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Best, 293F. 2d 553 (9th Cir. 1961). The Supreme Court granted certiorari, 368 U.S. 983 (1962), and on January 14, 1963, reversed the circuit court on the ground that resort to condemnation in order to obtain possession of the mining claims did not preclude the United States, as titleholder, from adjudication of their validity by administrative procedures. Best v. Humboldt Placer Mining Co., 371 U.S. 334 (9th Cir. 1963).

On January 29, 1963, nearly 21/2 years after the expiration of the period allowed for filing an answer to the amended contest complaint against their mining claims, the appellants filed an answer and a motion to dismiss the complaint. On February 7, 1963, the land office rejected the answer and dismissed the motion on the ground that they were not responsive to any action pending before the Department.

On appeal to the Director of the Bureau of Land Management, the appellants contended that the land office decision of February 7, 1963, was premature and in violation of the injunctive order of the Federal court and that it is a part of a design to split contest proceedings in order to harass the mining claimants and to promote piecemeal litigation. After the Division of Appeals affirmed, the appellants renewed these contentions in the appeal to the Secretary of the Interior and also alleged that the reversal of the District Court by the Court of Appeals caused the decision of the District Court to become a nullity and thus restored the parties to the status they enjoyed before the District Court's decision so that they had the protection of the temporary injunction restraining the land office officials from any further proceedings against their mining claims. They asserted that the granting of certiorari by the Supreme Court did not restore any power of the defendants in the injunction suit to meddle or interfere with their mining claims until after January 14, 1963, when the Supreme Court issued its decision, and after the expiration of the time allowed for filing a petition for rehearing in the Supreme Court. They requested that the decision of the Division of Appeals be vacated and the contest remanded to the land office for consolidation of all the contests affecting land needed for the reclamation project and the determination of the consolidated contest in accordance with established procedures.

The departmental regulations under which the contest in question was commenced provides that,

The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim. (43 CFR, 1964 Supp., 1852.2-1, formerly 43 CFR, 1964 rev., 221.67.)

Within 30 days after service of the complaint or after the last publication of the notice, the contestee must file in the office where the contest is pending an

November 20, 1964

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answer specifically meeting and responding to the allegations of the complaint, together with proof of service of a copy of the answer upon a contestant * * (43 CFR, 1964 Supp., 1852.1-6, formerly 43 CFR, 1964 rev., 221.68; 221.64.)

If an answer is not filed as required, the allegations of the complaint will be taken as admitted by the contestee and the Manager will decide the case without a hearing. (43 CFR, 1964 Supp., 1852.1-7(a), formerly 43 CFR, 1964 rev., 221.65(a).)

When the appellants failed to file an answer to the amended complaint within the time allowed by the land office order of July 14, 1960, they were clearly in default under the rules and it was entirely proper for the land office to declare the claims null and void in its decision of August 3, 1960. At that time, the District Court had dissolved the temporary restraining order issued by it on April 18, 1960, thus freeing the land office of any restraint from proceeding further with the contest.

If the appellants desired further restraint on the Departmental proceedings, as they apparently did, a clear course of action was open to them under the Federal Rules of Civil Procedure. Rule 62 provides

(a) *** Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction * * * shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.

(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

This rule is completely plain that a final judgment of a district court in an injunction action is not stayed during the time allowed for taking an appeal or during the pendency of an appeal unless a further order

a is obtained restoring or granting an injunction during the pendency of an appeal.

After the District Court dissolved the temporary restraining order in this case, appellants took no steps whatsoever under Rule 62(c) to have the injunction restored or a new one issued. They were inactive despite express notice from the land office that it was resuming the contest proceedings and that if they did not answer the contest complaint within the time allowed, the allegations of the complaint would be taken as confessed. All that appellants did was to file a notice of appeal to the circuit court despite the express provision in Rule 62 (a) that an appeal does not stay a judgment in an injunction action.

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There was a second course of action available to the appellants besides seeking a restoration of the injunction under Rule 62(c). They could have filed a request under this Department's rules of practice for an extension of time to file an answer pending completion of the judicial proceedings. 43 CFR, 1964 Supp., 1850.0–6(g), formerly 43 CFR, 1964 rev., 221.97(b).

A third course of action was to file the answer and to request the postponement of further proceedings until the litigation was terminated. 43 CFR, 1964 Supp., 1852.3–3, formerly 43 CFR, 1964 rev., 221.71.

The appellants availed themselves of none of these courses of action. They stood therefore in no position to complain of the default action taken by the land office.

This would appear to dispose of the matter except for the peculiar circumstance that litigation in the Humboldt case proceeded through the circuit court and the Supreme Court with both parties and the courts apparently assuming that the proceedings in the Department were still

and would remain open until a final decision was rendered in the Humboldt case. As noted earlier, the land office rendered its decision declaring appellants' claims to be null and void on August 3, 1960, which was after the final judgment of the District Court was entered on July 13, 1960. On September 8, 1960, the appellants appealed from the District Court's decision. Then on October 11, 1960, the land office closed the contest case because of the appellants' failure to appeal from its August 3, 1960, decision.

The administrative actions were apparently overlooked in the further course of the litigation. Thus, the circuit court, in its opinion issued on August 18, 1961, stated:

• • • While we are not advised whether the district court has deferred further proceedings in the condemnation action pending the final determination of the administrative proceedings, it is clear from the following language of the district court's opinion in the instant case that such action will be taken (Italics added). 293 F. 2d at 555. This language reflected the clear understanding of the court that the administrative proceedings were still open, not that they had been finally closed on October 11, 1960, almost a year earlier.

And, when the case was before the Supreme Court, that court took note of an argument by appellants as follows:

Respondents protest, saying that if they are remitted to the administrative proceeding, they will suffer disadvantages in that the procedures before the District Court are much less onerous on claimants than those before the Depart. ment of the Interior [footnote omitted). We express no views on those contentions, as each of them can appropriately be raised in the administrative proceedings and reserved for judicial review (Italics added). 371 U.S. at 339-340.

November 20, 1964

Thus the Supreme Court too assumed that the administrative proceedings would be resumed following its decision.

In this unusual situation, although the appellants invited the land office action against them by their culpable negligence in failing to have the injunction restored or to have their time for answering extended, the question arises as to whether the land office action must be affirmed.

The language of the pertinent Departmental rule quoted earlier is mandatory that if an answer is not filed "the allegations of the complaint will be taken as admitted by the contestee and the Manager will decide the case without a hearing.” 43 CFR, 1964 Supp., 1852.1–7(a). This rule has been strictly enforced from its inception and no deviations have been made. This has been so in Government contests 1 and private contests. Thus the unbroken line of Departmental rulings has been that, where a contestee fails to answer timely, the allegations of the complaint will be taken as admitted and a decision rendered against him.

In view of the consistent rulings of the Department and the appellants' clear and inexcusable failure to relieve themselves of the necessity of filing a timely answer to the contest complaint after the District Court's dissolution of the temporary restraining order, the land office and the Division of Appeals were clearly correct in rejecting the appellants' belated answer filed on January 29, 1963. The question that remains is whether the Secretary is bound to affirm the rejection and, if he is not, whether he should nonetheless affirm the rejection.

In United States v. J. Hubert Smith, supra, fn. 1, and in Earl D. Deater v. John C. Slagle, supra, fn. 2, the Department held that the Secretary could not waive the regulation providing for a default decision against a contestee if he fails to answer timely, citing Chapman v. Sheridan-Wyoming Coal Company, 338 U.S. 621 (1950), and McKay v. Wahlenmaier, 226 F. 2d 35 (D.C. Cir. 1955). In the Smith case, however, although a Government contest was brought in the name of the United States, the contest was initiated by the United States Forest Service of the Department of Agriculture. And, in Deater v. Slagle, the contest was one between private parties. In Government contest cases initiated by the Bureau of Land Management of this Department no ruling has been made as to whether the regulation may be waived by the Secretary in unusual circumstances.

1 United States V. J. Hubert Smith, 67 I.D. 311 (1960) ; United States v. Raymer Garnett et al., A-28545 (January 31, 1961); United States v. Henry Gilligan et al., A-28857 (February 19, 1962); United States v. Gifford Allen et al., A-28718 (July 26, 1962); United States v. Ruben J. Garcia et al., A-28889 (July 30, 1962); United States v. Carl D. Jensen, A-28789 (August 6, 1962); United States v. Bradley-Turner Mines, Inc., A-29813 (November 19, 1963).

2 Earl D. Deater v. John O. Slagle, A-28121 (May 24, 1960); F. Don Wadsworth v. Don Farrell Anhder, Sr., 70 I.D. 537 (1963).

In view of the fact that the contest proceedings here were instituted by the State Supervisor of the Bureau of Land Management and that the interests of third parties are not involved, and in view of the definite impression of the circuit court and the Supreme Court that the contest proceedings had been held in abeyance pending a final decision in the litigation, the Department will entertain a petition by the appellants to have their answer filed on January 29, 1963, accepted and to reinstate the contest proceedings. The petition, to be acceptable, must be filed in the Office of the Secretary within 20 days after service of a copy of this decision upon appellants' counsel.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), further action in the case will be suspended for a period not to exceed 20 days from the date of service of a copy of this decision on appellants' counsel in order to permit appellants to file the petition described; if the petition is not timely filed, the decision appealed from will be affirmed without further notice.

a

FRANK J. BARRY,

Solicitor.

PARADISE IRRIGATION DISTRICT V. JAMES DUGUID AND

BERTHA V. DUGUID

A-30125

Decided November 20, 1964

Mining Claims: Contests—Rules of Practice: Private Contests
A determination of the invalidity of a mining claim by the manager of a land

office is proper in a private contest when the claimant fails to answer within the period allowed by the departmental rules of practice; it is no excuse that the contestee has brought an action in the Federal district court to enjoin the contest proceedings and secured a temporary restraining order when thereafter the restraining order is dissolved and, although the contestee appeals to the circuit court, he fails to have the injunction restored

or a new one granted. Mining Claims: Contests—Rules of Practice: Private Contests—Regula

tions: Waiver The Departmental regulation providing that, where a timely answer is not

filed in a contest proceeding, the case will be decided on the basis of the allegations in the conplaint, cannot be waived in the case of a private contest.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

James Duguid and Bertha V. Duguid have appealed to the Secretary of the Interior from a decision of the Division of Appeals of the

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