Andrus v. Charlestone Stone Products Company – Oral Argument – April 18, 1978

Media for Andrus v. Charlestone Stone Products Company

Audio Transcription for Opinion Announcement – May 31, 1978 in Andrus v. Charlestone Stone Products Company

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Warren E. Burger:

We will hear arguments next in Andrus, the Secretary of Interior against Charlestone Stone Products.

Mrs. Beale, I think you may proceed.

Sara Sun Beale:

Mr. Chief Justice and may it please the court.

This case comes before the court on the government’s petition for review of a decision of the Court of Appeals.

Warren E. Burger:

Mrs. Beale, may I suggest you draw the microphone a little closer to you.

Thank you.

Sara Sun Beale:

Seeking review of a decision of the Court of Appeals for the Ninth Circuit, holding that water is a mineral subject to location under the federal mining laws.

To put it in another way, the Court of Appeals held that the rights to water on the public domain are mineral rights which should be acquired pursuant to the federal mining laws.

Since 1866, the federal mining laws have permitted citizens to discover and extract valuable mineral deposits on the public domain and to secure fee title to lands containing such discoveries.

A claimant must establish that he has discovered a valuable mineral deposit within the limits of each claim.

To show the value of such a discovery, the claimant must establish that a person of ordinary prudence would be justified in the expenditure of both time and money with the reasonable expectation that minerals from such a claim could be marketed at a profit.

At the outset, none of the parties in this case viewed it as a water law case.

The disputed issue was, rather, whether the respondent could show a valuable and marketable discovery of sand and gravel.

In 1942, respondent’s predecessor in interest had located more than 20 plaster mining claims in a narrow wash on public lands about 15 miles Northwest of Las Vegas, Nevada.

In the aggregate these claims, and several others located a few years later, cover about 500 acres of land and they encompass a massive deposit of an estimated 20 million cubic-yards of sand and gravel.

Until 1955 sand and gravel were subject to the federal mining laws.

But, in that year, Congress withdrew common variety minerals including sand and gravel from location under the mining laws.

The Secretary of Interior initiated administrative proceedings in 1965 contending that each of respondent’s 25 sand and gravel claims were invalid for want of discovery of a valuable mineral prior to this 1955 withdrawal date.

A hearing was conducted at which the Secretary presented the testimony of a mining engineer who stated that the excessive distance from these claims to the market in Las Vegas and the lack of water to wash the material prevented profitable marketing of this sand and gravel prior to the withdrawal date in 1955.

It is undisputed that water was first discovered on these claims in 1962, when respondent drilled a successful well on claim 22.

The presence or absence of water was important here because washing sand and gravel greatly increases its marketability.

The Interior Board of Land Appeals credited the testimony of the government’s expert witness and concluded that respondent had established a valuable discovery of sand and gravel on only one of the 25 claims, the one from which sizable deposits had actually been removed prior to 1955.

Mrs. Beale, would you help me out of my ignorance.

A plaster mine is a mine which involves the use of water, is it not?

Sara Sun Beale:

In most cases, I believe it does.

The difference between a load and a plaster claim, as I understand it, a load claim is one where there is a vein of the mineral running through so that often one can come with a pick or whatever to get at that mineral, whereas, the plaster claims usually involve a mineral more broadly dispersed throughout the geographic limits of the claim.

So very often in the case of, say, a gold-plaster claim, one would use water to wash out the other materials and get at the valuable mineral.

But a plaster mine does not inevitably involve the use of water?

Sara Sun Beale:

I do not believe so.

In the case of sand and gravel plaster claim, it is used to only wash the water.

Sara Sun Beale:

But in this case the respondent —

It is not absolutely necessary.

Sara Sun Beale:

Right.

Respondent sought review of this decision in the District Court which satisfied the administrative decision as arbitrary, capricious, and not supported by the evidence.

The Court held that the Interior Board had erred in crediting the testimony of the government’s expert witness, found credible the respondent’s evidence on the issue of marketability and it concluded that at least the claims numbered 1 through 16 had been proved valid.

Moreover, it concluded that the respondent should be permitted access to claim 22 in order to make use of the water produced by the well.

The District Court did not offer any legal basis for offering access to the water on claim 22.

The Court of Appeals affirmed the decision of the District Court with one significant addition.

It held that claim 22, itself, was also valid because the water that respondent had discovered on that claim was itself a locatable mineral under the mining laws.

The parties had neither briefed nor argued this issue.

The court, however, looked to the mining laws and found that there was no provision that expressly defined water as a non-mineral.

The court stressed the fact that the recovery procedures used in the case of many hard minerals required the use of water.

Therefore, it found that it should not assume that Congress had been unaware of what the Court called the necessary glove of water for the hand of mining, and it had made no provision for the necessary acquisition of water rights for the operation of such claims.

Accordingly, it concluded that Congress must have intended that water itself, should be locatable as a mineral.

In the case of claim 22, the Court held that the evidence established the discovery of a valuable mineral, first, because water has an intrinsic value in a dessert area.

Moreover, because respondent’s use of the water to wash the sand and gravel thereby increasing the value of the sand and gravel, show that there was a profitable market for the water and that it was a valuable mineral deposit.

The government submits that the Court of Appeals conclusion that water is a locatable mineral disregards the intent of Congress.

That is the only question you brought here, is it not?

Sara Sun Beale:

That is correct.

In our petition, we note that there are other respects in which we believe the Court of Appeals had erred, but we did not raise those in this case.

We believe that the decision disregards the intent of Congress as expressed in the mining laws themselves that the acquisition of private water rights on the public domain should be governed by state and local laws and, therefore, not by the federal mining laws.

The Court’s decision, in our view, also disregards the precedence of both this Court and of the longstanding administrative interpretation of the Department of Interior.

The premise of the Court of Appeals’ opinion is that Congress did not expressly define water as a non-mineral and that it made no expressed provision for the acquisition of water rights necessary to work mineral claims.

Do you think the 1955 legislation has anything to do with the issue in this case?

Sara Sun Beale:

The 1955 legislation to which I believe you are referring to is the one which withdrew the common variety minerals.

The common variety minerals.

Sara Sun Beale:

Right.

Lewis F. Powell, Jr.:

Such as sand and gravel.

Sara Sun Beale:

It specifies the minerals sand, gravel, pumice I believe, fossilized bones.

It specifies all.

I could not find the —

Sara Sun Beale:

That is correct.

I could not find the language of the legislation in the papers here, but it specifies every one of them.

Sara Sun Beale:

It specifies the minerals and I believe in both our petition and in our brief that there is a provision in the 1955 legislation indicating that there was no intent to interfere with State Water Law.

We think that that buttresses not only our conclusion that the mining laws do not affect water laws, but should water be held to be a locatable mineral, would make it impossible to somehow construe, in my view, the provision of removal of common varieties as applicable to water.

The premise of the Court of Appeals’ opinion was that since there was no expressed provision for the acquisition of water rights that are necessary to work many mineral claims.

The court thought that Congress must have intended to provide some mechanism so that miners could acquire these rights.

Therefore, it must have intended the only provision which the Court sought hand, the mineral laws themselves, to apply to the acquisition of water rights.

The premise for this reasoning is false.

The general mining law, since their inception in 1866, have provided separately for the right to mine valuable minerals on the one hand, and for the acquisition of water rights on the other hand.

Congress did recognize from the outset the critical role that water played in mining operations.

But, instead of establishing a federal statutory system to govern the acquisition of private water rights on public lands as it set up a system for the right to acquire minerals.

Instead, Congress chose to ratify the rights that were recognized under the state and the local laws that were developing in the erred regions to allocate water among the competing uses including mining.

Both the general mining laws enacted in 1866 and in 1870 contained separate provisions regarding water rights.

These provisions were left unchanged when Congress enacted the 1872 Mining Law, and they are now codified as Sections 51 and 52 of Title 30.

They are reprinted in page two of the government’s brief.

Section 51, which was part of the Mining Law of 1866, provides that rights acquired by priority of possession to the use of water on public lands, rights that are recognized and acknowledged by local customs, laws, and decisions of the courts should be maintained and protected.

Then, in 1870, Congress enacted what is now Section 52 which provides additionally that any patents granted or homesteads allowed are subject to vested and accrued water rights acquired or recognized under Section 51.

Congress thus expressly provided in the mining laws themselves that the acquisition of private water rights on the public domain is governed by state and local law, not by the federal mining laws.

Other public land laws, particularly the Dessert Land Act of 1877, advents the same intent to sanction water rights acquired in accord with state law rather than to establish a new and separate system of federal law.

William H. Rehnquist:

That was our holding in Beaver Portland Cement, was it not?

Sara Sun Beale:

That is precisely the very next thing I was going to say.

This court has recognized that intent.

In particular, in California Oregon Power Company versus Beaver Portland Cement, the Court said as follows about these two provisions.

the Court said that “provisions of the 1866 and 1870 mining laws” approve and confirm the policy of appropriation for beneficial use as recognized by local rules and customs under legislation and the judicial decisions of the erred land states as the test and the measure of public rights in and to the non-navigable waters on the public domain.

The inclusion in the mining laws of these specific provisions for the acquisition of water rights precludes any inference that Congress intended the federal law of mining claims to govern the acquisition of water rights.

The Court of Appeals, however, was apparently unaware of these provisions and of the decisions of this court construing them.

Contrary then to the Court of Appeals’ belief that it would be advancing the purposes of the mining laws.

Instead, its interpretation of the mining laws would defeat what this Court has recognized as Congress’ clear intent that the acquisition of such rights should be governed by the state and local laws.

Congress was well-aware that the Western states were gradually developing a system of water laws that was especially suited for the needs of that erred region.

Sara Sun Beale:

Congress obviously intended that private water rights on the public domain would be acquired in accordance with this specially suitable system.

We believe, therefore, that a reading of the mining laws as a whole leaves no doubt as to Congress’ intent to treat water rights a separate and distinct from the right to mine valuable minerals.

But even if these provisions were unclear, any possible doubt on the score has long since been removed by the administrative decisions of the Department of the Interior which is charged with regulating the acquisition of rights in the public lands.

Mrs. Beale, do you think your position here is fully consistent with the position of the United States as taken before, say, in the original number 8 where it involves a reclamation service dam in California?

The question is whether or not the United States, to get its water rights, must comply with state law.

Sara Sun Beale:

I think that the position here is completely consistent.

The question of whether federal water rights —

Do you mean the congressional acts up to date should not be understood to bind the United States?

Sara Sun Beale:

No, I do not think that.

Byron R. White:

Or the reclamation service?

Sara Sun Beale:

I do not mean to draw that distinction.

What I mean to say is that, in the mining laws and in the Dessert Land Act, Congress was speaking to the acquisition of private rights, the rights of homesteaders, the rights of individuals.

Why was it not speaking to how the United States should get its rights?

Sara Sun Beale:

As this court recognized in the California Oregon Power Co. case, the United States initially had in the public land states, the ownership rights of not only the land but the waters.

In the California Oregon Power Co. case, this court said that it viewed the intent of Congress as intending to give out land patents on the one hand under one system, under the mining laws, under the agricultural entry laws, under the Dessert Land Act, and also to provide a way whereby private rights to waters on the public domain could be acquired.

That seems to me to be a different question from what happens when the federal government needs to use certain water rights.

If they had not been given out to private individuals, then the questions are entirely different, I would think.

In any event, as I understand your argument, however this case is decided, it has no relevant impact upon that other litigation.

Sara Sun Beale:

I believe that is correct, yes.

William H. Rehnquist:

Certainly a private claimant, for example, would have no claim for water under the implied Reservation Doctrine, although that was not relied upon by the government in the original number 8 but, that is certainly an example of a way a governmental right might be different from a private right.

Sara Sun Beale:

It certainly is and I think the Reservation Doctrine is based upon the notion that Congress had those water rights at the time that it set aside land for a certain purpose.

Congress had those water rights.

No private party is in the same position.

It is a question of interpreting the intent of Congress in the mining laws as to how private rights would be acquired, which is really quite separate from the reservation.

Why is it not arguable though that by granting mining claims that the United States impliedly grants water right or reserves them for that purpose?

Sara Sun Beale:

If Congress had not expressly provided in the mining laws that water rights acquired under state and local law should be acquired under state and local law and would be recognized by the federal government and if Congress had not in other statute, such as the Dessert Land Act, indicated that there was this division, that might have been a possible interpretation.

If this Court were to view the provisions as ambiguous however, the decisions of the Department of Interior beginning in the 1880s, shortly after the adaption of the mining law of 1872, resolved any doubt that department held unambiguously that water claims could not be patented under the mining law but must be acquired instead under state law.

To the extent that the Court might find the statutes unambiguous, that doubt has long since been resolved by the consistent interpretation of the department charged with administering the public land laws.

That view of the statutes was reaffirmed as recently as 1976, in a comprehensive decision which we have reprinted in our petition for certiorari.

We believe that, given the fact that this longstanding interpretation has prevailed for a century and has been the basis for a set old system of property rights, it should be virtually conclusive at this point.

Sara Sun Beale:

The recent decision on the Interior Board of Land Appeals on this point, to which I refer, convincingly demonstrates the soundness of that department’s view.

They relied not only upon the theory of this court in the California Oregon Power Co. case, which looked to the structure of the mining laws themselves and the fact that Congress had provided on the one hand for the acquisition of water rights and on the other hand, for the acquisition for the right to mine valuable minerals.

But, the Board also took a very common sense view of Congress’ intent in using the term “mineral.

It recognized that if Congress had intended the mining laws and the use of the term “mineral” to be given the broadest possible definition of the term such that when one speaks of the division of all matter into animal, vegetable, and mineral and intended that all matter that could be classified as mineral in that sense to be locatable under the mining laws, then all the public lands will be mineral lands.

If this were so, there would have been no need for separate provisions in the many public land laws dealing with non-mineral lands permitting agricultural entry and so forth.

Congress clearly, as the Interior Board recognized, could not have intended the term “mineral” to be given such a broad definition which would make nonsense of the mining laws and of so many of the other public land laws.

The Board also noted, and this is an important consideration, that the location of water as a mineral would invite the widespread abuse of the mining laws by persons who were seeking public lands for other purposes who would attempt to take advantage of a widespread occurrence of water and the relative ease with which mining claims may be patented.

William H. Rehnquist:

Is that not one reason why Congress acted the way it did in 1955, to eliminate sand and gravel pans as if people were really getting the pans not for the valuable sand and gravel, but because they wanted the acreage?

Sara Sun Beale:

That is precisely correct.

The Legislative History of that provision indicates clearly that the location of sand and gravel claims were being misused and that it was being used to acquire land for residential purposes and all sorts of purposes not comprehended in the mining laws.

The Interior Board of Land Appeals concluded that the very same abuses would be invited if water, itself, which is of such common occurrence, could be located under the mining laws.

It is relatively easy to acquire a mining claim.

It would invite abuse for that reason.

We have no figures available that would tell precisely how many acres of public lands might contain water which could be discovered, but it seems relatively clear that millions of acres of public land would be affected.

We believe that setting aside the long-established administrative and judicial construction of the mining laws would throw established rights into question and would, therefore, completely unsettle the law of water rights throughout the Western states.

The Court of Appeals’ decision, because it does not acknowledge the existence of the water rights provisions adapted as part of the mining laws, does not give a hint whether that court’s opinion should be viewed as holding that the location of mineral claims to water rights is the exclusive method by which private water rights on the public domain could be obtained.

Perhaps it might have intended that there was to be an alternative method to state law.

But, if that decision were interpreted as holding that the only way that one could acquire water rights on the public domain is under the mineral mining laws, then private rights long since considered throughout the West would presumably be invalidated.

The respondent seeks to avoid this obviously undesirable result and to interpret the Court of Appeals’ decision somewhat more narrowly arguing that the mining law should be viewed as merely an alternative to state procedures.

However, respondent offers no evidence that congress actually intended to create such an imaginable dual system.

Harmonizing the rights acquired under the two systems would be a difficult task and one would surely generate extensive litigation.

Moreover, the mining laws were never designed to allocate water rights and we believe they are ill-suited to this task.

Respondent has failed to suggest any reason why this Court should reverse all prior judicial and administrative interpretations of the mining laws to reach such a result.

We believe that the administrative interpretation of the mining claims, the decisions of this court, and an examination of the structure of the mining laws themselves, each compels a conclusion that Congress did not, in fact, intend water rights on the public domain to be located under the federal mining laws.

But, rather, that it intended that such rights would be acquired pursuant to state and local law.

We, therefore, respectfully submit that the decision of the Court of Appeals should be reversed in so far that it holds that the water on claim 22 was subject to location under the mining laws.

Warren E. Burger:

Mr. Levenberg.

Gerry Levenberg:

Mr. Chief Justice and may it please the court.

In our view, the government makes too much of Sections 9 and 17 of the 1866 and 1870 provisions of the mining laws.

William H. Rehnquist:

But did this Court not make quite a bit of them in the Beaver Portland Cement case, written by Justice Sutherland who is, himself, regarded as an expert on Western Water Law?

Gerry Levenberg:

Your Honor, he certainly was so regarded.

He discussed those provisions at some length in the opinion as we acknowledged in our brief.

But, I think that a fair reading of that decision suggests that the Court did not, in fact, hold that the sole means by which water rights could be obtained, under the mining laws were by appropriation under the state laws.

William H. Rehnquist:

Do you think it is unfair to say that most Western lawyers involved in water law have read that decision to mean that those two Acts savored the water from the land and left the water to acquisition by state law?

Gerry Levenberg:

I do not think that is unfair to say either, Your Honor.

William H. Rehnquist:

But do you now say that perhaps those lawyers were wrong in reading the decision that was.

Gerry Levenberg:

What we try to say is that, as we set forth in the brief especially at pages 16 through 18, that what was involved in Beaver Portland were not claims under the mining laws of 1866, 1870, or 1872.

There were two separate claims to water by two private parties, one under the Homestead Act of 1862 and the other under the Oregon State Water Code.

The court concluded and held in that case, the provision of the Dessert Land Act meant.

It did not hold, we submit, that the only means by which water could be obtained under the mining laws was by state’s appropriation.

William H. Rehnquist:

But, if the Dessert Land Act savored the water from the land, did that not mean that no further water could be acquired in the same way that you acquire other mineral patents?

Gerry Levenberg:

In so far as Dessert Land Act entries, Homestead Act entries, Preemption Act entries were concerned, that is precisely what Justice Sutherland said.

He was a man who, as you pointed out, wrote quite carefully.

William H. Rehnquist:

He is from your home state.

Gerry Levenberg:

There is no indication anywhere in Justice Sutherland’s opinion and the government points to none which states specifically that with respect to claims under the mining laws, and that is what is involved here, with respect to those claims the sole means by which water may be obtained is under state appropriation.

There was no edict from this court, if you please, which said “henceforth, mining act patents shall savor land from water.

William H. Rehnquist:

Are you troubled at all by the Ninth Circuit’s failure to refer at all to the Beaver Portland Cement case in its opinion in this case?

Gerry Levenberg:

Obviously, Your honor, we would have preferred for the Ninth Circuit to spell out in greater detail the basis for its holding.

We do wish to make it very clear that we are not contending, as the government appears to attribute to us, that with respect to vested water rights, pursuant to Section 9 of the 1866 Act and Section 17 of the 1870 Act, that rights which have already vested and rights which vest tomorrow should not be protected.

That is not our position.

Our position, very simply, is that the plain language of the Act of 1872, which states that all valuable minerals maybe discovered, is what Congress meant to say and in the absence of a withdrawal by Congress, as you pointed out and as the government points out and it did in 1955 when it removed certain common variety minerals, in the absence of a withdrawal from the broad provisions of the 1872 Act of specified minerals that that general grant of authority prevails.

Our position is that with respect to rights that have already vested, and that is the language of Section 9 and that is the language of Section 17, rights which have vested and accrued.

Those rights remain vested and accrued, and nothing that this Court could decide in this case by affirming the lower court’s opinion would derogate from those vested rights.

The government argues that it would leave an unmanageable system.

The government does not explain why the system is any more manageable today in circumstances where a state appropriation with respect to a given portion of water that runs during particular times of the year or particular specified flow and relieves to be claimed what is left of that residual of rights under state law is any more manageable.

William H. Rehnquist:

The two tests are quite different though, are they not?

If you are talking about how you acquire a mineral claim, it is a prudent man thinking that there is valuable mineral in place on the claim.

Gerry Levenberg:

Correct.

William H. Rehnquist:

On your water claim, under most western state appropriative systems, it does not depend upon value.

It depends upon prior and beneficial use.

Gerry Levenberg:

Yes, Your honor, that is absolutely correct.

Our point is, again, in response to the parade of horribles that the federal government sets forth in this case that would prevail if we prevail.

The answer to that is, in our view, that the very requirement that a demonstration be made that the mineral is valuable, the very requirement of the prudent man test, the very requirement of the marketability test is sufficient to insulate claims that would lead to abuse.

We have no quarrel with the proposition that, of course, the tests are different under a state appropriation and under the mining laws of 1872.

But that does not, in our view, lead inexorably to the conclusion as the government would have it that when Congress said in 1866 and in 1870 that “we will respect those water rights that have vested and accrued under state law,” that it was saying that that was the only manner in which water rights could be obtained.

We do not believe there is support for that.

We do not think that Mr. Justice Sutherland and this court decided that issue in the Beaver Portland case.

The argument that the government makes about the longstanding interpretation of the interior department does not take into account that, as this court has made clear, while construction of legislation by departments charged with administering the legislation is indeed entitled the deference.

This court is not, thereby, permitted to abdicate its function of reviewing the wisdom and correctness of that interpretation.

In particular, I cite the court to a decision, an opinion by Justice Harlan in Zuber v. Allen, 396US 109 at 328.

The abuse argument that is relied upon so heavily by the government, seems to me, was indeed answered, Mr. Justice Rehnquist, by what Congress did in the 1955 Act.

When it was confronted with circumstances which demonstrated that abuses of the mining law had been taken place, the Congress responded and it did so on the basis of evidence before it, not on the basis of allegations about the horrible things that will happen, that might happen, that could happen if this Court interprets the law, as it appears to us, to be written.

William H. Rehnquist:

But do you think there had been many mining patents obtained on the basis of discovery of water?

Gerry Levenberg:

No, sir.

William H. Rehnquist:

Then, really, that is all the government has to go on, on a case like this.

In that case the sand and gravel amendments in ’55, sand and gravel were recognized as patentable minerals.

They had record of abuses.

Here, apparently, your clients are the first ones to have successfully tried this one.

Gerry Levenberg:

That appears to be the case.

I am suggesting, to you, sir, that the argument that a statute should be interpreted in a given way in order to avoid the prospect of abuse should not prevail here.

If that is an argument that ought to be presented to the Congress of the United States when as and if facts are developed to demonstrate to the satisfaction of that political body that its law ought to be amended.

Did the Ninth Circuit arrive at this conclusion?

Did it take the position you presented to it?

Gerry Levenberg:

Your Honor, as the government points out, neither party neither briefed nor argued.

Your client came by this by accident.

Gerry Levenberg:

Not accidentally but at least inadvertently.

Warren E. Burger:

We will resume there at 1:00, counsel.

Counsel, you may continue.

Gerry Levenberg:

Mr. Chief Justice and may it please the court.

At the buzzer, Mr. Justice White, you were asking whether we came to this claim by inadvertence or accident.

Gerry Levenberg:

As indicated, the issue that is briefed here was not briefed below, but I do invite to your attention from page 15a of the Appendix to the government’s petition for certiorari.

A description by the Court below of the nature of our location notices, I quote each of the location notices covering claims 1 through 22 described a “piece of mineral-bearing ground as a plaster claim” as distinguished from a claim location of any particular mineral, either surface or underground within that tract of ground.

But, it is true that the matters that are being briefed and argued here were not briefed or argued below.

I would like, if I may, to address a more fundamental question that you posed this morning to counsel for the government.

That is, whether the government’s position here is inconsistent with the government’s position in California versus the United States.

The government, not surprisingly, says “of course, it is not.

We think it clearly is.

The government argues in California versus the United States that Section 8 of the Reclamation Act which it describes in its brief in this case as similar in nature to Section 9 and Section 17 of the mining laws.

The government takes the position in California versus the United States as it has in virtually every case involving Section 8, that in spite of the language written by Congress in the Reclamation Act protecting the state’s concerns and interests with respect to water.

And despite the Dessert Land Act?

Gerry Levenberg:

And despite the Dessert Land Act.

A narrow reading of Section 8 is required, whereas, in this case the broadest conceivable reading of Section 9 and Section 17 is required.

William H. Rehnquist:

But your case does not turn in any way on Section 8 of the Reclamation Act.

Gerry Levenberg:

No, sir, it does not.

It turns on the language in Section 1 of the mining law of 1872 which says “all valuable minerals except as otherwise implied.

William H. Rehnquist:

It does not turn at all on the Reclamation Act of 1902.

Gerry Levenberg:

No, we are not basing our claim on the Reclamation Act.

We do address in our brief but we regard to be the government’s inconsistent positions with respect to what it now calls an unmanageable dual system brought about, I assume, or that would be brought about by the decision of the Court of Appeals below.

We suggest to you most respectfully that the unmanageable dual system that the government so fears as a result of this case, it fosters and presses in particular in the Reservation Doctrine cases and in particular in the case that is pending before this court and that will be argued next week in New Mexico versus the United States.

William H. Rehnquist:

But now the Reservation Doctrine is not involved in California against the United States.

Gerry Levenberg:

No, it is not.

To the best of my knowledge, it is not.

I was moving on from what we regard to be the inconsistency of the government’s position with respect to its attitude that Section 8 of the Reclamation Act, although it purports to protect state interest, must be read very narrowly, whereas, the language of Section 9 and Section 17 of the mining laws, the government argued, should be read in its broadest terms and going beyond, as we see it, the protection of vested rights.

The government, in its brief in this case at Page 20, in a footnote refers to the Federal Power Act as another example of the kind of Act that was based upon the sort of concerns the government perceives in Section 9 and Section 17 of the mining laws.

The fact is that this Court in, First Isle made it very had clear and this Court in Arizona versus California confirmed that Section 27 of the Federal Power Act upon which the government, in two ways adverts in its brief, was no more than a saving clause.

I now quote from Footnote 93 of this Court’s decision in Arizona versus California, C1 Isle “where this court limited the effect of Section 27 of the Federal Power Act which expressly saved certain state laws to vested property rights.

That is precisely the position that we take here.

That is what at issue here in our judgment.

The extent to which, state water rights are to be protected under the mining laws of 1872, as Congress has so clearly said, are vested state rights.

We do not argue, and as the government would like to attribute to us, that those rights must have vested prior to 1866 or prior to 1870.

Gerry Levenberg:

We say that they could vest tomorrow so long as they vested prior to the discovery of water as a locatable mineral under the law of 1872.

With respect to the government’s position in so far as the Reservation Doctrine is concerned, we think that it is worth inviting to the court’s attention contrary to the argument that was made earlier by the government of no inconsistency, what the holder of mining claims in the Gila Forest that is involved in the New Mexico case to be argued next week.

It views the government’s position, in that case, is contrasted to the government’s position articulated in its brief in this case, specifically at page 23 of the amicus brief on behalf of MolyCorp in 77-510 to be argued next week.

It is stated, in Charlestone the government argues that the decision of the Court of Appeals in that case “would cast doubts on rights long thought to be established under state and local law, and would unsettle the law of water rights in the western states.

That is a quote from the government’s brief in this case.

We agree, but find the government’s position there to be irreconcilable with its position in this case.

Here, the government argues, in New Mexico, that private water rights which have evolved over the last 100 years should be subjected to an undefined reserved water right of the United States, cited in the US brief in the New Mexico case at page 30.

Although the government does not address the consequences of its assertion, it follows from the government’s claim for reserve water for the present and future needs, citation of the government’s brief of the federal forest for “aesthetics, recreation, etcetera.

That the very same rights which the government seeks to preserve in Charlestone will be seriously undermined if its position here is accepted.

We think that it is quite clear that the dual management system, which the government contends, would be brought about by affirmance of the Court of Appeals’ decision below is here.

It is already here.

The government makes a reservation claim of an unquantified, undetermined amount.

There are interests that it seeks to protect in that case that are private interests.

The government’s brief there points out that it has issued 1600 permits to cattle grazers to run 29,000 cattle through the force.

Those are private rights.

The Court of Appeals below did not invent or create the dual management system.

Congress did, with respect to mining rights in the 1872 law.

Congress said “all valuable minerals may be subject to location, and the lands thereon subject to purchase.

You could be quite right in your argument, I suppose, about the relationship between the mining laws and the Dessert Land Act and still lose just because water is not a mineral.

Gerry Levenberg:

That is conceivable.

How about that question?

The Department of Interior’s position is consistently that water is not a mineral.

It is not because water rights are subject to local law or anything.

It is because water is not a mineral.

Gerry Levenberg:

I am not sure that that is the case, Mr. Justice White.

It strikes me from my reading.

Byron R. White:

Does the Department of Interior ever take the position that water is a mineral but it just so happens that it is not disposable under the mining laws?

Gerry Levenberg:

No, they have not done that.

Byron R. White:

They never said water is a mineral?

Gerry Levenberg:

Not to the best of my knowledge.

Gerry Levenberg:

But they have made the decision, so far as I am aware of, in the context of reference to Section 9 and Section 17 that water rights are something to be taken care of under state law.

Byron R. White:

That maybe so but there is still the question of whether water is a mineral.

Gerry Levenberg:

That is correct.

Byron R. White:

What about that question?

Gerry Levenberg:

We think that while, as we point out in our brief, the judicial authority on that is really quite sparse.

Warren E. Burger:

Sparse?

Gerry Levenberg:

There is not very much on it.

Byron R. White:

Why do we have to get to the argument about water rights and mining laws?

What about the threshold question about whether water is a mineral?

Gerry Levenberg:

We argue, and I believe that there is sound authority for our position, that water is a mineral, that it was regarded by the Congress as a mineral, and that the question whether water is a locatable mineral really depends upon whether those who claim it can demonstrate that it is valuable which is a keyword, as we see it, in the 1872 law.

That demonstration and that issue has very well articulated standards that have been set forth by this court and followed by the Interior.

Byron R. White:

Were gas and oil locatable mineral?

Gerry Levenberg:

Gas and oil were dealt with separately under separate statutes.

Byron R. White:

I know, but are they minerals within the meaning of that law?

Gerry Levenberg:

The mining law of 1872?

No, because the mining law of 1872 begins with the language “except as otherwise provided” then there are specific identifiable statutes that deal with the discovery of gas and oil as there are with respect to the discovery of coal and potassium and phosphate, and a number of other minerals.

Your answer is not no, but yes, gas and oil probably are minerals but not dealt with out of the statute.

Gerry Levenberg:

I am sorry, but not locatable minerals under mining law of 1872.

That is correct.

William H. Rehnquist:

Would you say that earth-qua-earth is a mineral?

Gerry Levenberg:

The government argues that that is the inexorable consequence of this court affirming the Court of Appeals’ decision below.

No, I would not say that earth-qua-earth is a locatable mineral.

William H. Rehnquist:

Why is it, because it is not a mineral?

Gerry Levenberg:

Pardon me?

William H. Rehnquist:

Because it is not a mineral?

Gerry Levenberg:

The standard still is whether it is a valuable mineral and in the context of the claim that has been made.

I just bought some soil the other day.

It was pretty expensive.

Gerry Levenberg:

I am sure that it was.

We do not claim nor do you have to decided in this case that earth is a locatable mineral.

William H. Rehnquist:

But you have got to show us some way to tell why water is and earth is not, other than just saying that it has to be valuable.

Because, certainly, by the standard of value you can say that a 20-acre plaster claim consisting solely of earth is valuable by the prudent man standards.

I guess the question is what congress intended by the word “mineral.

At least that is one question.

It might have not intended to include water even if water is a mineral.

Gerry Levenberg:

That is certainly conceivable, Your Honor.

The fact is that there is very, very little in the Legislative History of the 1872 mining laws.

Warren E. Burger:

Would it not be reasonable that, as the Court has often said, that we read legislation in terms of what the ordinary meaning given by ordinary people to the words used at the time they were used?

In ’72, did they regard water as a mineral?

Gerry Levenberg:

There is no evidence that water was not regarded as a mineral, Mr. Chief Justice.

Warren E. Burger:

Is there any evidence that it was regarded as a mineral?

Gerry Levenberg:

I think that it is as reasonable to argue that the attention that the Congress devoted to water by excluding those vested water rights within the mining laws is evident that Congress indeed regard water to be a mineral.

How do most dictionaries define mineral?

Do they include water?

Gerry Levenberg:

I am afraid I cannot answer.

If they had, you would be citing them, I suppose.

Gerry Levenberg:

I may well have done that.

Warren E. Burger:

I can give you a little help.

I looked at five of them and none of them included water, and all of them had a common denominator of solids as its meaning.

Gerry Levenberg:

The Ninth Circuit, again, in another case, in which cert was denied in this court in the geothermal steam case.

In fact, it concluded that water is a mineral.

That is a case in which the Ninth Circuit opinion that is being challenged here was relied upon.

That is the Union Oil case.

I do not know what the dictionary says about water.

Warren E. Burger:

Sometimes there are minerals in suspension in water or minerals in suspension in other fluids, but does that make water per se a mineral?

Gerry Levenberg:

No, I would not think that it does.

I think that the best evidence that there is that the Congress regarded water as a mineral in the mining laws is the fact that it was concerned to be sure that those local customs of the states and territories in so far as the acquisition of water rights to that time were protected in 1866 and the 1870 Acts.

I would leave it there.

Warren E. Burger:

Very well.

Mrs. Beale, do you have anything further?

Sara Sun Beale:

Just one or two very brief points, first, on the court’s question as to generally what is a mineral.

The government would contend that there is no one single definition of the term “mineral” for all purposes.

I would point out to the court that, originally, the mining laws or at least at some point in their history were construed to apply to oil and gas which later then dealt with more specifically in the mineral leasing laws.

That is my understanding.

I do not think that one can assume.

William H. Rehnquist:

Oil was a mineral for those purposes?

Sara Sun Beale:

That is my understanding.

Oil and gas were construed.

It is a good liquid mineral.

Sara Sun Beale:

I was just about to add.

If one perceives on the hypothesis of the childhood game that everything is animal, mineral, or vegetables, certainly, water is a mineral.

Sara Sun Beale:

That is correct.

We think that that kind of a very broad definition, as the Interior Board of Land Appeals said, just makes no sense in this context.

Warren E. Burger:

I have a dictionary in front of me and it seems to fall well within this definition.

Sara Sun Beale:

Yes, I would think that.

We would have to agree that within the broadest definition of the term “mineral” as an animal, vegetable, and mineral, water is included and dirt is included.

We do not think that there is any suggestion or any evidence but that is what Congress was thinking of when it allowed the exploration discovery of valuable minerals.

Do you think it must go to some other statutory plan to get water out from under the word “mineral.

Sara Sun Beale:

I do not think that is quite the way I would phrase that.

I think when we look at the mining statutes themselves, we see water treated separately.

What if there was no Dessert Land Act?

Sara Sun Beale:

And with no provisions in the 1866 and 1870 mining laws themselves, then I would think we would rely upon the Interior Board of Land Appeals’ construction.

I would think that that would be very wavy as to how the Acts have been construed.

And then you would say water was not intended to be a mineral.

Sara Sun Beale:

That is exactly correct.

From the 1880s on and a whole series of decision which we find very persuasive.

What do they say about mineral water?

Sara Sun Beale:

That goes to springs case that that is not a mineral.

The only other point that I would like to draw to the court’s attention is that respondents have tried to emphasize the narrowness of this decision and the fact that if the mineral laws were construed as an alternative way of acquiring water rights, that really would not unsettle the law.

The western water law would not throw established rights to question and so forth.

Sara Sun Beale:

But, the very point upon which the Court of Appeals and respondent relied is the fact that a mining claim need not specify what mineral it is located for as the claims here did not indicate sand and gravel or water, unless someone later, these claims were located in 1942.

Now, at this late date, it is possible for respondents to claim that they were located for water.

There are many claims outstanding that were located in 1940 and 1950 or whenever.

It would be possible now to attempt to validate those on the theory that water was present.

One can imagine, of course, the difficulties that trying to harmonize those rights with the rights acquired under state law would cause.

The final point is that the Court of Appeals theory at least was that the value of the mineral deposit here was shown by the fact that water has an intrinsic value in the dessert region.

It seems to me if that construction were adapted, it would substantially lessen the impact on the prudent man and marketability test, and so forth.

If you could find water, you could argue under this decision that your claim, just simply by showing water was present in an arid area which, would shell a valuable discovery.

Thurgood Marshall:

We really know in order to decide this case, we do not have to say in front of God or anybody that water is a mineral, do we?

Sara Sun Beale:

That water?

Thurgood Marshall:

Is a mineral, do we?

Sara Sun Beale:

No.

Our contention is that water is not a locatable mineral under the mining laws.

If there are no other questions?

Warren E. Burger:

Thank you, counsel.

The case is submitted.