United States v. Locke

PETITIONER:United States
RESPONDENT:Locke
LOCATION:United States District Court for the Middle District of North Carolina, Greensboro Division

DOCKET NO.: 83-1394
DECIDED BY: Burger Court (1981-1986)
LOWER COURT:

CITATION: 471 US 84 (1985)
ARGUED: Nov 06, 1984
DECIDED: Apr 01, 1985

ADVOCATES:
Carolyn F. Corwin – Argued the cause for the appellants
Harold A. Swafford – Argued the cause for the appellees

Facts of the case

Question

Audio Transcription for Oral Argument – November 06, 1984 in United States v. Locke

Warren E. Burger:

We will hear arguments next in United States against Locke.

Ms. Corwin, I think you may proceed whenever you are ready.

Carolyn F. Corwin:

Thank you, Mr. Chief Justice, and may it please the Court, in 1976, Congress enacted the Federal Land Policy and Management Act, known as FLPMA.

This was the first statute to give the Bureau of Land Management comprehensive authority to manage the public lands.

In the course of enacting FLPMA, Congress sought to provide a solution for a long standing public land management problem that involved the lack of information about unpatented mining claims that had been located on millions of acres of federal lands.

Since the 1860’s and 1870’s, when that system of mining claims on federal lands was established, millions of claims had been located on federal lands.

The problem was that no one knew where they were or what their status was.

The general mining laws didn’t provide any mechanism for notification to the federal government when a claim was located or when it was abandoned.

The only time a claimant had to report to the federal government concerning his claim was if he elected to proceed to patent, that is, to take steps to obtain full ownership of the land on which the claim was located.

Most claimants didn’t bother to take that step, so BLM did not have any information on the status of these claims, and that situation made it very difficult for the federal land managers to take actions with respect to federal lands.

Unless BLM did some fairly extensive research at the local county courthouse and then tried to track down all of these potential claimants it identified, it simply couldn’t be sure one way or the other about whether the land at issue was encumbered by such claims.

And that interfered with the ability to go ahead and take action with respect to a piece of land.

Now, Congress sought to remedy that situation in Section 314 of FLPMA.

Under that section, a claimant must make an initial filing with the Bureau of Land Management within three years of the passage of the statute.

The claimant then must update that information annually by filing a piece of paper prior to December 31st.

Why do you think that language was employed?

Was this just a boner on the part of some administrative assistant, or was there a real purpose in having it before December 31?

Carolyn F. Corwin:

Well, the legislative history does not give any clues one way or the other about why that particular filing deadline was chosen, and I suppose there are several possibilities, one of which you suggest.

It could be that someone simply was careless in drafting and didn’t realize that they had done what they had done.

It is certainly is a trap for the unwary, isn’t it?

Carolyn F. Corwin:

Well, I don’t know whether it is fair to characterize it that way.

I certainly don’t think anybody at the time regarded it that way.

That is, I think it may have been simply a failure to look closely at what they had done.

It is conceivable it was somebody with a good intention to foresee a problem of the office closing right before New Year’s or something.

I don’t know what it was, but–

Well, if we had the provision in the income tax law before April 15 or, as it used to be, March 15, there certainly would be a nationwide howl from those who are used to the last day filing.

Carolyn F. Corwin:

–Well, it would certainly be difficult to adjust.

Of course, this was a new provision, and I suppose that… and people who look at this statute carefully, I think, can figure out that prior to December 31st doesn’t mean on December 31st.

Especially the fellow who gave the bad advice.

Carolyn F. Corwin:

Well, I would point out that that is an affidavit on the part of the appellees in this case.

Carolyn F. Corwin:

There has been no finding as to the facts on that particular issue.

Oh, you think they might be lying?

Carolyn F. Corwin:

I am not suggesting he is lying.

I am just suggesting on the record of this case neither the District Court nor the Interior Board of Land Appeals–

There is an affidavit.

Carolyn F. Corwin:

–There is an affidavit, but neither the court nor the administrative board found it necessary to make a determination as to what had happened in terms of advice given or understanding of the advice.

Harry A. Blackmun:

Of course, you do have a sad case here, don’t you, of people who have made their living on this claim for a long time all of a sudden find themselves unable to move along, I suppose, without Congressional action.

Carolyn F. Corwin:

Well, this is a difficult case in several respects.

That is certainly correct, Justice Blackmun.

On the other hand, I think that is the sort of thing you run into whenever you have a filing deadline or a filing cutoff.

You are always going to have people who fall just slightly on the other side.

I suppose–

Sandra Day O’Connor:

Of course, Ms. Corwin, if it were another type of memo other than sand and gravel or one of the things that cannot be relocated, a person missing the filing deadline presumably could relocate on December 31 if the came in a day late and realized then that they had missed the date, unless someone had filed ahead of them.

Carolyn F. Corwin:

–That’s correct, Justice O’Connor.

Sandra Day O’Connor:

So we are dealing with a particularly difficult situation, are we not?

Carolyn F. Corwin:

Well, that’s correct.

There are a number of people who are not going to find themselves in this situation, and that would, of course, be all the people who can still locate because they have locatable minerals like gold and silver and lead and so on.

You are also going to have the people who file enough in advance to avoid this tough situation at the end of the year.

Sandra Day O’Connor:

And you will have the people who simply mail the notice, the annual notice in on December 30, and even if it is received up until January 19th, it is okay.

Carolyn F. Corwin:

That is correct, although that particular regulation was not in effect at the time this particular situation came along, but that is the case today.

Ms. Corwin, could Congress retroactively cure this situation for the Lockes?

Carolyn F. Corwin:

My understanding is that Congress could take steps, and indeed it has taken steps in the case of oil and gas Plaser claims.

Congress did enact a provision which I believe is at 30 USC 188(f) in which it said people who miss the deadline and who have the oil and gas Plaser claims can take certain steps, and they will not get their claims back under the general mining laws, but they will be eligible for noncompetitive leases of these oil and gas deposits.

I suppose something equivalent could be done here if Congress felt that there was a real problem.

I take it the government’s reaction to this hardship situation is that people who want to acquire rights in land owned by the government can be required to turn square corners.

Carolyn F. Corwin:

Well, I think that’s correct, and certainly we understand that there are these difficulties, and the secretary has attempted to administer the statute in a way that is both consistent with what Congress has said and that accommodates an understanding of the difficulties people face.

But I don’t think it was unreasonable for Congress to make the judgment that in this particular situation with millions of claims it was appropriate to put the responsibility for communicating intent to retain the claim on federal land on the claimant.

How do you think you advance your case by saying that it wasn’t unreasonable for Congress to do this?

Do you think we ought to sit up here and decide whether or not this was a “reasonable” statute for Congress to have passed?

Carolyn F. Corwin:

Well, I think the issue here is the constitutionality of what Congress has done.

I would have thought so, too.

Carolyn F. Corwin:

That’s correct.

There has been much suggestion, I think, in the briefs that were filed in this case that Congress couldn’t possibly have meant to do this, that this is quite an unreasonable result, and my suggestion is that, following your suggestion about turning square corners, it is certainly reasonable to expect that sort of reaction from claimants in this particular circumstance.

Sandra Day O’Connor:

Of course, in that Texaco versus Short decision, there is language in the opinion that speaks of upholding the state law in that case because it imposed reasonable conditions on intention.

Carolyn F. Corwin:

Well, that’s correct.

The Court in Texaco initially examined whether it was within the legislature’s power to do something like this, and there was discussion of reasonableness.

That is correct.

Before you get into your Constitution argument, may I ask a question about a possible reading of the statute?

The deadline here, it seems to me, December 31st, is more apt to deceive someone than another date, where you say prior to a given date.

It seems to me one reading this statute rather hastily might incorrectly assume before the end of the year is what was intended by Congress because of the December 31st date.

And I notice that you have a footnote in your brief in which you point out that you have been advised by the agency that they started at a certain time sending out notices to tell people that December 30 was the date rather than December 31st.

Why would they do that if they didn’t think there was some possible ambiguity in the statute?

Carolyn F. Corwin:

Well, I don’t think it’s a matter of ambiguity, but I think the Secretary recognized that there could be people who weren’t really in tune with the system yet.

The notice doesn’t simply say what the date is.

I think it says a little bit more than that.

Doesn’t it remind them to be sure you realize it is the 30th and not the 31st?

That point is made in the note.

Carolyn F. Corwin:

It does phrase it as on or before December 30th, which the regulations do as well, and I think that is an attempt to make sure that people focus on the fact that it doesn’t look as though December 31st is part of this.

Would it compromise the government’s interests in this whole program at all if the statute were simply construed as though it had said on or before instead of prior to, just to avoid the problem that occurred in this case, and also to avoid the necessity of deciding a constitutional question?

Would that be a possible solution to this case?

Carolyn F. Corwin:

Well, in terms of the government’s interests, looking simply at that, I suppose you would have to consider what has gone on since the statute in terms of things that may have occurred with relocations by third parties.

Are there any other cases but this one in which the person missed it by one date?

Carolyn F. Corwin:

My understanding from the filings of the amici in this case is that there are other cases like that.

Now, I don’t know how many of those are people who very much want to continue their claims and would then come back and say you want to pick up on the claims if that reading of the statute were possible.

But you do have this problem of what has gone on since the statute.

In terms of the one day difference, I guess I would have to say it doesn’t make a difference if Congress had said December 31st–

Doesn’t it at least seem theoretically possible that that might be exactly what Congress thought it was doing and was a little careless in its writing?

Carolyn F. Corwin:

–Well, I think it is possible.

My problem is that I don’t think there is a 100 percent possibility that that is what Congress meant.

I guess I am only about 80 percent sure, or maybe less.

Carolyn F. Corwin:

I’m not sure.

But the language is fairly clear on its face in terms of prior to December 31st.

And for that reason I doubt my own initial reaction to this, because clearly whoever wrote it knew that December 31st existed.

Do you think it would be better for the Court not to adopt that construction, but rather, to go ahead and decide the constitutional issue?

Carolyn F. Corwin:

Well, it seems to me that it is very difficult to reach the reading that you have suggested just because there is doubt, because of the language of the statute, because there are plausible reasons why somebody might have perhaps wrongheadedly sat down and said, you know, we won’t have people filing on the last day of the year, and for that reason, I would think that you would have to reach the constitutional issue.

Obviously, in the interests of the government, it would help to have it resolved, but I am not suggesting that that is a reason that you shouldn’t construe the statute.

I am saying that I think there are other problems with that approach.

Well, Ms. Corwin, you said you thought it was fairly clear the statute should be construed in a particular… the wording, I take it, is 31st> [“].

Do you think there is any ambiguity at all in those four words?

Carolyn F. Corwin:

I don’t think there’s any ambiguity on the face of the statute, and I might note that the Secretary has construed the language of the statute to be on or before December 30th, so if there were any ambiguity, I suppose you could look to the administrative construction to back up your natural reading of the statute.

I think Justice Stevens was suggesting that somebody might come to the conclusion that whoever wrote the statute must have slipped and meant before the end of the year.

I might note that nobody in this case is urging that construction of the statute.

Appellees acknowledge that they have missed the deadline, and as I noted, the Secretary construes it that way.

The District Court didn’t seem to disagree with that, either.

Sandra Day O’Connor:

And there is nothing in the legislative history that would support that, is there?

Carolyn F. Corwin:

I have simply found nothing that suggests one way or the other anything about that 31st> [“] language, so I don’t think there is anything we can look to one way or the other there.

Now, appellees were mining claimants whose ten claims were located on federal lands in the state of Nevada.

They had mined their claims since 1960, but they had never proceeded to patent on those claims.

Following the enactment of FLPMA, they filed their initial recordation statement in October of 1979 in a timely manner.

Then, in 1980, they filed their affidavits of annual assessment work with the local recorder’s office, August of 1980, but they waited until December 31st of 1980 to file that same piece of paper with the Federal Bureau of Land Management office.

Since the statute does require filings prior to December 31st, BLM advised appellees that their claims were void by operation of the statute, and that is because of Section 314(c), which is the provision that is really at the heart of this case.

Congress provided there that the failure to comply with the filing requirements would be deemed conclusively to constitute an abandonment of the claim.

In other words, compliance with the filing requirement would be a condition to continued retention of the claim.

Of course, the language the statute used tied it up with an abandonment, didn’t it?

Carolyn F. Corwin:

Well, Congress did use the word “abandonment”.

Well, that is rather a strange way of describing what you just were talking about.

Carolyn F. Corwin:

I am not so sure it is strange.

It is inartful.

Well, it sounds to me like it is strange.

I will put it that way.

Carolyn F. Corwin:

Well, it is possibly inartful, and it is certainly circumlocution.

I think it was kind of a roundabout way of getting to what Congress was after, but I don’t think there is any doubt either from the face of the statute or from the legislative history that what Congress really had in mind was that if you don’t file your… make your filings on an annual basis in a timely manner, you are going to lose your claim.

They used this intermediate step.

They said–

Well, to read the statute, you would think that they were equating failure to file, even a negligent failure to file, with an intention to abandon.

It doesn’t make a whole lot of sense.

Carolyn F. Corwin:

–I think what they did was use a two-step procedure, which is sort of roundabout.

They said failure to file will be the equivalent of abandonment, and we all know that abandonment means you lose your claim, and they were just using–

It also usually means that you have some intention to do so.

Carolyn F. Corwin:

–Well, in the common law sense that is so, but I don’t think it is necessarily unusual in that there are statutes that are phrased in this sort of terminology, for example, in the general mining laws, 30 USC 27, I think, contains some language that says “considered abandoned” when you don’t spend enough time on your tunnel development, and in this Court’s decision in Texaco versus Short, the Indiana statute there was not phrased in these terms.

It talked directly about extinguishment of the interest.

I take it your position is that if the Administrator or if the Secretary had decided to by his regulations say… if he said that a failure to file shall be presumptive evidence of an abandonment, but we will have a hearing to see if there was an intent to abandon, do you think that would be an invalid regulation?

Carolyn F. Corwin:

I don’t think that would be consistent with the intent of Congress.

I think here you have a statute that was designed to really simplify and to provide some certainty in this area.

I think the underlying point of this section, Section 314(c), is to provide land managers with what they had lacked prior to 1976, and that was the ability to know for sure what the status of the claim was.

The point of this was to provide this sort of bright line distinction between who was in and who was out that would permit land managers to say for sure what the status of the claim was.

Now, I think they used this roundabout language which, as I was saying, this Court itself used when it referred to the Indiana statute… there are several places in the Texaco versus Short opinion in which the Court says “deemed abandoned” or “assumed abandoned”.

I don’t think that is an unusual formulation in these land laws.

But I think that you have to go back to the purpose of the statute, and that was to provide a solution to this long-standing land management problem which was essentially the problem of knowing for certain what the status of the claim was.

Now, there is no real question, I think, about Congress’s constitutional power to enact a provision like this, to impose a filing deadline as a condition for retention of the claim.

It is quite reasonable for Congress to provide something that allows federal land managers to know what the status of asserted rights on public lands might be.

The question here is whether Congress provided appropriate process in connection with that sort of provision.

And that is how the appellees have framed their claim in the District Court and here.

I think it is clear that there is adequate process in at least two respects.

One is that there is clearly notice of the terms of this statute, of Section 314.

Texaco versus Short provides a standard, I think, and here we clearly need it.

We have a three-year grace period.

We have people who know that they are under a system of federal regulation and can be expected to keep up with what is going on in the area.

Here, you don’t even have that question, because these people clearly knew about the statute.

They clearly knew about Section 314.

Carolyn F. Corwin:

The only thing they didn’t look closely at was that particular filing date.

You also have adequate process in connection with the final adjudication as to whether someone has complied with the statute.

This is the procedure under which these appellees and other claimants receive notice.

If it appears that they have not complied, they have the opportunity to be heard before the Interior Board of Land Appeals on the crucial question under the statute, which is whether or not you have complied with the filing requirements.

So, the only question that is really left is whether you have to provide one more round of notice in terms of an individualized card from BLM that says, your friendly BLM office would like to remind you, and we submit that that is not constitutionally required in a case like this.

I might note that the American Mining Congress, a major industry group, was a strong supporter of this provision, a proponent, and had in fact proposed it back in 1968 in similar terms.

They didn’t seem to think this sort of extra round of notice was necessary, and Congress, I think, looking at the–

Of course, the Mining Congress is made up of, you know, big time commercial miners that are probably more than equipped to deal with various regulations in a way that perhaps the respondents here aren’t.

Carolyn F. Corwin:

–Well, I think that… several points, I suppose.

The respondents here… excuse me.

The appellees here could simply look at the regulation and see on the face of it what the answer was.

But I don’t think the American Mining Congress was necessarily simply thinking about the interests of big groups.

Mobil has filed an amicus brief in this case, and it seems to have a similar problem, so I don’t think the American Mining Congress was focused solely on the big people on this.

The situation of the mining claimant is that they come and they go in a lot of cases.

Many of them are not in a situation of appellees here.

They don’t have a stable producing operation.

There are people who come onto the land, who locate their claim, who decide after a year or two that it is really not worth it, they just don’t find what they thought they might find, and they move on.

In those sorts of circumstances, they are the ones who know whether they want to keep the claim.

It is reasonable for Congress to have concluded that they could assume the minimal burden of providing a piece of paper each year to the government.

Now, appellees and amici have suggested alternatively, and the District Court also accepted this argument, that some sort of substantial compliance would be sufficient under this statute.

If you come close enough, then you ought to assure that you are not going to lose your claim, they suggest.

I would like to suggest briefly why we don’t think that is so.

The face of the statute does not seem to suggest that there is this leeway to sort of deviate from the statute to one extent or another.

It doesn’t suggest a sliding scale of compliance.

Remember that this system involves millions of claims.

I think Congress was aware that if it established this sort of a sliding scale standard, the Secretary could be faced with thousands, tens of thousands, maybe hundreds of thousands of factual situations in which people come in and say, well, two weeks late, a month and a half late, that didn’t hurt you, that is substantial compliance.

And at the same time, I think the Secretary is going to be faced with a situation under that sort of standard in which he doesn’t have any good way to decide what the cutoff should be.

You are going to have people arguing that it is arbitrary and capricious to cut it off at one point or another.

You are going to have not only claimants who are disappointed.

You are going to have third party people who thought they were going to be able to relocate or to locate claims after someone else’s had lapsed under this statute.

Carolyn F. Corwin:

We don’t think that there is any indication that Congress intended to impose that sort of administratively complex system in the context of a statute that was designed to simplify things.

It is like the argument about abandonment.

There is no indication that Congress was envisioning some massive factfinding process that would require the BLM to take evidence on the intent to abandoned.

In your heart you may want to keep your claim, but I think the point here was, if you don’t submit something that is objective evidence that land managers can rely on, Congress made the determination that you would lose your claim in those circumstances.

If there are no questions at this time, I would like to reserve the remainder of my time.

Warren E. Burger:

Mr. Swafford.

Harold A. Swafford:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court, as pointed out by the appellants, the Lockes own ten unpatented mining claims near Ely, Nevada, which they have operated for 24 years.

On April 4th, 1981, the Bureau of Land Management in Reno issued an opinion stating that the Locke’s claims were deemed to be abandoned because they had filed an annual affidavit one day late.

The Lockes had fully complied with the statute the prior year in regard to their initial filings.

Under the Act, they were required to file certificates of location for each of their claims, maps, affidavits, and they did all of that prior to the deadline in October of 1979.

The court found below that the BLM had then opened a file on the Lockes showing their claims to be active mining claims.

Now, the statute at issue herein provides that the failure to file any of the instruments required in the Act shall be deemed conclusively to constitute an abandonment of the claim by the owner.

The District Court viewed that as an irrebuttable presumption which to us seems pretty obvious on its face, and decided the case in accordance with this Court’s decision in Vlandis versus Klein and other irrebuttable presumption cases.

The Court found that because that presumption of abandonment wasn’t unnecessary or universally true, especially where the Lockes had operated their claims for 24 years, and indicated by filing their documents that they didn’t intend to abandon, they should have a hearing or some method by which they should have an opportunity to rebut the presumption.

Now, the appellants attacked the District Court’s decision by saying that this doesn’t present an irrebuttable presumption at all, and they argue further that the court ought to decide the case in accordance with Texaco versus Short.

We think this is a pretty novel interpretation, and the Court should look at the statute, look at what it says on its face, and not search for other meanings in other cases.

But if we look at what the statute said on its face, your client is out.

Harold A. Swafford:

No, I think if we look at what it says on its face, it is an impermissible, irrebuttable presumption.

I see.

You are not saying interpret it literally and apply it.

You are saying interpret it literally and it is unconstitutional to apply it.

Harold A. Swafford:

Yes, Your Honor, and I think in answer to your question earlier of whether there was a boner, I believe Justice Blackmun answered that.

I think there was a mistake.

I think Congress intended to apply a rebuttable presumption, some kind of a–

What makes you think that?

Harold A. Swafford:

–Because a conclusive presumption just doesn’t fit in with notions of abandonment that require an intent.

Well, if we are looking as to what Congress might have intended, perhaps their mistake was in choosing to analogize what is essentially a forfeiture to abandonment.

I mean, Congress wanted this terminated if the thing wasn’t filed.

Perhaps they were mistaken to have suggested that it was a conclusive abandonment.

Harold A. Swafford:

I think Congress intended to terminate inactive, long dormant, and abandoned mines.

There was no intent on Congress’s part that I can find from any reading of the Congressional Record or any of the statements by the American Mining Congress or anybody else that they intended to forfeit operating mines.

What if you, instead of reading the Congressional Record or the discussion, just read the statute?

Surely it is absolutely clear from the statute that they intended a forfeiture, isn’t it?

Harold A. Swafford:

It is a contradiction of terms.

They use the word “abandonment”, which means intent on the part of the miner to relinquish his property.

It is just a contradiction in terms to say “conclusively deemed to be abandoned”.

Any more so than the April 15th deadline on the question that was put to the government?

The April 15th tax return.

One day late and you are just as badly off as six months or a year, aren’t you?

Harold A. Swafford:

Well, I believe there is a deadline for filing tax returns, and there are other deadlines in statutes, other statutes, but I don’t believe that that has anything to do with the conclusive presumption.

I don’t understand, I don’t think, Your Honor.

I am addressing the language 31st> [“].

Isn’t that just as clear as April 15th?

Harold A. Swafford:

I think it is a statement that Congress wanted it filed by December 30th.

I think that is a clear statement, though it is, as the District Court found, a trap for the unwary.

I don’t think that makes it any… I don’t think that gives a person another day.

How do you describe the property interest, if any, that the claim owner has?

Harold A. Swafford:

The claim owner has a property interest as defined by this Court in Wilbur versus United States.

He has property in the fullest sense of the term.

He has an operating mine for which he earns–

I take it he can exclude others from the claim, can he?

Harold A. Swafford:

–Not from the claim surface.

I don’t believe he–

But he can exclude them from–

Harold A. Swafford:

–From the mine itself, which is the vein of ore that he is operating and his… the works that he has devised to get to it.

I don’t think he could exclude the BLM, for example, leasing out a mine for grazing purposes, or for… he couldn’t exclude hunters or–

–Aren’t there some other conditions besides filing on the continuation of that claim?

Harold A. Swafford:

–He has to perform his assessment work every year, at least $100 worth.

What if he doesn’t some year?

Harold A. Swafford:

If he doesn’t then, of course, then the claim can be forfeited, I suppose.

Don’t say suppose.

It is forfeited, isn’t it?

Harold A. Swafford:

It is lost by relocation by a junior locator or if the government contested it, yes.

Well, he just forfeits.

If by the end of the year you haven’t done your assessment work, you are out of business.

Harold A. Swafford:

If certain conditions arise.

One is, of course, a junior locator.

Another one is if he hasn’t substantially–

And the government contests it, just like this, says, you have failed to do your assessment work, your claim is cancelled, your claim is out.

Now, if you want to litigate with us as to whether you did your assessment work, why, come on in.

And he said, well, I didn’t do my assessment work, but nevertheless I am still in.

He can’t win that, can he?

Harold A. Swafford:

–I think he can as against the government.

Why?

How?

Harold A. Swafford:

But not as against the junior locator.

How can he win it against the government?

Harold A. Swafford:

Well, I think cases have decided, and in the Hickel–

You mean the government may not enforce its requirement of doing assessment work?

Harold A. Swafford:

–I think that’s correct as to assessment work.

I think Hickel versus United States, and the cases that were decided there, is that assessment work, the failure to do assessment work is not something the government can assert, but only a junior locator because even if a person doesn’t do this–

That is just because of the intent of Congress, I take it.

Harold A. Swafford:

–Well, I think that is Court interpretations.

Of the intent of Congress.

Harold A. Swafford:

Yes, I believe, because if a person didn’t do it for 20 years, and there were no intervening junior locators he could resume doing his assessment work–

Unless it was held that he had abandoned it.

Harold A. Swafford:

–Unless he has been held… I agree with that.

If he had abandoned the claim, had an intention to abandon it, then that is correct.

You think the nature of the property interest is such that the government, instead of saying, please file or you lose your interest, you think the government could just send a letter to all… investigate and get the names of all the holders of mining claims and just writes them a letter saying, everybody who hasn’t got a patent is now forfeited?

Harold A. Swafford:

I don’t think that would be possible constitutionally.

Do you think the Constitution would prevent that?

Harold A. Swafford:

I think it would, and there is some language in the dissent in Texaco versus Short that states that if the government were to issue a fiat simply terminating mineral interests across the board, it would be unconstitutional absent just compensation.

I think the government could do it, but it would probably have to pay for it, is what the final result would be.

But the–

Well, I take it your position then in this case is that your client could just refuse to file at all.

Harold A. Swafford:

–No, I don’t believe–

And as long as he could show that he had no intent to abandon, the he was working the mine every day, he could just tell you, forget this filing business.

That interferes with my property rights.

Harold A. Swafford:

–I think at some point he needs to be given an opportunity to show, because of the statute, because if Congress, I think, wanted an abandonment it would say that.

Say he just said, I am just never going to file, but I would be willing… I will litigate with you any time about whether I have abandoned, and I will always win.

Can he get away with that?

Harold A. Swafford:

Well, I think if there are no intervening people, and the government hasn’t taken any position on it, which was a point made in the Wilbur versus Krushnic case, that if the Court… or if the government has not intervened to take action, then it may very well be that he has substantially complied by correcting at some later date.

He just writes back… he just writes back and says, I am sorry, but I am just not going to ever file under this statute, and you can’t terminate my claim until and unless I abandon.

Harold A. Swafford:

Under this particular statute, that may be the result.

It may very well be, because–

Thurgood Marshall:

That letter would have to get there before the 31st?

Harold A. Swafford:

–No, Your Honor, I think that he has to have an intent to abandon his mine whenever that occurs.

Thurgood Marshall:

The reason is that if he doesn’t get anything there before the 31st, he loses.

Harold A. Swafford:

By the 30th.

Thurgood Marshall:

I said before the 31st.

He loses.

Harold A. Swafford:

Well, I think he would only lose if he had an intent not to abandon his operating mine.

Thurgood Marshall:

You recognized the validity of the statute when you filed, didn’t you?

Harold A. Swafford:

I don’t think the Lockes ever recognized the constitutional validity of it.

Well, did he file?

Harold A. Swafford:

They filed, and they complied in–

Thurgood Marshall:

Did he file under protest?

Harold A. Swafford:

–Not in 1979.

Thurgood Marshall:

Well, if he didn’t file under protest, how can he now protest?

Harold A. Swafford:

They are not protesting the initial filings.

We think the initial filing requirements are constitutional.

We are objecting to the forfeiture of operating mining claims by not filing an annual affidavit.

We feel that the government has a… that there was no other way to do it as to the six million claims that existed out there.

The solicitor has explained–

Sandra Day O’Connor:

Well, Mr. Swafford, would you concede that at least the people who had not filed a mining claim before the enactment of the new law, that the government can set whatever conditions it wants to enable people to obtain mining claims on public land?

Is that right?

Harold A. Swafford:

–Conditions for obtaining property in the first place, is what you are saying.

Sandra Day O’Connor:

Sure.

Somebody who has never filed before this law was passed.

Harold A. Swafford:

I believe that’s true.

Sandra Day O’Connor:

Now, you don’t have any problem with those, do you?

Harold A. Swafford:

I have no problem with that.

They have to comply with whatever conditions, whether it is doing $10,000 worth of work instead of $100, or filing any document the government wants.

Sandra Day O’Connor:

So what distinguishes that principle, then, for people who have already filed but haven’t perfected their claim, the unpatented mining claim?

Can the government come in and establish new conditions for obtaining the patent?

Harold A. Swafford:

For obtaining a patent?

Sandra Day O’Connor:

Right.

Harold A. Swafford:

I think if somebody wanted to obtain a patent and Congress wanted to increase, say, from $500 to $10,000, I think Congress could do that.

It would make it a condition of–

Sandra Day O’Connor:

And can it not come in and establish other requirements for holding onto an unpatented mining claim?

Harold A. Swafford:

–Not when Congress has set up abandonment as one of the… as the reason for losing the claim, as it has here.

Sandra Day O’Connor:

Well, your position has already conceded that the earlier filing of an intention to retain a claim is valid, so you do concede that the government can come in and impose some additional conditions on holding an unpatented claim?

Harold A. Swafford:

Yes.

I think in a certain circumstance, but not here.

I don’t see how it could be done here under this statute, is why I have problems with it, because it did set up abandonment, I think, as the standard for losing your claim.

Now, there are differences in Texaco versus Short with this case, I mean, major differences, in that the treatment… it is the treatment of operating mines that is really different in the two statutes.

In the Texaco versus Short context, operating mining claims are protected because the statute is only directed to eliminating claims where work has not been done for more than 20 years.

In this statute, Congress chose to protect operating mines, I think, by requiring that they be abandoned.

Because of that difference, I think the Court should not adopt and force this case into a Texaco versus Short situation.

Harold A. Swafford:

Here, we do have the clear, irrebuttable presumption, and I think the District Court was right, and this Court should affirm that, on deciding this case in accordance with Vlandis versus Klein.

Now, the Court also found that the Lockes had substantially complied with the statute by doing many things.

Now, the government says you can’t substantially comply with the cutoff date, but the Act required numerous things to be done.

The Act required the Lockes to file in 1979 their certificates of labor… location, the maps and the affidavits of labor.

In 1980, the Lockes produced $1 million worth of materials, and they filed their affidavit with the White Pine County, Nevada, Recorder’s Office, and they also filed that with the Bureau of Land Management in Reno, although it was one day late.

The Court looked at all of the acts, the things that the Lockes had done, and stated that they had substantially met all of the requirements of the statute.

The Court relied on Hickel versus Shell Oil Company in that line of cases which dealt with performance of annual assessment work.

In that case, the Supreme Court ruled that if you substantially complied, that is sufficient under the assessment work.

The lower court did not see that any of the purposes of the Act would be defeated by having the Lockes… by ruling in their favor on substantial compliance.

In other words, they found that the purposes of the Act were to eliminate this long buildup of six million long dormant claims on the public domain.

Those purposes had already been accomplished.

And further, that the Lockes had indeed registered with the BLM, so the BLM knew they were active claims at the very time that they terminated them.

So the purposes of the Act had been met.

Now, the appellants have now apparently adopted a substantial compliance standard here by permitting annual affidavits to be filed by January 19th if they are postmarked by December 30th.

A literal reading of the statute would require a December 30th filing, and this seems to be a departure from the Act’s strict requirements.

In view of the nature of the irrebuttable presumption that we think this Court should rule on in accordance with the Vlandis versus Klein line of cases, and in view of the substantial compliance of the Lockes with the terms of the Act, we urge this Court to affirm the District Court.

And if there are no more questions by the Court, that concludes my presentation.

Warren E. Burger:

Very well, Mr. Swafford.

Do you have anything further, Ms. Corwin?

Carolyn F. Corwin:

I have nothing further, unless there are other questions.

Warren E. Burger:

I think not.

Thank you, counsel.

The case is submitted.