Schaub v. United States

207 F.2d 325, 14 Alaska 412, 1953 U.S. App. LEXIS 2869

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 1953
• Docket: 13685
• Status: Published

Opinion

PER CURIAM.

This action was brought by the United States to quiet its title to a parcel of land, containing 37.5 acres, near Ketchi-kan, 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.