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A. Mary Magdoline.
Q. What was your father's name?
A. Stanislaus.

(Tr. 9)

Administrative Law Judge for hearing de novo to determine heirs, to approve or disapprove wills and to determine creditors rights, if any.

DAVID J. McKEE, Chairman.

Q. Do you have any brothers and sisters?

A. Yes, I have a sister Lucy, Lucy Sanchez.

MITCHELL J. SABAGH, Member.

Q. Mary and your father were brother

UNITED STATES and sister? A. Yes, they are, yes.

V. (Tr. 10) KOSANKE SAND CORPORATION Under the laws of descent in force (ON RECONSIDERATION) in the State of Idaho at the de

12 IBLA 282 cedent's death on August 29, 1969,

Decided August 3, 1973 Felix Aripa and Lucy Sanchez could not be heirs of the decedent Reconsideration of Board decision of as they were not of his blood. They September 3, 1971, 3 IBLA 189, which were related to him by marriage reversed in part a decision of Adminonly.

istrative Law Judge Graydon E. Holt, We find that the record is incom- dated September 16, 1970. plete, and that a proper determina

Board decision of September 3, 1971, tion cannot be made on the evidence before us.

set aside and case remanded. Therefore, we remand this case National Environmental Policy Act, to the Administrative Law Judge Mining Claims: Contests—Mining for a hearing de novo, which shall Claims: Patents include inter alia, proper notifica- It is not necessary for the Government tion of all interested parties, a to prepare

environmental impact transcript incorporating all rele

statement before issuing a patent to a vant testimony and documentary

mining claim, as the patenting of a min

ing claim is not a “major Federal action" evidence admitted at the hearing

within the ambit of section 102 of the and a decision including therein, National Environmental Policy Act, 42 findings of fact and conclusions of U.S.C. $ 4332 (1970). law. See 5 U.S.C. $ 557 (a) (3) (1970).

Mining Claims: Discovery: GenerNOW, THEREFORE, by virtue

ally-Mining Claims: Hearings

Rules of Practice: Hearings of the authority delegated to the Board of Indian Appeals by the The Board of Land Appeals will set aside Secretary of the Interior, 43 CFR

its former decision and remand a contest 4.1, we REVERSE the Order De

proceeding for further hearing where on

reconsideration of such decision it finds nying the Petition for Rehearing additional evidence is necessary for a and REMAND the matter to the final determination.

an

(ON RECONSIDERATION)

August 3, 1973 APPEARANCES: Steven P. Kosanke, September 16, 1970, which had held for the contestee; Charles P. Eddy, null and void for lack of a discovery Esq., Office of the Solicitor, United the N12 of Earache No. 2, Earache States Department of the Interior, Nos. III and 5, Pete, and the N12 Washington, D.C., and E. Kendall of Jeff placer mining claims emClarke, Esq., Field Solicitor, United bracing the N12NW14NE14, N12 States Department of the Interior, San NW14, SW14NW14, N12SE14 Francisco, California for the contest- NW14, sec 8, T. 1 N., R. 1 E., ant; Donn L. Black, Esq., of Orr, Wen- M.D.M., California. The Judge had del & Lawlor, Oakland, California, for premised his decision on the failure the East Bay Regional Park District; of the contestee to demonstrate the Victor Westman, Esq., Deputy County marketability of the silica sands for Counsel of Contra Costa County for which the claims were located. The Contra Costa County; Michael W. Board reversed, holding that while Palmer, Esq., of Berkeley, California the Government had presented a for the Environmental Defense Fund prima facie case as to the invalidity and the California Native Plant So- of the claims, the contestee had ciety; Robert B. Morrill, Esq., of Petty, presented sufficient evidence so as to Andrews, Olsen, Tufts, Jackson & meet its burden of proof. SubSander, San Francisco, California; sequently the contestant and other Beatrice Challis Laws, Esq., of San parties petitioned for reconsideraFrancisco, California, and James W. tion of the Board's decision and subMoorman, Esq., of San Francisco, Cali- mitted briefs in support of their fornia, for the Sierra Club; and petitions. On May 15, 1972, oral Howard A. Twitty, Esq., of Twitty, argument was held before the Sievewright, & Mills, Phoenix, Ari- Board sitting en banc. Having carezona,

for the American Mining fully considered all aspects of the Congress.

case, it is the decision of the Board

that the opinion of September 3, OPINION BY MR. FRISHBERG

1971, be vacated, and that the case INTERIOR BOARD OF LAND

be remanded for further hearing. APPEALS

We take this action with relucOn September 3, 1971, the Board tance. Additional proceedings will of Land Appeals, in United States entail time and money. Yet the Dev. Kosanke Sand Corporation, 3 partment is required, before issuIBLA 89, 78 I.D. 285, reversed a ance of a patent, to examine each decision of Administrative Law claim to the end that valid claims Judge Graydon E. Holt, dated may be recognized, invalid ones

eliminated, and the rights of the 1 The change of title of the hearing officer from "Hearing Examiner" to "Administrative public preserved.” Cameron v. Law Judge” was effectuated pursuant to order United States, 252 U.S. 450, 460 of the Civil Service Commission, 37 F.R. 16787 (August 19, 1972).

(1920). We are thus obliged to de

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termine, with as great a degree of U.S.C. $ 4332, provides in pertinent certitude as is possible, whether a

part that, discovery of a valuable mineral de

* [T]o the fullest extent possiposit has been made on these claims. ble: (1) the policies, regulations, and

public laws of the United States shall On the record before us, we find that

be interpreted and administered in acsuch a determination is imposssible. а.

cordance with the policies set forth in Before a final decision can be made

this chapter, and (2) all agencies of the a new hearing must be held to elicit Federal Government shall : evidence on various factors, which shall be set out below.

(C) include in every recommendation Following our initial decision, a

or report on proposals for legislation and

other major Federal actions significantly number of parties which had not

affecting the quality of the human enviformerly participated in the case

ronment, a detailed statement by the repetitioned for leave to file briefs in sponsible official onsupport of the Government's peti- (i) the environmental impact of the tion for reconsideration. These were

proposed action,

(ii) any adverse environmental effects the East Bay Regional Park Dis

which cannot be avoided should the protrict, Contra Costa County, the En

posal be implemented, vironmental Defense Fund, Inc., (iii) alternatives to the proposed the California Native Plant Society, action, and the Sierra Club. They were

(iv) the relationship between local

short-term uses of man's environment and granted permission to participate as

the maintenance and enhancement of amici curiae. These parties, in addi- long-term productivity, and tion to alleging a lack of discovery (v) any irreversible and irretrievable on the contestee's part, argued that

commitments of resources which would the National Environmental Policy

be involved in the proposed action should

it be implemented. Act (NEPA], 42 U.S.C. SS 4321 et seq. (1970), requires the filing of an

The Guidelines issued by the environmental impact statement.

Council on Environmental Quality, They also contended that NEPA

a federal agency established under and the General Mining Act of 1872, section 202 of the Act, provide: 30 U.S.C. SS 21-54 (1970), require * * The phrase "to the fullest exthat the land be chiefly valuable for tent possible" in section 102(2)(C) is the mineral therein as a prerequisite

8 Council on Environmental Quality, Stateto discovery.

ments on Proposed Federal Actions Affecting We hold that the law does not re

the Environment, Guidelines, 36 F.R. 7724

(April 23, 1971). Issuance of the Guidelines quire the preparation of an environ- to federal agencies for guidance in prepara

tion of environmental impact statements was mental impact statement in the case

directed by Exec. Order No. 11514 $ 3(h), 3 before us. Section 102 of NEPA, 42 CFR 526, 42 U.S.C. $ 4321 (1970). Although

the Guidelines do not have the effect of a

statute or regulation, they are nevertheless to 2 The American Mining Congress filed an be accorded “great deference (as) the interpreamicus brief in opposition to the environmen- tation given the statute by the officers or tal position espoused by the other amici curiae agency charged

Its administration." and appeared at the oral argument.

Udall v. Tallman, 380 U.S. 1, 16 (1965).

with

(ON RECONSIDERATION)

August 3, 1973

This comports with the position of the Department when it reported in 1971 to the Council on Environmental Quality that the General Mining Act of 1872 “do[es] not admit of environmental considerations." 3

meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing lav applicable to the agency's operations expressly prohibits or makes compliance impossible. (Section 105 of the Act provides that “The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.") Guideline No. 4, 36 F.R. 7724 (April 23, 1971). (Italics added.)

It is our conclusion that "existing law applicable to the agency's operations,” viz., the General Mining Act of 1872, as amended, supra, under which the claims herein involved were located, and which opens to location and purchase, “[e]xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States, * * * and the lands in which they are found * * * " 30 U.S.C. § 22 (1970), “makes compliance impossible.”

5 Section 103 of the NEPA (42 U.S.C. $ 4333) provides :

"All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or Inconsistencies herein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.”

In compliance with this mandate, the Deputy Solicitor, Department of the Interior, in a letter to the Chairman, Council on Environmental Quality, dated July 1, 1971, stated :

"On September 1, 1970, we submitted a report under section 103 of the National Environmental Policy Act. This letter is intended to supplement that report insofar as it pertains to the agency jurisdiction of the Bureau of Land Management (BLM).

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*

".. The purpose of the new language [i.e., “to the fullest extent possible”) is to make it clear that each agency of the Federal Government shall comply with the directives set forth in such subparagraphs (A) through (H) (of clause (2) of section 102] unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. * * " H.R. REP. No. 91-765, 91st Cong., 1st Sess. 9 (1969).

In Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C. 1971), the court stated :

“Thus the Section 102 duties are not inherently flexible. They must be complied with to the fullest extent, unless there is a clear conflict of statutory authority. Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance.” Id. at 1115 (footnote omitted).

"The so-called location and settlement laws leave BLM without authority to consider environmental factors in their administra. tion. In Alaska particularly, the homestead settlement laws [43 U.S.C. $ 270 (1970) ), the native allotment law [Acts of May 17, 1906, c. 2469, 34 Stat. 197, and August 2, 1956, c. 891, 70 Stat. 954, repealed by Act of December 18, 1971 (Alaska Native Claims Settlement Act), $ 18(a), 43 U.S.C.A. $ 1617 (a) (1973)], and the purchases authorized for headquarters, trade and manufacturing or homesites (43 U.S.C. 88 687a to 687a-6 (1970)] permit entry without prior approval of the BLM. A similar situation arises throughout the United States under the mining laws (30 U.S.C. $ 21 et seq.). The Department has no control over entries made pur. suant to these laws and the basic statutes under which the entries are made do not admit of environmental considerations. New legislation is required, and the Department has consistently recommended such legisla. tion." (Italics added.)

The discovery of a valuable min- discretionary; issuance of a patent eral deposit within its limits vali- can be compelled by court order. dates a mining claim located on pub- Wilbur v. Krushnic, supra, at lic land in conformance with the 318–19; Roberts v. United States, statute, and its locator acquires an 176 U.S. 221, 231 (1900). The patent exclusive possessory interest in the may contain no conditions not auclaim, a form of property which can

thorized by law. Deffeback v. be sold, transferred, mortgaged, or Hawke, 115 U.S. 392, 406 (1885). inherited, without infringing the

The claimant need not, however, apparamount title of the United ply for patent to preserve his propStates. 30 U.S.C. & 26 (1970); Wil- erty right in the claim, but may if bur v. Krushnic, 280 U.S. 306, 316 he chooses continue to extract and (1930); Cole v. Ralph, 252 U.S. 286, freely dispose of the locatable min295 (1920); Forbes v. Gracey, 94

erals until the claim is exhausted, U.S. 762, 767 (1877). Such an in- without ever having acquired full terest may be asserted against the legal title to the land. Union Oil Co. United States as well as against of California v. Smith, 249 U.S. 337, third parties, Best v. Humboldt 348-49 (1919);

348-49 (1919); United States v. Placer Mining Co., 371 U.S. 334, 336 Carlile, 67 I.D. 417, 421 (1960). The (1963); Gwillim v. Donnellan, 115 patent, if issued, conveys fee simple U.S. 45, 50 (1885), and may not be

title to the land within the claim, taken from the claimant by the but does nothing to enlarge or diUnited States without due compen- minish the claimant's right to its losation. See United States v. North

catable mineral resources. American Transportation & Trad

In order that an environmental ing Co., 253 U.S. 330 (1920); cf. impact statement be required under Best v. Humboldt Placer Mining NEPA, there must be contemplated Co., supra. The holder of a valid “major Federal action (s) signifimining claim has the right, from cantly affecting the quality of the the time of location, to extract, proc

8 "* .. The patent of ess and market the locatable mineral

a mining claim

carries with it such rights to the land which resources thereon.

includes the claim as the law confers, and no

others, and these rights can neither be enUpon satisfaction of the require- larged nor diminished by any reservations of ments of the statute, the holder of a

the officers of the Land Department, resting

for their fitness only upon the judgment of valid mining claim has an absolute

*"' Davis's Administrator r. right to a patent from the United Weibbold, 139 U.S. 507, 528 (1891).

7*** The owner is not required to purStates conveying fee title to the land chase the claim or secure patent from the within the claim, and the actions

United States ; but so long as he complies with

the provisions of the mining laws, his posses. taken by the Secretary of the In- sory right, for all practical purposes of ownerterior in processing an application

ship, is as good as though secured by

Wilbur v. Krushnic, supra, at for patent by such claimant are not

those officers.

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patent. *

317.

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