404 F2d 334 White v. L Udall

404 F.2d 334

Vernon O. WHITE et al., Appellants,
Stewart L. UDALL, Secretary of the Interior, Appellee.

No. 21766.

United States Court of Appeals Ninth Circuit.

June 17, 1968.

Calvin Dworshak, Boise, Idaho, for appellants.

Sylvan A. Jeppesen, U.S. Atty., Jay F. Bates, Asst. U.S. Atty., Boise, Idaho, Clyde O. Martz, Asst. Atty. Gen., Roger P. Marquis, S. Billingsley Hill, Edmund B. Clark, Stephen C. Glassman, Attorneys, Department of Justice, Washington, D.C., for appellee.

Before ELY and CARTER, Circuit Judges, and BELLONI, District Judge.1


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The district court granted summary judgment, thereby sustaining the Secretary's order denying a mineral patent application on the ground that claimant's had not discovered a valuable mineral. The appellants here contend that the Secretary's decision erroneously applied the prudent-man test by including the requirement that to be a valid mining claim there must be a reasonable prospect that it will be a profitable venture. Appellants relied upon this court's holding in Coleman v. United States, 363 F.2d 190 (9th Cir. 1966). However, on April 22, 1968, after briefing but before the date set for oral argument in this case, Coleman was reversed by the Supreme Court of the United States. United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170.


The latest Coleman opinion controls the issues of the instant case in that the Supreme Court approved the standards used here by the Secretary. The proper standards were applied, there is substantial evidence to support the Secretary's decision that there was no valid discovery, and therefore his decision is binding on this court. Henrikson v. Udall, 350 F.2d 949 (9th Cir. 1965).




Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation