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April 17, 1964

decisions of the Land Commissioner canceling oil shale placer claims were void and had no effect on the claim.30

The argument advanced by the appellants is not based on the facts. While some officials of the Department may have expressed the view that the original cancellations were void and of no effect, at the same time, action was taken with respect to the subject land which was entirely inconsistent with the recognition of valid and subsisting claims.

On April 15, 1930, pursuant to Executive Order No. 5327, all oil shale deposits owned by the United States were withdrawn, subject to valid existing rights, from lease or other disposal, except for application for patent under the mining laws for metalliferous mining claims or application based on claims initiated prior to the date of the withdrawal. The withdrawn lands were reserved for purposes of investigation, examination and classification. See Instructions, Circular No. 1220, 53 I.D. 127 (1930). Among the lands included in the withdrawal are those here under consideration as indicated in the instructions dated April 22, 1931, from the Commissioner of the General Land Office to the Register, Denver, Colorado, which listed among the subdivisions in Colorado covered by Executive Order No. 5327 all of secs. 7 to 36, T. 4 S., R. 99 W., 6th P.M.

Executive Order No. 5327, above-mentioned, attached to the lands here under consideration as a secondary claim and operated to withdraw them from the public domain when the determination that the mining claims were null and void for failure to do assessment work became final, since, on the termination of the mining locations, possessory title to the lands reverted to the United States. See Cameron v. United States, 252 U.S. 450 (1920); Gabbs Exploration Company, 67 I.D. 160, 169 (1960); and Solicitor's Opinion, 55 I.D. 205, 208 (1935). And see, Vanadium Corporation of America, et al., A-26914 (September 8, 1954). As a result of the decisions of the Land Commissioner in 1930 and 1931 declaring these claims null and void for failure to do assessment work, Executive Order No. 5327 was operative to exclude all subsequent entries thereon, except as permitted by the order.

20 The following documents were submitted by the appellants as evidence of the Department's position :

1. Letter of July 29, 1935, from the Commissioner of the General Land Office to the Register, Denver, Colorado (attached as Appendix C-1).

2. Letter of April 22, 1936, from Ida Dere, Grand Valley, Colorado (then owner of the Lucy Agnes Nos. 1-2 oll shale placer claims), to the Commissioner, General Land Office (attached as Appendix C-2).

3. Letter of May 4, 1936, from the Commissioner, General Land Office, to Ida Dere, Grand Valley, Colorado (attached as Appendix C-3).

4. Letter of July 4, 1944, from the Commissioner, General Land Office, to Mr. W. Porter Nelson, Denver, Colorado (attached as Appendix C-4).

5. Letter from the Commissioner, General Land Office, to Mr. Edward Altenbern, DeBeque, Colorado (attached as Appendix C-5).

6. Letter of October 31, 1935, from the Acting Secretary of the Interior to the Secretary of the Navy (attached as Appendix C-6).

On February 6, 1933, Executive Order No. 6016 authorized the issuance of oil and gas leases under the Mineral Leasing Act on lands withdrawn by Executive Order No.5327.

Pursuant to the later Executive Order, the Department has issued numerous oil and gas leases and the rights of the third party lessees have intervened. Some of the oil and gas leases are still outstanding and proceedings have been instituted under the Multiple Mineral Development Act (Act of August 13, 1954, as amended (30 U.S.C., sec. 527)), to determine the rights as between oil shale placer claimants and lessees under oil and gas leases issued by the United States. Such proceedings have been suspended pending the outcome of the subject appeals.

The important point here is that, on many of the tracts in question, the United States, acting largely by and through this Department, has, for some 25 years since the cancellation of the oil shale placer claims, exercised exclusive control over the land and has permitted third parties to acquire rights therein. In view of these facts, the assertion on appeal that the United States or the Secretary of the Interior has recognized the validity of these mining claims and has not taken action which is inconsistent therewith, is without support.

But even assuming, arguendo, that a long-standing continuous and consistent departmental recognition of these claims is shown, such a showing would not entitle the appellants to patents on these claims. For reasons heretofore stated, the validity of these claims was not established by the decision of the Department in The Shale Oil Company case, supra, nor by any subsequent administrative or judicial action, and any administrative practice to the contrary would have been clearly erroneous. Administrative practice, however long-standing and consistent, is not controlling when it is clearly erroneous. County of Marin v. United States, 356 U.S. 412 (1958); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946); Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932); Webster v. Luther, 163 U.S. 331 (1896); Merritt v. Cameron, 137 U.S. 542 (1890); United States v. Graham, 110 U.S. 219 (1884); Swift Company v. United States, 105 U.S. 691 (1881). And see Solicitor's Opinion, 68 I.D. 372 (1961), and cases cited herein.

Furthermore, the application of doctrine of administrative practice or construction is "* * * restricted to cases in which the construction involved is really one of doubt and where those to be affected have relied on the practical construction, and rights have accrued by reason of such reliance." Studebaker v. Perry, 184 U.S. 258, 269 (1902). 31 April 17, 1964 (Italics supplied.) Here the appellants have attempted to demonstrate the existence of a long-continued practice by this Department in recognizing the validity of their claims. In support thereof, they have submitted the documentation above-mentioned.32 Yet there is no clear showing that any of the appellants knew of or relied upon any of these documents at the time they acquired an interest in their claims. Indeed, it appears that the existence of such documents became known to the appellants only after their claims were challenged and their patent applications rejected by the Land Manager in 1962. Under these circumstances, no rights have accrued to the appellants by reason of the alleged departmental practice. Summary

31 See generally, Annot., 73 L. Ed. 322 (1928), and, Annot., 84 L. Ed. 28 (1939).

In summary, we have found (1) that the Secretary and his duly authorized agent, the Land Commissioner, had jurisdiction to enter upon inquiry as to the validity of oil shale placer claims under the applicable statutes; (2) that they had the jurisdiction to construe such statutes in defining their authority; (3) that in the exercise of this function they may have erred in canceling claims including some of the claims upon which the patent applications in the present case are based; (4) that these cancellations were not appealed from by the appellants or their predecessors in interest; (5) that neither the appellants nor their predecessors in interest sought to attack these decisions for over 25 years. We conclude that, on the principles of res judicata, finality of administrative action, and laches, the said decisions of the Land Commissioner and the Secretary of the Interior are binding on the parties thereto and their successors in interest insofar as these claims were actually canceled in the original contest proceedings in which the then-owners of the claims were properly served with notice of contest and provided an opportunity for a hearing respecting the validity of the claim.

As heretofore mentioned, the following claims were canceled in contest proceedings in which the then-owners of the claims participated, thus eliminating any question concerning the sufficiency of or defects in the issuance of notice: Claim

Patent Application Contest Carbon Nos. 1-4.-

Colo, No. 030979 No. 12029 Elizabeth Nos. 1, 2, 4-12---

Colo. No. 030979 No. 12029 Southeast

Colo. No. 028751 No. 12972 Northeast.

Colo. No. 028751 No. 12972 Northwest

Colo. No. 028751 No. 12972 Oyler Nos. 1-4..

Colo. No. 012327 No. 12039 Jack Pot Nos. 4-11.

Colo. No. 045092 No. 13038

28 See footnote 30, supra.

733-462-64- 3

As to these claims, the decisions of the Land Manager rejecting applications for patents are hereby affirmed.

As to all other claims involved in this appeal, the final order affirm. ing or reversing the decision of the Land Manager will be held in abeyance pending a determination of the sufficiency of notice of contest in the contest proceedings in which the claims were canceled. The appellants holding such claims who wish to pursue the contention that their claims were canceled without compliance with the requirements of notice, are hereby granted 60 days within which to submit materials relating solely to such contention. Thereupon, a determination regarding the sufficiency of notice will be made and a final order entered on the appeal. If necessary, hearings will be ordered to resolve any factual questions which remain unresolved on the record. Appellants who do not submit such materials shall be considered to have conceded that the departmental records accurately reflect the facts regarding the issuance of notice in the contest proceedings and the determination will be made on the basis of the present record.

This decision is rendered and the action herein set forth is taken pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4)(a); 24 F.R. 1348).

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MANNER OF PROCEEDING IN CONTESTS INITIATED UPON A REPORT BY A

REPRESENTATIVE OF THE GENERAL LAND OFFICE

WASHINGTON, D.C., February 26, 1916.

To Special Agents, and Registers and Receivers, United States Land

Offices:

The following rules are prescribed for proceedings in contests initiated upon a report by a representative of the General Land Office. All existing instructions in conflict herewith are superseded :

1. The purpose hereof is to secure speedy action upon claims to the public lands, and to allow claimant, entryman, or other claimant of record, opportunity to file a denial of the charges against the entry or claim, and to be heard thereon if he so desires.

2. Upon receipt of a report this office will consider the same and determine therefrom whether the facts stated, if true, would warrant the rejection or cancellation of the entry or claim.

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