
    UNITED STATES ex rel. PUCKETT v. LINDEMUTH et al.
    No. A-6882.
    District Court, Alaska, k Third Division, Anchorage.
    Feb. 28, 1953
    
      Seaborn J. Buckalew, U. S. Atty., Anchorage, Alaska, for plaintiff.
    McCutcheon & Nesbett, Anchorage, Alaska, for defendants.
   DIMOND, District Judge.

This is a contest between the United States of America and the defendants to prevent the latter from removing gravel from certain lands located by the- defendants as placer mining claims within an area near the City of Anchorage, Alaska, occupied and used as an airport. It is asserted by the plaintiff that the land embraced within the claims was not at the time of their location available to such location as placer mining claims because of prior reservation at first for townsite purposes and later for airport use.

By Executive Order 3672, dated May 8, 1922, the land was withdrawn from “Settlement, location, sale, entry or other disposition and reserved for townsite purposes * * * The validity of that withdrawal order is not here challenged. Some years later the local residents desired that the land be made available for an airport. In its location and topography it was at that time eminently suitable for airport purposes. In the meantime, Congress enacted a law approved May 24, 1928, 45 Stat. 728, 49 U.S.C.A. § 211 et seq., authorizing the lea§e of public lands for use as airports. Accordingly, by Executive Order No. 5806, dated February 25, 1932, the land was restored so that it might be available for use as an airport. The text of Executive Order No. 5806 is as follows:

“Executive Order
Partial Restoration of Public Land for Airport Alaska
Executive Order No. 3672, dated May 8, 1922, reserving certain land in Alaska for Town-site purposes, is hereby revoked, in so far as it applies to tract 32, containing 140.24 acres, shown on a supplemental plat of survey, Fourth Addition, Anchorage Town Site, township 13 north, range 3 west, Seward meridian, Alaska, accepted May 29, 1931.
Herbert Hoover
The White House,
February 25, 1932 (No. 5806)” “There is created a court of record to be designated the ‘District Court of Guam’, and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of Title 28, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.”

It will be noted that the title indicates the use to which the land was to be put when restored to public domain. Pursuant to the plan, the land was leased to the City of Anchorage for use as an airport for the term of 20 years commencing on May 5, 1932.

In the year 1951, and while the lease of the land to the City of Anchorage for the use as an airport was still in full force and effect, the defendants located the land as placer mining claims. So far as the record shows, the claims were staked out in the usual fashion and notices of location were recorded as required by local law. The only mineral discovery was that of gravel. Whether the discovery of gravel is sufficient to support a placer mining location under the law is still debatable. 2 Lindley on Mines, 3rd Ed., page 996. The Land Office in Zimmerman v. Brunson, 39 L.D. 310 (1910), has held that it is not, but the Supreme Court of Oregon, in Loney v. Scott, 1910, 57 Or. 378, 112 P. 172, 32 L.R.A.,N.S., 466 has held that it is. The point was not determined in Judge Folta’s opinion in United States v. Schaub, 1952, 13 Alaska 640, 103 F.Supp. 873. Similarly, the decision of that question is not necessary here because the issue may be more satisfactorily disposed of on other grounds.

The principal question is whether the land was open to location for placer mining purposes in 1951. In administrative proceedings had within the Department of the Interior, the Bureau of Land Management held that it was not and that decision was affirmed upon appeal by the Secretary in Opinion No. 26429 dated October 14, 1952. Whether or not the decision of the Secretary should be considered final and conclusive, Ickes v. Underwood, 78 U.S. App.D.C. 396, 141 F.2d 546, and see 1 Lindley, § 108, p. 188, the conclusion of the Department seems clearly correct. The owner of the land, the United States, under various acts of Congress through the Executive Department of the Government, first withdrew the land entirely from entry and later restored it for one purpose only, and that was to lease it for airport purposes. To attempt to use the land both for airport purposes and for the placer mining of gravel would be impossible. The mining of the claims for gravel would totally destroy possibility of use of the land as an airport and thus the will of the Government, duly and lawfully expressed and carried into action by an actual airport lease, would be defeated. Wide as are the rights or privileges given to citizens to locate and work public lands for the extraction of minerals, the law does not go •so far as to warrant the doing of what the defendants are undertaking to do here. The mining locations so attempted to be made by the defendants are null and void.

This matter came before the Court on what is denominated a “motion for permanent injunction” but it is really a motion for summary judgment under the rules and was so treated by all of the parties. Therefore, a summary judgment may be entered herein, permanently enjoining and restraining the defendants and their agents, attorneys, servants and employees from removing gravel or other minerals located in the land in question and from doing any and every other act and thing contrary to the rights of the United States and the City of Anchorage, in and to said land.  