410 F2d 750 Pruess v. L Udall

410 F.2d 750

C. F. PRUESS, Sr., Executor, er al., Appellants,
v.
Stewart L. UDALL, Secretary of the Interior, Appellee.

No. 23347.

United States Court of Appeals Ninth Circuit.

April 22, 1969.

C. F. Pruess, Sr. (argued), Woodburn, Or., for appellants.

George R. Hyde (argued), Washington, D.C. Clyde O. Martz, Asst. Atty. Gen., Roger P. Marquis, Dept. of Justice, Washington, D.C. Sindney I. Lezak, U.S. Atty., Joseph E. Buley, Asst. U.S. Atty., Portland, Or., for appellee.

Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.

PER CURIAM:

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1

This appeal is taken from the District Court's judgment upholding the decision of the Secretary of the Interior that appellants' mining claims were invalid for lack of location of valuable minerals. The opinion of the District Court appears at 286 F.Supp. 138 (D.Or.1968). We agree with the views there expressed.

2

Appellants contend that the Secretary applied the wrong test-- marketability rather than prudent man-- to determine the sufficiency of the location. They distinguish United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968), on the ground that the Court there dealt with semiprecious metals while this case involves precious metals. We need not reach the merits of this point of distinction. The record establishes that the Secretary applied the prudent man test. Appellants were not required to prove that operation of the mine would be profitable.

3

Other assignments of error not dealt with by the District Court we find without merit.

4

On the basis of the District Court opinion, judgment is affirmed.