Warren E. Burger: We will hear arguments first this morning in Watt against Western Nuclear, Incorporated. Mr. Garvey, you may proceed whenever you are ready.
John H. Garvey: Mr. Chief Justice, may it please the Court: The issue in this case is whether gravel deposits which are susceptible to commercial exploitation are reserved to the United States under the Mineral Reservation and the Stock-Raising Homestead Act. Respondent, Western Nuclear, owns a uranium mine about 12 miles south of Jeffrey City, Wyoming, a company town where its workers live. It also mills the uranium a mile or two northeast of the town. From the time in the early 1950s when Western Nuclear first located in this area, it acquired gravel for its various needs in Lander, Wyoming, about 65 miles away, and in Casper, Wyoming, about 85 miles away. In 1975, finding that method of acquisition a little expensive, it acquired part of some land about a mile north of Jeffrey City where there was a deposit of gravel. Respondent thereafter mined about 43,000 cubic yards of gravel from that deposit, or about 60,000 tons, which it used for making cement to line the sides of its mineshafts, for concrete aggregate for lining the streets and the sidewalks in Jeffrey City and for building roads on which to haul its ore. The land on which the gravel deposit was located had been patented in 1926, under the Stock-Raising Homestead Act.
Warren E. Burger: At that time had the modified definition been reached by the Interior Department?
John H. Garvey: It was in 1929 that the--
Warren E. Burger: '29.
John H. Garvey: --Department of the Interior decided Layman against Ellis. The Homestead claim which was at stake in Layman against Ellis had been first located in 1925. When the Bureau of Land Management learned of the appropriation of the gravel deposit, it informed respondent that its appropriation of the gravel was a trespass against the mineral interests of the United States reserved under the Stock-Raising Homestead Act and, after undertaking an appraisal of the property, concluded that respondent was liable in the amount of $13,000 for royalties for the gravel taken.
William H. Rehnquist: Mr. Garvey, was this the first time that the government had brought such an action against claimant or user of gravel under the Farmers and Stockmen's Act... Stockmen's Homestead Act?
John H. Garvey: To my knowledge, it was the first such action, although I should say that the history of the government's enforcement of this... of these rights is a little like what Mark Twain said about Wagner's music, it's actually better than it sounds. Until 1955 these kinds of gravel deposits were not sold but were locatable under the Mining Act of 1872 and they--
William H. Rehnquist: Until when?
John H. Garvey: --1955. And so anybody who wanted to acquire these deposits could just go on the land and take them with... after making accommodations with the homesteader. After 1955, in fact, in 1957, promptly after the Common Varieties Act, which permitted sale of these deposits was passed, the Solicitor of Interior in a Solicitor's opinion addressed to the Director in Denver said that passage of this act shouldn't be understood to have relinquished the government's interest in gravel deposits on Stock-Raising Homestead Act lands. All that the Common Varieties Act did was to change the method of disposal from location to sale. And although it's difficult to say to what extent the people seeking gravel deposits on Stock-Raising Homestead Act lands actually get permission of the Department because of the way the records are kept in the resource area... there isn't any... there isn't any separate line on the form that they fill out to say what kind of lands gravel deposits are taken from... I notice that in the Trujillo case, on which respondent in the Court of Appeals relied, that the State of New Mexico in 1971 had acquired a permit from the Bureau of Land Management to acquire gravel deposits on Stock-Raising Homestead Act lands.
William H. Rehnquist: Well, I suppose a lot of holders of land patented under the Stock Raisers Act simply go ahead and use the gravel, or have in the past, on the assumption that it's not a mineral.
John H. Garvey: That's entirely possible. And it's also the case that the enforcement resources of the Bureau of Land Management are not such that they are able to police the use that's made of these deposits.
William H. Rehnquist: So, so far as you know, from the time of 1916, when the Stock Raisers Act was passed, until the bringing of this action was the first time the government had ever brought an action in court asserting that it retained title to gravel because it was a reserved mineral under the Stock Raisers Act?
John H. Garvey: So far as I know, that's correct.
Byron R. White: But is the government's position narrow, that that... that on these, where the government reserves minerals on this kind of land, that it's a trespass for the rancher or owner to use any gravel? I thought you were now limiting--
John H. Garvey: In the District Court--
Byron R. White: --your claim to commercial deposits.
John H. Garvey: --In the District Court... it's not that we are now limiting our claim. In fact, that has been the issue right along. In the District--
Byron R. White: So... so anyway, you... whenever you made your position clear, it is now your position at least that the... it's only commercial deposits that is at issue?
John H. Garvey: --That's correct.
Byron R. White: So you mean commercial use. Suppose it's a commercial deposit.
John H. Garvey: But the stock-raising homesteader makes use of it?
Byron R. White: Yes. But not commercially.
John H. Garvey: That was... that issue was left open in the District Court, and I am not in a position to concede on behalf of the Department that those deposits don't--
Byron R. White: Well, not--
John H. Garvey: --belong, although if... it may be that the government could permit free use to the Stock-Raising Homestead Act--
Byron R. White: --Well, there are a lot of noncommercial deposits of gravel around, and the... certainly, you concede that the rancher's or homesteader's use of that gravel is permissible?
John H. Garvey: --Indeed. If the deposit--
Byron R. White: As a matter of fact, it doesn't even belong to the government.
John H. Garvey: --That's right.
William H. Rehnquist: Well, has the federal mining law ever treated something that was arguably a mineral as a mineral when it's found commercially but not a mineral when it's not found or used commercially? Well, you can't even get a... you can't patent your mining claim unless it's a commercial deposit.
John H. Garvey: Unless it's... unless it is a valuable mineral. Under the mining law--
William H. Rehnquist: Yes, but that... that depends on whether you can properly locate. That doesn't... the definition of mineral has never turned on whether something-- --No, no. --was commercially used.
John H. Garvey: --That is correct, although you have to bear in mind that under the mining law... what the Mining Act of 1872, for example, is talking about deposits on... on lands which the government owns in fee, so that it's possible to speak of minerals without taking any account of how much of the mineral is on the land. On the other hand, where the government has severed the surface estate from the mineral estate, it's difficult to speak of... to say that the government has retained an interest in all minerals in the land simply because it would be virtually impossible for anybody on the surface to make any use of the surface without somehow interfering with some of the minerals that--
William H. Rehnquist: Well, but under the 1906 Act, or 16 Act, there certainly have been numerous instances, have there not, of entries by private individuals on land that was open... but where the subsurface was open to entry who proposed to become mineral claimants?
John H. Garvey: --Certainly.
William H. Rehnquist: And there as in other branches of the mineral, I have never known of a court case that said the definition of a mineral turns on the degree to which it's commercially used.
John H. Garvey: We don't maintain that the definition of a mineral turns on whether it's commercially usable. We rather say that the minerals in which the government is interested under the Stock-Raising Homestead Acts are minerals which it is able to dispose of separately and which have some use apart from the land on which they're found.
William H. Rehnquist: Well, it is your contention that the reservation of minerals under the 1916 Act included all gravel?
John H. Garvey: I don't know whether the Court has to reach--
William H. Rehnquist: Well, I am interested in reaching it right now by a yes-or-no answer from you, if I could.
John H. Garvey: --Okay.
Byron R. White: You have already answered it once, and you--
John H. Garvey: It's... it's a little bit more complex. As the passage of the Materials Act in 1947 made clear, there were some kinds of gravel that were locatable under the Mining Act and some kinds of gravel that were not. Essentially, the distinction between the two types was that the kinds of gravel which were useful for making concrete for paving, for making cinder block, were reserved. The kinds of gravel which were useful for purposes of fill or riprap... that is to say, large chunks six or eight inches in diameter... were not disposable under the Mining Act. Those kinds were not considered minerals. The reason I said the Court needn't reach that question in this case is that the kinds of gravel which respondent was using are the kinds of gravel that were disposable under the Mining Act. Those other kinds which are useful for purposes of fill or for riprap are a question which the Court needn't reach in this case.
William H. Rehnquist: --Well, why do you say one is "disposable" under the Mineral Act and the other not?
John H. Garvey: One was locatable as a mineral under the Mining Act of 1872. The presence of that kind of gravel on the land in deposits sufficiently valuable to justify a location would permit somebody to go on the land with respect to location.
John Paul Stevens: Mr. Garvey, with respect to that kind of gravel, what is your answer to Justice Rehnquist's question?
John H. Garvey: I would say that the Stock-Raising Homestead Act leaves open the possibility that that sort of gravel can be considered--
John Paul Stevens: Can you answer it yes or no?
John H. Garvey: --Yes.
John Paul Stevens: Yes?
John H. Garvey: The acts--
John Paul Stevens: You think they do reserve it all?
John H. Garvey: --The act says in the second sentence that the disposal of the mineral deposits on the land shall be subject to disposal in accordance with the provisions of the mineral land laws in force at the time of such disposal, which means that even though it may not have been disposable in 1916 it could well have become disposable and hence included within the mineral reservation with the passage of the Materials Act.
Lewis F. Powell, Jr.: Well, how will a rancher know whether a particular gravel is commercially... of commercial quality or not? Does he have to go to the Department of the Interior and get a ruling before he makes any use of it himself?
John H. Garvey: If he were in doubt, he could certainly ask the Bureau of Land Management.
Lewis F. Powell, Jr.: And perhaps commercial use that is unknown today may exist a few years from now?
John H. Garvey: It's entirely possible, although I should point out that in that respect gravel is not different from other kinds of minerals under the Mining Act or under the... under the mining laws in general. In 1915, a year before this act was passed, the Department of the Interior held that bauxite was not a locatable mineral even though it was known that bauxite contained uranium, simply because at that time there wasn't the technological process for extracting uranium from bauxite. I doubt whether that would be followed today. Or, to take another example, in 1949 Congress said that people were going on Stock-Raising Homestead Act lands in order to mine bentonite, which is used for drilling mud or for a process for collecting iron ore called taconite pelletizing. And although bentonite wasn't used for those purposes in 1916, Congress recognized in 1949 that those had become minerals which would justify entry on stock Raising Homestead Acts from... Act lands for mining purposes. Or uranium, for that matter.
Warren E. Burger: In other words, before 1916 or whenever this first decision was made, or before the '29, whatever is the ore from which nuclear material is extracted would not have been regarded as a valuable mineral in that time, would it?
John H. Garvey: I am... I was unable to find cases holding to that effect, undoubtedly because nobody had any use for the material. It may well have been considered a mineral. I doubt that it would have been considered a valuable mineral at that time.
Warren E. Burger: Didn't we have a case within recent years where it turned to some extent on the adjective "valuable" mineral, which--
John H. Garvey: Correct.
Warren E. Burger: --considers that--
John H. Garvey: In Andrus against Shell Oil this Court decided that the interpretation of the mineral leasing Act of 1920 since the time of its passage by the Secretary of the Interior and by Congress suggested that oil shale was a valuable mineral before 1920 and so locatable under the Mining Act. What we are maintaining in this case is much the same, that the consistent interpretation both by the Secretary and by Congress since passage of the Stock-Raising Homestead Act in that case.
William H. Rehnquist: --Well, how can you refer to a consistent interpretation when you have the gravel opinion sometime in the early teens, I think it was, and then the turnabout in 1929?
John H. Garvey: I... I qualified my statement by saying that the consistent interpretation since the passage of the act. There is no doubt that in Zimmerman against Brunson the Secretary held that gravel deposits, much like the gravel deposits in this case, would not disqualify land from being homesteaded because they should not be considered to make the land valuable for minerals. I would suggest that when Congress passed the act in 1916, it may well have thought differently had it addressed the question about whether gravel was--
Byron R. White: But that, Zimmerman was on the books when that was passed.
John H. Garvey: --That's correct. Zimmerman was on the books for 6 years at the time the act was passed. But I might say that the decisions of this Court in cases like Northern Pacific against Soderburg had held that granite was a mineral reserved from the lands given to the Northern Pacific Railway, that the U.S. Geological Survey in 1913, 3 years after Zimmerman, had said that the presence of gravel deposits on land could make them lands valuable for minerals and so disposable under the mining laws. Even the other decisions of the Secretary of the Interior at the time Zimmerman was decided suggested that materials like pumice and granite, which like gravel are now held as disposable under the Common Varieties Act, would make the land valuable for minerals. But quite apart from all of that, the question in Zimmerman against Brunson was whether the land should be used for homesteading purposes or for mining purposes. At that time if you got a homestead or a mining location, you got everything, the surface and the minerals. And so by contrast, under the Stock-Raising Homestead Act the presence of gravel will not disqualify the land from being homesteaded. Under those circumstances--
William H. Rehnquist: You think Congress intended a different definition of mineral in the Stock Raisers Act than it did in the Mining Act of 1872?
John H. Garvey: --I don't want to press the point too strongly.
William H. Rehnquist: Can't you answer any question yes or no, Counsel?
John H. Garvey: I think that Congress certainly meant to include in the Stock-Raising Homestead Act those minerals that were locatable under the mining law. I also think in the second sentence of the act that Congress intended to leave open the possibility that the mineral reservation would be elastic in the sense that it could expand or contract.
Warren E. Burger: What about the granite that you just mentioned, what is the status of granite?
John H. Garvey: I assume that it is now locatable, that it is now subject to disposal under the Common Varieties Act, which speaks of common varieties of stone. Granite deposits in uncommon varieties would now be still locatable under the Mining Act.
Warren E. Burger: Well, what is the consequence of that? Would they be classified as minerals or not?
John H. Garvey: The passage of the Common Varieties Act in 1955 did not act as a quit claim to the government's interest in these kinds of minerals. What it did, rather, was simply to change the method of disposal of these minerals from location under the mining law to sale, because Congress expressed a concern that people who were locating common varieties of minerals weren't developing them in the way in which the Mining Act intended, much as, if I may draw an analogy, in passing the Mineral Leasing Act in 1920, what Congress did was to change the method of disposal of oil deposits, for example, from location under the mining law to leasing under the Mineral Leasing Act of 1920. It didn't give up the government's interest in those minerals, it simply provided a different method for disposing of them.
John Paul Stevens: May I ask one other question while you pause. As I understand it, the government's view is that although it will only assert a trespass claim when the gravel has commercial value, in fact it retains an interest in gravel that does not have commercial value? That's correct, is it?
John H. Garvey: No.
John Paul Stevens: I thought that--
John H. Garvey: I am sorry. It may... my discussion with Justice Rehnquist may have confused that matter.
John Paul Stevens: --That's what I thought your yes answer indicated.
John H. Garvey: There are two kinds of distinctions, and I was speaking about the other one. What the government asserts an interest in this... in in this case--
John Paul Stevens: Well, I understand what they assert an interest in in this case. It's commercial, you say there's commercial value there.
John H. Garvey: --That's correct.
John Paul Stevens: I am interested in physically identical gravel in which there is no commercial--
John H. Garvey: The government does not assert an interest in that.
John Paul Stevens: --It does not. Does it acknowledge it does not have an ownership interest in such gravel?
John H. Garvey: Yes.
John Paul Stevens: I see. In other words, the farmer, the rancher can use it for whatever he wants to?
John H. Garvey: That's correct.
Warren E. Burger: Or he can ignore it?
John H. Garvey: That's correct.
Byron R. White: He owns it.
John H. Garvey: That's right.
John Paul Stevens: But he loses his ownership as soon as it acquires commercial value?
John H. Garvey: I would say so, yes.
John Paul Stevens: So that his... the title to that gravel is... fluctuates as economic conditions fluctuate?
John H. Garvey: Yes.
Sandra Day O'Connor: Is that your so-called free-use theory, or is that something else?
John H. Garvey: No. What we were speaking of when we talked about free use were commercially exploitable deposits of gravel which in fact belong to the United States and not to the rancher.
Sandra Day O'Connor: And in those, your position is that the patent owner can make free use of the commercially valuable minerals?
John H. Garvey: Not the patent owner. The stock-raising homesteaders who use them for purposes related to the purposes of the act may make free use of them.
Sandra Day O'Connor: But not subsequent patent owners; for instance, someone who now has a hotel on the premises?
John H. Garvey: That's correct. It's not a... it's not a distinction between prior and subsequent patent owners but rather the use to which the gravel is put. The fact that the government is willing to allow ranchers to make free use of gravel doesn't mean that if a cement company acquires the surface estate it's entitled to use the gravel, for instance.
William H. Rehnquist: Kind of like a springing use?
John H. Garvey: More like a... kind of. It's a little like a determinable fee or an estate on condition subsequent with respect to these kinds of materials.
John Paul Stevens: Is there any physical limit on this concept? Now supposing we have black dirt rather than gravel, which one could say is a mineral in some sort of sense, and also might sometimes be used by the landowner and sometimes be sold?
John H. Garvey: No. It has to be a mineral which is the kind of mineral recognized by the mineral land laws of the United States. Black dirt is not a mineral, no matter how valuable it is. Peat is not a mineral, no matter how valuable it is.
John Paul Stevens: How about sand?
John H. Garvey: Sand is a more difficult question. There are some kinds of sand which have been held to be minerals locatable under the Mining Act and may well be--
John Paul Stevens: Would the quality... would the character of sand also turn on its economic or the economic conditions just like gravel?
John H. Garvey: --Yes.
John Paul Stevens: Are there any other, other than gravel or sand in which there is this kind of springing use?
John H. Garvey: It's true of any kind of mineral.
John Paul Stevens: Well, what about coal. Doesn't the government hold coal even when it has no commercial value?
John H. Garvey: I don't think the government has an interest in coal when it has no commercial value. Let me give you another example. When you grow hydrangeas, the blue color in hydrangeas is caused by a compound of aluminum. To say that the stock-raising homesteader couldn't grow hydrangeas because he's using aluminum in the land would make it impossible to implement the--
John Paul Stevens: Well, we aren't asking you whether the owner could use it. I am asking you whether as a matter of legal theory you think the government has an ownership interest. Assume there is aluminum in the soil. Would you say that the government does not have an ownership interest in the aluminum?
John H. Garvey: --I would say that the government does not have an ownership interest in the aluminum unless there is some... unless it is there in sufficient quantities to make it possible for the government to dispose of it. The reason the government is taking this position is that in passing the Stock-Raising Homestead Act, what the government intended to do was to make multiple use of these semiarid lands in the West. One use that it wanted to make of the lands was to encourage stock-raising homesteads. What the... section 2 of the act says that the Secretary in classifying lands for entry under this act shall set apart lands that are chiefly valuable for grazing and forage farming. Section 3 of the act says that in order to get a patent, what the entry man has to do is to improve the value of the land for stock-raising purposes. It says in the reports. It suggests that he ought to do things like building fences or building silos or digging wells. That's one use that the government wanted to make of the lands. And the reports say that the farmer-stockman is not seeking and does not desire the minerals, his experience and efforts being in the line of stock raising and farming. That's one use the government wanted to make. And the other use that the government wanted to make was to develop the mineral estate. There was a lot of concern expressed at the time of the passage that the... that the lands being given away, 640 acres or one square mile, might, again in the words of the report, might withdraw immense areas from prospecting and mineral development. And so whenever they talk about the size of the estate being given away, they're careful to say that all minerals are reserved. Now, what the government tried to do in making multiple use of the lands like that was to define the estates that it was giving to the... to the surface owner and to the mineral entry man in terms of the intended use to be made of the property. It doesn't make sense for the government to claim that it retains and can prevent any use by the stock-raising homesteader of minerals that appear on the land in traces insufficient to justify disposal by any means.
John Paul Stevens: Well, let me question that. The literal language reserves to the United States all the coal, but you say that doesn't really mean all the coal, it only means all the commercially valuable coal. Is that correct?
John H. Garvey: That's correct.
William H. Rehnquist: So with each time a stockyard patentee comes across any trace of coal on his land, he's got to wonder whether it belongs to the government or belongs to him, and he's got to make a judgment whether it's, quote, commercially valuable?
John H. Garvey: That's correct, although I should say that with respect to coal, as with respect to gravel in this case, even under the Coal Lands Acts, like the Act of 1909, 1910, 1912, the government recognized explicitly in the case of the 1909 and 1910 Acts and by decision of the Secretary in the case of the 1912 Act, that people on the land could make use of the coal for domestic purposes. They were simply not allowed to sell it, make commercial use of it. So in a lot of cases, that concern wouldn't arise.
Warren E. Burger: Is a mineral reservation, or was the mineral reservation, the same in these grants to the Great Northern and Northern Pacific and the other railroads to every other section?
John H. Garvey: I believe that the language may have been similar. I think they spoke then of mineral lands in the third section of the Northern Pacific.
Warren E. Burger: I vaguely recall in some other case a great concern in Congress at the time they were making these grants, that there was some objection on the grounds that this was a give-away of very valuable public property.
John H. Garvey: That was in fact the reason for making the mineral reservation, and the railroads were entitled to choose other lands when--
Warren E. Burger: So that the railroads could use it for running a railroad and the farmers and ranchers were given this grant free in order to use it for farming or ranching purposes but not other purposes. Is that an oversimplification?
John H. Garvey: --I think that's essentially correct, although the government doesn't maintain that the patentee has to keep it as a stock-raising homestead forever. Patentees are entitled to make whatever use they want of the land once they get the patent. And their title to the land doesn't depend on maintaining it as a ranch. It's just that the use they may be entitled... that they may be permitted by the government to make of the minerals.
Warren E. Burger: Under the terms of the patent, the patent didn't issue until they had worked the land for some period of time of several years, wasn't it?
John H. Garvey: That's correct; and increase the value of the land in something like $1.25 an acre for stock-raising purposes.
Warren E. Burger: Yes. How many acres have been patented under this act that we're talking about?
John H. Garvey: Something more than 33 million acres. I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Mr. Shaver.
Harley W. Shaver, III: Mr. Chief Justice, and may it please the Court: What we are attempting to ascertain in this case is whether or not the 1916 Congress specifically reserved gravel in its mineral reservation of all coal and other minerals. I think the case law and the legislative history is particularly important to look at, the condition of the country at the time and what Congress was intending to do when it passed the 1916 Stock-Raising Homestead Act. You will recall that between 1900 and 1910 President Roosevelt withdrew approximately 150 million acres of public lands from entry, both agricultural and mineral. Subsequent to that time, in 1907, President Roosevelt urged Congress to pass legislation which would provide for a distinct title to the surface and reserve to the government underlying fuel and minerals. Congress commenced passage of legislation in 1909. The 1916 Stock-Raising Homestead Act was the last of the large land grants to settle the West, provided, as has been stated, for 640 acres rather than the normal 160 or 320, because that type of land, that barren semiarid West, required an acreage of that nature to support the plucky homesteader who could go out there and try to make a living. Did Congress in 1916 intend to reserve gravel under that mineral reservation? Congress--
Warren E. Burger: Well, isn't the question a little broader than that? Did they intend to reserve everything except what was essential for the purposes of the grant; that is, grazing and farming, raising crops?
Harley W. Shaver, III: --I think when one looks to the legislative history of the act, one sees it replete with the phrases: What we are attempting here is to settle up to one-fourth of the remaining public domain. What the West needs is settlers, people, homes, communities, churches, railroads. The Stock-Raising Homestead Act was a means to that end. It was a means to settle the West. I don't believe the Stock-Raising Homestead Act was just a means to graze stock. The cattle barons had been grazing stock on the Western lands, the public domain, long before 1916. And in fact, the lands were overgrazed at that time. This was a means to get people out there, to tie them to communities, to build towns, to add to the tax rolls. This was shortly after these Western Rocky Mountain states joined the Union, became states. They needed people to add to the tax rolls. The only way to get that was to get them out there to build cities, to make improvements. I think that was the underlying purpose, the driving force behind the passage of the Stock-Raising Homestead Act.
Speaker: Who drafted the act?
Harley W. Shaver, III: The act was drafted or--
Byron R. White: Was it proposed by--
Harley W. Shaver, III: --It was proposed by First Assistant Secretary Jones from the Land Department. I mean, he was the person from the Land Department who was responsible for the drafting. He is a person who had written the decision in Hughes v. Florida in 1913, quoting from the language in Zimmerman v. Brunson. And he submitted the first draft about 5 or 6 months to the congressional committee who later reported it out in essentially the same form. Congressman Taylor of Colorado was also regarded as a sponsor of the act and was later the author of the Taylor Grazing Act, in further answer to the question.
Byron R. White: --Well, I take it your argument is that... that Congress necessarily had in mind the Zimmerman decision. Is that it?
Harley W. Shaver, III: Well, I would think so. I would point also to the fact that the case the government cited recently of Northern Pacific Railroad v. Soderburg, a 1903 case, there was one Mr. Ballinger who argued before this Court on reargument for the successful appellee. That was the same Mr. Ballinger who was Secretary Ballinger who wrote the decision in Zimmerman v. Brunson. Secretary Ballinger was a noted expert on mineral law at the time. I don't think that case can be regarded as an aberration.
Byron R. White: Well, didn't the... didn't the Secretary have some regulatory authority under the act?
Harley W. Shaver, III: Under the 1916 act?
Byron R. White: Under the Stock-Raising... yes.
Harley W. Shaver, III: I don't believe at that time that there was regulatory authority such as we know it today.
Byron R. White: Well, would he have any... I suppose by adjudication he would--
Harley W. Shaver, III: Justice White, absolutely by Land Department decisions, yes.
Byron R. White: --He would certainly have some authority to say what a mineral was or wasn't.
Harley W. Shaver, III: It has long been regarded that the department or agency interpreting the law that it administers is given the weight of quasi-judicial authority, and the interpretation by that agency would be the interpretation--
Byron R. White: Are you saying that any... that any... any interpretation, anything that the Department of Interior had called a mineral or had said was not a mineral, any of those decisions were automatically cut in... put in granite by the... by the 1916 Act?
Harley W. Shaver, III: --I don't know as if I could extend it to that extreme. I would say, yes, that Congress would be presumed to know what those decisions were and that that was the status of the--
Byron R. White: And there could never be another decision by the land... in the Land Department that was contrary to any prior decision adopted before the act?
Harley W. Shaver, III: --Well, obviously, there was. So, yes, there could be. There could be.
Byron R. White: No; I mean it would be they would... they should be--
Harley W. Shaver, III: Justice White, I don't think it could have been contemplated by Congress, no. Obviously, judicial tribunals sometimes reverse themselves.
Byron R. White: --Do you--
Harley W. Shaver, III: The situation in the case that overruled Zimmerman v. Brunson, Layman v. Ellis, was a case that arose in 1929.
Byron R. White: --Right.
Harley W. Shaver, III: It was a case that arose in California, in southern California, during the population explosion of southern California at that time. It was decided in or about Los Angeles. The record in that case, the description in that case by the writer is filled with facts and figures about the production of gravel and about how much more valuable it has become in 1929 than it was in the prior decade. So that administrative tribunal I think was persuaded by some excellent advocacy on perhaps... on behalf of the mineral claimant when the mineral claimant kept stressing that it had now become valuable, it had now become valuable, and therefore decided it was a mineral sua sponte and forgot to worry about deciding whether it was a mineral ab initio but just decided it was because it was valuable.
Byron R. White: You think as a matter of law Layman was just wrong or that they... the tribunal was without authority to decide that way because... because Zimmerman... that Zimmerman was beyond reach?
Harley W. Shaver, III: Well, it can be taken in two contexts. I don't know as a matter of law it can be said that it was wrong. I think it was a mistake. I think that at that time that--
Byron R. White: Well, they were without authority to overrule Zimmerman. That's what your submission is, I take it?
Harley W. Shaver, III: --I think that the Land Department was... did have authority to overrule its own case.
Byron R. White: Oh, it did?
Harley W. Shaver, III: Yes. I believe it did.
Warren E. Burger: What would be the situation at that time with respect to all of the components that make up the ore from which uranium is now extracted? Would there have been any way for the people in the Department of the Interior to anticipate that that might be of future enormous commercial value?
Harley W. Shaver, III: I think that in 1916 as well as in 1872, if you will allow me, Mr. Chief Justice, to give a little bit longer answer to a short question, that one cannot say the mineral reservation contemplated only those things known to be mineral at the time of the reservation. Therefore, if uranium oxide or U308, from bauxite or whatever source... and it's found also in granite outcroppings... was not known to be valuable in concentrated forms at the time, I think it could subsequently be a reserved mineral. But the difference is, as one court has pointed out, and several tribunals, that gravel and its uses have been known since time immemorial. It was known in 1872, it was known at the time of the Zimmerman decision, it was known at the time of Hughes v. Florida, it was known at the time in 1916, and it is known today.
Warren E. Burger: Are you suggesting that the uses never undergo any changes in terms of reflecting the greater economic value?
Harley W. Shaver, III: I am certain that the uses do undergo some changes, but the consistent use for gravel throughout this period has been for road, road building and concrete aggregate.
Warren E. Burger: Oil shale, for example, wasn't worth anyone's attention at one point in history. Is that not so?
Harley W. Shaver, III: Oil shale at one time attracted attention prior to 1920 because claims were entered on the oil shale lands. And there was a department decision that upheld those. And later this Court upheld them. But they were thought to be of value in the future, and the department recognized that and did not apply in the oil shale cases the present marketability test. But that was not the same as deciding whether or not it was a mineral in the first instance. Oil was a mineral, gas was a mineral. These were the essence of hydrocarbons, and so they were regarded as minerals. It was getting the same product although and albeit from a different means. It is not the same at all as talking about gravel.
Sandra Day O'Connor: Mr. Shaver, do you agree with the Solicitor General, however, that under the 1872 Mineral Location Act that valuable, commercially valuable, gravel deposits could have been located under that act even at the time of Zimmerman?
Harley W. Shaver, III: Absolutely not, Justice O'Connor. What the mining law provided and what was in the departmental decisions is the common varieties of special distinct characteristics could be located under the mining laws. We can see an example today. Clay has never been locatable under the mining laws. However, bentonite may be. Sand and gravel has never been locatable under the mining laws until Layman, and sand has probably not been locatable unless it possesses special and distinct characteristics such as for the making of lead crystal. That has always throughout the mining law been the differentiation. Ordinary gravel was never locatable until the Layman decision. So, no, I do not agree that just because it's commercially exploitable equates to special and distinct characteristics. In fact, the Secretary has gone to great lengths to point to the contrary.
William H. Rehnquist: Is the Layman decision the kind that would not be expected to be judicially tested itself in the ordinary course of things since it's a decision granting an application for a mineral patent?
Harley W. Shaver, III: Well, that was a contest between the entry man for agriculture and a mineral claimant. And I--
William H. Rehnquist: So the agricultural entry man could have appealed it as well as the mineral claimant?
Harley W. Shaver, III: --I imagine that they could have. They had a contract between themselves, in reading the case. The mineral claimant and the agricultural claimant, before the thing was taken for an administrative decision, had a contract. I am not privy to all of the terms of the contract, but it did provide that one would stay away from the other's domain pending the case. I don't know the rest of it. The case does make reference to the fact that the Secretary in following Zimmerman in the initial administrative decision... or rather the Commissioner of Public Lands in following Zimmerman in the Layman case was concerned that this land was being acquired, that the mineral claimant was just trying to jump the claim of the agricultural entry man.
Byron R. White: It seems strange that... that there would be this difference of opinion between you two on whether gravel was locatable prior to Layman.
Harley W. Shaver, III: I... Justice White, it may--
Byron R. White: Is that just a matter of... is it just a matter of opinion? I would think it would be a matter of experience.
Harley W. Shaver, III: --I think it's a matter of settled policy that common varieties or common surface constituents which make up much of the earth are only locatable if they possess special and distinct characteristics.
Byron R. White: Well, does... did gravel ever?
Harley W. Shaver, III: Not to my knowledge.
Byron R. White: Not to your knowledge but--
Harley W. Shaver, III: There are no cases and no claims that I am aware of in my research where a successful claimant for gravel has been able to persuade the department on the basis that gravel possessed that. Now, caliche, maybe yes. In other words--
Byron R. White: --What did Zimmerman say?
Harley W. Shaver, III: --Zimmerman said that there was not a standard American authority which recognized gravel as a mineral, that in the absence--
Byron R. White: Do you think Zimmerman is evidence that gravel was not locatable?
Harley W. Shaver, III: --I think absolutely.
Byron R. White: Yes. When is the first time that the government began to issue patents under the mining claims laws for common varieties of commercially salable gravel? When did the government--
Harley W. Shaver, III: Justice O'Connor, I am not aware of the first patent issued, but I would assume that it would have been shortly after the Layman v. Ellis case if that were a commercially viable gravel deposit because that was the first case where gravel had been held to be locatable in a contest. Up until then it was not.
Sandra Day O'Connor: --Well, it has been some years now that that's been the practice of the Federal Government, the Department of the Interior, to issue patents on common varieties of gravel; is that right?
Harley W. Shaver, III: No, I don't believe I would characterize it as such, Justice O'Connor. I would say that what happened is that in Layman v. Ellis the patent had to issue for the 40 acres involved or such part of it as was mineral in character. Following that period of time, the--
Sandra Day O'Connor: Under the mining location?
Harley W. Shaver, III: --Under the mining law, under the mining law of 1872. But what transpired, as this Court is well aware from its decision in Coleman, is that as time went on, individuals attempted, pursuant to the mining laws, to make locations of sand and gravel deposits and therefore to receive a patent to them--
Speaker: Right.
Harley W. Shaver, III: --although there was no reason to receive a patent except for to build a fishing ranch or a home or have a place in the mountains or to acquire acreage that could not otherwise be acquired. And it was these abuses in the law that Congress was concerned with in--
Sandra Day O'Connor: In 1955.
Harley W. Shaver, III: --in 1955.
Sandra Day O'Connor: When it went to its sale.
Harley W. Shaver, III: When it went to the... to the Common Varieties or the Surface Resources Act. And I think a brief history of that is interesting to--
Sandra Day O'Connor: Well, but--
Harley W. Shaver, III: --analyze.
Sandra Day O'Connor: --the fact... I mean you have to recognize that in 1955 Congress took the action it did because the Department of the Interior had been patenting land for common varieties of gravel, had it not?
Harley W. Shaver, III: That's--
Sandra Day O'Connor: Isn't that why they passed the '55 Act?
Harley W. Shaver, III: --I think that that is one of the reasons, but if we will take and look at the legislative history of common varieties, gravel was not specifically considered nor were other common surface constituents specifically considered until... by Congress until 1943. In 1943 Senator Hatch brought a bill before Congress under the Emergency Wartime Declaration Act, providing for the disposal from public lands of sand, gravel, mesquite, clay, et cetera. Those particular substances were referred to by Senator Hatch in the proposed bill as substances or materials. Senator Harold Ickes at the same time wrote a letter to Congress setting forth that he was in accord with this legislastion and also referred to these substances as materials. Congress passed that act in 1944, and it provided for the disposal of surface materials. One of those materials was gravel. One was sand. One was also clay. And I might point out that clay has never become locatable. In 1947, because the '44 Act had expired by its terms because World War II was over, it was thought necessary for Congress to pass some additional legislation to reimplement these provisions. The 1947 Act, as initially passed, was what was referred to as the Materials Act of 1947. That is one of the things that was cited in the trespass notice to respondent. The 1947 Act, as initially passed, referred to surface materials, clay... excuse me... sand, gravel, stone, manzenite, et cetera. It was not until 1955, when the Surface Resources, or Common Varieties, Act was passed, which you made reference to, Justice O'Connor, that the 1947 Act was amended, the Materials Act, so that it would complement the '55 Act. At that time, Congress adopted an approved classification system, on the one hand for mineral materials, on the other hand for vegetative materials. You line up the vegetative materials over here and the mineral materials over here. It's the first time that the word "mineral" materials qualified the term "materials" as opposed to vegetative. So now the government in 1975 has come full circle. They started out with substances and materials. In '47 they were materials. In '55 they were mineral materials. And now in '75 all of a sudden we have gravel as a mineral. And that's the legislative history. And the only way it became a mineral is by administrative imagination. It was always before that a material.
Sandra Day O'Connor: Is the gravel involved in this case the so-called common variety?
Harley W. Shaver, III: Well, I would have to call it--
Sandra Day O'Connor: Contrary to what the Solicitor General explained--
Harley W. Shaver, III: --I would call all gravel common variety, as Congress has, as has been regarded in the history of the mining laws. Ordinary gravel is ordinary gravel.
William J. Brennan, Jr.: --Mr. Shaver, may I ask, in your brief you have argued that the question presented by the government is really not here, was not raised below. Have you abandoned that argument?
Harley W. Shaver, III: No, Justice Brennan. I... I believe--
William J. Brennan, Jr.: I mean you have been arguing the merits.
Harley W. Shaver, III: --Yes. I pointed out in the brief that I believe that the issue of whether or not the government reserved gravel susceptible to commercial exploitation has been an anomaly to this case. It hasn't been passed upon by the tribunals below. There was no evidentiary hearing in this case at any step of the way. One was requested before the IBLA, and it was disallowed. This whole case has gotten to this Court as essentially an argument on the law.
William J. Brennan, Jr.: But if we agreed with you, what should we do with the case?
Harley W. Shaver, III: I would suggest that the decision of the Tenth Circuit stand.
Warren E. Burger: But the remand that you referred to at least tangentially here would be to determine whether... to determine something which had not been argued or presented; namely, is there a difference by virtue of the commercial value? Is that the basis of a remand that you were referring to? Did you request a remand? No, no.
Harley W. Shaver, III: I don't believe so, Justice Rehnquist.
Warren E. Burger: The hypothetical that was suggested was that that has not been decided by any court. It is now raised in this on appeal for the first time.
Harley W. Shaver, III: It was not raised by the respondent, and I don't believe it need be addressed. But I thought that it was obligatory upon counsel to point out to the Court that this particular issue, as phrased by the government in the issue presented to this Court, was not raised nor passed upon by the tribunals below and--
William J. Brennan, Jr.: Well, if that's so, Mr. Shaver, what you're asking us, I gather, is you say let the Tenth Circuit decision stand, is that we dismiss this petition as improvidently granted. Is that it?
Harley W. Shaver, III: --Yes, Your Honor, that would... Justice Brennan, that is exactly what I suggested in that particular phase of the brief.
Byron R. White: Mr. Shaver, you say that the government has come full circle. It may have done it twice. But since Layman at least they have considered gravel to be locatable as a mineral.
Harley W. Shaver, III: Since Layman they have considered that gravel could be, yes.
Byron R. White: And you don't think any of the legislation that took place changed that, do you?
Harley W. Shaver, III: I think largely--
Byron R. White: I mean in the sense that it certainly never... never said that gravel could never be locatable as a mineral?
Harley W. Shaver, III: --No, nor would I contend that it never could be, Justice White, if it possessed special and distinct characteristics.
Byron R. White: Well, no, but common... common varieties of gravel, whatever you want to call them--
Harley W. Shaver, III: Yes.
Byron R. White: --were locatable as as mineral under Layman?
Harley W. Shaver, III: That's correct.
Byron R. White: And there has never been any legislation that indicates that common varieties of gravel can never be locatable as a mineral?
Harley W. Shaver, III: Well, the legislation by inference, I believe, would have to indicate that. There would have been no need for the '44 Act nor the '47 Act if Congress had believed gravel to be locatable. There would have been no need--
Byron R. White: Well, certainly there is many ways of disposing of property other than through the mining laws. They may want to dispose of them by a less complicated technique or a more complicated technique, for all I know.
Harley W. Shaver, III: --The legislative history in those acts suggests that there was no means for disposal available at all for gravel, and therefore this legislation was necessary.
Byron R. White: Well, how could Congress believe that if they knew about Layman?
Harley W. Shaver, III: I... they chose not to regard it because of the fact that the only... all of the history of mining law and what knowledgable people in the mining law business would consider to be a mineral excluded gravel.
Byron R. White: Well, Layman was just a derelict? It overruled Zimmerman.
Harley W. Shaver, III: That's correct.
Byron R. White: And it was the... it represented the view of the authorities that were administering the relevant laws.
Harley W. Shaver, III: What had happened is that rather than considering whether or not it was a mineral ab initio is that the department got carried away... and I think that the courts adopted this test in some instances in subsequent cases... deciding first whether a substance was valuable. Once they found it to be valuable, then they assumed that it was mineral. And I think that the cart's before the horse a little bit. And I think that's the perspective that Layman must be viewed in.
John Paul Stevens: Mr. Shaver, how many cases in the... like Layman have there been? Do we know?
Harley W. Shaver, III: Justice Stevens, do you make reference to one case overruling another?
John Paul Stevens: No, no, no. I mean it was... was Layman followed repeatedly at the administrative level?
Harley W. Shaver, III: It was, but what occurred as time went on that the department kept applying a tighter and tighter test because of so many applications for mineral entry on sand and gravel claims, which was the unintended abuse that Congress had to step in and correct in 1955. So, yes, a lot of claims came up, but most of them, although I have not made a count, it's my opinion that most of them have been disallowed over a period of time and--
Byron R. White: But not because they weren't mineral?
Harley W. Shaver, III: --They were found not to be mineral on the basis of whether or not they were valuable, not--
Byron R. White: Right.
Harley W. Shaver, III: --vice versa.
Warren E. Burger: Right.
Harley W. Shaver, III: The issue here I don't believe is one of discussing the location or location requirements pre or since Coleman, but deciding what the intent of the 1916 Congress was. And it seems impossible to consider that in preserving the mineral estate to the government, that the 1916 Congress or anyone could have ever thought that miners would go out West to mine a valuable gravel deposit. And mind you that gravel is normally referred to as gravel pits, not gravel mines. The whole history of it would denote that it's not considered a mineral.
Warren E. Burger: Well, of course, up in Minnesota we refer to those great iron ore areas as open pit mining.
Harley W. Shaver, III: Open-pit mines, because the ore is extracted by open-pit method. But gravel pits in fact--
Warren E. Burger: It's not very much different from... how does that help you very much?
Harley W. Shaver, III: --Just the common ordinary--
Warren E. Burger: The fact is it's an open pit--
Harley W. Shaver, III: --association--
Warren E. Burger: --gravel mine as well, is it not?
Harley W. Shaver, III: --Mr. Chief Justice, I was just trying to make reference to the common ordinary association of the term in every-day use. One digs gravel, one has gravel pits. One has open-pit mines but one doesn't normally refer to open-pit gravel mines, just refer to gravel pits. I would also point out that the case in this instance where this gravel was dug, as the government pointed out, from a ranch which Western Nuclear acquired, this wasn't just a piece of ground acquired to obtain the gravel, it was a ranch that Western Nuclear acquired. And the government has made the assertion in its brief that the ranch was acquired specifically to obtain the gravel. This is less than the $13,000 case. The respondent did not acquire a several-thousand-acre ranch for the devious purpose of just acquiring a gravel deposit. It just doesn't stand to reason.
John Paul Stevens: May I ask one other question. Do you attach any significance to the fact that the original grant in this case was in 1926, 3 years before the Layman decision?
Harley W. Shaver, III: I attach no significance to--
John Paul Stevens: You don't?
Harley W. Shaver, III: --to what... to that. I think the controlling date is 1916 and the intent of Congress at the time the reservation was in the legislation.
Warren E. Burger: Mr. Garvey, do you have anything further?
John H. Garvey: I would just like to make three brief points. The first is in the Court of Appeals, respondent's brief at page 2 said, in March of 1975 in order to obtain a ready and convenient source of gravel and for other purposes, Western Nuclear acquired in fee a substantial piece of ranch property which included the subject land. The second point that I would like to make is there has been some uncertainty about the purpose and effect of the Materials Act of 1947 and its predecessor, the Act of 1944, for disposing of gravel which could not otherwise be disposed of. Justice Rehnquist asked at the beginning of my argument whether the government claimed all gravel under its reservation in the Stock-Raising Homestead Act. And I hesitated because until 1944 gravel in deposits, gravel useful for purposes of fill or riprap or uses like that rather than gravel useful for making concrete and hot-mix aggregate was not locatable under the mining laws and there was no way of disposing of that kind of gravel at the time. The reason I hesitated in saying that the government does... needn't claim all gravel in this case is that the kind of gravel which is at stake in this case is the kind of gravel that was locatable under the mining laws and could be disposed of before 1944. Justice O'Connor, you asked whether the government was saying that this kind of gravel was not common variety gravel. The government does... the government admits that it was common variety gravel in the sense in which the 1955 Act uses the word "common variety". That is not to say that it was not locatable under the Mining Act of 1872. The third point I would like to make relates to Justice Brennan's concern about this question not having been raised before. In the District Court the government stated... this is in the appendix to the respondent's brief in opposition... what the United States is concerned about are commercial gravel operations. The United States does not see how a commercial gravel operation in any way, shape, or form lends itself to--
Warren E. Burger: What page did you say that was?
John H. Garvey: --This is in page 5A.
William H. Rehnquist: Thank you. Mr. Garvey, was the government's statement there made in the connection with an oral argument?
John H. Garvey: It was made in connection with a post-judgment motion by the Wyoming Stock Growers Association for motion for a new trial or a motion to alter or amend the judgment. The Wyoming Stock Growers Association was concerned that the District Judge's opinion did not address their claim to use of the gravel. The government said, we are not deciding that question in this case. We don't contend that they're not allowed to use it. And the government and the Stock Growers thereafter stipulated that the decision by the District Court would have no res judicata effect on claims by ranchers to use--
William H. Rehnquist: Was there a stipulation as to the fact of whether or not there was commercial gravel involved, commercially usable gravel?
John H. Garvey: --No, there was not a stipulation, although there was never an issue about that. The Bureau of Land Management took the position that it was only salable gravel deposits that they were concerned with. They appraised the land and decided that the fair market value in that market for the gravel was 30 cents a cubic yard. The Interior Board of Land Appeals, page 65A... 65A of the government's appendix... Interior Board of Land Appeals said that it is thus clear that gravel in a valuable deposit is a mineral reserve to the United States in patents issued under the Stock-Raising Homestead Act, and went on to say that the respondent had introduced no evidence which led it to question the appraisal which had been made by the Bureau of Land Management, and for that reason, because there was no factual evidence to contradict the appraisal, would not... would not give them a hearing. Just one last point. In the Court of Appeals, the government's brief, as the first issue presented, said the issue is whether the District Court correctly concluded that the Stock-Raising Homestead Act in its legislative history show that Congress intended to reserve all gravel deposits susceptible to commercial exploitation on lands patented under the act.
Warren E. Burger: Thank you, gentlemen. The case is submitted.