Earl M. Lutzenhiser and Leo J. Kottas v. The Honorable Stewart H. Udall, Secretary of the Department of the Interior of the United States of America

432 F.2d 328 Earl M. LUTZENHISER and Leo J. Kottas, Appellants, v. The Honorable Stewart H. UDALL, Secretary of the Department of the Interior of the United States of America, et al., Appellees. No. 23441. United States Court of Appeals, Ninth Circuit. Oct. 5, 1970, Rehearing Denied Nov. 5, 1970. Leo J. Kottas (argued), Sidney O. Smith, Helena, Mont., for appellants. Robert S. Lynch (argued), S. Billingsley Hill, Attys., U.S. Dept. of Justice, Shiro Kashiwa, Asst. Atty. Gen., Land & Natural Resources Div., Washington, D.C., C., Otis Packwood, U.S. Atty., Robt. T. O'Leary, Asst. U.S. Atty. Butte, Mont., for appellees. Before KOELSCH, ELY and KILKENNY, Circuit Judges. PER CURIAM: 1 Except as noted, the District Court's unreported opinion, set out at length, is adopted as the opinion of this court and its judgment is affirmed. * 2 'In this action plaintiffs seek to review the decision of the Montana Land Office 1 declaring those portions of the Gold Seal and Gold Seal No. 1 Placer Claims lying within the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 3 West, M.P.M., Jefferson County, Montana, void. 2 3 The only question in this case is whether…

(concurring):

I concur in the result reached by my Brothers, and I too, am favorably impressed by District Judge Smith’s discussion of the problems and the care with which he resolved them. As to the Mark location, however, I entertain some doubt about the significance attached to Mark’s so-called relinquishment of his claim. The appellants urged that Mark executed the relinquishing document because of fraudulent misrepresentations made to him by a representative of the Secretary, and the Secretary’s final decision recognizes, “It is true that a relinquishment must be voluntary and intentionally executed, and that a relinquishment that is secured through misrepresentation, fraud or deceit is void.” Insofar as I can ascertain, there is nothing in the record which adequately rebuts the declaration of Mark himself that “I would not have signed the relinquishment paper to the claim if I had known the truth and if I was not under the duress and threat I was violating the law.”

I therefore do not place such great reliance, as my Brothers and the District Court have done, upon the so-called relinquishment. Mark filed his certificate of location on September 26, 1961, and it should, I…

Except as noted, the District Court’s unreported opinion, set out at length, is adopted as the opinion of this court and its judgment is affirmed. A

*330 “In this action plaintiffs seek to review the decision of the Montana Land Office 1 declaring those portions of the Gold Seal and Gold Seal No. 1 Placer Claims lying within the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 3 West, M.P.M., Jefferson County, Montana, void. 2

The only question in this case is whether an order of the Division of Lands and Mineral Management purporting to classify the lands as suitable for transfer under the Small Tract Act 3 is valid. The lands are in an area which has been the subject of a substantial amount of placer mining activity. The particular land has been frequently located for gold mining purposes and had been classified by the agents of the Bureau of Land Management as mineral land. In 1961 one Wildish filed an application for a patent for three mining claims which together embraced all of the land in the Southeast Quarter of the Southeast Quarter. Agents of the Bureau of Land Management made a field inspection and sampled the claims. The mineral…