challenged in a suit in equity and appealed eventually to the Supreme Court. The Court, in Stockley v. United States, 260 U.S. 532 (1923), held that:

The action of the Commissioner of the General Land Office, therefore, in directing a contest against Stockley's entry three years after the issuance to him of the receiver's receipt, was unauthorized and void. (Italics supplied.) 260 U.S. at 544.

Following the Supreme Court's decision in the Stockley case, Mrs. Kelly applied for an unrestricted patent claiming the earlier contest against her entry was "unauthorized and void." The Department's decision contains the following pertinent statement:

The Department has held that a decision made in accordance with the practice prevailing at the time it was rendered, if accepted by the parties affected as final, will not be reopened for the reason that the practice then prevailing has subsequently been held erroneous by the Supreme Court. supplied.) 49 L.D. at 662.

(Italics

The principle upon which the Department relied in canceling numerous oil shale placer claims was declared by the Supreme Court to be erroneous and beyond the authority conferred by applicable statutes. Ickes v. Virginia-Colorado Development Corporation, supra. The early decisions in the cases presently before the Secretary were not appealed and the Department has not vacated them. They were acquiesced in by those adversely affected for over 25 years. "The fact that ***" the principle on which these earlier decisions are based is "*** now held by the Supreme Court to be erroneous is not deemed a sufficient reason for reversing and annulling decisions which have become final." Mee v. Hughart, supra.

Jurisdiction of the Land Commissioner and Effect of Ickes v. Virginia-Colorado Development Corporation

The appellants contend that the Supreme Court, in Ickes v. Virginia-Colorado Development Corporation, supra, held that the Department of the Interior was without jurisdiction to cancel claims for failure to do assessment work. Of course, no adjudication can be said to be res judicata if it was rendered by a tribunal not having jurisdiction.18 But the Court did not hold that the Department lacked jurisdiction. To the contrary, it was held that:

There was authority in the Secretary of the Interior, by appropriate proceedings, to determine that a claim was invalid for lack of discovery, fraud,

18 Compare, Best v. Polk, 85 U.S. (18 Wall.) 112 (1873), with, Minter v. Crommelin, 59 U.S. (18 How.) 87 (1855). And compare, Doolan v. Carr, 125 U.S. 618 (1887), with, Quinby v. Conlan, 104 U.S. 420 (1882). And see, American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).

April 17, 1964

or other defect, or that is was subject to cancellation by reason of abandonment.19 295 U.S. at 645.

And on the question of the Secretary's authority to cancel for failure to perform assessment work, the Court stated:

We think that the Department's challenge, its adverse proceedings, and the decision set forth in the bill went beyond the authority conferred by law. 295 U.S. at 647.

It is on the basis of this language that appellants contend that the Secretary was without jurisdiction to challenge these claims. A close examination of that language, the history of the litigation and related decisions require the rejection of appellants' contention.

Earlier, in Wilbur v. Krushnic, 280 U.S. 306 (1930), the Court had concluded that the Department could not cancel claims upon the ground of failure to do assessment work following the resumption of work. The Court did not deny the Secretary's jurisdiction. In fact, it affirmed his full authority to consider the case but found that he had “*** interpreted and applied a statute in a way contrary to its explicit terms ***" 20 In explaining the effect of the Secretary's error in construing the statute," Roberts v. United States, 176 U.S. 221 (1900), was quoted as follows:

* Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. * * * 176 U.S. at 231.2

A clear analogy exists in the principles applicable to the public lands. Cameron v. United States, 252 U.S. 450 (1920). In the Cameron case the Court stated:

By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the Land Department, as a special tribunal; and the Secretary of the Interior, as the head of the Department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. 252 U.S. at 459-60.

Citing Cameron v. United States, 252 U.S. 450, 460 (1920); Cole v. Ralph, 252 U.S. 286 (1920); Black v. Elkhorn Mining Co., 163 U.S. 445, 450 (1896); Brown v. Gurney, 201 U.S. 184, 192, 193 (1906); Farrell v. Lockhart, 210 U.S. 142, 147 (1908). 20280 U.S. at 319.

21 The Mineral Leasing Act of 1920, 41 Stat. 451, 30 U.S.C., sec. 193.

See also, United States ex rel. Ness V. Fisher, 223 U.S. 683 (1912); and Decatur v. Pauling, 39 U.S. (14 Pet.) 497 (1840).

Citing Rev. Stat., secs. 441, 453, 2476; United States v. Schurz, 102 U.S. 378, 395 (1880); Lee v. Johnson, 116 U.S. 48, 52 (1885); Knight v. United States Land Ass'n. 142 U.S. 161, 177, 181 (1891); Riverside Oil Co. v. Hitchcock, 190 U.S. 316 (1903). The nature and extent of the Department's jurisdiction over the disposition of public lands, and particularly under the mining laws, was more recently discussed in Duguid v. Best, 291 F.2d 235 (9th Cir. 1961), in the following terms:

And further:

True, the Mineral Land Law does not itself confer such authority on the land department. Neither does it place the authority elsewhere. But this does not mean that the authority does not exist anywhere, for, in the absence of some direction to the contrary, the general statutory provisions before mentioned vest it in the land department. 252 U.S. at 461.2

These principles were most recently reiterated by the Supreme Court in Best v. Humboldt Mining Co., 371 U.S. 334, 337 (1963).

In United States v. Winona & St. P.R. Co., 67 Fed. 848 (8th Cir. 1895), aff'd., 165 U.S. 463 (1897), the Court of Appeals set forth the following test for determining whether the Land Department has jurisdiction over the subject matter with which it purports to deal:

* Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and determine whether or not they are sufficient to invoke the exercise of that power. The test of jurisdiction is whether the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong.25 (Italics supplied.) 67 Fed. 959-60.

Having concluded that the Secretary or the Land Commissioner had jurisdiction over the subject matter of the claims presently in dispute, and that they had the necessary authority to enter upon the inquiry as to the validity of the claim, we have only to determine the ultimate effect of an error of law committed by these officials in the exercise of this authority. In this regard, we do not question that the appellants or their predecessors in interest could have invoked judicial review of the Department's decisions under applicable precedent,26 even

It is undisputed that the Congress has granted to the Secretary of the Interior general supervisory authority over public business relating to public lands, including mines.

"there can be no question as to the power and authority of the Secretary of the Interior, under the grant of authority to supervise public business on public lands, including mines, to initiate through the subordinate Bureau of Land Management a contest in order to see "that valid claims on public land may be recognized, invalid ones eliminated, and the rights of the public preserved." 291 F. 2d at 241. 24 See also Cole v. Ralph, supra, fn. 19; Farrell v. Lockhart, supra, fn. 19; Brown v. Gurney, supra, fn. 19; and Black v. Elkhorn Mining Co., supra, fn. 19. And see generally, Standard Oil Co. of California v. United States, 107 F. 2d 402 (9th Cir. 1940).

25 See also, United States v. Northern Pac. R. Co., 95 Fed. 864 (8th Cir. 1899), aff'd., 177 U.S. 435 (1900); and Foltz v. St. Louis & S.R. Ry. Co., 60 Fed. 316 (8th Cir. 1894). And see King v. McAndrews, 111 Fed. 860 (8th Cir. 1901), wherein the court stated the principle as follows:

"The test of jurisdiction is not right decision, but the right to enter upon the inquiry and to make some decision. [Citations] Hence a patent evidencing an erroneous decision of a question of law or a mistaken determination of an issue of fact, which the department was vested with the power, and charged with the duty, to decide, is as impervious to collateral attack as one which is the result of correct conclusions." 111 Fed. at 864.

26 See e.g., El Paso Brick Co. v. McKnight, 233 U.S. 250 (1914), wherein the court held that an order erroneously issued by the Department refusing a patent for a mining claim could not deprive the claimant of vested rights "*** [f] or while the General Land Office had power of supervision over the acts of the local officers, and could annul entries obtained by fraud or made without authority of law, yet if the Department's cancellation

April 17, 1964

though the time within which the claimants could have appealed to the Secretary had expired. The claimants, following the decision in Ickes v. Virginia-Colorado Development Corporation, supra, had at least two alternatives open to them to protect their claims. They could have petitioned the Secretary to exercise his supervisory authority to recall and vacate the Land Commissioner's cancellation of the claim as he had done in The Shale Oil Company, supra, or they could have sought relief in the courts in proper proceedings instituted for that purpose. The claimants did neither.

27

Since the judicial relief which was available to the claimants was equitable in nature, it was incumbent upon them to seek judicial relief within a reasonable time after the Supreme Court, in the VirginiaColorado Development Corporation case, had determined that the cancellations by the Department were erroneous. Otherwise, the claimants' judicial remedy would be subject to the equitable defenses of estoppel and laches unless it were clearly shown that the decision of the Department was void ab initio.

When, as here, the 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 appellants' claim for relief. This conclusion is in accord with the principles set forth in the several recent cases discussed above, all of which involved oil shale placer claims.28 The following

was based upon a mistake of law, its ruling was subject to judicial review when properly drawn in question in judicial proceedings, inasmuch as the power of the land office is not unlimited, nor can it be arbitrarly exercised so as to deprive any person of land lawfully entered and paid for." 233 U.S. at 257-58. (Italics supplied.)

See e.g., Sanford v. Sanford, 139 U.S. 642 (1891); Shepley v. Cowan, 91 U.S. 330 (1875); Silver v. Ladd, 74 U.S. (7 Wall.) 219 (1868).

In Sanford v. Sanford, supra, the court said:

" where the matters determined are not properly before the department, or its conclusions have been reached from a misconstruction, by its officers, of the law applicable to the cases before it, and it has thus denied to parties rights which, upon a correct construction, would have been conceded to them, or where misrepresentations and fraud have been practiced, necessarily affecting its judgment, then the courts, can in a proper proceding, interfere and control its determination so as to secure the just rights of parties injuriously affected." (139 U.S. at 647. (Italics supplied.) See also, Moffat v. United States, 112 U.S. 24 (1884); Bernier v. Bernier, 147 U.S. 242 (1893); Moore v. Robbins, 96 U.S. 538 (1877); Johnson v. Towsley, 80 U.S. (13 Wall.) 72 (1871); Lindsey v. Hawes, 67 U.S. (2 Black) 554 (1862); Lytle v. Arkansas, 63 U.S. (22 How.) 193 (1859); Garland v. Wynn, 61 U.S. (20 How.) 6 (1857); Barnard's Heirs v. Ashley's Heirs, 59 U.S. (18 How.) 43 (1855); Cunningham v. Ashley, 55 U.S. (14 How.) 377 (1852).

28 See Langdon H. Larwill, A-28697 (May 16, 1963); Gabbs Exploration Co., 67 I.D. 160 (1960); aff'd. Gabbs Exploration Co. v. Udall, 315 F. 2d 37 (D.C. Cir. 1960); Garfield County Exploration Co., A-28351 (August 30, 1960); J. C. Nelson, 64 I.D. 103 (1957), See also, Charles D. Edmonson, 61 I.D. 355 (1954), and cases cited therein.

language, used by the court in Gabbs Exploration Co. v. Udall, supra, in rejecting similar claims, is particularly pertinent here:

Here neither plaintiff nor its predecessors in interest took timely action to have the wrong righted, and plaintiff cannot complain of the Secretary's failure to reopen the case. It is significant also that in all the cases cited to us in which a prior decision was reopened the longest period elapsing before reconsideration was three years. Here twenty-seven years have elapsed between the alleged wrong (1929) and plaintiffs attempt to have it corrected (1956). There might be some reason to impel the Secretary to reopen a prior decision in order to purge an incorrect determination, but the passage of time might prevent or greatly hinder a proper determination of the initial question, in which case it would be inappropriate for him to reopen the case even though he retains jurisdiction over the land in dispute * ** 315 F. 2d at 41."

It is evident that the Secretary or the Land Commissioner, in the Krushnic case, in the Virginia-Colorado Development Corporation case, and in the cases before us in this appeal, had the duty, the responsibility and, necessarily then, the jurisdiction to construe the statute. The construction placed upon the statute was appealed in Krushnic and in Virginia-Colorado Development Corporation, and the contention of the appellant that the Secretary erred was upheld. However, in the cases before us, appellants cannot complain after nearly 30 years of silence, inaction, and acquiescence. Neither they nor their “* * * predecessors in interest took timely action to have the wrong righted ***" Gabbs Exploration Co. v. Udall, 315 F.2d at 41.

Past Administrative Practice

Finally, the appellants contend that, following the decision in Ickes v. Virginia-Colorado Development Corporation, supra, and until the Manager's decision in February, 1962, rejecting their applications, the United States has consistently recognized the validity of the subject mining claims. They contend that there has been a long-standing, continuous and consistent administrative interpretation and application of the Virginia-Colorado Development case beginning with the Department's decision in The Shale Oil Company, supra. In this regard, the appellants rely upon certain letters written by officers of the Land Department which expressed the view that the previous

20 The court also observed that:

The Department of the Interior, which has recognized the right of the Secretary to reconsider certain prior decisions, has also recognized that there must be some time limit on such reconsideration. As Assistant Attorney General Van Devanter said in Aspen Consolidated Mining Co. v. Williams, 27 L.D. 1, at 11:

"The parties remain the same and the one complaining of the former decision has taken timely and decisive action to have the alleged wrong corrected." 315 F. 2d at 40-41.