E. Burger: Not waiting for him to assert it?

Mr. Fowler Hamilton: Not waiting for him to assert it, yes sir.

Justice Potter Stewart: Well, I see and I suppose they could also go into a court in an action for ejectment or quiet title or --?

Mr. Fowler Hamilton: Right.

Yes sir.

They dealt with those of the things.

Now I come sir to your question on maintenance, to maintain.

We think the background that is not uncomplicated but we believe it’s clear.

Justice Hugo L. Black: This came in in the 1920 Act that if (Voice Overlap) --

Mr. Fowler Hamilton: That is correct sir.

Justice Hugo L. Black: Yes.

Mr. Fowler Hamilton: The background of it is this briefly.

If you recall that the mining laws that I have described which there was a direct grant of a claim went back primarily what's called -- so-called hardrock metals, they came out of the gold rush to California and a hardrock minerals unlike petroleum and natural gas are found characteristically either in loads in which you have a vain which under our law as you know you can follow wherever the gold goes or there are placer claims like those out in the open where you -- like gold in a river bed.

In the ‘90’s, the last session, the question came up as to which one of this categories, oil and gas fitted in.

The Interior said first it is patentable as a placer, then the Interior, the Secretary said he didn’t think it was then he finally said he thought oil and gas was and finally Congress confirmed that by saying that oil and gas was patentable as a placer.

Then the question arose because in 1909, oil and gas were going to be withdrawn from further location and the Interior in connection with various withdrawals that it had made, had decided that if a man was looking for oil or gas and was drilling and hadn’t hit it but was still looking, it was unfair to cut him off even though he hadn’t made a discovery.

So they established the administrative rule that when – in connection with oil and gas, there was a withdrawal and a prospect, he was looking.

So long as he went right ahead and kept looking, if he found it and made a discovery, he got the claim even though as a technical matter under the mining laws, no claim vested until the discovery.

So this was a kind of a special or quasi or in-court claim.

Now, when the Mineral Leasing Act was passed, this question arose in the Congress because they said, the Interior said, “What are we going to do about these different kind of claims that aren't real claims because no discovery has happened?”

so they put in this provision that so long as the oil or gas matter was directed, maintained the claim by going forward to seek discovery, he would be entitled to a claim even though at the time the Act vested, he had not a claim in the proper sense of the word.

And the papers that are set forth in the Government’s amended reply brief, we submit make perfectly clear that what Mr. Vogelsang was saying to people on the hill was, if this law goes through without some kind of a saving clause, what are we going to do about this oil and gas leases?

The last sentence in the last -- one of those letters, last letter, we think makes that clear.

Mr. Senate who was a Congressman in responding to Mr. Vogelsang said, “I do not know that I just understand your reference in the first paragraph on page two to the $100.00 work of a labor or assessment work.

Do you have in mind assessment work under the state laws or under the federal statutes?

As I understand it, under the federal state assessment work, work is required only after discovery, the point being that you didn’t have any claim in an oil shale situation until you had discovery.”

So that when we come against that background, to the decision of this Court in Krushnic and in Virginia-Colorado, we submit that it’s clear that what the court was saying there was that this is a jurisdictional matter in the second case.

The Interior Department only has jurisdiction to do these various things with respect to abandonment of discovery because they have a duty to issue the patent.

Justice Brandeis in the very clear and recent decisions, its quoted in our brief makes it perfectly clear that the Department originally had no jurisdiction at all.

There's no statute that gives the Department of Interior jurisdiction to hold or contest proceedings to do any of these things.

As he points out there, the Department has jurisdiction only where and I think I should perhaps refer to his specific language, only what he said was, “Jurisdiction is conferred upon the Secretary giving him the power to make all determinations of all as well as fact which are essential to the performance of the duties specifically imposed and we submit that Mr. Chief Justice Hughes was saying in Virginia-Colorado, there is no duty specifically imposed with respect to assessment work.

It is only imposed with respect to granting of the patent.

You don’t have to do assessment work to get a patent.

Justice Hugo L. Black: Which case are you reading from?

Mr. Fowler Hamilton: I’m reading sir from Mr. Justice Brandeis’ decision in West, 278 US 20.

And we submit therefore that on the basis of that analysis that the two things: one; that the Virginia-Carolina case was the case of jurisdiction and also that it was a case that was rightly decided of jurisdiction so that if it were up new, it would be decided, should be decided the same way.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Hamilton.

Mr. Strauss, you have 8 minutes I think.

Rebuttal of Peter L. Strauss

Mr. Peter L. Strauss: Thank you.

I take it from counsel’s last remarks that they no longer claim that this Court can pass on these claims as on direct review and so I’ll leave that part of our argument to our brief.

Counsel was just addressing himself to the West case to Justice Brandeis’ as reference to the duty of the Secretary, of course we rely on precisely that same language, under Section 37, the Secretary had a duty to ascertain whether claims were being maintained.

If they weren’t being maintained, it was in error for him to get patents on the lands.

When Secretary Fall, the West case involved Secretary Fall, when Secretary Fall had tried to give away Government lands without the right to do so, he wound up in jail.

The Secretary in this case, in all of these cases, was following his plain duty under the statute to see whether these claims had been maintained.

Now, Justice Brennan you asked Mr. Hamilton what did that word mean?

What might it mean, he kept saying he would answer, he has finally come back with an answer which appears to me to be, well, that word only applied to oil claims, it doesn’t have anything to do with oil shale at all.

That may be true in this sense.

As we point out in our brief, the only legislative history which specifically addresses itself to the question, what shall happen to the pending oil shale claims, he says that anyone who has an oil shale claim may trade it in for a lease.

That is the sole direct legislative history on the oil shale claims in their savings as you may get a lease, the lease was to run for relatively indefinitely but one advantage of the lease was that the Secretary could suspend the payment of any rent or royalty for five years and it was quite clear while that was provided, that was provided in order to encourage people to get the leases and then recognition that people weren’t going to be working on these lands for a while because nobody knew how to make oil from shale.

Mr. Hamilton’s clients are working very hard at that but they still haven’t.

40 years later, 50 years later, there is still no commercial process in this country making oil from shale.

Chief Justice Warren E. Burger: Is there a public policy aspect involved in the background at least here to encourage the development of this gone private -- by the private sector rather than have it either not develop on the one hand or (Voice Overlap) --

Mr. Peter L. Strauss: (Voice Overlap) public policies is precisely the contrary.

The public policy of the Mineral Leasing Act was to have this and to encourage the development through a lease and there are all kinds of reasons today, environmental considerations, not the least of them, why that should be done.

Now, there was this limited exception left for people who had valid claims and maintained them and I think if one reads the legislative history, one can come away with no conclusion other then that meant diligence.

Mr. Hamilton admitted as much.

What he said was, “This language came in there because of people who were prospecting for oil.”

Now the rule, as it applied to them, wasn’t just a hundred dollars worth of work.

You had to be on that land working every minute trying to get the oil.

If you took your drills away for thirty days, you lost your right to the land.

Surely, the Congress which imposed that kind of drastic rule would never have considered what happened in this case but --

Chief Justice Warren E. Burger: But isn’t there a difference between that case and the oil shale case -- situation?

Mr. Peter L. Strauss: None in practice.

Mr. Chief Justice, the --

Chief Justice Warren E. Burger: Well, I understood you to say it just now that we haven’t been able to develop the processes of extracting oil from shale and they have been working on it for 50 years, more or less?

Mr. Peter L. Strauss: Well, that’s right.

Chief Justice Warren E. Burger: But that’s all done at a private expense, I take it, isn’t it?

Mr. Peter L. Strauss: The development is done at private expense, if I may say that with the exception of -- one of Mr. Hamilton’s clients, perhaps two of them, the one in particular, given its name to this case that begun in 1955, there's been very little serious work.

The people from whom these claims came, 13,000 acres of the 18 thousand acres in this case, were located over a space of a month.

Less than a month by people who never returned to the land, never replied to the Secretary, work was never done on that land, they weren’t maintained in any sense of the world.

In 1954, there was some speculator who went around, sort of gathering quietly gathering up the claims and turning them into what the Oil Shale Company was --

Justice Hugo L. Black: Are you suggesting this?

And that there's no valid claim that if -- before 1920, the assessment work had not been done?

Mr. Peter L. Strauss: No, I’m not suggesting that.

And I think that that -- if I may, it takes me back to a statement that Mr. Hamilton made.

He said that before 1920, nobody ever thought that the Government could have any interest in assessment work.

That is true only as a general rule.

There were cases and we cite them in our brief where the Government needed a land for a dam or for a fort or for some other specific purpose and in that case, it went out and it got interested in whether the land was being maintained again.

If once --

Justice Hugo L. Black: You mean, maintained it, in what sense?

Mr. Peter L. Strauss: In the assessment work sense among others.

The case of E.C. Kenny which is --

Justice Hugo L. Black: I have to confess, I’m a little lost.

I thought the basic premise of your case was that the -- a condition to retaining a possessory interest clause that could continue to do the assessment work required by the statute, am I wrong?

Mr. Peter L. Strauss: No.

Our case is that a condition of maintaining of maintaining the claim is that you continue to do the assessment work up to a point where the Government may come in and relocate in effect that in this kind of case where the Government wishes land for a specific use whether it be a dam, or a national park, or a national forest or an order to lease it.

If it comes along and it finds that here is a piece of land and the people who have claims on this land aren't using it, aren't maintaining it, aren't doing assessment work at this point, it can post the land and take it back.

That’s precisely what was done in these cases.

Indeed, this is a case very much, if these were private individuals involved.

I have every confidence that the Colorado courts would say, the Government, it’s taken over these lands by adverse possession and staked them in 1932.

No one else briefed on them till 1954.

It seems to me incredible that one could have a state of law that said that these claims must be honored today.

There was some discussion of abandonment, there's a remedy for the Government.

The difficulty with that remedy, the practical difficulty with that remedy again is the sentence in Virginia-Colorado.

Before I get to it, I’d like to read some sentences from some other Supreme Court opinion.

In Union Oil Company versus Smith, Volume 249 of this Court’s report, the Court said, “The possessory right is lost only by abandonment as by non-performance of the annual assessment work.”

In Donnelly versus United States in 228 U.S., the court said, “Of course under the mining law, a claim may be abandoned by failure to do the required development work.”

So up to this point, the Government, if it could show that assessment work was not being done, might have some kind of remedy if it called it abandonment, in Virginia-Colorado, we find a very different sentence.

That sentence says, “The Government gained no right by the failure to do assessment work.

The failure to do assessment is no evidence of abandonment.”

But that is a very pernicious sentence.

Justice Hugo L. Black: (Inaudible)

Mr. Peter L. Strauss: That it is principally that sentence in terms of the effect on the Government’s continuing right and I say it is also if I may in conclusion, there is also this other matter that we do not believe that the Secretary back in 1935 exceeded his jurisdiction when he passed on these claims even if they were erroneous.

We are confident Mr. Justice Black from your opinions in United States versus San Francisco and United States versus California that any error the Secretary may have made in interpreting this Court’s holding does not mean that on the basis of that error, the Government must give up its claim to these three million acres of land, it is --

Justice Hugo L. Black: And of course to that argument, when I look at the Ickes against the Development Corporation, --

Mr. Peter L. Strauss: Your Honor --

Justice Hugo L. Black: Mr. Chief Justice Hughes said, that was as far to -- the Secretary of the Interior by appropriate proceedings to determine that a claim was invalid for lack of discovery or fraud or other defects or that it was subject to cancellation by reason of abandonment, so that I would suppose that maybe your only objection to this case, I may be wrong, would be that the Government has all the remedies it would have, it has the title, it has not passed from -- so that if a person owns it to the internal exclusion of the Government.

But that the Government can proceed and that I would suppose that failure to asses would -- and even now, I think it could be held and should be held that the failure to asses was evidence pointing in the direction of abandonment.

Mr. Peter L. Strauss: Well, if you’ll turn to page 646 of that court’s opinion Mr. Justice Black.

Justice Hugo L. Black: Yes.

Mr. Peter L. Strauss: You will see the following sentence.

Plaintiff had lost no rights by a failure to do the annual assessment work.

That failure gave the Government no ground of forfeiture.

Justice Hugo L. Black: And one might agree with them as you gave no ground to forfeiture.

It is still not saying that it didn’t -- it wasn’t some evidence that they had abandoned their claim.

Mr. Peter L. Strauss: Well, I think you can be quite sure that in the ensuing proceedings and it -- I must say it’s a reasonable reading of that language, people will take that language to mean that it was no evidence.

Justice Hugo L. Black: But that language might be explained.

Mr. Peter L. Strauss: Yes it might.

Justice Hugo L. Black: Except that two sentences before that.

The introduction of that discussion is a sentence -- there is no ground for a charge of abandonment.

Mr. Peter L. Strauss: Well, I think that was true as I explained before in the circumstances of that case.

Justice Hugo L. Black: (Voice Overlap) isn’t that connected with the later sentence, the plaintiff had no lost no rights but fairly to do the annual assessment work.

Mr. Peter L. Strauss: If I may review for a moment the circumstances of that case, the court had decided Wilbur versus Krushnic in 1930.

The plaintiffs of the Virginia-Colorado Company had been doing assessment work up to that very year.

When Wilbur versus Krushnic was decided, there may have come to be a belief or it’s no longer necessary to do this work.

So for 15 months and it was only 15 months, it was not 50 years, the work stopped.

At the end of the 15 months, the Secretary came in, the claimants in that case, unlike most of the claimants here, responded and they said, “No, we’re all set to go back on the land.

We are ready to resume doing the assessment work.

We’re going to do it.”

And that was stipulated and agreed to as being the actual state of affairs.

And in that circumstances, we would agree that there was no ground of forfeiture.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Strauss.

Mr. Hamilton, you have about 3 minutes over.

For Mr. Strauss, if you need --

Rebuttal of Fowler Hamilton

Mr. Fowler Hamilton: May I just make one comment --

Chief Justice Warren E. Burger: -- need to comment.

Mr. Fowler Hamilton: In connection with maintenance, I have given you our view of the genesis of the phrase, “to maintain.”

We think that when Chief Justice Hughes was discussing in the latter paragraph in which he said a claim could be maintained by doing assessment work.

He was answering in effect to a rhetorical question that would have been to put to him in the course of the argument in the brief so that we say that as a matter of definition, a claim can be maintained against other people an relocators by doing assessment work.

It can be maintained against the Government by not abandoning it.

It can be maintained against the Government.

In other words, by doing all of those things that are necessary to qualify you for a patent.

Thank you sir.

Chief Justice Warren E. Burger: Thank you Mr. Hamilton.

Thank you Mr. Strauss.

The case is submitted.