Earl Warren: Udall, Secretary of the Interior, Petitioner versus James K. Tallman et al. And before we proceed with that case, the orders of the Court have been certified by the Chief Justice and filed with the clerk and will not be announced orally. And you completed your opening argument Mr. Barnett?
Wayne G. Barnett: Yes, I'd like to reserve my time.
Earl Warren: You may. Mr. Wheatley?
Charles F. Wheatley, Jr.: Mr. Chief Justice, may it please the Court. The basic issue in this case is whether the 1941 Executive Order which created the Kenai Moose Reserve with drawing certain lands therein from settlement, location, sale or entry or other disposition except for fish traps sites under any of the public land laws applicable to Alaska means something less than any. So, it must be construed as a withdrawal under any of the public land laws applicable to Alaska except the Mineral Leasing Act. Now, the public lands belong to the people of the country and Secretary of Interior as guardian of those lands must act in a reasonable way with respect to them. The purpose of publishing orders declaring the status of the land is to advice the citizens of the United States as to the status of those lands if the effect of the 1941 order was to pose a “Keep Out” notice on this Kenai Moose Range then certainly was unfair and unlawful for others to enter into that range prior to the time that the lands were validly open thereto. Conversely, when the Secretary publishes an order or an order is published regarding the status of lands, it has the effect of limiting the Secretary's discretion with respect to those lands. He's bound by the words that are contained in the order. He cannot in subsequently construing the order say that the words of the order which say “white” mean black for that when the order says, “closed” it meant open. Yet, this is precisely. We submit what the Secretary would urge this Court to do here. Such an unlimited par, we suggest is inconsistent with the Secretary's trust as guardian of the public lands. Now, the three judges below who certainly had no reason not to consider the terms of this executive order any differently than any other reasonable man would do unanimously found that they had the effect of closing the range to oil and gas leasing. I'd like to turn now to the plain language of the 1941 Executive Order. It's difficult to imagine any more exhausted language in that use. The lands were to be withdrawn from settlement, location, sale or entry or other disposition except for fish traps sites under any of the public land laws applicable in Alaska. Now, the word “disposition” used in the order which have been used by Congress in the Mineral Leasing Act to describe leasing under the act; Section 1 of the Mineral Leasing Act states that deposits of oil, oil shale, or gas and lands containing such deposits shall be subject to disposition in the form and matter provided in this Act and Section 17 of the Mineral Leasing Act which is a section of the Act which governs the leases in this case specifically provides all lands subject to disposition under this Act which are known or believe to contain oil and gas deposits may be leased by the Secretary. In 1926, the Court of Appeals for the District of Columbia Circuit cert denied said that the Mineral Leasing Act was the expression of a new policy for the disposition of public lands open to exploration or entry by lease instead of by complete alienation. And this Court in 1928 in Kenai Coastal Oil Company versus Kieffer in 277 U.S. likewise described the Mineral Leasing Act of 1920 as affecting the disposal of oil and gas deposits on the public lands. Secondly, we submit, it's clear that the Mineral Leasing Act is a public land law applicable to Alaska. We think it's virtually incontestable that the regulations of the department in effect in 1941 expressly so provide. Part 51 of those regulations referred to the public land laws which were generally applicable in Alaska and provide that those laws would be applicable -- public land laws generally applicable in the United States, that those public land laws would be applicable to Alaska. Part 71 of the regulations expressly deals with the Mineral Leasing laws and the regulation states here that disposition of oil and gas deposits in lands owned by United States in Alaska is governed by the Act of February 25, 1920 known as the Mineral Leasing Act. Furthermore, the Mineral Leasing Act itself is clear that it was intended to apply the Alaska Section 22 as originally enacted 1920. The Alaska oil proviso makes it clear that the terms of the Act were to be generally applicable to lands in that state or in that territory. I'd like to turn now to the fish trap exception, the Government as well as the amici reach view on standard agree that this language had no -- they argued that this language had no place in the order and it shouldn't be there at all. Well, this is certainly true on their construction because it's simply a reconcilable with this construction but we assert that the fish traps site exception just can't be wished to wait. Fish trap sites were very important to the economy of Alaska at this time and the fish trap site exception to the words “disposition” is consistent only with construing this order as close to leasing. This is because the fish trap sites are not alienations of title but involved the use of an area. Now, in the argument on Thursday, counsel for the Government referred to another refuge, the Kodiak National Wildlife Refuge which was created in 1941 in Alaska which had language somewhat similar to the language of this executive order and noted there however that it did not contain the fish trap exception. Well, the reason for this is clear that Kodiak Wildlife Refuge in Executive Order 8857 expressly accepted a strip of land one mile in width along the entire shoreline of that refuge. Quite contrary, if the Kenai refuge which was created in 1941 the same year accepted area here did not embrace the entire shoreline and had this long area of shoreline here which was not within accepted area and which I'm advised they were fish traps of that time but this goes to show we submit that the ‘41 Executive Order was very carefully drawn. We say this is shown further by the words of the order referring to the special statutes applicable to Alaska for fur farming and grazing. We have in our brief shown where all of the special statutes, we studied all of them. We find that these were the only two which by their terms would apply unless they were specifically accepted. All of the other -- or the lesser special Alaska statutes by their terms or by their regulations controlling them would not be applicable to our reserved area. It certainly, the intent of excluding fur farming and grazing of closing the area of that that these functions are certainly no less the inconsistent, we submit, the use of the range for moose then is the commercial activity that would normally be attended in oil and gas leasing. We submit that this shows that the intent was to cover the water front, to cover every conceivable type of user disposition of this range in the non-accepted area and close it to entry. Now, the words used to the 1941 Order, withdraw from settlement location sale or entry. These words are also identical to the words that we used in the 1948 Order which affected the accepted area. These words have been judicially construed. They're taken -- they're identical to the language contained in the 1910 Pickett Act by Congress. Now, that Pickett Act was passed in 1910 to ratify the withdrawal by present intent in 1909 of certain public lands for oil and gas purposes. The question came up after the Mineral Leasing Act was enacted in 1920 when oil and gas lands were treated by leasing as to whether or not the Pickett Act language would apply to withdraw from leasing under the Mineral Leasing Act. President Hoover during the depression had withdrawn some substantial acreage from oil and gas leasing under the Mineral Leasing Act. His withdrawal was challenged on the very same grounds that the Government challenges this withdrawal on the ground that the Pickett Act language which had been used would not suffice to withdraw the area -- the oil and gas lease from Mineral Leasing. The question was squarely presented in the landmark decision of Wilbur versus United States, Ex rel Barton in the Court of Appeals. The Court of Appeals in that decision held that the Act of 1910, the Pickett Act was apparent, we think, this Court stated that the Act of 1910 was intended to be a wide scope and recognized the presence -- the authority of the present temporarily to prevent the alienation of public lands or any interest therein adverse to United States. Under the Act of 1920, the applicant for a permit was required to locate and designate the lands sought in his application. The issuance of a permit and the discovery of valuable deposits of oil and gas entitle in to a lease and interest in the land. This, we think, was akin to location or entry as used in the Act of 1910. Converse to what the Government states, this Court did affirmed this basis of the Court of Appeals' decision in United States ex rel. McLennan versus Wilbur at page 419. Now, the Government admits in its reply brief that the words of the Pickett Act which were used in this order do authorize the president to withdraw lands from oil and gas leasing under the Mineral Leasing Act. This being so, we submit that when President Roosevelt used those words in 1941, he must have given them the judicially construed meaning as powerful expensive enough to close the lands to oil and gas leasing under the Mineral Leasing Act. We say this is further supported by the administrative practice in effect at the time this order -- these orders were issued. It controlling the administrative practice we submit which is no where are mentioned by the amici or the Government in its brief is that when the Pickett Act is used, that language is used in a withdrawal order and Mineral Leasing is intended, the withdrawal expressly so provides. Now, from the time of the 1930's to the time of these orders when leasing was intended, a number of the executive orders were issued which expressly did state that it was permitted for instances in 1936 when President Roosevelt created the Charles Sheldon Antelope Range, the language is expressly provided. The lands are here -- hereby withdrawn from settlement, location, sale or entry and reserve and set apart provided that nothing herein shall restrict prospecting, locating, developing, mining, entering, leasing or patenting the mineral resources of the lands under the applicable laws. There are number of other executive orders similar to this in 1939 and in Appendix D of our brief, Table 2, we list some 125 such orders from the period of time in 1937 to 1955 where leasing was expressly authorized in the term of the withdrawal. Now, the Government asserts that this is all set by a Table 3 in the Marathon and Union amici brief but we say this is not so. None of the orders contained in Table 3 of the Marathon brief used the Pickett Act language. Instead they used a different language that the lands were withdrawn from appropriation including were excluding the Mineral Leasing as our tables shows. The Government admits that this practice using the different language in the withdrawal order became regular around 1944 but when Pickett Act language was used and mineral leasing was intended, we submit the order expressly so provided. An example of this which is not contained in our brief was Executive Order 6957 of 1935. That was withdrawal by President Roosevelt in 1935 of certain lands in Alaska from settlement, location, sale, entry or other form of appropriation and reserved for classification. Now, in 1943 which was during the time that this different form of language was involved, the government's secretary felt necessary to amend and specifically modify this earlier order in order to permit leasing. Public Land Order 149 of July 17, 1943, Eighth Federal Register 10371 specifically modified the earlier 1935 Executive Orders so as to permit leasing under the Coal Leasing Act of 1914. Other examples we have cited in our brief at page 33 in the case of Mary E. Brown. Well, in summary therefore, we submit that the plain meaning of the language is judicial construction and the administrative practice regarding the language used in these orders was clear that the intent was to withdraw these lands from oil and gas leasing. Now, in rebuttal, the petitioners seeks to rely on facts regarding other leases in this range which are not in the record and apparently seeks to rely on these facts of these other leases for two purposes. First, as what he might call an in terrorem, an argument that the Court of Appeals should reverse not because it's wrong but because other leases may have been erroneously issued in the range and secondly, what we call a bootstrap argument that the range was open all along. We're taking the in terrorem argument first. We suggest the Secretary does not seriously believe that this is a problem. The Court of Appeals decision was limited to the determination of which of two conflicting groups had the valid right to tend leases and which of these conflicting applications prevails. No one else had standing, we suggest, with respect to any of their leases to challenge that. And if anyone else said, did have a lease offer pending prior to the issuance of any of these other leases, the statutory period set by Congress for bringing action to contest those other leases has long since past.
Earl Warren: Do you know how many other leases there were granted in amount or that these leases that were granted, Mr. Wheatley?
Charles F. Wheatley, Jr.: I don't Your Honor. The Government has alleged in --
Earl Warren: Or in many or field --
Charles F. Wheatley, Jr.: There are many.
Earl Warren: I'm asking just for --
Charles F. Wheatley, Jr.: I think the Government has alleged Your Honor that there are many and I believe that is true.
Earl Warren: And would that represent whether you have a -- that he did this in a uniform way or took him in the order in which they were filed or was there anything unusual from that standpoint?
Charles F. Wheatley, Jr.: Alright, yes Mr. Chief Justice. There was that -- we submit that until 1958 when the Secretary published an express order declaring these -- this area of the range open to oil and gas leasing. Until that time, the area was closed until actual leases that were issued adverse to the respondents in this case were not issued until after that order had been published declaring that there -- it would be leasing in this area. And the circumstances surrounding that order show, we submit, that it was erroneous to issue leases to anyone who had filed offers in this area while it was closed and it's conceded by all sides that if the area was closed by the terms of the executive order prior to 1958 that the respondents are the first qualified applicants for these leases and that is our position in case. Well, after the Court of Appeals' decision in this case, it is true that news got out that Union and Marathon were working around the clock to file a new top filings on their leases based on the 1958 offers. As in the earlier and since in 1954 when Richfield first went in to the Kenai Range, this caused a rush in a number of people including some of the people in our group were prompted to do likewise but this is not an uncommon thing and since no one has standing to challenge these other leases, the Secretary's hands were not tied. He's free do whatever he likes with respect to these other leases. Regardless of the decision or the outcome of this case, today he's done nothing with respect to this and we submit that the entire matter regarding these other leases is speculative and premature at the present time. I'd like to turn next to the contention by the Government that evidence of the department's action with respect to other leases is somehow relevant to show that they -- their status. We say this argument is improper for three reasons. First, the facts regarding all of these other leases other than the ones in controversy in this case are in dispute as to what the facts exactly were and we submit they can't be tried here by ex parte and affidavit. For instance, the Government in its petition for certiorari and its brief originally asserted that there were number of leases issued in the closed area prior 1955 and 21 such leases and that these were before Congress in 1956. Now, we had three people checked to the land office records per week regarding the status of these leases and we found that that was an error and we so state in our brief. The Government in its reply came back and submitted a letter from the Anchorage land office manager which admitted that it was wrong with respect to these other leases. It's -- the letter states that other than the Swanson River leases, it's through here which were issued in 1956, there were no other leases issued in the range prior to 1958 after the time that the lands were opened that these other leases so alleged were erroneous. Similarly, the full facts regarding the Swanson River unit had never been developed in this record.
Earl Warren: But Mr. Wheatley, on that part you say that this is merely a controversy between you and the other -- and the lessees in this case and that other leases are not relevant because they're not in this case but neither or -- neither did you bring the lessees in this case, into it. They didn't have an opportunity to come in and present this argument, did they?
Charles F. Wheatley, Jr.: Your Honor, I suggest that the other lessees in this case where fully advised of all of the administrative proceedings before the department. In fact, they received by certified mail, a copy of our petition for rehearing before the department which raised the exact same grounds, the Court of Appeals decided this case on subsequently.
Earl Warren: Well, on the hearing, that's after it's over.
Charles F. Wheatley, Jr.: This was in the -- this was no, this was before the department, before the case went to Court. They had notice of the denial of that final petition for rehearing. Under the law at that time, there was just one court in the country in which this case could've been brought and that was in the District of Columbia Circuit and the action had to be broad by statute within a 90-day-period, it was. We submit that the oil companies certainly if they were interested in the effect of this case as they now they are where certainly had enough of interest to determine whether the case had been filed within that period of time. We suggest that they stayed out of the case for tactical reasons and did not join in the proceeding. Now, this is not an uncommon thing. These suits for judicial review of the Secretary of Interior's action in issuing oil and gas leases are similar to other actions to judicial review of other administrative agencies. The respondent or the defendant that needs action is always the agency. The other parties to whom a license or a lease or some other action is granted has a right to intervene but if it is required that they be joined, it would defeat the jurisdiction of the court in almost every instance because you would not be able to obtain jurisdiction over all the parties in the Court. Now, in the Court of Appeals has expressly held in the case of Barish versus Seaton that the lessees, the adverse lessees are not indispensable parties. The Government has waived this argument of indispensable party in this case. And we submit that it properly has done so because it is not and could not be an issue at this time.
Byron R. White: (Inaudible)
Charles F. Wheatley, Jr.: Yes. I agree with you sir.
Earl Warren: Well, on the question on whether they were charged (Voice Overlap) and what was going on administratively, might not your clients be charged with notice also when you knew what the Secretary of the Interior was doing during this period?
Charles F. Wheatley, Jr.: Well, Your Honor I plan to discuss in chronological fashion each of the incidents --
Earl Warren: Yes, but there are (Voice Overlap) --
Charles F. Wheatley, Jr.: -- to regard in this range --
Earl Warren: (Voice Overlap) with your argument.
Charles F. Wheatley, Jr.: -- where it involves a sweeping analysis of everything that happened. I planned to do that --
Earl Warren: Yes, go right ahead in your own way.
Charles F. Wheatley, Jr.: No, I -- I don't want to not answer your question but I'm coming to it almost immediately here. The --
Tom C. Clark: Can I ask you before you go on --
Charles F. Wheatley, Jr.: Yes, Mr. Justice Clark.
Tom C. Clark: What view the Court has held (Inaudible)? What will happen, the Secretary will not withdraw the leases or --?
Charles F. Wheatley, Jr.: No. The standard procedure the way a number of other cases have been handled Mr. Clark is that a judgment is entered on remand in the District Court declaring that the respondents in this case are entitled to the leases. And the Secretary cancels the outstanding leases and merely issues them to us. Now, this Court last year held that that the Secretary has this power under the Mineral Leasing Act to administratively cancel leases to correct the errors that have been made and that is all that would be involved here and this has happened in many other cases in the past.
Tom C. Clark: And the other parties of the past would (Inaudible).
Charles F. Wheatley, Jr.: Well, I -- I would presume that they would feel that the judgment of this Court, the reason of this Court would be the final conclusion on the issues of all involved in the case.
Tom C. Clark: Do you think that the Court closed the other?
Charles F. Wheatley, Jr.: I think it would and the question was decided, we think, in somewhat analogist fashion in the case of just by order Beezer versus the City of Seattle this year where it held that a party who did not participate in federal proceedings in the federal review proceedings thereafter could not subsequently come back and challenge the decision that was there made.
Tom C. Clark: But he was never a party in the City of Seattle.
Charles F. Wheatley, Jr.: Yes. That's right. Mr. Beezer was never been a party in the -- in those proceedings and this Court -- in the Court of Supreme Court of Washington held that he was not a party and for that reason he was not bound by the federal proceedings but this Court in the per curiam order reversed the Supreme Court of Washington and this was one of the points which was I going to in length in the reason of that case.
Hugo L. Black: How would they test that in that case?
Charles F. Wheatley, Jr.: We suggest that they of course were parties in the proceeding before the department. They had a perfect right to intervene in this proceeding for judicial review of the Secretary's decision in the courts. And we suggest that they should've intervened at that time. Now, it may be that they will seek further litigation in this case. We don't know.
Earl Warren: But if, as you believe, they'd be foreclosed by our judgment here, it wouldn't do much good, would it?
Charles F. Wheatley, Jr.: Well, we say that they had the opportunity to appear. I admit Mr. Chief Justice that this is a question of law that has not been decided is to what the effect of these proceedings would be on their rights. We do say that there have been a number of cases in the Court of Appeals which have reviewed the Secretary where the adverse lessee has not been a party of the proceeding. Last year in Boesche versus Udall that was a situation here. The adverse applicant was not before this Court. This Court had no difficulty in deciding the facts and the issues involved in that case and that has happened in a number of other cases. We submit that it is also the practice with respect to most all of the administrative agencies that it's not required that the adverse license order of who ever gets the rights from agency be joined, he has a right to intervene and if he likes to do that why he can.
Tom C. Clark: The Secretary had a hearing on the translation?
Charles F. Wheatley, Jr.: Yes, he does, Your Honor.
Tom C. Clark: I suppose that was his job.
Charles F. Wheatley, Jr.: They have a right to participate in that hearing and it takes any judicial review from it at that time. Our second argument regarding the impropriety we suggest for getting into all of these other facts regarding this other leases is that the Government has waived its opportunity to do so. This case was presented in the District Court upon a record which did not contain any of this other detail which we now see on this map regarding the Swanson River unit or any of these other leases other than the leases that were involved in this controversy. And the Government in support of its motion for summary judgment stated that there was no genuine issue of fact involved in this case and that was the case that was presented to the Court of Appeals. That is the case that is before Your Honors on this record. It does not contain all of these other evidence. Finally, it was only after their petition for rehearing was denied in the Court of Appeals that the Government suggested anything to the court below that any thing that they had done regarding these other leases was anyhow relevant to the case. But even assuming that all of these data which has been presented here by affidavit is accurate and is complete and it was finally developed that the appropriate time in the proceedings with an opportunity for us to provide rebuttal, we submit it doesn't affect the merits of the decision below. All of this material was before the Court of Appeals on the final petition for reconsideration that are now for rehearing and it rejected. I'd now like to go through what happened in this range in chronological step by step fashion and discuss the other leases when I reach them. Well, in 1941 when the range was created, it's clear at that time that there were other refuges in the country which were closed to leasing. We found some 14 or 15 which have language similar to that of the Kenai order and on anybody's terms there's a refuge in 1943 which was created after the Government adopted this different procedure in the Salt Plaints in Oklahoma that was closed. Further, in the hearings before the House Committee in 1956, the acting assistant solicitor for the Department of the Interior expressly affirmed there that some of the wildlife refuges in the United States were close by the terms of the orders creating them. Now, on 1947, we have the 1947 regulations. The Government admitted here an argument last Thursday and we think it's quite true that these regulations are general. They don't apply to any refuges which were otherwise closed by the terms of the orders creating them. Now, in 1948, we have Public Land Order 487, that withdrew this portion of the accepted area of the range. We submit that in construing Public Land Order 487, it has to be construed in relationship to the 1941 order. The 1941 order did not leave this completely opened. It was still part of the range. It's just said it was opened to use disposition. When the 1948 Public Land Order came along, the effect of that was to simply close this portion of accepted area two years in this position. In 1953, there was the issuance of the general suspension order by the department that this was a general order, it didn't pertains specifically to the Kenai Range, it pertain to all wildlife areas and refuges throughout the country. And further, it only applied to those refuges which by their terms were opened to oil and gas leasing. The Deputy Solicitor in the case below expressly said that ‘53 suspension order was applicable only to areas otherwise available for leasing, as in ‘41. So, at this time in 1953 when the general suspension order was in effect, it could've applied only to this blue area of the accepted area which was never withdrawn at any time. Now, in 1954, the lease offers were filed after Richfield went into the area. We think it's curious as Mr. Justice White noted that no lease offers were filed in this range prior to thereto since it was created in 1941 where the lands are in side of acreage in 1953 under the Bureau of Land Management Statistics. There are over a hundred -- 783 oil and gas leases not offers that were outstanding in Alaska embracing over one man and 378,000 acres yet at that time there were no lease offers of any sort in this area. Now in 1955, Department issued Public Land Order 1212 which revokes the earlier 1948 Public Land Order 487 with regard to the accepted area. We have treated the language of this Public Land Order 1212 in our brief. We think it's quite clear that it was intended from the language to show that it had been closed the mineral leasing prior to September 1955. We now further we think this is shown that a fact that after 1955 all of these leases were issued in this area, yet there were two that were issued prior to 1212. The Government had admitted that these were perhaps mistakes, so all of the leases were issued after Public Land Order 1212. This we submit is a practice to show that in effect they were considering the accepted areas closed until after the 1955 order of 1212 opened it. Now, on December of 1955, the Government issued new general regulations pertaining to wildlife refuges throughout the country. The Government now seems to base its whole case on this and argues that these ‘55 regulations confirmed the preexisting status of the Kenai Range is open. We say if there's anything at all clear about this 1955 regulations, it's that they can't confirm the status of the Kenai Range one way or the other. The ‘55 regulations had two appendices. Appendix A listed certain wildlife refuges which would've thereafter be closed to oil and gas leasing. And Appendix B, listed other wildlife areas throughout the country or portions of wildlife areas which would've thereafter be available for leasing only on a detail operating program for the protection of the wildlife. Now, we check the refuges which were included in the category A and found that a great number of these whereby their very terms opened to mineral leasing. Therefore Appendix A to ‘55 regulation closed certain lands that were otherwise opened by the terms of their orders. Similarly, in Appendix B there were great number of refuges or portion of refuges with language somewhat similar to the Kenai as well as the Salt Plains refuge in 1943 which on anybody's language was closed to mineral leasing by the terms of its order yet Appendix B apparently opens some of these refuges which were otherwise closed. Well, if Appendix A closes some refuges that are opened and Appendix B opens some refuges which by their terms were close, it's clear that the 1955 regulation can't be a determination of the preexisting status of any of the wildlife refugees. Now, beyond that, we submit, there are three possible interpretations of the ‘55 regulations. First, it's possible that it didn't affect any of the lands unless they're in mention which now the lands in this case were, if by the terms of their order they were previously closed. In other words, under this interpretation, the ‘55 regulation would be the same as the 1947 regulation which was general and didn't affect any refugees which were closed. Now, the Government argues this can't be so because Appendix B mentioned certain areas in the Kenai Range now involved in this case which were mere lease in rivers. The Government said, “This is where the moose are apt to be” and this makes it clear that the rest of the area must have been opened. We submit that this is a false factual assumption that has no basis in the record. We have a map. We have since last Thursday to check the official U.S. Geological Survey map of the Kenai area having a copy distributed to each member of the Court. This map here, the map that is shown here is simply an exploded version of large area embracing most of the closed area. It's quite clear from this map that almost the entire Kenai Range is just pack marked with lakes and swamps. It'd be almost impossible to say that if water is a prerequisite for moose that there is anywhere in this range that they wouldn't have plenty of water. Now, the second possible interpretation of the 1955 regulation is that the Appendix B procedures therein described, apply to the whole of the closed area. We say the Government in effect so construed the matter because in its action regarding the Swanson River unit. The Swanson River unit which was issued on leases in 1956 was only issued after compliance with Appendix B procedures, the special detail operative procedures which Appendix B of the ‘55 regulation required. But it was applied to this area where the Swanson River unit is not within the designated portions of the range required for Appendix B procedures. This action we submitted of requiring Appendix B procedures for lands not so designated raises the possible inference of the ‘55 regulation could be interpreted as though the Appendix B procedures were required for all of these area. But if that's so, the department has acted inconsistently with the ‘55 regulation because under Appendix B procedures it expressly provides that all pending applications will be rejected within unless within six months the applicant files an operating program sufficient to accomplish these purposes. Now, none of the other leases in this area were rejected yet if the Appendix B procedures are to govern, they should've been. A third possible interpretation of the ‘55 regulations is that they intended to open the range for the first time to oil and gas leasing. There is some support for this in the congressional legislative history in 1956 at 102 Cong. Rec. 250 to 256 in 1956 and house range on H.R.5306 at pages 138 through 173. But we submit that regardless of which interpretation is correct of the 1955 regulations, none of them helped the adverse holders of leases in the present case because all their lease offers were filed prior to the 1955 regulations and there's no answer to say that the Secretary can't open or close a refuge by any thing other than the public land order. He has done it expressly a number of times by general regulations. Now, in 1956, the suspension order was reimposed. It was asked before the general suspension order and only applicable based on the departments on acknowledgement to those wildlife areas which were open to oil and gas leasing. Therefore, the ‘56 suspension order at that time, which was ‘56 could've been applicable to the blue area and the green area. Now, the leases issued prior to 1958 by the department in the Kenai Range we show -- we submit, show that the department treated the whole area which was we say was closed quite differently from the accepted area which we -- anybody's terms is open since 1955. Now, under the Government's theory of this case, there has been absolutely no reason whatsoever to draw any distinction between this area and this area. On the Government's theory both areas were closed all the time. But look what happened. Prior to 1958 leases were issued in the accepted area right here. It's obvious that the department was paying a considerable amount of attention to the line which segregated the open area which was opened from the first, from the closed area and they so treated it administratively down here in accepted area. A number of leases were issued prior to 1958 right up to the boundaries of the close, both areas of the range. In 1958, the Government -- the Secretary issued new comprehensive regulations where everyone is in agreement that these were designed to make a comprehension -- comprehensive revision of all wildlife orders throughout the country. Now, under this ‘58 regulations, all wildlife areas in the United States under the -- even those as the order expressly stated which by the terms of their order were left opened, were closed to oil and gas leasing. The ‘58 regulations, however, with respect to Alaska Wildlife Refugees provided that these would thereafter be opened to oil and gas leasing only after a detail operating program had been worked out between the Fish and Wildlife Service in the Director of Bureau of Land Management for the protection of wildlife values. In January of 1958, the Secretary of the Interior classified the Kenai Moose Range under the ‘58 regulations, he stated, this is at page 15 of the record. I have approved this week a classification of the Kenai Moose Range in the territory of Alaska which delineates those areas which will be opened and close to development. And further, I'm assured by Assistant Secretary Leffler that this action opening a portion of the Kenai Range subject to the proposed regulated development is entirely consistent with the primary purpose for which the range is managed. He went on thereafter to describe the classification procedures that still had to be worked out between the Fish and Wildlife Service in the Bureau of Land Management prior at the time that an order could be issued whereby the lands could be leased. On August 1958, the Secretary announced the final publication of the agreement in map for the protection of wildlife which had been worked out under the ‘58 regulations for the protection of fish and wildlife. Now, this August 2, 1958 set up a specific procedure for the filing of lease offers on the areas which were at that point open to oil and gas leasing. The ‘58 order also embraced the two accepted areas of the range for within which there were oil and gas leasing and for that reason, there was provision in the ‘58 order, we submit, for treatment of suspended orders because those where the only two areas that were opened and which there could be valid suspended orders. Now, the respondents in this case while their lease offers pursuant to the expressed terms of this August 2, 1958 order for these lands after August 14 which was the day that the order specified orders could be filed. We submit that the crowning factual aspect of the case is that three weeks after these lease offers were filed and without notice to the respondents the department issued leases in this area without notice to us to the adverse holders based on their 1954 and 1955 offers and a year later in September of 1959, the department held a drawing which have been required in the August 2 order to determine priority of all of those who would file under the ‘58 order. Now, under the department regulations drawing is not for the determining the order of processing but to determine the order of priority among conflicting applicants. At the drawing, the respondents were chosen first but when they were -- they were notified just a week later or several weeks after that that their offers were rejected because based upon prior leases that have been issued a year earlier. We submit that the drawing held in September of 1959 was obviously just a window dressing because at that time the department had leased the whole, as shown from the map at least the whole area which would be subject to last to be held in the drawing. In conclusion, I'd like to say that the case appears to us to boil down to proposition of whether the respondents who relied on the terms of the published executive order creating the Kenai National Range are to be deprived of their rights by others who are head of the time for the -- accepting of offers in the area and many years prior at the time that any detailed operating procedures will work out for the protection of wildlife entered this range. We think our apropo here is maybe a famous example on American Public Land History. Back in the 19th century with the opening of the Oklahoma territory a specific time was set where the settlers to goo across the line in to the new territory. U.S. Army patrolled the borders and make sure that no one at that time crossed over and tell the given hour after which there was a large rush in to the area. However, several weeks or months or earlier than that, some people had gone across into this Oklahoma territory and state out claims on very valuable lands. To this day, those people are known as sooners and a sooner is still defined today as a person who enters an area prior to that time that is lawfully opened and attempt to gain in unlawful privilege as against others. We believe that the applicants in this case adverse to the respondents are sooners and in fairness and in justice, we submit, they should not prevail.
Earl Warren: Mr. Barnett.
Wayne G. Barnett: Mr. Chief Justice, may --
Earl Warren: (Inaudible)
Wayne G. Barnett: Yes.
Earl Warren: (Inaudible)
Wayne G. Barnett: Well, were there in fact any significant dispute about the accuracy of the data I would think a way would need to be found to resolve the dispute. I suggest there is no dispute. There is not been a suggestion made specifically that anything we have said about leases being issued is an error. We have included in our reply brief an affidavit of the manager of the Anchorage land office listing every one at the leases issued in the range for their record citation to the plat books and the serial books containing the data. None of that has been challenged by the respondents. The respondents in fact have examined the books. Mr. Tallman as the Court is aware having admitting him this morning is himself a lawyer and lived in Anchorage and he is very familiar with the plat books and the track books and no challenge has been made to any specific data stated in this affidavit. Now, what the reference to about these agreements, was that we have said that prior to 1955 there were six leases issued in the range and they were issued. Our statement is accurate. However, when the respondents in their briefs suggested that those early leases may have been issued by mistake we inquired about them and we did get a letter back from the manager of the Anchorage land office saying that indeed they did seem to have been issued by mistake and we therefore disavow them. Let me say we've never made a heck of a line of those six leases and we don't today and I don't think you'll find any place in our brief that we have. The really significant pre-1958 leasing was the Swanson River Unit up in the top and that's the only one I rely on and it's suggested that -- it's improper for us to call that to the Court's attention. I would like to read what the respondent told the Court of Appeals about the matter which we quote at page 27 of our brief. This is what the respondent told the Court of Appeals in their brief, I'm quoting, “No leases issued for any lands within the Kenai Range between 1941 and 1958.” None at all. Further, that the discovery of oil, the acknowledge that oil was discovered in ‘57 that the discovery of oil in the Kenai Peninsula in July 1957 were in areas of the peninsula outside of the Kenai National Moose Range. They told the Court of Appeals that the oil discovery was outside the range and I think it's now conceded the oil discovery is right here right in the middle of the range. Now, it's possible they didn't know that. I find it really hard to believe they didn't know it, and neither that they now know it. Let me say what -- I'd like now to say also goes to their point that the other leases are not in jeopardy that this case involves only this handful of leases. The Court of Appeals decide to this case on September 19, a Thursday of 1963 the following week, the following Monday, the respondent -- the respondents started filing, top filing all the areas that have been leased in the range. The yellow area, these yellow areas primarily covering the oil field, were filed on that following week by the respondents. Now, a lot of other people filed too and this doesn't show all the duplicating filings, Marathon and Union file in that area also. The yellow and green areas are areas filed on by other persons which respondent Tallman had an interest but the main field was filed on by the respondents. Now, that suggests that by their actions they think this case because is in predicate on which they challenged the other leases and I also suggest, it shows that at least one week after the decision they knew where the oil field was even if they didn't know when they filed the brief in the Court of Appeals. Now, in terms of reference no matter outside the record I think our presenting to the Court an affidavit of the manager of the Anchorage land office which shows each lease and where it's located and the records will show it I think it's satisfactory to establish the general administration of the range and it has not been challenged, no one has questioned the accuracy of that data. All they have said is, “Well, we don't know.” If they don't know it's because they don't want to know. Unless they specifically challenged and I don't mean take out one lease, you don't care about one lease covering a few acres but they challenged specifically something that goes to the heart of the matter then I think some other device would have to be found.
Earl Warren: The Secretary (Inaudible)
Wayne G. Barnett: Well, of the right?
Earl Warren: (Inaudible)
Wayne G. Barnett: Well, let me see how it arose but first I think, before the 1947 regulation on wildlife refuges, the practice was generally not to lease, not to grant leases. They were -- the Leasing Act applied to them but on each individual application be rejected on recommendation to wildlife service. It wasn't really an issue when you drew an order whether or not he was barred mineral leasing. That it never is because the main function of withdrawal order, the reason you have to have them is to prevent private autonomous adverse action. Lot of public lands in the past have been able to inquire rights simply like going on and didn't take require anybody to say so. He just went on and picks out a location and to prevent that from happening, it is necessary to have a withdrawal order prevent autonomous acquisition of rights. Now, mineral leasing since it always requires an exercise of discretion by the Secretary anyway, there's no particular need in the withdrawal order to forbid it and the Secretary can then decide by regulation or by individual determinations to what extent he was just to permit leasing and at the time of this order in ‘41, I don't think there was any particular focus on it. I don't -- I hope I haven't implied that I think that order specifically focused on the question of respondent to it. I think the Secretary's interpretation of it is a perfectly reasonable and probably that the preferable one. Let me say as early as 1921, this is cited in our brief, the solicitor construed language withdrawing lands, location, entry or other disposal for water power purposes as not preventing leasing under the 1920 Mineral Leasing Act that disposal did not include leasing. The leading textbook in 1951 said that on this matter and I don't think it should not have been a surprise to anyone learned in the field that this order did not prevent mineral leasing. As to the language of the order, the significant language is other disposition, now granted a mineral lease is a disposal a disposition of the mineral deposits of the minerals but the order doesn't say that none of the minerals shall be subject to disposition, it says none of the lands shall be subject to disposition. And the question is whether it's a disposition of land, now the only right that a lease gives you to the use of the land is to such use as necessary to expiration and extracts and that from the -- that is not even an exclusive right. Anybody else can continue to use the land for other authorized purposes. And secondly, the order doesn't stop with that language, it goes on also specifically to withdraw the lands from classification or lease under the two-sided fur farming statutes and if they're right about this position that was wholly unnecessary.
Earl Warren: Does the -- the department did it consistent with the classification of this statute?
Wayne G. Barnett: In all orders, Mr. Justice? That's an over hard question to answer but this last order that they mentioned today it's not in their brief I haven't been able to find an answer to. It was a 1935 order which set for other appropriation and they later added amended that was specific orders to permit coal leasing under the Alaska Coal Leasing statute which on the face raises the same question and I don't have answer to that at lease I haven't been able to get when this far and there are thousands of these orders and to really to expect total consistency is --
Earl Warren: (Inaudible)
Wayne G. Barnett: I said that is right that -- and that's what the public's opinion of the solicitor I think are all entirely consistent on that and certainly there can be no doubt that in the administration of this range that has been consistent and the 1955 regulation is the first formal regulatory statement that leave no doubt about how the Secretary viewed the 1941 Executive Order and this within file at ‘55 this is three years later before they filed and the people who filed prior to ‘55 were in effect told by the ‘55 regulation that the lands were now and always had been opened for leasing and they didn't -- they were in fact so they didn't have to file again and they have been sitting there for four years. And it's not that after oil is discovered that the new group comes in and top files and I think at least the administration and the regulations and the orders about this range have all been entirely consistent all the way through and it was interim to dispute about that. Thank you.