207 F2d 325 Schaub v. United States

207 F.2d 325




No. 13685.

United States Court of Appeals Ninth Circuit.

September 24, 1953.

Stump & Bailey, Wilfred C. Stump, Ketchikan, Alaska, Ferguson & Burdell, Donald McL. Davidson, Seattle, Wash., for appellant.

J. Edward Williams, Acting Asst. Atty. Gen., James M. McInerney, Asst. Atty. Gen., Washington, D. C., P. J. Gilmore, Jr., U. S. Atty., Juneau, Alaska, Roger P. Marquis, Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C., for respondent.

Before HEALY, BONE and POPE, Circuit Judges.


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This action was brought by the United States to quiet its title to a parcel of land, containing 37.5 acres, near Ketchikan, Alaska. This tract was situated in, and a part of Tongass National Forest when, on June 21, 1951, the appellant, defendant below, undertook to locate a mining claim thereon.1 The area had previously been used by various road builders, operating under contracts with the Bureau of Public Roads, as a source of road building material. On February 9, 1951, and prior to defendant's attempted mineral location, the Regional Forester, at the request of the Bureau, issued a document entitled "Correction Memorandum No. 11", which recited that the area here in question "is hereby reserved for the use of the Bureau of Public Roads as a source of road building material."


The trial court held that this was a valid "special use permit" authorized by 48 U.S.C.A. § 341 and 23 U.S.C.A. § 18, and regulations issued pursuant thereto, and that it had the effect of withdrawing the area in dispute from mineral location at the time the defendant-appellant attempted to locate it. As we agree with this holding of the district court, the judgment is affirmed.


1. The location was based upon a claimed discovery of a valuable mineral deposit consisting of sand and gravel. Whether such a deposit was open to location under the general mining laws, 30 U.S.C.A. § 21 et seq., was not in question here. For a reference to a later decision on that question by the same district judge, Anchorage Sand & Gravel Co. v. Schubert, D.C., 114 F.Supp. 436.