JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v.
WESTERN NUCLEAR, INC.

   No. 81-1686

   In the Supreme Court of the United States

   October Term, 1981

   On writ of certiorari to the United States Court of Appeals for the
Tenth Circuit

                       Brief for the Petitioners

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Summary of argument
   Argument:
      I. The history of the adoption of the SRHA
          shows a congressional intent to effect a narrow
          grant of surface rights and a correspondingly
          broad mineral reservation
             A. The policy of reserving mineral rights
                in public lands opened for settlement
                was intended to maximize the public
                benefit from such lands
             B. Congress severed the surface
                and mineral rights on SRHA lands
                in order to promote stock-raising
                homesteads, while reserving
                to the United States the
                right to develop
                "all * * * minerals"
      II. The explicit terms of the SRHA show a
          a congressional intent to reserve commercially
          exploitable deposits of gravel
             A. The reservation of "all the
                coal and other minerals" in
                Section 9 of the SHRA is
                intended to include commercially
                exploitable deposits of gravel
                   1. The specific enumeration of
                      "coal" in Section 9's
                      reservation does not limit the
                      effect of the clause
                   2. The reservation of
                      "all * * * other minerals,"
                      including gravel which can be
                      commercially developed, is
                      consistent with the interests
                      of the public and the SRHA
                      homesteader
             B. The other provisions of the
                SRHA governing mineral
                development demonstrate Congress's
                intent to grant patentees a limited
                surface estate
      III. The interpretation of the term "mineral"
          in analogous contexts shows that Congress
          intended to include commercially exploitable
          deposits of gravel in the SRHA mineral
          reservation
             A. Gravel was included in the class of
                minerals locatable under the general
                mining law, which defined the
                scope of the SRHA mineral
                reservation
             B. Cases construing reservations
                of "all minerals" in private
                conveyances are irrelevant to
                interpretation of the SRHA
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-19a) is reported
at 664 F.2d 234.  The opinion of the district court (Pet. App.
20a-38a) is reported at 475 F. Supp. 654.  The opinion of the Interior
Board of Land Appeals (Pet. App. 45a-68a) is reported at 85 Interior
Dec. 129.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 69a-70a) was
entered on November 13, 1981.  On February 3, 1982, Justice White
extended the time for filing a petition for a writ of certiorari to
March 13, 1982.  The petition was filed on March 11, 1982, and granted
on May 24, 1982.  The jurisdiction of this Court rests on 28 U.S.C.
1254(1).

                           STATUTES INVOLVED

   Section 9 of the Stock-Raising Homestead Act of 1916, 43 U.S.C.
299;  Section 1 of the Materials Act of 1947, 30 U.S.C. 601, and
Section 3 of the Surface Resources Act of 1955 (the Common Varieties
Act), 30 U.S.C. 611, are set forth in Pet. App. 71a-75a.

                          QUESTION PRESENTED

   Whether the mineral reservation in Section 9 of the Stock-Raising
Homestead Act, 43 U.S.C. 299, which reserved to the United States
title to "all the coal and other minerals" in lands patented under the
Act, includes gravel deposits susceptible to commercial exploitation.*

                               STATEMENT

   1. The Stock-Raising Homestead Act of 1916 (SRHA), 43 U.S.C. 291 et
seq., was enacted "to restore and improve the grazing capacity, and
therefore the stock-raising and meat-producing capacity, of the
semiarid lands of the West, and at the same time to furnish homes
thereon to the people." H.R. Rep. No. 626, 63d Cong., 2d Sess.
9(1914).  Section 2 of the Act, 43 U.S.C. 292, authorized the
Secretary of the Interior to designate as stock-raising lands subject
to entry under the Act:  "lands the surface of which is, in his
opinion, chiefly valuable for grazing and raising forage crops,
(which) do not contain merchantable timber, are not susceptible of
irrigation from any known source of water supply, and are of such
character that six hundred and forty acres are reasonably required for
the support of a family * * * ." An entryman was permitted, subject to
certain conditions, to obtain a patent for up to 640 acres of lands so
classified by the Secretary.  43 U.S.C. 293.  However, Section 9 of
the Act, 43 U.S.C. 299, provided that all patents issued under the Act
"shall be subject to and contain a reservation to the United States of
all the coal and other minerals in the lands so entered and patented,
together with the right to prospect for, mine, and remove the same."
/1/

   2. In 1926, the United States conveyed certain lands near Jeffrey
City, Wyoming, pursuant to the SRHA.  The patent contained the
following reservation (Pet. App. 21a):

      Excepting and reserving however, to the United States all the
      coal and other minerals in the land so entered and patented,
      together with the right to prospect for, mine, and remove the
      same pursuant to the provisions and limitations of the Act of
      December 29, 1916.

   In 1975 respondent, Western Nuclear, Inc., purchased the
outstanding interest in a portion of the patented lands and applied to
the Wyoming Department of Environmental Quality, a state agency, for a
permit to develop a gravel pit.  Its purpose in doing so was to
further its commercial operations of mining and milling uranium ore
around Jeffrey City, Wyoming.  In connection with that business it
needed gravel for road surfacing, paving aggregate, shaft concrete
aggregate, and other related uses (Pet. App. 3a).  After obtaining the
permit, Western Nuclear removed approximately 43,000 cubic yards of
gravel from the site (Pet. App. 21a).

   On November 3, 1975, the Wyoming State Office of the Bureau of Land
Management (BLM) served Western Nuclear with notice that its gravel
operation constituted a trespass against the United States.  The BLM
determined that the gravel had been reserved to the United States when
the lands were patented under the SRHA, and consequently that the
extraction and removal of the gravel was a violation of the Materials
Act of 1947, 30 U.S.C. 601 et seq.  /2/ The BLM concluded that Western
Nuclear was liable to the United States for $13,000 for the gravel
removed from the tract (Pet. App. 22a).

   Western Nuclear appealed the BLM's determination to the Interior
Board of Land Appeals (IBLA), which affirmed (Pet. App. 45a-68a).  The
IBLA concluded that the language and purposes of the Act, as well as
its legislative history, made clear that gravel "is a mineral reserved
to the United States in patents issued under the Stock-Raising
Homestead Act" (Pet. App. 65a).  /3/

   3. Respondent then filed this action under 28 U.S.C. 1331(a) and
the Administrative Procedure Act, 5 U.S.C. 701 et seq., seeking review
of the IBLA's decision.  The complaint alleged that the IBLA had erred
in determining that the mineral reservation of the SRHA extended to
gravel.  Respondent also claimed that the Department of the Interior
lacked jurisdiction to determine whether the United States still
retained ownership of the gravel.  The district court concluded that
"it is evident from the legislative history, contemporaneous
definitions and court decisions that the mineral reservation in the
SRHA of 1916 is broad enough to include gravel as a mineral" (Pet.
App. 38a).  The court also rejected respondent's assertion that the
Secretary of the Interior lacked authority to consider the question of
ownership of the mineral estate in lands patented under the SRHA (Pet.
App. 22a).  /4/

   4. The court of appeals reversed (Pet. App. 19a).  /5/ It first
held that the Secretary had jurisdiction to consider the extent of the
mineral reservation in lands patented under the SRHA, and to determine
whether the removal of gravel from patented lands constituted a
trespass against the United States (Pet. App. 6a-9a).  The court
concluded, however, that the reservation of "coal and other minerals"
in Section 9 of the SRHA did not extend to gravel.

   The court first noted that gravel is not generally considered a
mineral in private conveyances involving a mineral estate (Pet. App.
10a-11a).  The court also determined that the datum most relevant to
the intent of Congress was a 1910 decision by the Department of the
Interior, Zimmerman v. Brunson, 39 Pub. Lands Dec. 310.  In that case
the Department had decided that deposits of sand and gravel did not
render the lands on which they were found "mineral in character"
within the meaning of the general mining laws (Pet. App. 12a-13a).
Third, the court relied (id. at 14a-15a) upon its prior decision in
Bumpus V. United States, 325 F.2d 264 (10th Cir. 1963).  The United
States there had condemned the surface estate, but had left the owner
with a subsurface estate "including all oil, gas and other minerals *
* * ." The court in Bumpus had held that the subsurface estate did not
include gravel (id. at 267).  Finally, the court below relied upon two
states decisions which, under analogous circumstances, had held that a
reservation of all "coal and other minerals" did not include gravel
(Pet. App. 17a-19a).  /6/

                          SUMMARY OF ARGUMENT

                                   I

   A. With the passage of the Stock-Raising Homestead Act the
government departed from an imprecise system of classifying public
lands as either mineral or non-mineral -- often mistakenly -- and
restricting use of those lands to comport with their classification.
Instead it embarked on a course -- still followed -- of disposing of
public lands with a reservation of all minerals, in order to derive
the maximum public benefit from such lands.  That approach permitted
prompt settlement of lands which might later be mined.  It also served
to spur development of reserved mineral resources by persons other
than the homesteader, and provided a source of revenue in cases where
minerals were ultimately discovered.

   B. Because the SRHA defines the estates to be created in terms of
intended use the reservation of minerals in Section 9, 43 U.S.C. 299,
should be read in light of the use Congress envisioned the Homesteader
making of the surface, and the development Congress foresaw for the
reserved minerals.  The legislative history of the Act and the
character of the lands opened under it demonstrate that Congress
wanted to encourage homesteaders to engage in small-scale
stock-raising, and "to prevent the entry of lands * * * principally
valuable for purposes other than those expressed in this act * * * .
H.R. Rep. No. 626, 63d Cong., 2d Sess. 3 (1914).  It also believed
that "(t)he farmer-stockman is not seeking and does not desire the
minerals, his experience and efforts being in the line of stock
raising and farming * * * ." H.R. Rep. No. 35, 64th Cong., 1st Sess.
5(1916).  The corresponding reservation of minerals was made in the
broadest possible terms.  Consequently, where lands are more valuable
for their commercially exploitable deposits of mineral materials like
gravel than for grazing, Congress withheld from the rancher the right
to develop the mineral resources.

                                  II

   A.1. The explicit provisions of the SRHA conform to this clear
congressional intent.  Section 9 reserves to the United States "all
the coal and other minerals" in SRHA lands.  The specific mention of
"coal" is not intended to limit the reservation of like minerals.
Rather, it was necessary to distinguish between coal and other
minerals because coal was not subject to disposition under the Mining
Act of 1872, 30 U.S.C. 21 et seq., and the SRHA had to provide for
disposal of the resources withheld.  The distinction between coal and
other minerals was also natural from a drafting standpoint because the
statutes on which the SRHA was patterned had reserved only coal, not
other minerals.

   2. Interpreting Section 9's mineral reservation to include
commercially exploitable deposits of gravel is consistent with both
the public interest and the interest of the SRHA homesteader.  Section
9's reservation was coextensive with the class of minerals subject to
location under the general mining law, which restricts development to
"valuable mineral deposits." 30 U.S.C. 22.  Thus not every deposit of
gravel will warrant interference with the homesteader's surface
estate;  only those which -- in light of the abundance of the
resource, the quality of the gravel, the condition of the market, and
the distance from buyers -- can be extracted at a profit will do so.
A corollary of that limitation is that the stock-raising homesteader
can make any necessary use of gravel deposits which is consistent with
the purposes of the SRHA.  No similar justification can be advanced
for extraction of large and valuable deposits to further the
commercial operation of a mining company outside the patented lands.

   B. The damage provisions of the SRHA also show that Congress did
not intend to turn commercially valuable gravel deposits over to the
homesteader.  Although the Congress which passed the Act contemplated
that surface mining would take place on SRHA lands, it restricted the
homesteader's right to damages to the value of "the crops or tangible
improvements." 43 U.S.C. 299.  No payment was required for reduction
in value of the land itself.  In the Open Pit Mining Act of 1949, 30
U.S.C. 54, Congress remedied this unfairness to the homesteader, but
even then went no further than to make the miner liable for damage "to
the value of the land for grazing."

                                 III.

   A. The Mining Act of 1872, 30 U.S.C. 21 et seq., which defines the
class of minerals reserved in the SRHA, permitted location of
commercially valuable gravel deposits.  That interpretation is
supported by a long line of cases before the courts and the Department
of the Interior.  It was also acknowledged by Congress itself, which
enacted the Common Varieties Act in 1955, 30 U.S.C. 611, for the
express purpose of removing gravel from the coverage of the Mining
Law.

   Zimmerman V. Brunson, 39 Pub. Lands Dec. 310 (1910), holds to the
contrary.  It was, however, inconsistent with the "marketability" test
applied by the Department at the time, repudiated by other
contemporary authorities, and overruled by the Department itself
within two decades.  More important, it is evident from Congress's
purpose in passing the SRHA that the reasons which may have justified
Zimmerman's decision in the context of the original Homestead Act, 43
U.S.C. 161 et seq., are out of place in the settlement and development
scheme contemplated by the SRHA.

   B. Cases construing reservations of "all minerals" in private
conveyances are irrelevant to interpretation of the mineral
reservation in the SRHA.  Unlike private property transfers, the SRHA
provides for payment for damages caused by development of gravel
deposits on the land transferred.  Moreover, settled principles of
construction dictate that ambiguities in private deeds be construed
against the grantor in order to effectuate the mutual intent of the
parties.  By contrast, any uncertainty in federal statutory mineral
reservations must be construed in favor of the sovereign.  United
States V. Union Pacific R.R., 353 U.S. 112, 116 (1957);  Northern
Pacific Ry. V. Soderberg, 188 U.S. 526, 534 (1903).

                               ARGUMENT

 I. THE HISTORY OF THE ADOPTION OF THE SRHA SHOWS A CONGRESSIONAL
INTENT TO EFFECT A NARROW GRANT OF SURFACE RIGHTS AND A
CORRESPONDINGLY BROAD MINERAL RESERVATION

   When it adopted the SRHA in 1916 Congress had only recently
embarked on a policy of severing surface rights from subsurface
mineral deposits in land grants, in order to derive the maximum public
benefit from public lands.  The nature of the lands classified for
entry under the SRHA, as well as the legislative history of the Act,
make clear that Congress intended to effect that objective in this
instance by a grant of surface rights which would encourage
stock-raising and forage farming, and a broad reservation to the
United States of any mineral value the lands might have.  Unauthorized
private exploitation of commercially valuable deposits of gravel is
inconsistent with that intent.

 A. The Policy Of Reserving Mineral Rights In Public Lands Opened For
Settlement Was Intended To Maximize The Public Benefit From Such Lands

   During the nineteenth century the federal government generally
classified public lands as either mineral or nonmineral, and then
permitted acquisition of title to the lands according to the
appropriate statutory scheme.  See United States v. Sweet, 245 U.S.
563, 566-572 (1918);  1 American Law of Mining Section 3.1 (1981).
This system had obvious difficulties.  If the land had been mistakenly
classified as nonmineral, the issuance of a patent to a homesteader
would transfer title to all subsequently discovered materials.  See
Diamond Coal & Coke Co. V. United States, 233 U.S. 236, 239-240
(1914).  On the other hand, classification of the land as mineral
effectively prevented agricultural development of the surface pending
the exploitation of whatever mineral deposits underlay it.

   The alternative of severing mineral rights from the surface and
allowing separate development of each was initiated after President
Theodore Roosevelt -- concerned in part with the fraudulent
acquisition of coal lands by entries under the agricultural land laws
-- withdrew some 64 million acres of coal lands from all forms of
entry.  41 Cong. Rec. 2614 (1907);  P. Gates, History of Public Land
Law Development 726-727 (1968).  See also E. Peffer, The Closing of
the Public Domain:  Disposal and Reservation Policies, 1900-50 at
107-108 (1951).  In 1907 Roosevelt proposed to Congress that it
"inaugurate a system which will encourage the separate and independent
development of the surface lands for agricultural purposes and the
extraction of the mineral fuels in such manner as will best meet the
needs of the people and best facilitate the development of
manufacturing industries." 41 Cong. Rec. 2806 (1907).  The first step
in that direction was taken with the passage of the Coal Lands Act of
1909, 30 U.S.C. 81, which permitted settlers on coal lands later
withdrawn from entry to receive a patent which reserved to the United
States the rights to the coal.  The Coal Lands Act of 1910, 30 U.S.C.
83 et seq., then opened up withdrawn coal lands to settlement, subject
again to a reservation of the coal.

   The approach of reserving only specific minerals was followed for a
few more years.  See Act of Apr. 30, 1912, 30 U.S.C. 90 (coal);
Agricultural Entry Act of 1914, 30 U.S.C. 121 et seq. (phosphate,
nitrate, potash, oil, gas, and asphaltic minerals).  But it was
shortly abandoned in favor of a reservation to the United States of
all minerals.  The terms of the reservations varied, but they
generally provided that the United States would retain "all the coal
and other minerals," /7/ "all coal, oil, gas and other minerals," /8/
or simply "all minerals." /9/

   To be sure, nothing prevented a homesteader who had received a
patent to the surface rights from also acquiring the mineral rights
from the United States.  Yet there were advantages in disposing of
surface and mineral rights under two different sets of laws.  This
obviated the need for unavoidably inexact classification of land as
either mineral or nonmineral, and allowed the prompt settlement of
mineral lands which it did not then seem feasible to mine.  But
Congress also wanted to encourage the discovery and exploitation of
mineral resources by giving everyone -- not just the homesteader -- a
chance to prospect for them, and by demanding that miners comply with
such requirements as the annual performance of a certain amount of
labor on the claim.  30 U.S.C. 28.  In the case of mineral deposits
which were sold or leased, the reservation served an additonal and
obvious public interest in the collection of revenue.  /10/

 B. Congress Severed The Surface And Mineral Rights On SRHA Lands In
Order To Promote Stock-Raising Homesteads, While Reserving To the
United States The Right To Develop "All * * * Minerals"

   It is clear from the legislative history of the SRHA that Congress
intended to promote small-scale stock-raising, reserving to the United
States the commercial exploitation of minerals on SRHA lands.  The
nature of the land to be granted under the Act underlines this
conclusion.  The reason for allowing settlement of 640 acres, rather
than the 160 permitted under the Homestead Act, 43 U.S.C. 161 et seq.,
was that the land was too poor to support families on a lesser
acreage.  H.R. Rep. No. 35, supra, at 4-5.  As Representative Ferris,
Chairman of the Public Lands Committee, stated "No arable or irrigable
land or mineral land is to be settled under this bill;  no land in any
section of the country where they have rainfall enough to raise enough
to live on can be homesteaded under this bill.  * * * (T)his bill * *
* will cause the Secretary of the Interior, * * * to pick out a lot of
high, dry, nonagricultural grazing land, and it will give 640 acres to
a man and his family to live upon." 52 Cong. Rec. 1808 (1915).  Thus
the Act directed the Secretary "to designate as stock-raising lands *
* * lands the surface of which is, in his opinion, chiefly valuable
for the grazing and raising forage crops, do not contain merchantable
timber, are not susceptible of irrigation from any known source of
water supply, and are of such character that six hundred and forty
acres are reasonably required for the support of a family * * * ." 43
U.S.C. 292.  The Department of the Interior perceived the point of the
classification requirement to be "to prevent the entry of lands * * *
principally valuable for purposes other than those expressed in this
act * * * ." H.R. Rep. No. 626, supra, at 3.  Yet, inevitably, some
mineral lands would be included.  That should not, however, deflect
the stock-raising homesteader from his original goal.  Accordingly,
"(a)ll minerals within the land (were) reserved to the United States *
* * ." Ibid.

   Consistent with the character of the lands being opened for
settlement the purpose of the Act, in the words of its original
sponsor, was "to restore and promote the livestock and meat-producing
capacity of the semi-arid States, and at the same time, on the same
tract, to furnish homes to landless and homeless citizens of our
country." 51 Cong. Rec. App. 683 (1914) (remarks of Rep. Ferguson);
H.R. Rep. No. 626, supra, at 9, 11.  Congress thought it so likely
that settlers would engage in stock-raising that it imposed this
condition upon entryman wishing to secure title to the lands:
"(I)nstead of cultivation as required by the homestead laws the
entryman shall be required to make permanent improvements * * *
tending to increase the value of the same for stock-raising purposes
of the value of not less than $1.25 per acre * * * ." 43 U.S.C. 293.
As examples of the kinds of improvements the Act contemplated, the
original House Report suggested sinking wells, and building fences and
silos.  H.R. Rep. No. 626, supra, at 13.

   With respect to the mineral reservation, though, the Department of
the Interior stated that "(t)he farmer-stockman is not seeking and
does not desire the minerals, his experience and efforts being in the
line of stock raising and farming * * * ." H.R. Rep. No. 35, supra, at
5.  The development of those resources was foreseen as a task for
others:

      Another reason for the reservation of the minerals is that this
      law will induce the entry of lands in those mountainous regions
      (of the United States) where deposits of mineral are known to
      exist or are likely to be found.  To issue unconditional patents
      for these comparatively large entries under the homestead laws
      might withdraw immense areas from prospecting and mineral
      development, and without such a reservation the disposition of
      these lands in the mineral country under agricultural laws would
      be of doubtful advisability.

   Ibid.  Consequently, "(t)he purpose of (the reservation) is to
limit the operation of this bill strictly to the surface of the lands
described and to reserve to the United States the ownership and right
to dispose of all minerals underlying the surface thereof.  This
section also provides a method for the joint use of the surface of the
land by the entryman * * * and the person who shall acquire from the
United States the right to prospect * * * and remove all minerals * *
* ." Id. at 18.  And wherever a reference is made to the types of
minerals encompassed by the reservation, it is made in the broadest
terms.  "(I)t would cover every kind of mineral.  All kinds of
minerals are reserved * * * ." 53 Cong. Rec. 1171 (1916) (remarks of
Rep. Ferris);  54 Cong. Rec. 687 (1916) (remarks of Rep. Mondell);
H.R. Rep. No. 35, supra, at 5 ("All mineral(s) within the lands are
reserved");  H.R. Rep. No. 626, supra, at 3 ("All minerals within the
land are reserved");  id. at 15 ("all minerals underlying the
surface").

   Given the nature of those two estates carved out by the Act, it
comports far better with the likely intent of Congress to suppose that
commercially exploitable deposits of gravel like those mined by
respondent were reserved to the United States for development, than to
argue that they passed to the stockman whom Congress envisioned
settling on SRHA lands.  Cf. United States V. Union Oil Co. of
California, 549 F.2d 1271, 1274 (9th Cir.), cert. denied, 434 U.S. 930
(1977);  Skeen V. Lynch, 48 F.2d 1044, 1046 (10th Cir. 1931).  "(T)he
Stock-Raising Homestead Act * * * exhibits a continued pattern of
defining the estates to be granted in terms of intended use, a pattern
which has become the foundation of multiple use of the public land.
The reservation of minerals to the United States should therefore be
construed by considering the purposes both of the grant and of the
reservation in terms of the use intended.  A reservation of minerals
should be considered to sever from the surface all mineral substances
which can be taken from the soil and which have a separate value." 1
American Law of Mining, supra, Section 3.26 at 552.

 II. THE EXPLICIT TERMS OF THE SRHA SHOW A CONGRESSIONAL INTENT TO
RESERVE COMMERCIALLY EXPLOITABLE DEPOSITS OF GRAVEL

   A careful consideration of the explicit terms of the SRHA makes
clear that Congress carried out its intent to reserve rights to
commercial mineral development.  That purpose is evident both in the
reservation clause itself, and in the other clauses governing mineral
exploitation.

 A. The Reservation Of "All The Coal And Other Minerals" In Section 9
Of The SRHA Is Intended To Include Commercially Exploitable Deposits
Of Gravel

   If viewed in the context of the entire Act and its historical
purpose, the terse reservation to the United States of "all the coal
and other minerals in (SRHA) lands" is most correctly understood as
including mineral materials such as gravel.  The specific enumeration
of "coal" was not designed to have a limiting effect, but rather
responded to the historically anomalous position of coal in American
mining law.  The more significant reservation of "all * * * other
minerals" protects the public interest which Congress had in mind, but
is also compatible with the individual interests of patentees, whose
population of SRHA lands Congress wished to encourage.

 1. The Specific Enumeration of "Coal" In Section 9's Reservation Does
Not Limit The Effect Of The Clause

   The court of appeals suggested at several points (Pet. App. 15a,
16a, 18a-19a) that the specific enumeration of "coal" in the phrase
"all the coal and other minerals" might mean that only minerals
ejusdem generis were reserved to the United States.  It could, for
example, indicate a congressional preoccupation with "energy sources"
(Pet. App. 16a, quoting United States V. Union Oil Co. of California,
supra, 549 F.2d at 1279), to the exclusion of mineral materials such
as gravel.  See also Bumpus V. United States, 325 F.2d 264, 267 (10th
Cir. 1963).  In fact, however, the reason for listing coal separately
was that it was at the time sui generis among minerals, and warranted
unique mention.

   Unlike other minerals, including sand and gravel, see Layman V.
Ellis, 52 Pub. Lands Dec. 714(1929), coal has never been subject to
location under the mining laws.  Almost simultaneously with the
passage of the Mining Act of 1872, 30 U.S.C. 21 et seq., which allowed
free mining of all valuable mineral deposits on land belonging to the
United States, Congress passed the Coal Lands Act of 1873, 30 U.S.C.
71 et seq., which provided for sale of coal deposits in the public
domain.  /11/ Under those two Acts, miners wishing to claim minerals
other than coal needed simply to satisfy the requirements of a valid
location.  30 U.S.C. 26.  (They could also, if they wished, acquire a
patent for a nominal fee.  30 U.S.C. 29.) By contrast, those wishing
to acquire coal had to purchase the land at the minimum price of $10
or $20 per acre, 30 U.S.C. 71, and often for considerably more.  See
P. Gates, supra, at 728.  Moreover, miners were entitled to an
unlimited number of locations under the general Mining Act, while the
Coal Lands Act permitted "only one entry by the same person or
association of persons * * * ," 30 U.S.C. 74, and that entry could be
made only upon a limited number of acres.  30 U.S.C. 71;  see United
States V. Trinidad Coal & Coking Co., 137 U.S. 160, 169 (1890).  /12/
In recognition of these differing methods of disposition, Section 9 of
the SRHA not only reserved rights to coal and other minerals
separately, but provided in its second sentence that "(t)he coal and
other mineral deposits in such lands shall be subject to disposal by
the United States in accordance with the provisions of the coal and
mineral land laws in force at the time of such disposal." 43 U.S.C.
299.  /13/

   In addition to the different method of disposal which characterized
coal, there was another factor underlying the unique specification of
coal in the SRHA reservation.  At the time the SRHA was enacted in
1916 Congress had only some seven years' real experience with
reserving minerals in land grants, and with one notable exception /14/
the mineral reserved during that period had been coal.  The Coal Lands
Act of 1909, 30 U.S.C. 81, allowed an entryman on subsequently
withdrawn coal lands to complete his settlement, giving him a patent
which would "contain a reservation to the United States of all coal in
said lands, and the right to prospect for, mine, and remove the same."
The Coal Lands Act of 1910, 30 U.S.C. 83 et seq., authorized entry on
lands which had been withdrawn or classified as coal lands, but
provided that the patent should "contain a reservation to the United
States of all the coal in the lands so patented, together with the
right to prospect for, mine, and remove the same." 30 U.S.C. 85.  An
Act of Apr. 30, 1912, 30 U.S.C. 90, made the 1910 Act applicable to
state selections, reserving to the United States "the coal in all such
lands so selected * * * and * * * the right to prospect for, mine, and
remove the same * * * ." It is therefore quite natural that Congress,
in framing the more expansive language of the SRHA in 1916, should say
that patents should "contain a reservation to the United States of all
the coal and other minerals in the lands so entered and patented,
together will the right to prospect for, mine, and remove the same."
43 U.S.C. 299.

   The separate enumeration of coal and other minerals was thus
functionally useful because the two were subject to different methods
of disposal, and natural from a drafting standpoint because the most
obvious precedents were coal reservations.  /15/ But there is no
suggestion whatever in the statute or its history that the mention of
coal was to have some further significance in the interpretation of
the SRHA.  On the contrary, the House Report on the bill, in its
discussion of the reservation clause, uses the phrases "coal and other
minerals" and "all minerals" interchangeably:

         It appeared to your committee that many hundreds of thousands
      of acres of the lands of the character designated under this
      bill contain coal and other minerals, the surface of which is
      valuable for stock-raising purposes.  The purpose of section 11
      (sic) is to limit the operation of this bill strictly to the
      surface of the lands described and to reserve to the United
      States the ownership and right to dispose of all minerals
      underlying the surface thereof.  This section also provides a
      method for the joint use of the surface of the land by the
      entryman of the surface thereof and the person who shall acquire
      from the United States the right to prospect, enter, extract,
      and remove all minerals that may underlie such lands * * * .

   H.R. Rep. No. 35, supra, at 18 (emphasis added).

 2. The Reservation Of "All * * * Other Minerals," Including Gravel
Which Can be Commercially Developed, Is Consistent With The Interests
Of The Public And The SRHA Homesteader

   The language of Section 9 of the SRHA carries out the intent of
Congress, evident in the history of the SRHA, to effect a very broad
mineral reservation.  What it says is that, in addition to coal, "all
the * * * minerals" on SRHA lands are reserved to the United States.
To give that phrase an overly literal reading, however, would be
inconsistent with Congress's dual purposes -- encouraging
stock-raising homesteads as well as mineral development.  As this
Court stated in construing a similar mineral reservation, "the
scientific division of all matter into the animal, vegetable or
mineral kingdom would be absurd as applied to a grant of lands, since
all lands belong to the mineral kingdom, and therefore could not be
excepted from the grant without being destructive of it." Northern
Pacific Ry. V. Soderberg, supra, 188 U.S. at 530.  To conclude that
traces of any mineral on patented lands could subject the homesteader
to the inconvenience of entertaining prospectors would do much to
deter settlement.  By the same token, to say that the homesteader had
no right to use building stone, sand, gravel, and other common variety
minerals for his own purposes would pose a considerable impediment to
the task of establishing a home and raising stock.  The court of
appeals was concerned that, under the position taken by the
government, "the patentees would own only the dirt, and little or
nothing more" (Pet. App. 19a).  A common sense reading of the Act,
however, entails none of those consequences.

   Section 9 of the SRHA, after stating that patents under the Act
must contain a reservation of "all the * * * minerals" in the patented
lands, goes on to provide that "(t)he * * * mineral deposits in such
lands shall be subject to disposal by the United States in accordance
with the provisions of the * * * mineral land laws in force at the
time of such disposal." 43 U.S.C. 299.  That direction carried out the
desire of Congress to maximize the public benefit from opening SRHA
lands by subjecting surface and mineral development to two different
systems of regulation:  prompt use of the surface was permitted, but
at the same time anyone -- not just the homesteader -- interested in
developing the lands' mineral resources was encouraged to do so, in
order to increase the mineral wealth of the country and provide
revenues to the United States.  The reservation of minerals in Section
9 was thus coextensive with the class of minerals which prospectors
were allowed to develop under the "mineral land laws." Putting coal to
one side, the primary statute governing mineral development at the
time the SRHA was passed in 1916 was the Mining Act of 1872, 30 U.S.C.
21 et seq., which permitted exploration and location only for
"valuable mineral deposits." 30 U.S.C. 22.  Mineral exploitation of
SRHA land was thus made subject to the same restrictions which
characterize development of lands under the general mining law.

   Foremost among those restrictions is the limitation imposed by the
word "valuable." In interpreting the demands of that qualification,
this Court has stated:

      (I)n order to qualify as "valuable mineral deposits," the
      discovered deposits must be of such a character that "a person
      or ordinary prudence would be justified in the further
      expenditure of his labor and means, with a reasonable prospect
      of success, in developing a valuable mine(.)" * * * Minerals
      which no prudent man will extract because there is no demand for
      them at a price higher than the cost of extraction and
      transportation are hardly economically valuable.

   United States V. Coleman, 390 U.S. 599, 602 (1968).  The Court went
on to uphold the Secretary's requirement that only minerals which
could be marketed at a profit could qualify for location under the
mining law.  As applied to SRHA lands, what that test means is that
the mineral reservation embraces only deposits of gravel and other
mineral materials which are commercially exploitable and would justify
a mineral entry.  Cf. United States V. Isbell Construction Co., 78
Interior Dec. 385, 394 (1971).  The very abundance of the resource is
a limitation on the mineral prospector's ability to extract it at a
profit.  Commercial exploitability will also depend on the quality of
the gravel, the condition of the market, and the distance from buyers.

   The corollary principle is that use by the stock-raising
homesteader of mineral materials for purposes consistent with the
objectives of the Act is permitted (see Br. in Opp. App. 5a-6a).  /16/
See United States V. Union Oil Co. of California, supra, 549 F.2d at
1280-1281 n.21;  Pacific Power & Light Co., 45 I.B.L.A. 127, 138
(1980).  Congress has frequently recognized the desirability of
allowing free use of reserved minerals by the holder of the surface
interest where it promotes larger statutory purposes at little cost.
The Coal Lands Acts of 1909 and 1910, for example, explicitly provided
that "(t)he owner under such patent shall have the right to mine coal
for use on the land for domestic purposes prior to the disposal by the
United States of the coal deposit." 30 U.S.C. 81, 85.  See also Taylor
Grazing Act of 1934, 43 U.S.C. 315d (use of timber, stone, gravel,
clay, coal, and other deposits for firewood, fencing, buildings,
mining, prospecting, and domestic purposes);  30 U.S.C. 612(c)
(miner's right to use timber for prospecting, mining, or processing
prior to issuance of patent);  Northern Pacific Ry. V. Soderberg,
supra, 188 U.S. at 529 (railway's right, despite a mineral
reservation, to use dirt, stone, and timber for construction).  In
contrast to those acts, the homesteader's rights under the SRHA are
not explicitly stated.  Such an interpretation is nonetheless
manifestly consistent with the SRHA's intent to encourage settlement
of largely barren western lands.  Appropriation to the extent
necessary for a stock-raising homestead results in only a minimal
reduction of the reserved resources.  The Department and the courts
have, under similar circumstances, recognized the same right where it
was not explicit in the statute.  See, e.g., Alabama Coal Lands-Act of
Apr. 23, 1912, 41 Pub. Lands Dec. 32, 33 (1912) ("There is at this
time no law which provides for the disposition of the coal in these
lands.  Persons having homestead entries, pending or perfected, obtain
no right to mine coal therefrom, except for their own domestic use * *
*");  Shiver V. United States, 159 U.S. 491, 497 (1895) (right of
homesteader to use timber for house and fences before patent
obtained).

   The uses which respondent has made of gravel deposits on the SRHA
lands it acquired, however, bear no resemblance to the kind of
appropriation tolerated by the purposes of the Act.  It is true that
Western Nuclear did not resell the 43,000 cubic yards of gravel it
removed from the patented lands.  But trespass on the government's
reserved interest is not defined by whether mineral materials taken
from SRHA lands are later resold at a profit.  30 U.S.C. 601 -- the
statute which respondent was cited for violating -- states that

      the Secretary is authorized in his discretion to permit any
      Federal, State, or Territorial agency, unit or subdivision,
      including municipalities, or any association or corporation not
      organized for profit, to take and remove, without charge,
      materials and resources subject to this subchapter, for use
      other than for commercial or industrial purposes or resale.

   The regulations implementing that section provide that government
agencies may be permitted free use for "public project(s)" upon
acquisition of a permit.  43 C.F.R. 3621.2.  They also allow issuance
of free-use permits to non-profit organizations, limited to
"disposition of mineral materials having an in-place value (not) in
excess of $100 during any one calendar year." 43 C.F.R. 3621.3.  The
law thus contemplates that free use may be made if gravel is not
resold, but only by government and non-profit organizations, only upon
acquisition of a permit, only for non-commercial and non-industrial
purposes, and (except for government use) only in limited amounts.

   Respondent, of course, satisfies none of those criteria.  Moreover,
unlike homesteaders, whose use is confined to the patented land for
purposes consistent with the aims of the SRHA, respondent has used the
reserved materials directly or indirectly to further its business of
mining and milling of uranium ore.  The district court recited the
background of Western Nuclear's acquisition and use of the SRHA
property (Pet. App. 20a-21a):

         Western Nuclear has been located in Jeffrey City, Wyoming
      since the early 50's when uranium was first discovered on Green
      Mountain.  Exploration in the area has been going on for more
      than 10 years.  After Western Nuclear had done initial
      exploration and location of the ore bodies, it began sinking a
      shaft in September 1975.

         To keep the sides of the shaft from caving in, the company
      has been using concrete to shore the shaft.  To date, the shaft
      is about 1500 feet deep.  Western Nuclear's contractor hauled
      gravel from Lander and Casper to use in the concrete that was
      mixed in Jeffrey City.

         This method of concrete production was very expensive so
      Western Nuclear began looking for a local source of material.
      In March 1975 they * * * bought * * * the subject land * * * .

                      * * * * *

         Western Nuclear has taken some 43,000 cubic yards of gravel
      from the site.  The majority of it was used for black-topping
      streets and pouring sidewalks in Jeffrey City.

   The court of appeals concluded that respondent used the gravel "to
further its own commercial operations" (Pet. App. 3a).  The Interior
Board of Land Appeals calculated that the value of the gravel taken
was $12,802.50 (id. at 4a).  To forbid such exploitation of the
government's reserved minerals will have little impact on ranchers
whose settlement the SHRA sought to encourage;  to fail to do so,
however, would frustrate the Act's direction that people interested in
mineral resources must acquire them under the mining laws.

 B. The Other Provisions Of The SRHA Governing Mineral Development
Demonstrate Congress's Intent To Grant Patentees A Limited Surface
Estate

   Both respondent (Br. in Opp. 9) and the court of appeals (Pet. App.
19a) have attempted to stand the Act's limitation of the patentee's
rights on its head, by arguing that gravel lying close to the surface
is part of the surface estate granted by the SRHA.  Cf. Bumpus V.
United States, supra, 325 F.2d at 267.  But the Act does not say that
a stock-raising homesteader acquires title to anything lying on or
near the surface.  The Act's history makes clear that his estate does
not extend beyond the surface, but the United States retained title to
"all the * * * minerals in the lands" regardless of their location.
43 U.S.C. 299.  The homesteader would not acquire any rights to gold
mixed with superficial gravel.

   It is undeniable that mining of minerals lying near the surface
will often entail some destruction of the surface.  But it does not
follow that reserving title to gravel would frustrate the purpose of
stock-raising homestead grants (Br. in Opp. 13-14;  Pet. App. 19a).
In the first place coal, which is specifically mentioned in the
mineral reservation, had long been mined from the surface by open pit
or strip-mining methods, and there is no indication that the Congress
which enacted the SRHA intended to preclude such methods of
extraction.  See Mall, supra, 20 Rocky Mtn. Min. L. Inst. at 438.
Moreover, the BLM State Office appraisal report on the land at issue
in this case stated that "(t)he land was used for grazing before
location of the pit and after rehabilitation will most likely be used
as grazing land" (Pet. App. 51a).  More important, however, Congress
included in the SRHA and in subsequent legislation a provision for
damages to be paid the homesteader whose land was mined.  And the
measure of damages allowed provides, in effect, an itemized list of
the homesteader's interest in the land, making clear that Congress did
not anticipate his assertion of rights to commercially exploitable
deposits of gravel.

   1. As originally passed, the SRHA provided that one who acquired
the right to remove mineral deposits could occupy as much of the
surface as necessary for the removal, and was required to pay damages
to the surface owner only for "the crops or tangible improvements." 43
U.S.C. 299.  The kinds of improvements contemplated were those
"tending to increase the value of the (land) for stock-raising
purposes," 43 U.S.C. 293, e.g., wells and fences.  H.R. Rep. No. 626,
supra, at 13.  Representative Mondell rightly pointed out that "(t)he
land * * * occupied for mining purposes might be the major portion of
his entry in some cases, and yet there is no provision in the bill for
payment for the land itself." 53 Cong. Rec. 1233 (1916).  In
Kinney-Coastal Oil Co. V. Kieffer, 277 U.S. 488 (1928), this Court
interpreted a parallel damages provision in the Agricultural Entry Act
of 1914, 30 U.S.C. 122, which states in terms similar to the SRHA that
prospectors on lands subject to the Act must post security for "all
damages to the crops and improvements * * * ." /17/ The Court held
that the government's mineral lessee was entitled to an injunction
against the construction of houses and commercial buildings by the
homesteader.  The only requirement which had to be satisfied was
provision for "any damages which the plaintiffs' entry and operations
under the lease may have caused to the agricultural improvements or
crops of the owner of the surface estate * * * ." 277 U.S. at 507.
There was no right to damages for "the use made of the surface." id.
at 505, even though the mineral operations would necessitate
occupation of the entire surface.  Id. at 496.  The reason for that
limitation on compensation to the homesteader, according to the
district court, was that the homestead entry was understood to be for
agricultural purposes.  Kinney-Coastal Oil Co. V. Kieffer, 1 F.2d 795,
797 (D. Wyo. 1924).  /18/ In the words of this Court, "a servitude is
laid on the surface estate for the benefit of the mineral estate to
the end, as the acts otherwise show, that the United States may
realize, through the separate leasing, a proper return from the
extraction and removal of the minerals." 277 U.S. at 504.  See also
Holbrook V. Continental Oil Co., 73 Wyo. 321, 338-339, 278 P.2d 798,
804-805 (1955) (SRHA).

   Congress later realized that restricting damages to the value which
the homesteader had added to the land unfairly deprived him of at
least part of the interest he had acquired with a patent.  When the
extraction was done by strip mining and the land not restored to its
original contour, the stock-raising homesteader lost not just his
crops and improvements, but also the very value which had attracted
him to the land in the first place.  See S. Rep. No. 405, 81st Cong.,
1st Sess. 3-4 (1949).  To rectify that inequity, Congress passed the
Open Pit Mining Act of 1949, 30 U.S.C. 54, which provides:

      any person who * * * removes by strip or open pit mining
      methods, any minerals from any land included in a stock raising
      * * * homestead entry or patent, and who had been liable under *
      * * (the Stock Raising Homestead) Act only for damages caused
      thereby to the crops or improvements of the entryman or
      patentee, shall also be liable for any damage that may be caused
      to the value of the land for grazing * * * .

   The specific language of the Act rules out the homesteader's right
to recover for other values the land may have.  Mall, supra, 20 Rocky
Mtn. Min. L. Inst. at 422.  Thus for example if the government's
lessee, in strip mining for some other mineral, were to remove an
overlying layer of gravel, the homesteader would not be entitled to
compensation for its value.  But if that is so, it is difficult to
maintain that the right to exploit the deposit of gravel itself
belongs to the patentee, and not the United States.

 III. THE INTERPRETATION OF THE TERM "MINERAL" IN ANALOGOUS CONTEXTS
SHOWS THAT CONGRESS INTENDED TO INCLUDE COMMERCIALLY EXPLOITABLE
DEPOSITS OF GRAVEL IN THE SRHA MINERAL RESERVATION

   The examination of the history of the SRHA and its explicit terms
in Parts I and II has demonstrated that the estate given by Congress
to the stock-raising homesteader was not thought to encompass
commercially exploitable deposits of gravel.  A consideration of the
way in which the courts, the Department of the Interior, and Congress
itself have interpreted the term "mineral" in analogous contexts
confirms that the right to develop gravel deposits was affirmatively
reserved to the United States.  The cases upon which the court of
appeals relied, and the interpretation of the term "minerals" in
private conveyances, do not suggest a contrary intent.

 A. Gravel Was Included In The Class Of Minerals Locatable Under The
General Mining Law, Which Defined The Scope Of The SRHA Mineral
Reservation

   In Part II it was pointed out that the SRHA mineral reservation was
designed to preserve the federal interest in minerals which were
subject to location under the Mining Act of 1872, 30 U.S.C. 21 et seq.
 The interpretation of the term "minerals" in that statute
demonstrates that Congress meant to include commercially exploitable
deposits of gravel within Section 9 of the SRHA.

   1. In Layman V. Ellis, 52 Pub. Lands Dec. 714 (1929), the
Department of the Interior held that land from which the Laymans had
removed some 40,000 cubic yards of superficial gravel pursuant to
entry under the general mining law was properly classified as mineral
land, and not open to entry under the original Homestead Act, 43
U.S.C. 161 et seq.  In the course of its decision the Department cited
the following test for determining the mineral character of public
land:

         "The mineral character of the land is established when it is
      shown to have upon or within it such a substance as --

         (a) Is recognized as mineral, according to its chemical
      composition, by the standard authorities on the subject;  or --

         (b) Is classified as a mineral product in trade or commerce;
      or --

         (c) Such a substance (other than the mere surface which may
      be used for agricultural purposes) as possesses economic value
      for use in trade, manufacture, the sciences, or in the
      mechanical or ornamental arts * * * ."

   52 Pub. Lands Dec. 719-720, quoting 1 Lindley on Mines Section 98
(3d ed. 1914).  /19/ The Department concluded that gravel, useful for
building, paving and railroad ballast, 52 Pub. Lands Dec. at 718, fell
within categories (b) and (c).  Id. at 720.  A similar test was
announced by this Court in Northern Pacific Ry. V. Soderberg, 188
U.S.C. 526 (1903).  There the Railway had been granted land in
alternate sections along its line, with the reservation of "all
mineral lands." Id. at 529.  It challenged Soderberg's right to enter
one such section under the general mining law to quarry granite useful
for building stone.  The Court concluded that the mineral lands
reserved "include not merely metalliferous lands, but all such as are
chiefly valuable for their deposits of a mineral character, which are
useful in the arts or valuable for purposes of manufacture." Id. at
536-537.  By way of illustration the Court quoted the following
passage from Midland Ry. V. Checkley, L.R. 4 Eq. 19 (1867):

      "Stone is, in my opinion, clearly a mineral;  and in fact
      everything except the mere surface, which is used for
      agricultural purposes;  anything beyond that which is useful for
      any purpose whatever, whether it is gravel * * * or the like,
      comes within the word 'mineral' when there is a reservation of
      the mines and minerals from a grant of land."

   188 U.S. at 536.

   Applying these criteria, the courts, the Department, and treatise
writers who considered the question before passage of the SRHA in 1916
concluded that gravel and similar mineral materials, if commercially
exploitable, should be considered "minerals" within the meaning of the
general mining law.  See Loney V. Scott, 57 Or. 378, 385, 112 P. 172,
175 (1910) (building sand);  Bennett V. Moll, 41 Pub. Lands Dec. 584,
586 (1912) (pumice);  Pacific Coast Marble Co. V. Northern Pacific
R.R., 25 Pub. Lands Dec. 233, 240, 244-245 (1897) (marble);  H.P.
Bennett, Jr., 3 Pub. Lands Dec. 116 (1884) (granite);  W.H. Hooper, 1
Pub. Lands Dec. 560 (1881) (gypsum);  1 & 2 Lindley on Mines Sections
97, 424 (3d ed. 1914) (gravel).  Cf. Department of the Interior,
United States Geological Survey, Bulletin 537, The Classification of
the Public Lands 138-142 (1913) (lands containing gravel deposits
could be withdrawn or classified as mineral lands);  T.D. 25627, 8
Treas. Dec. 356 (1904).

   There is a consistent line of authority to the same effect since
the passage of the SRHA.  This Court itself stated in United States V.
Coleman, supra, 390 U.S. at 604, that "common types of sand, gravel,
and stone * * * served as a basis for claims to land patents (under
the mining laws) * * * ." See also Andrus V. Charlestone Stone
Products Co., 436 U.S. 604, 606-607 (1978) ("At the administrative
hearing * * * the principal issue was whether the sand and gravel
deposits were 'valuable' * * * , in which case the claims would be
valid.");  Hallenbeck V. Kleppe, 590 F.2d 852, 856-858 (10th Cir.
1979) (sand and gravel);  Edwards V. Kleppe, 588 F.2d 671 (9th Cir.
1978) (sand and gravel);  Melluzzo V. Morton, 534 F.2d 860, 862-865
(9th Cir. 1976) (sand and gravel);  Verrue V. United States, 457 F.2d
1202 (9th Cir. 1972) (sand and gravel);  United States V. Schaub, 163
F. Supp. 875, 877-878 (D. Alaska 1958) (sand and gravel);  United
States V. Isbell Construction Co., 78 Interior Dec. 385, 390, 393
(1971) (sand and gravel);  Taking of Sand & Gravel from Public Lands
For Federal Aid Highways, 54 Interior Dec. 294 (1933);  Stephen E.
Day, Jr., 50 Pub. Lands Dec. 489 (1924) (trap rock);  Pacific Power &
Light Co., 45 I.B.L.A. 127, 138 (1980) (scoria);  Department of the
Interior, Division of Public Lands, Solicitor's Opinion, M-36417 (Feb.
15, 1957) (sand and gravel).  Cf. United States V. Barrows, 404 F.2d
749, 752 (9th Cir. 1968), cert. denied, 394 U.S. 974 (1969);  Palmer
V. Dredge Corp., 398 F.2d 791 (9th Cir. 1968), cert. denied, 393 U.S.
1066 (1969);  Foster V. Seaton, 271 F.2d 836, 838 (D.C. Cir. 1959);
Burris V. State ex rel. State Highway Commission, 88 N.M. 146, 538
P.2d 418 (N.M. 1975);  Matthews V. Department of Conservation, 355
Mich. 589, 595, 96 N.W.2d 160, 164 (1959);  United States V. McCall,
78 Interior Dec. 71, 78-79 (1971);  United States V. Clear Gravel
Enterprises, Inc., 2 I.B.L.A. 285, 299-301 (1971).  But see Anchorage
Sand & Gravel Co. V. Schubert, 114 F. Supp. 436 (D. Alaska 1953),
aff'd on other grounds, 224 F.2d 623 (9th Cir. 1955);  State ex rel.
State Highway Commission V. Trujillo, 82 N.M. 694, 487 P.2d 122
(1971).

   Congress itself, in passing the Common Varieties Act in 1955, 30
U.S.C. 611, stated its understanding that gravel, sand, and other
mineral materials had theretofore been locatable under the mining law.
 The purpose of the 1955 Act was to remove such minerals from the
coverage of the mining laws, which permitted the obtaining of a land
patent, and to provide for disposition of these common minerals under
the Materials Act of 1947, 30 U.S.C. 601 et seq. United States V.
Coleman, supra, 390 U.S. at 604;  S. Rep. No. 554, 84th Cong., 1st
Sess 2 (1955);  H.R. Rep. No. 730, 84th Cong., 1st Sess. 5-6, 8
(1955);  101 Cong. Rec. 8743 (1955) (remarks of Rep. Engle).  /20/

   2. Against this long line of authority the court of appeals cited,
in support of its contrary conclusion, a decision by the Department of
the Interior rendered six years before the SRHA was passed (Pet. App.
12a-13a).  /21/

   In Zimmerman V. Brunson, 39 Pub. Lands Dec. 310 (1910), the
Secretary reversed a decision of the Commissioner of the General Land
Office and held that deposits of gravel did not render land mineral in
character -- and so ineligible for homestead entry -- unless the
deposits had "a peculiar property or characteristic giving them a
special value * * * ." 39 Pub. Lands Dec. at 312.  Of course, as
contemporary authorities were quick to point out, such a requirement
was inconsistent with the "marketability" test the Department applied
in most other cases to determine whether lands were open to mineral
entry.  See, e.g., 2 Lindley on Mines, supra, Section 424, at 995.
Cf. Northern Pacific Ry. V. Soderberg, supra, 188 U.S. at 534 ("The
rulings of the Land Department * * * almost uniformly, particularly of
late years, have lent strong support to the theory * * * that the
words 'valuable mineral deposits' should be construed as including all
lands chiefly valuable for other than agricultural purposes * * * .")
See also cases cited in note 21, supra.

   The Zimmerman decision is also inconsistent with the reading
Congress later gave to the mining laws when it passed the Common
Varieties Act.  As discussed above, the purpose of the Act was to
remove gravel, sand, and other mineral materials from location under
the mining law and to provide for their sale outright.  But the Act
would have been redundant if Congress had read the mining law as
Zimmerman did, for it expressly stated that "'(c)ommon varieties' as
used in this subchapter * * * does not include deposits of such
materials which are valuable because the deposit has some property
giving it distinct and special value * * * ." 30 U.S.C. 611.  The
regulations implementing the Act also recognized that "uncommon
varieties" of gravel and sand remain -- as all varieties once were --
subject to the general mining laws.  43 C.F.R. 3711.1(b);  1 American
Law of Mining, supra, Section 2.7N, at 182.19.  /22/

   Even if the Congress which enacted the SRHA was aware of the
Zimmerman decision (a hypothesis which the legislative history does
not substantiate), there is little reason to suppose that it intended
to carry that interpretation of the mining law over the SRHA's mineral
reservation.  The result which Zimmerman achieved was to open lands
bearing gravel deposits to homestead entry, though at the cost of
preventing development of the minerals by individuals more anxious
than the homesteader to do so.  By contrast, the SRHA directed that
lands which might hold virtually any kind of minerals were open to
stock-raising homestead entries;  for purposes of settlement it was
thus irrelevant whether gravel was characterized as a mineral or not.
On the other hand, to forbid exploitation of mineral materials after
settlement would have frustrated Congress's other objective --
permitting multiple use of SRHA lands in order to achieve the maximum
public benefit from land grants under the Act.  It is thus more
consistent with the purposes of the SRHA to suppose that Congress, in
framing the mineral reservation in Section 9, proposed to incorporate
the generally accepted understanding of the term "mineral" rather than
the wayward reading given it in Zimmerman V. Brunson.

 B. Cases Construing Reservations Of "All Minerals" In Private
Conveyances Are Irrelevant To Interpertation Of The SRHA

   In interpreting the mineral reservation in Section 9 of the SRHA
the court of appeals (Pet. App. 10a-11a) and respondent (Br. in Opp.
10) have relied on cases construing mineral reservations in deeds and
leases between private parties.  Those cases have no bearing on
whether the SRHA mineral reservation includes commercially exploitable
deposits of gravel.

   1. The most frequently voiced objection to reading mineral
reservations in private conveyances as including gravel is that,
because mining it would entail destruction of the surface, it would
frustrate the purpose of the parties' agreement not to assume that
gravel passed with the surface estate.  See, e.g., Morrison V.
Socolofsky, 600 P.2d 121, 123 (Colo. Ct. App. 1979);  Harper V.
Talladega County, 185 So. 2d 388, 393 (Ala. 1966);  Bambauer V.
Menjoulet, 214 Cal. App. 2d 871, 872-873, 29 Cal. Rptr. 874, 875-876,
95 A.L.R.2d 839, 841-842 (1963);  Farrell V. Sayre, 129 Colo. 368,
373, 270 P.2d 190, 192 (1954);  Witherspoon V. Campbell, 219 Miss.
640, 649-650, 69 So. 2d 384-387, 388 (1954);  Psencik V. Wessels, 205
S.W.2d 658, 659 (Tex. Civ. App. 1947);  Beck V. Harvey, 164 P.2d 399,
401 (Okla. 1945);  Holloway Gravel Co. V. McKowen, 200 La. 917, 931, 9
So. 2d 228, 233 (1942);  Kinder V. LaSalle County Carbon Coal Co., 310
Ill. 126, 134, 141 N.E. 537, 540 (1923).  /23/ That argument, however,
has little bearing on the mineral reservation of the SRHA which,
unlike private conveyances, contains an express provision for damages
caused by mining activity on homesteaded lands.  43 U.S.C. 299.  See 1
American Law of Mining, supra, Section 3.51A, at 580.20.  Indeed, in
passing the Open Pit Mining Act of 1949, 30 U.S.C. 54, Congress
expressly addressed the fact that strip mining on SRHA lands would
destroy their value for grazing, and directed that the loss of grazing
value (in addition to the crops and improvements covered by the
original Act) should be compensated.  /24/

   Moreover, the emphasis in construction of private conveyances on
the parties' intent underlines an equally significant distinction from
the reservations made in government grants.  Proper construction of
the writings of private parties demands, in the first instance,
restricting one's vision to the document itself, Praeletorian Diamond
Oil Association V. Garvey, 15 S.W.2d 698, 700 (Tex. Civ. App. 1929),
and considering where appropriate the situation of the parties and
their mutual intent as it is otherwise disclosed.  Witherspoon V.
Campbell, supra, 219 Miss. at 646, 69 So.2d at 386;  Holloway Gravel
Co. V. McKowen, supra, 200 La. at 926-927, 9 So.2d at 231-232;  Kinder
V. LaSalle County Carbon Coal Co., supra, 310 Ill. at 134, 141 N.E. at
540.  By contrast, the only relevant intent in the construction of the
SRHA's mineral reservation is that of Congress.  Even the failure to
include a reservation in the patent itself will not confer any greater
rights on the homesteader, when the reservation is directed in the
statute.  See Swendig V. Washington Water Power Co., 265 U.S. 322, 332
(1924);  Proctor V. Painter, 15 F.2d 974, 975 (9th Cir. 1926).

   2. These differences in effect and intent between private and
public conveyances have led to different principles of construction
which not only invalidate the comparison to private land transfers,
but also provide an independent reason for concluding that the SRHA
mineral reservation includes commercially exploitable deposits of
gravel.  It is frequently said that "ambiguities in private deeds
reserving mineral rights are construed strictly against the grantor,
who is also normally the draftsman." Mall, supra, 20 Rocky Mtn. Min.
L. Inst. at 410 & n.44;  Holloway Gravel Co. V. McKowen, supra, 200
La. at 931, 9 So. 2d at 233.  By contrast, this Court has consistently
adhered, in reading federal mineral reservations, to the "principle *
* * that grants for the sovereign should receive a strict construction
-- a construction which shall support the claim of the government
rather than that of the individual.  Nothing passes by implication,
and unless the language of the grant be clear and explicit as to the
property conveyed, that construction will be adopted which favors the
sovereign rather than the grantee." Northern Pacific Ry. V. Soderberg,
supra, 188 U.S. at 534, United States V. Union Pacific R.R., 353 U.S.
112, 116 (1957).  See also Andrus V. Charlestone Stone Products Co.,
supra, 436 U.S. at 617.  It is particularly inappropriate to read the
government's mineral reservation narrowly when the relevant statutory
and historical context, and the understanding of Congress, the courts,
and the Department, all weigh in favor of a broad interpretation.

                              CONCLUSION

   The decision of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   CAROL E. DINKINS

      Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   ROBERT L. KLARQUIST

      Attorney

   JULY 1982

   /*/ The plaintiff in the district court was Western Nuclear, Inc.
The Wyoming Stock Growers Association, John Orr, and the Associated
General Contractors of Wyoming were permitted to intervene as parties
plaintiff.  Defendants in the district court were Cecil B. Andrus,
Secretary of the Interior, and the United States.  Only Western
Nuclear, Inc., appealed from the district court's decision.  The
Associated General Contractors of Wyoming, and the State of Utah,
appeared as amici curiae in the court of appeals.  Because Secretary
Watt is the successor to Secretary Andrus, we have substituted
Secretary Watt as a federal party in this case, pursuant to Rule 40.3
of the Rules of this Court.

   /1/ Section 1-8 of the SRHA, 43 U.S.C. 291-298, were repealed by
Section 702 of the Federal Land Policy and Management Act of 1976,
Pub. L. No. 94-579, Pub. L. No. 94-579, 90 Stat. 2787.  The repeal
does not affect this controversy.

   The government's petition in this case stated that patents had been
granted on approximately 70 million acres of land subject to the
Stock-Raising Homestead Act (Pet. 7).  See Department of the Interior,
Bureau of Land Management, Public Land Statistics 1980, Table 24 at
50.  We are now informed by the Department of the Interior that
although homestead entries were made on more than 70,000,000 acres,
patents were issued for slightly more than 33,000,000 acres.  See
Department of the Interior, Report of the Director of the Bureau of
Land Management, 1948, Statistical Appendix, Table 17 at 22.  The
number of unperfected entries pending does not appear to be large.
See Public Land Statistics 1980, supra, Table 20 at 46.  Further
entries are not possible since the repeal of the SRHA

   /2/ Section 1 of the Materials Act of 1947, 30 U.S.C. 601,
authorizes the Secretaries of the Interior and Agriculture to dispose
of common varieties of gravel and similar substances found on the
public lands to private parties upon the payment of adequate
compensation as determined by the Secretary administering the area.
Section 3 of the Surface Resources Act of 1955, 30 U.S.C. 611,
generally known as the Common Varieties Act, provides that no deposit
of common varieties of gravel and similar substances "shall be deemed
a valuable mineral deposit within the meaning of the mining laws of
the United States * * * ." Consequently, private parties now seeking
to exploit deposits of common varieties of gravel occurring on the
public lands must comply with the provisions of the Materials Act of
1947 and the applicable regulations.  See United States V. Coleman,
390 U.S. 599, 604 (1968).

   /3/ The IBLA adjusted the damages to $12,802.50 (Pet. App. 67a).

   /4/ Though it sustained the IBLA's determination concerning the
scope of the SRHA mineral reservation, the district court ordered
"that the element of damages shall be determined by the collaboration
of the Wyoming State Office of the Bureau of Land Management and the
landowners, Western Nuclear, Inc." (Pet. App. 40a).  The court later
amended its judgment to indicate that it might not reach the same
conclusions under different factual circumstances.  This amended
judgment was entered upon the stipulation of the government and the
intervenors, Wyoming Stock Growers Association, John Orr, and the
Associated General Contractors of Wyoming.  Among other things, the
intervenors expressed concern that the judgment as originally entered
might have the effect of barring a surface owner from using gravel on
the lands where the use was related to the stock-raising purposes of
the Act (Pet. App. 43a-44a).

   /5/ One of the arguments made by Western Nuclear in the court of
appeals was that the Secretary was required by the Administrative
Procedure Act, 5 U.S.C. 552(a)(1)(D), to assert the government's right
to reserved mineral materials through rule-making rather than
adjudication (79-2290 Appellant's Opening Br. at 60 (10th Cir.)).  The
government's Reply Brief in this Court incorrectly stated that this
contention was not raised in the court of appeals (Reply Br. 4).  The
court of appeals did not address the argument.

   /6/ One of these state cases, State ex rel. State Highway
Commission V. Trujillo, 82 N.M. 694, 487 P.2d 122 (1971), concerned
the same issue presented here:  whether the mineral reservation of
Section 9 of the SRHA extends to deposits of gravel.  The other state
case, State Land Board V. State Department of Fish & Game, 17 Utah 2d
237, 408 P.2d 707 (1965), did not arise under the SRHA.  It involved a
conveyance from the State of Utah which reserved to the State "all
coal and other minerals."

   /7/ Stock-Raising Homestead Act of 1916, 43 U.S.C. 299;  Color of
Title Act of 1928, 43 U.S.C. 1068 ("coal and all other minerals");
Underground Water Reclamation Act of 1919, ch. 77, Section 8, 41 Stat.
295 ("all the coal and other valuable minerals") (repealed 1964).

   /8/ Bankhead-Jones Farm Tenant Act of 1937, ch. 517, Section 44, 50
Stat, 530 (three-fourths interest in "all coal, oil, gas and other
minerals") (repealed 1961).

   /9/ Taylor Grazing Act of 1934, ch. 865, Section 8, 48 Stat. 1272
("mineral deposits") (repealed 1976);  Recreation Act of 1926, 43
U.S.C. 869-1 ("all mineral deposits").  Cf. Federal Land Policy and
Management Act of 1976, Section 209(a), 43 U.S.C. 1719(a) ("all
minerals").

   /10/ At the time the SRHA was passed, the only mineral the
government actually sold and received revenue from was coal.  See
infra, pages 18-19.  Metalliferous minerals were subject to location
under the general Mining Act of 1872, 30 U.S.C. 21 et seq.  But with
the passage of the Mineral Lands Leasing Act of 1920 lands valuable
for phosphate, potassium, asphalt, oil, oil shale, gas, and sodium, as
well as coal, were leased rather than opened to free mining.  30
U.S.C. 181 et seq.  And with the passage of the Common Varieties Act
in 1955, 30 U.S.C. 611;  see 30 U.S.C. 601 et seq., minerals such as
gravel became subject to sale by competitive bidding.  The SRHA
provided that reserved minerals would "be subject to disposal * * * in
accordance with the provisions of the coal and mineral land laws in
force at the time of such disposal." 43 U.S.C. 299.

   /11/ Each act had antecedents in the prior decade which included
many of its essential features.  The Mining Act of 1872 was preceded
by the Mining Act of 1966, ch. 262, 14 Stat. 251, and the Placer Act
of 1870, ch. 235, 16 Stat. 217.  The Coal Lands Act was preceded by
laws in 1864 and 1865 setting acreage and payment provisions for coal
lands.  13 Stat. 343;  13 Stat. 529.

   /12/ In contrast to coal, petroleum was generally thought to be
subject to disposition under the Placer Act of 1870.  See Roberts V.
Jepson, 4 Pub. Lands Dec. 60 (1885);  Piru Oil Co., 16 Pub. Lands Dec.
117 (1893).  Although there was some uncertainty about the question,
see Downey V. Rogers, 2 Pub. Lands Dec. 707, 709 (1883);  Union Oil
Co., 23 Pub Lands Dec. 222 (1896), it was resolved by the Oil Placer
Act of 1897, ch. 216, 29 Stat. 526, which simply provided "(t) hat any
person authorized to enter lands under the mining laws of the United
States may enter and obtain patent to lands containing petroleum or
other mineral oils, and chiefly valuable therefor, under the
provisions of the laws relating to placer mineral claims * * * ."

   /13/ The distinction between coal and other minerals was so marked
that an earlier version of SRHA, H.R. 9582, 63d Cong., 2d Sess.
(1914), actually speaks of coal as though it were not a mineral at
all.  The reservation clause in that bill provided"(t)hat all entries
* * * shall * * * contain a reservation to the United States of all
the minerals and coal in the lands so entered and patented * * * .
The mineral and coal deposits in such lands shall be subject to
disposal by the United States in accordance with the provisions of the
mineral and coal land laws in force at the time of such disposal.  Any
person qualified to locate and enter mineral or coal deposits * * *
shall have the right at all times to enter upon the lands * * * ." The
bill is reproduced in H.R. Rep. No. 626, supra, at 1-2 (emphasis
added).

   /14/ The notable exception was the Agricultural Entry Act of 1914,
30 U.S.C. 121 et seq., which reserved phosphate, nitrate, potash, oil,
gas, and asphalt.  That Act followed what Congress apparently viewed
as a successful experiment with a similar reservation applicable only
to the State of Utah.  37 Stat. 496;  see P. Gates, supra, at 740.
There were during the nineteenth century several reservations of quite
limited scope.  See Bate, Mineral Exceptions and Reservations in
Federal Public Land Patents, 17 Rocky Mtn. Min. L. Inst. 325, 368-377
(1972);  Mall, Federal Mineral Reservations, 20 Rocky Mtn. Min. L.
Inst. 399, 401-403 (1975).

   /15/ The extent of Congress's reliance on the Coal Lands Act for
drafting purposes goes beyond the reservation itself.  The language
describing the entry rights of prospectors, the rights of mineral
developers who have acquired deposits, and the provisions for
protection of the surface owner is, with a few modifications,
identical to that in the 1910 Act.  Compare 43 U.S.C. 299 with 30
U.S.C. 85.  See also 30 U.S.C. 81.

   /16/ The Department's attorney correctly stated to the trial court
that "(t)he United States * * * has no intention of claiming trespass
for using sand and gravel on his own land for purposes related to
ranching" (Br. in Opp. App. 5a).  However, he incorrectly interpreted
43 C.F.R. 3601.1 to mean that the United States would not sell sand
and gravel from SRHA lands (Br. in Opp. App. 5a).  43 C.F.R. 3601.1
provides that

      (m)ineral material disposals may not be made * * * from public
      lands on which:  (1) There are valid, existing claims to the
      land by reason of settlement, entry, or similar rights obtained
      under the public land laws * * * .

   Its intent is simply to segregate lands to which there are inchoate
claims -- acquired by settlement, entry and the like, and not yet
patented -- for the orderly administration of the public land laws.
Such entries may have been made under numerous statutes which, unlike
the SRHA, contained no reservation of minerals.  See, e.g., Homestead
Act, 43 U.S.C. 161 et seq.; Desert Land Act, 43 U.S.C. 321 et seq.;
Enlarged Homestead Act of 1909, ch. 160, 35 Stat. 639.  See also
Bureau of Land Management Manual Section 3600.09-(A)(2)(Aug. 1976)
("Any applications for mineral materials must be suspended until the
conflicting applications or entries are adjudicated").  43 C.F.R.
3600.0-3 states that "(t)he Materials Act * * * authorizes the
disposition of mineral materials including * * * gravel, * * * in the
public land of the United States * * * ." The BLM Manual provides in
Section 3600.08 (Aug. 1976) that "(i)ncluded in the public lands are *
* * minerals reserved to the U.S.C (including Stock Raising Homestead
Act Lands)." In the section dealing with sales of mineral materials
the prior edition of the Manual stated:  "If the land is patented
under the Stock Raising Homestead Act, a bond * * * may be required if
other means of protecting the surface owners * * * are not used." VI
BLM Manual, Pt. 4, ch. 4.6, Section 4.6.21 (Rel. No. 98) (Jan. 9,
1961).  Cf. Department of the Interior, Division of Public Lands,
Solicitor's Opinion, M-36417 (Feb. 15, 1957).

   /17/ The damage provisions of the Agricultural Entry Act of 1914
were arguably more generous than those in the SRHA.  The former Act
states, in the sentence following that quoted from in text, that those
who enter to mine (rather than prospect) are liable for "damages
caused thereby to the owner of the land * * * ." 30 U.S.C. 122.  The
Court in Kinney-Coastal held, however, that the word "damages" was to
be read in light of the specification in the preceding sentence.  277
U.S. at 505.  A damage clause similar to that in Section 9 of the SRHA
is also found in the Coal Lands Act of 1910, 30 U.S.C. 85 ("all
damages to the crops and improvements") though it, like the 1914 Act,
is slightly ambiguous.

   /18/ A similar understanding was voiced in Congress with respect to
homestead entries which were allowed under the Coal Lands Act of 1910,
30 U.S.C. 83 et seq.  In the debates on its passage Rep. Mondell said,
if the land "is fit for agricultural purposes it ought to be farmed *
* * ." 45 Cong. Rec. 6048 (1910).

   /19/ The same test is equally valid today.  1 American Law of
Mining, Section 2.4, at 172 (1981).

   /20/ See also the Building Stone Act of 1892, 30 U.S.C. 161, in
which Congress declared that lands "chiefly valuable for building
stone" were subject to entry under the mining laws.

   /21/ In State ex rel. State Highway Commission V. Trujillo, 82 N.M.
694, 487 P.2d 122 (1971), also relied on by the court of appeals, the
New Mexico Supreme Court held that gravel was not a reserved mineral
within the meaning of Section 9 of the SRHA.  But see Burris V. State
ex rel. State Highway Commission, supra (sand ang gravel are reserved
minerals in lands patented by the state of New Mexico).  The Trujillo
court based its conclusion on the erroneous supposition that gravel,
in order to be a locatable mineral, had to be of a rare or exceptional
quality.  82 N.M. at 696, 487 P.2d at 124.  But the proper test is
simply whether such minerals are presently marketable.  See, e.g.,
United States V. Coleman, supra, 390 U.S. at 601-603;  Hallenbeck V.
Kleppe, supra;  Edwards V. Kleppe, supra;  Melluzzo V. Morton, supra;
Palmer V. Dredge Corp., supra;  Foster V. Seaton, Supra;  United
States V. Schaub, supra.  The Ninth Circuit has concluded that
Trujillo's erroneous interpretation of SRHA Section 9 could be
attributed to its failure to examine the legislative history of the
Act.  United States V. Union Oil Co. of California, supra, 549 F.2d at
1276 n.11.

   /22/ Though it affected not to be, see 39 Pub. Lands Dec. at 312,
the decision in Zimmerman was no doubt influenced by the register and
receiver's opinion that "the portion of this entry involved in this
contest is (not) more valuable for its deposits of gravel and sand
than it is for agricultural purposes." Id. at 311.  The Secretary also
laid great stress on the "fact that deposits of sand and gravel occur
with considerable frequency in the public domain * * * ." Id. at 312.
The abundance of a particular mineral is indeed relevant to its
locatability under the mining laws.  But the reason is that widespread
occurrence affects its value, rather than disqualifies it altogether
from location.  See United States V. Coleman, supra, 390 U.S. at 603.
Only "valuable mineral deposits" are open to exploration under the
mining laws.  30 U.S.C. 22.

   /23/ Other cases suggest that the proper test for inclusion of
gravel in a mineral reservation is whether the deposit has some
exceptional or unique properties.  Bambauer V. Menjoulet, supra, 214
Cal. App. 2d at 874, 29 Cal. Rptr. at 876, 95 A.L.R.2d at 842;
Farrell v. Sayre, supra, 129 Colo. at 372-373, 270 P.2d at 192-193;
Watkins V. Certain-Teed Products Corp., 231 S.W.2D 981, 985 (Tex. Civ.
App. 1950) (dictum);  Psencik V. Wessels, supra, 205 S.W.2d at 661.
However valid that requirement might be to indicate the intent of
private parties, it is clear that it surpasses the demands made by the
mining laws, and the SHRA, for determining what substances are
mineral.  See page 36 note 21 & pages 37-38, supra.

   /24/ That there is a difference between reservations in private
conveyances and those in statutory transfers is a point explicitly
acknowledged in some cases addressing the former problem.  See, e.g.,
Bambauer V. Menjoulet, supra, 214 Cal. App. 2d at 874, Cal. Rptr. at
876, 95 A.L.R. 2d at 842.