paragraph were cases where the claim appealed to the Board was the selfsame claim upon which the Comptroller General had passed. In such circumstances the relitigation before the Board of a question of law which had been decided by the Comptroller General in the due exercise of authority conferred upon him by law would hardly seem to be consistent with the principle of "res judicata," as expressed in the statutory phrase "final and conclusive." 46 On the other hand, the claims now before the Board are ones upon which, so far as the record shows, the Comptroller General has never had occasion to pass. The holding in Dec. Comp. Gen. B-152346 was not rendered with respect to those claims and, hence, the claims are not "res judicata" and, as applied to them, the holding is not a "final and conclusive" determination, but merely a precedent." Decisions of the Comptroller General are significant and valuable precedents in the field of Government contracts, and have been repeatedly followed by this Board. Here, however, the precedent is so outweighed by other precedents that it should not be followed.

The motion for reconsideration, therefore, is denied.

A review of the appeal file has convinced the Board that it was on sound ground when in the decision of August 27, 1963, it concluded "that the holding of a conference for the purposes stated in 43 CFR 4.9 would simplify procedures and may provide for a speedier disposition of the appeals." The matters that would be considered at such a conference include, among others, the definition of the precise content of the issues, the need for further findings of fact by the contracting officer, the scope of the issues to be covered at the hearing, the identity of the witnesses and documents to be presented, and the extent to which testimony relevant to issues of timeliness would also be relevant to other issues. The Board will, at an early date, set an appropriate time and place for the conference.

WE CONCUR:

THOMAS M. DURSTON, Member.

PAUL H. GANTT, Chairman.

HERBERT J. SLAUGHTER, Member.

48 Cf. Magnolia Petroleum Company v. Hunt, 320 U.S. 430 (1943); R. G. Brown, Jr., and Company, IBCA-356 (July 26, 1963), 1963 BCA par. 3799, 5 Gov. Contr. 406(k).

47 This is also true of Dec. Comp. Gen. B-153672 (April 1, 1964) which, as reported in

6 Gov. Contr. 189, appears to parallel in some respects Dec. Comp. Gen. B-152346.

A-29560

UNION OIL CO. OF CALIFORNIA ET AL.
Decided April 17, 1964*

Mining Claims: Patent-Administrative Practice

The proceedings leading to the cancellation of a mining claim will not be reopened many years after the decision has become final in the absence of a compelling legal or equitable basis warranting reconsideration and an application for patent on a mining claim is properly rejected where, more than sixteen years before the patent application was filed, the claim had been declared null and void and thereafter canceled.

Mining Claims: Determination of Validity-Mining Claims:

Contests-Rules of Practice: Appeals: Failure to Appeal

A decision declaring a mining claim null and void is conclusive and will not be reopened and vacated in the absence of a strong legal or equitable basis warranting reconsideration even though the basis for the cancellation has been found, in other proceedings, to be erroneous, where the claimant, who received notice of adverse charges against his claim, fails to answer the charges as required and fails to appeal or otherwise attack the decision declaring his claim invalid and takes no action with respect to the claim for many years.

Administrative Practice-Mining Claims: Hearings

A hearing is not required by departmental practice or by the requirements of due process on the rejection of an application for a patent on mining claims which, over 25 years before the patent application was filed, were declared null and void in adverse proceedings or by a default decision after notice of charges against the claims and an opportunity for a hearing thereon were given the record title owner of the claims.

Rules of Practice: Appeals: Failure to Appeal

One who fails to appeal from the cancellation of a mining claim is not entitled to a patent for which application is filed more than 25 years after such cancellation, even though the cancellation was erroneous.

Res Judicata

The doctrine of res judicata or its administrative law counterpart, the doctrine of finality of administrative action, has been recognized and applied in appropriate cases before the Department of the Interior since 1883. This doctrine is designed to achieve orderliness in the administration of the public lands as well as finality of decisions which have been closed finally and have not been appealed or otherwise attacked.

Res Judicata

When an administrative officer has acted within his jurisdiction and a judicial review of such action has not been sought on a timely basis, the principles of estoppel, laches and res judicata are merged in the doctrine of finality of administrative action and are operative to bar a claim for relief.

*Not in chronological order.

733-462-64

-1

71 I.D. No. 5

Administrative Practice

Administrative practice, no matter how long standing, is not controlling when it is clearly erroneous.

APPEAL FROM LAND OFFICE DECISIONS

The Union Oil Company of California and others have each appealed to the Director of the Bureau of Land Management from decisions of the Manager of the Colorado Land Office issued on February 16 and 23, 1962. These decisions rejected mineral patent applications for oil shale placer mining claims on lands in Garfield and Rio Blanco Counties, Colorado. The Secretary assumed supervisory jurisdiction because of the importance of the issues involved and assigned the case to the Solicitor for final decision. Since the facts out of which these appeals arise are identical or similar and, since all of the claims involve identical issues and common questions of law, the appeals will be considered together.

The Manager rejected each of the patent applications under consideration on the ground that appellant's mining claims had been declared null and void in adverse proceedings brought by the Government between 1930 and 1933 on the charge of failure to perform annual assessment work. In 1935, in a case not involved in this appeal, the Supreme Court held that failure to perform annual assessment work was not a ground for cancellation of oil shale placer claims by the Government. Ickes v. Virginia-Colorado Development Corporation, 295 U.S. 639 (1935). The basis of the Manager's decisions in the present cases was not that the original cancellations were correct as a matter of law at the time they were made, but rather, that "under*** principles of finality of administrative action, estoppel by adjudication, and res judicata* * *,” they cannot now be challenged.

As a preliminary matter, the appellants have joined in a motion to vacate the Colorado Land Office Manager's decisions or, in the alternative, to remand these cases for full hearing, after notice, of matters of fact and law relied upon by the Manager in rendering his decisions. The motion is based on assertions which, for the most part, raise the same issues involved in the appeal. The issues raised in the motion will, therefore, be disposed of in this opinion together with the issues raised by the appellants on the appeal.

The decisions of the Land Office Manager are first attacked on the ground that the Department was required by law and regulation to provide a hearing on the questions of fact and law decided by the

1 The appeal numbers, the names of the appellants, the serial numbers of their patent applications, and the dates of the decisions appealed from are set forth in Appendix A. 2 Memorandum of the Secretary, May 8, 1962.

April 17, 1964

Manager. It is further asserted that the Manager exceeded his authority in that the decisions rendered by him were tantamount to an adjudication of the validity of the appellant's mining claims, no hearing having been held. This, appellants contend, operates to deprive them of due process of law.

The assertion is then made that the cancellations upon which the Manager based his decisions were of no effect since the Department never obtained personal jurisdiction over the contestees in the original proceedings and, in fact, never actually canceled some of the claims upon which the present appellants base their applications.

Assuming, arguendo, that the Land Office Manager had the authority to decide these cases without providing a de novo hearing in each case, the appellants assert that the principles upon which the Manager based his decision are not controlling here. They contend that, so long as he retains jurisdiction over the lands in question, the Secretary may, in the exercise of his supervisory authority, vacate any decision subsequently found to be in error even though the time within which an appeal could be prosecuted has expired. This, the appellants contend, is what occurred when the Secretary decided The Shale Oil Company, 55 I.D. 287 (1935), which "overruled" prior departmental decisions canceling oil shale placer claims for failure to perform annual assessment work.

Next, the appellants contend that the doctrine of res judicata is not applicable to administrative decisions.

The appellants further assert that the principles of finality of administrative action, estoppel by adjudication and res judicata are inapplicable in the present case since the Supreme Court, in Ickes v.. Virginia-Colorado Development Corporation, supra, held that the cancellation of a mining claim upon the ground of failure to perform annual assessment work was beyond the jurisdiction and power conferred by law upon the Secretary and that such cancellation is now subject to collateral attack.

Finally, the appellants contend that since Ickes v. Virginia-Colorado Development Corporation, supra, and The Shale Oil Company, supra, the Department has consistently treated the early decisions of the Land Commissioner as being void and of no legal effect and has at all times prior to February 1962, recognized the validity of the appellants' claims.

Early Departmental Decisions and Policy

Before considering the appellants' contentions, the early decisions and departmental policy regarding oil shale placer claims will be examined briefly.

Prior to 1920, the Department of the Interior held that failure to perform annual assessment work on mining claims rendered the land subject to relocation by others but did not constitute grounds for the Government to cancel such claims. P. Wolenberg, 29 L.D. 302 (1899). Thereafter, all oil shale lands were withdrawn from location by the Mineral Leasing Act of February 25, 1920 (41 Stat. 451, 30 U.S.C., sec. 193), subject to the rights of owners of valid mining claims "thereafter maintained in compliance with the laws under which initiated."

In Emil Krushnic, 52 L.D. 282 (1927), the Department held that failure to perform annual assessment work was a failure to maintain a claim under the law and automatically subjected the claim to cancellation by the Government. The Supreme Court rejected this theory in Wilbur v. Krushnic, 280 U.S. 306 (1930), and held that a failure to do assessment work could not be challenged by the Government following the resumption of work on the claim.

Following Wilbur v. Krushnic, supra, the Department took the position that the United States could make a lawful challenge to the validity of an oil shale claim for failure to perform annual assessment labor if such challenge was made before assessment work was resumed on the claim. Accordingly, the Land Commissioner ordered that new adverse proceedings be commenced on each claim on which there was an actual default and no resumption of the annual labor required by the statute.

However, in Ickes v. Virginia-Colorado Development Corporation, supra, the Supreme Court declined to accept the Department's theory that oil shale claims could be canceled where assessment work was delinquent and had not been resumed. The Court said that the decision of the Department in canceling these claims “* * * went beyond the authority conferred by law." 295 U.S. at 647.

Shortly thereafter, the Department issued its decision in The Shale Oil Company, 55 I.D. 287 (1935), which recalled and vacated the departmental decision in Virginia-Colorado Development Corporation, 53 I.D. 666 (1932), and held that all other departmental decisions and instructions which were inconsistent with the decision of the Supreme Court were "overruled." The early decisions canceling the claims now being considered were never reopened, recalled or vacated in proceedings following The Shale Oil Company, supra.

3 As required by the Mining Law of May 10, 1872 (Rev. Stat., secs. 2324, 2325; 30 U.S.C., secs. 28, 29).

• Instructions, 53 I.D. 131 (1930).

With one exception, no appeals were taken from the decisions of the Land Commissioner which canceled the claims in issue here. In one case, the cancellation of the Oyler Nos. 1-4 oil shale placer claims was appealed to the Secretary of the Interior. The cancellation was upheld by the Secretary (The Index Shale Oil Company, A-16465 (Mar.