JAMES G. WATT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. WESTERN NUCLEAR, INC. No. 81-1686 In the Supreme Court of the United States October Term, 1981 On writ of certiorari to the United States Court of Appeals for the Tenth Circuit Brief for the Petitioners TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Summary of argument Argument: I. The history of the adoption of the SRHA shows a congressional intent to effect a narrow grant of surface rights and a correspondingly broad mineral reservation A. The policy of reserving mineral rights in public lands opened for settlement was intended to maximize the public benefit from such lands B. Congress severed the surface and mineral rights on SRHA lands in order to promote stock-raising homesteads, while reserving to the United States the right to develop "all * * * minerals" II. The explicit terms of the SRHA show a a congressional intent to reserve commercially exploitable deposits of gravel A. The reservation of "all the coal and other minerals" in Section 9 of the SHRA is intended to include commercially exploitable deposits of gravel 1. The specific enumeration of "coal" in Section 9's reservation does not limit the effect of the clause 2. The reservation of "all * * * other minerals," including gravel which can be commercially developed, is consistent with the interests of the public and the SRHA homesteader B. The other provisions of the SRHA governing mineral development demonstrate Congress's intent to grant patentees a limited surface estate III. The interpretation of the term "mineral" in analogous contexts shows that Congress intended to include commercially exploitable deposits of gravel in the SRHA mineral reservation A. Gravel was included in the class of minerals locatable under the general mining law, which defined the scope of the SRHA mineral reservation B. Cases construing reservations of "all minerals" in private conveyances are irrelevant to interpretation of the SRHA Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 664 F.2d 234. The opinion of the district court (Pet. App. 20a-38a) is reported at 475 F. Supp. 654. The opinion of the Interior Board of Land Appeals (Pet. App. 45a-68a) is reported at 85 Interior Dec. 129. JURISDICTION The judgment of the court of appeals (Pet. App. 69a-70a) was entered on November 13, 1981. On February 3, 1982, Justice White extended the time for filing a petition for a writ of certiorari to March 13, 1982. The petition was filed on March 11, 1982, and granted on May 24, 1982. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTES INVOLVED Section 9 of the Stock-Raising Homestead Act of 1916, 43 U.S.C. 299; Section 1 of the Materials Act of 1947, 30 U.S.C. 601, and Section 3 of the Surface Resources Act of 1955 (the Common Varieties Act), 30 U.S.C. 611, are set forth in Pet. App. 71a-75a. QUESTION PRESENTED Whether the mineral reservation in Section 9 of the Stock-Raising Homestead Act, 43 U.S.C. 299, which reserved to the United States title to "all the coal and other minerals" in lands patented under the Act, includes gravel deposits susceptible to commercial exploitation.* STATEMENT 1. The Stock-Raising Homestead Act of 1916 (SRHA), 43 U.S.C. 291 et seq., was enacted "to restore and improve the grazing capacity, and therefore the stock-raising and meat-producing capacity, of the semiarid lands of the West, and at the same time to furnish homes thereon to the people." H.R. Rep. No. 626, 63d Cong., 2d Sess. 9(1914). Section 2 of the Act, 43 U.S.C. 292, authorized the Secretary of the Interior to designate as stock-raising lands subject to entry under the Act: "lands the surface of which is, in his opinion, chiefly valuable for grazing and raising forage crops, (which) do not contain merchantable timber, are not susceptible of irrigation from any known source of water supply, and are of such character that six hundred and forty acres are reasonably required for the support of a family * * * ." An entryman was permitted, subject to certain conditions, to obtain a patent for up to 640 acres of lands so classified by the Secretary. 43 U.S.C. 293. However, Section 9 of the Act, 43 U.S.C. 299, provided that all patents issued under the Act "shall be subject to and contain a reservation to the United States of all the coal and other minerals in the lands so entered and patented, together with the right to prospect for, mine, and remove the same." /1/ 2. In 1926, the United States conveyed certain lands near Jeffrey City, Wyoming, pursuant to the SRHA. The patent contained the following reservation (Pet. App. 21a): Excepting and reserving however, to the United States all the coal and other minerals in the land so entered and patented, together with the right to prospect for, mine, and remove the same pursuant to the provisions and limitations of the Act of December 29, 1916. In 1975 respondent, Western Nuclear, Inc., purchased the outstanding interest in a portion of the patented lands and applied to the Wyoming Department of Environmental Quality, a state agency, for a permit to develop a gravel pit. Its purpose in doing so was to further its commercial operations of mining and milling uranium ore around Jeffrey City, Wyoming. In connection with that business it needed gravel for road surfacing, paving aggregate, shaft concrete aggregate, and other related uses (Pet. App. 3a). After obtaining the permit, Western Nuclear removed approximately 43,000 cubic yards of gravel from the site (Pet. App. 21a). On November 3, 1975, the Wyoming State Office of the Bureau of Land Management (BLM) served Western Nuclear with notice that its gravel operation constituted a trespass against the United States. The BLM determined that the gravel had been reserved to the United States when the lands were patented under the SRHA, and consequently that the extraction and removal of the gravel was a violation of the Materials Act of 1947, 30 U.S.C. 601 et seq. /2/ The BLM concluded that Western Nuclear was liable to the United States for $13,000 for the gravel removed from the tract (Pet. App. 22a). Western Nuclear appealed the BLM's determination to the Interior Board of Land Appeals (IBLA), which affirmed (Pet. App. 45a-68a). The IBLA concluded that the language and purposes of the Act, as well as its legislative history, made clear that gravel "is a mineral reserved to the United States in patents issued under the Stock-Raising Homestead Act" (Pet. App. 65a). /3/ 3. Respondent then filed this action under 28 U.S.C. 1331(a) and the Administrative Procedure Act, 5 U.S.C. 701 et seq., seeking review of the IBLA's decision. The complaint alleged that the IBLA had erred in determining that the mineral reservation of the SRHA extended to gravel. Respondent also claimed that the Department of the Interior lacked jurisdiction to determine whether the United States still retained ownership of the gravel. The district court concluded that "it is evident from the legislative history, contemporaneous definitions and court decisions that the mineral reservation in the SRHA of 1916 is broad enough to include gravel as a mineral" (Pet. App. 38a). The court also rejected respondent's assertion that the Secretary of the Interior lacked authority to consider the question of ownership of the mineral estate in lands patented under the SRHA (Pet. App. 22a). /4/ 4. The court of appeals reversed (Pet. App. 19a). /5/ It first held that the Secretary had jurisdiction to consider the extent of the mineral reservation in lands patented under the SRHA, and to determine whether the removal of gravel from patented lands constituted a trespass against the United States (Pet. App. 6a-9a). The court concluded, however, that the reservation of "coal and other minerals" in Section 9 of the SRHA did not extend to gravel. The court first noted that gravel is not generally considered a mineral in private conveyances involving a mineral estate (Pet. App. 10a-11a). The court also determined that the datum most relevant to the intent of Congress was a 1910 decision by the Department of the Interior, Zimmerman v. Brunson, 39 Pub. Lands Dec. 310. In that case the Department had decided that deposits of sand and gravel did not render the lands on which they were found "mineral in character" within the meaning of the general mining laws (Pet. App. 12a-13a). Third, the court relied (id. at 14a-15a) upon its prior decision in Bumpus V. United States, 325 F.2d 264 (10th Cir. 1963). The United States there had condemned the surface estate, but had left the owner with a subsurface estate "including all oil, gas and other minerals * * * ." The court in Bumpus had held that the subsurface estate did not include gravel (id. at 267). Finally, the court below relied upon two states decisions which, under analogous circumstances, had held that a reservation of all "coal and other minerals" did not include gravel (Pet. App. 17a-19a). /6/ SUMMARY OF ARGUMENT I A. With the passage of the Stock-Raising Homestead Act the government departed from an imprecise system of classifying public lands as either mineral or non-mineral -- often mistakenly -- and restricting use of those lands to comport with their classification. Instead it embarked on a course -- still followed -- of disposing of public lands with a reservation of all minerals, in order to derive the maximum public benefit from such lands. That approach permitted prompt settlement of lands which might later be mined. It also served to spur development of reserved mineral resources by persons other than the homesteader, and provided a source of revenue in cases where minerals were ultimately discovered. B. Because the SRHA defines the estates to be created in terms of intended use the reservation of minerals in Section 9, 43 U.S.C. 299, should be read in light of the use Congress envisioned the Homesteader making of the surface, and the development Congress foresaw for the reserved minerals. The legislative history of the Act and the character of the lands opened under it demonstrate that Congress wanted to encourage homesteaders to engage in small-scale stock-raising, and "to prevent the entry of lands * * * principally valuable for purposes other than those expressed in this act * * * . H.R. Rep. No. 626, 63d Cong., 2d Sess. 3 (1914). It also believed that "(t)he farmer-stockman is not seeking and does not desire the minerals, his experience and efforts being in the line of stock raising and farming * * * ." H.R. Rep. No. 35, 64th Cong., 1st Sess. 5(1916). The corresponding reservation of minerals was made in the broadest possible terms. Consequently, where lands are more valuable for their commercially exploitable deposits of mineral materials like gravel than for grazing, Congress withheld from the rancher the right to develop the mineral resources. II A.1. The explicit provisions of the SRHA conform to this clear congressional intent. Section 9 reserves to the United States "all the coal and other minerals" in SRHA lands. The specific mention of "coal" is not intended to limit the reservation of like minerals. Rather, it was necessary to distinguish between coal and other minerals because coal was not subject to disposition under the Mining Act of 1872, 30 U.S.C. 21 et seq., and the SRHA had to provide for disposal of the resources withheld. The distinction between coal and other minerals was also natural from a drafting standpoint because the statutes on which the SRHA was patterned had reserved only coal, not other minerals. 2. Interpreting Section 9's mineral reservation to include commercially exploitable deposits of gravel is consistent with both the public interest and the interest of the SRHA homesteader. Section 9's reservation was coextensive with the class of minerals subject to location under the general mining law, which restricts development to "valuable mineral deposits." 30 U.S.C. 22. Thus not every deposit of gravel will warrant interference with the homesteader's surface estate; only those which -- in light of the abundance of the resource, the quality of the gravel, the condition of the market, and the distance from buyers -- can be extracted at a profit will do so. A corollary of that limitation is that the stock-raising homesteader can make any necessary use of gravel deposits which is consistent with the purposes of the SRHA. No similar justification can be advanced for extraction of large and valuable deposits to further the commercial operation of a mining company outside the patented lands. B. The damage provisions of the SRHA also show that Congress did not intend to turn commercially valuable gravel deposits over to the homesteader. Although the Congress which passed the Act contemplated that surface mining would take place on SRHA lands, it restricted the homesteader's right to damages to the value of "the crops or tangible improvements." 43 U.S.C. 299. No payment was required for reduction in value of the land itself. In the Open Pit Mining Act of 1949, 30 U.S.C. 54, Congress remedied this unfairness to the homesteader, but even then went no further than to make the miner liable for damage "to the value of the land for grazing." III. A. The Mining Act of 1872, 30 U.S.C. 21 et seq., which defines the class of minerals reserved in the SRHA, permitted location of commercially valuable gravel deposits. That interpretation is supported by a long line of cases before the courts and the Department of the Interior. It was also acknowledged by Congress itself, which enacted the Common Varieties Act in 1955, 30 U.S.C. 611, for the express purpose of removing gravel from the coverage of the Mining Law. Zimmerman V. Brunson, 39 Pub. Lands Dec. 310 (1910), holds to the contrary. It was, however, inconsistent with the "marketability" test applied by the Department at the time, repudiated by other contemporary authorities, and overruled by the Department itself within two decades. More important, it is evident from Congress's purpose in passing the SRHA that the reasons which may have justified Zimmerman's decision in the context of the original Homestead Act, 43 U.S.C. 161 et seq., are out of place in the settlement and development scheme contemplated by the SRHA. B. Cases construing reservations of "all minerals" in private conveyances are irrelevant to interpretation of the mineral reservation in the SRHA. Unlike private property transfers, the SRHA provides for payment for damages caused by development of gravel deposits on the land transferred. Moreover, settled principles of construction dictate that ambiguities in private deeds be construed against the grantor in order to effectuate the mutual intent of the parties. By contrast, any uncertainty in federal statutory mineral reservations must be construed in favor of the sovereign. United States V. Union Pacific R.R., 353 U.S. 112, 116 (1957); Northern Pacific Ry. V. Soderberg, 188 U.S. 526, 534 (1903). ARGUMENT I. THE HISTORY OF THE ADOPTION OF THE SRHA SHOWS A CONGRESSIONAL INTENT TO EFFECT A NARROW GRANT OF SURFACE RIGHTS AND A CORRESPONDINGLY BROAD MINERAL RESERVATION When it adopted the SRHA in 1916 Congress had only recently embarked on a policy of severing surface rights from subsurface mineral deposits in land grants, in order to derive the maximum public benefit from public lands. The nature of the lands classified for entry under the SRHA, as well as the legislative history of the Act, make clear that Congress intended to effect that objective in this instance by a grant of surface rights which would encourage stock-raising and forage farming, and a broad reservation to the United States of any mineral value the lands might have. Unauthorized private exploitation of commercially valuable deposits of gravel is inconsistent with that intent. A. The Policy Of Reserving Mineral Rights In Public Lands Opened For Settlement Was Intended To Maximize The Public Benefit From Such Lands During the nineteenth century the federal government generally classified public lands as either mineral or nonmineral, and then permitted acquisition of title to the lands according to the appropriate statutory scheme. See United States v. Sweet, 245 U.S. 563, 566-572 (1918); 1 American Law of Mining Section 3.1 (1981). This system had obvious difficulties. If the land had been mistakenly classified as nonmineral, the issuance of a patent to a homesteader would transfer title to all subsequently discovered materials. See Diamond Coal & Coke Co. V. United States, 233 U.S. 236, 239-240 (1914). On the other hand, classification of the land as mineral effectively prevented agricultural development of the surface pending the exploitation of whatever mineral deposits underlay it. The alternative of severing mineral rights from the surface and allowing separate development of each was initiated after President Theodore Roosevelt -- concerned in part with the fraudulent acquisition of coal lands by entries under the agricultural land laws -- withdrew some 64 million acres of coal lands from all forms of entry. 41 Cong. Rec. 2614 (1907); P. Gates, History of Public Land Law Development 726-727 (1968). See also E. Peffer, The Closing of the Public Domain: Disposal and Reservation Policies, 1900-50 at 107-108 (1951). In 1907 Roosevelt proposed to Congress that it "inaugurate a system which will encourage the separate and independent development of the surface lands for agricultural purposes and the extraction of the mineral fuels in such manner as will best meet the needs of the people and best facilitate the development of manufacturing industries." 41 Cong. Rec. 2806 (1907). The first step in that direction was taken with the passage of the Coal Lands Act of 1909, 30 U.S.C. 81, which permitted settlers on coal lands later withdrawn from entry to receive a patent which reserved to the United States the rights to the coal. The Coal Lands Act of 1910, 30 U.S.C. 83 et seq., then opened up withdrawn coal lands to settlement, subject again to a reservation of the coal. The approach of reserving only specific minerals was followed for a few more years. See Act of Apr. 30, 1912, 30 U.S.C. 90 (coal); Agricultural Entry Act of 1914, 30 U.S.C. 121 et seq. (phosphate, nitrate, potash, oil, gas, and asphaltic minerals). But it was shortly abandoned in favor of a reservation to the United States of all minerals. The terms of the reservations varied, but they generally provided that the United States would retain "all the coal and other minerals," /7/ "all coal, oil, gas and other minerals," /8/ or simply "all minerals." /9/ To be sure, nothing prevented a homesteader who had received a patent to the surface rights from also acquiring the mineral rights from the United States. Yet there were advantages in disposing of surface and mineral rights under two different sets of laws. This obviated the need for unavoidably inexact classification of land as either mineral or nonmineral, and allowed the prompt settlement of mineral lands which it did not then seem feasible to mine. But Congress also wanted to encourage the discovery and exploitation of mineral resources by giving everyone -- not just the homesteader -- a chance to prospect for them, and by demanding that miners comply with such requirements as the annual performance of a certain amount of labor on the claim. 30 U.S.C. 28. In the case of mineral deposits which were sold or leased, the reservation served an additonal and obvious public interest in the collection of revenue. /10/ B. Congress Severed The Surface And Mineral Rights On SRHA Lands In Order To Promote Stock-Raising Homesteads, While Reserving To the United States The Right To Develop "All * * * Minerals" It is clear from the legislative history of the SRHA that Congress intended to promote small-scale stock-raising, reserving to the United States the commercial exploitation of minerals on SRHA lands. The nature of the land to be granted under the Act underlines this conclusion. The reason for allowing settlement of 640 acres, rather than the 160 permitted under the Homestead Act, 43 U.S.C. 161 et seq., was that the land was too poor to support families on a lesser acreage. H.R. Rep. No. 35, supra, at 4-5. As Representative Ferris, Chairman of the Public Lands Committee, stated "No arable or irrigable land or mineral land is to be settled under this bill; no land in any section of the country where they have rainfall enough to raise enough to live on can be homesteaded under this bill. * * * (T)his bill * * * will cause the Secretary of the Interior, * * * to pick out a lot of high, dry, nonagricultural grazing land, and it will give 640 acres to a man and his family to live upon." 52 Cong. Rec. 1808 (1915). Thus the Act directed the Secretary "to designate as stock-raising lands * * * lands the surface of which is, in his opinion, chiefly valuable for the grazing and raising forage crops, do not contain merchantable timber, are not susceptible of irrigation from any known source of water supply, and are of such character that six hundred and forty acres are reasonably required for the support of a family * * * ." 43 U.S.C. 292. The Department of the Interior perceived the point of the classification requirement to be "to prevent the entry of lands * * * principally valuable for purposes other than those expressed in this act * * * ." H.R. Rep. No. 626, supra, at 3. Yet, inevitably, some mineral lands would be included. That should not, however, deflect the stock-raising homesteader from his original goal. Accordingly, "(a)ll minerals within the land (were) reserved to the United States * * * ." Ibid. Consistent with the character of the lands being opened for settlement the purpose of the Act, in the words of its original sponsor, was "to restore and promote the livestock and meat-producing capacity of the semi-arid States, and at the same time, on the same tract, to furnish homes to landless and homeless citizens of our country." 51 Cong. Rec. App. 683 (1914) (remarks of Rep. Ferguson); H.R. Rep. No. 626, supra, at 9, 11. Congress thought it so likely that settlers would engage in stock-raising that it imposed this condition upon entryman wishing to secure title to the lands: "(I)nstead of cultivation as required by the homestead laws the entryman shall be required to make permanent improvements * * * tending to increase the value of the same for stock-raising purposes of the value of not less than $1.25 per acre * * * ." 43 U.S.C. 293. As examples of the kinds of improvements the Act contemplated, the original House Report suggested sinking wells, and building fences and silos. H.R. Rep. No. 626, supra, at 13. With respect to the mineral reservation, though, the Department of the Interior stated that "(t)he farmer-stockman is not seeking and does not desire the minerals, his experience and efforts being in the line of stock raising and farming * * * ." H.R. Rep. No. 35, supra, at 5. The development of those resources was foreseen as a task for others: Another reason for the reservation of the minerals is that this law will induce the entry of lands in those mountainous regions (of the United States) where deposits of mineral are known to exist or are likely to be found. To issue unconditional patents for these comparatively large entries under the homestead laws might withdraw immense areas from prospecting and mineral development, and without such a reservation the disposition of these lands in the mineral country under agricultural laws would be of doubtful advisability. Ibid. Consequently, "(t)he purpose of (the reservation) is to limit the operation of this bill strictly to the surface of the lands described and to reserve to the United States the ownership and right to dispose of all minerals underlying the surface thereof. This section also provides a method for the joint use of the surface of the land by the entryman * * * and the person who shall acquire from the United States the right to prospect * * * and remove all minerals * * * ." Id. at 18. And wherever a reference is made to the types of minerals encompassed by the reservation, it is made in the broadest terms. "(I)t would cover every kind of mineral. All kinds of minerals are reserved * * * ." 53 Cong. Rec. 1171 (1916) (remarks of Rep. Ferris); 54 Cong. Rec. 687 (1916) (remarks of Rep. Mondell); H.R. Rep. No. 35, supra, at 5 ("All mineral(s) within the lands are reserved"); H.R. Rep. No. 626, supra, at 3 ("All minerals within the land are reserved"); id. at 15 ("all minerals underlying the surface"). Given the nature of those two estates carved out by the Act, it comports far better with the likely intent of Congress to suppose that commercially exploitable deposits of gravel like those mined by respondent were reserved to the United States for development, than to argue that they passed to the stockman whom Congress envisioned settling on SRHA lands. Cf. United States V. Union Oil Co. of California, 549 F.2d 1271, 1274 (9th Cir.), cert. denied, 434 U.S. 930 (1977); Skeen V. Lynch, 48 F.2d 1044, 1046 (10th Cir. 1931). "(T)he Stock-Raising Homestead Act * * * exhibits a continued pattern of defining the estates to be granted in terms of intended use, a pattern which has become the foundation of multiple use of the public land. The reservation of minerals to the United States should therefore be construed by considering the purposes both of the grant and of the reservation in terms of the use intended. A reservation of minerals should be considered to sever from the surface all mineral substances which can be taken from the soil and which have a separate value." 1 American Law of Mining, supra, Section 3.26 at 552. II. THE EXPLICIT TERMS OF THE SRHA SHOW A CONGRESSIONAL INTENT TO RESERVE COMMERCIALLY EXPLOITABLE DEPOSITS OF GRAVEL A careful consideration of the explicit terms of the SRHA makes clear that Congress carried out its intent to reserve rights to commercial mineral development. That purpose is evident both in the reservation clause itself, and in the other clauses governing mineral exploitation. A. The Reservation Of "All The Coal And Other Minerals" In Section 9 Of The SRHA Is Intended To Include Commercially Exploitable Deposits Of Gravel If viewed in the context of the entire Act and its historical purpose, the terse reservation to the United States of "all the coal and other minerals in (SRHA) lands" is most correctly understood as including mineral materials such as gravel. The specific enumeration of "coal" was not designed to have a limiting effect, but rather responded to the historically anomalous position of coal in American mining law. The more significant reservation of "all * * * other minerals" protects the public interest which Congress had in mind, but is also compatible with the individual interests of patentees, whose population of SRHA lands Congress wished to encourage. 1. The Specific Enumeration of "Coal" In Section 9's Reservation Does Not Limit The Effect Of The Clause The court of appeals suggested at several points (Pet. App. 15a, 16a, 18a-19a) that the specific enumeration of "coal" in the phrase "all the coal and other minerals" might mean that only minerals ejusdem generis were reserved to the United States. It could, for example, indicate a congressional preoccupation with "energy sources" (Pet. App. 16a, quoting United States V. Union Oil Co. of California, supra, 549 F.2d at 1279), to the exclusion of mineral materials such as gravel. See also Bumpus V. United States, 325 F.2d 264, 267 (10th Cir. 1963). In fact, however, the reason for listing coal separately was that it was at the time sui generis among minerals, and warranted unique mention. Unlike other minerals, including sand and gravel, see Layman V. Ellis, 52 Pub. Lands Dec. 714(1929), coal has never been subject to location under the mining laws. Almost simultaneously with the passage of the Mining Act of 1872, 30 U.S.C. 21 et seq., which allowed free mining of all valuable mineral deposits on land belonging to the United States, Congress passed the Coal Lands Act of 1873, 30 U.S.C. 71 et seq., which provided for sale of coal deposits in the public domain. /11/ Under those two Acts, miners wishing to claim minerals other than coal needed simply to satisfy the requirements of a valid location. 30 U.S.C. 26. (They could also, if they wished, acquire a patent for a nominal fee. 30 U.S.C. 29.) By contrast, those wishing to acquire coal had to purchase the land at the minimum price of $10 or $20 per acre, 30 U.S.C. 71, and often for considerably more. See P. Gates, supra, at 728. Moreover, miners were entitled to an unlimited number of locations under the general Mining Act, while the Coal Lands Act permitted "only one entry by the same person or association of persons * * * ," 30 U.S.C. 74, and that entry could be made only upon a limited number of acres. 30 U.S.C. 71; see United States V. Trinidad Coal & Coking Co., 137 U.S. 160, 169 (1890). /12/ In recognition of these differing methods of disposition, Section 9 of the SRHA not only reserved rights to coal and other minerals separately, but provided in its second sentence that "(t)he coal and other mineral deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the coal and mineral land laws in force at the time of such disposal." 43 U.S.C. 299. /13/ In addition to the different method of disposal which characterized coal, there was another factor underlying the unique specification of coal in the SRHA reservation. At the time the SRHA was enacted in 1916 Congress had only some seven years' real experience with reserving minerals in land grants, and with one notable exception /14/ the mineral reserved during that period had been coal. The Coal Lands Act of 1909, 30 U.S.C. 81, allowed an entryman on subsequently withdrawn coal lands to complete his settlement, giving him a patent which would "contain a reservation to the United States of all coal in said lands, and the right to prospect for, mine, and remove the same." The Coal Lands Act of 1910, 30 U.S.C. 83 et seq., authorized entry on lands which had been withdrawn or classified as coal lands, but provided that the patent should "contain a reservation to the United States of all the coal in the lands so patented, together with the right to prospect for, mine, and remove the same." 30 U.S.C. 85. An Act of Apr. 30, 1912, 30 U.S.C. 90, made the 1910 Act applicable to state selections, reserving to the United States "the coal in all such lands so selected * * * and * * * the right to prospect for, mine, and remove the same * * * ." It is therefore quite natural that Congress, in framing the more expansive language of the SRHA in 1916, should say that patents should "contain a reservation to the United States of all the coal and other minerals in the lands so entered and patented, together will the right to prospect for, mine, and remove the same." 43 U.S.C. 299. The separate enumeration of coal and other minerals was thus functionally useful because the two were subject to different methods of disposal, and natural from a drafting standpoint because the most obvious precedents were coal reservations. /15/ But there is no suggestion whatever in the statute or its history that the mention of coal was to have some further significance in the interpretation of the SRHA. On the contrary, the House Report on the bill, in its discussion of the reservation clause, uses the phrases "coal and other minerals" and "all minerals" interchangeably: It appeared to your committee that many hundreds of thousands of acres of the lands of the character designated under this bill contain coal and other minerals, the surface of which is valuable for stock-raising purposes. The purpose of section 11 (sic) is to limit the operation of this bill strictly to the surface of the lands described and to reserve to the United States the ownership and right to dispose of all minerals underlying the surface thereof. This section also provides a method for the joint use of the surface of the land by the entryman of the surface thereof and the person who shall acquire from the United States the right to prospect, enter, extract, and remove all minerals that may underlie such lands * * * . H.R. Rep. No. 35, supra, at 18 (emphasis added). 2. The Reservation Of "All * * * Other Minerals," Including Gravel Which Can be Commercially Developed, Is Consistent With The Interests Of The Public And The SRHA Homesteader The language of Section 9 of the SRHA carries out the intent of Congress, evident in the history of the SRHA, to effect a very broad mineral reservation. What it says is that, in addition to coal, "all the * * * minerals" on SRHA lands are reserved to the United States. To give that phrase an overly literal reading, however, would be inconsistent with Congress's dual purposes -- encouraging stock-raising homesteads as well as mineral development. As this Court stated in construing a similar mineral reservation, "the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore could not be excepted from the grant without being destructive of it." Northern Pacific Ry. V. Soderberg, supra, 188 U.S. at 530. To conclude that traces of any mineral on patented lands could subject the homesteader to the inconvenience of entertaining prospectors would do much to deter settlement. By the same token, to say that the homesteader had no right to use building stone, sand, gravel, and other common variety minerals for his own purposes would pose a considerable impediment to the task of establishing a home and raising stock. The court of appeals was concerned that, under the position taken by the government, "the patentees would own only the dirt, and little or nothing more" (Pet. App. 19a). A common sense reading of the Act, however, entails none of those consequences. Section 9 of the SRHA, after stating that patents under the Act must contain a reservation of "all the * * * minerals" in the patented lands, goes on to provide that "(t)he * * * mineral deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the * * * mineral land laws in force at the time of such disposal." 43 U.S.C. 299. That direction carried out the desire of Congress to maximize the public benefit from opening SRHA lands by subjecting surface and mineral development to two different systems of regulation: prompt use of the surface was permitted, but at the same time anyone -- not just the homesteader -- interested in developing the lands' mineral resources was encouraged to do so, in order to increase the mineral wealth of the country and provide revenues to the United States. The reservation of minerals in Section 9 was thus coextensive with the class of minerals which prospectors were allowed to develop under the "mineral land laws." Putting coal to one side, the primary statute governing mineral development at the time the SRHA was passed in 1916 was the Mining Act of 1872, 30 U.S.C. 21 et seq., which permitted exploration and location only for "valuable mineral deposits." 30 U.S.C. 22. Mineral exploitation of SRHA land was thus made subject to the same restrictions which characterize development of lands under the general mining law. Foremost among those restrictions is the limitation imposed by the word "valuable." In interpreting the demands of that qualification, this Court has stated: (I)n order to qualify as "valuable mineral deposits," the discovered deposits must be of such a character that "a person or ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine(.)" * * * Minerals which no prudent man will extract because there is no demand for them at a price higher than the cost of extraction and transportation are hardly economically valuable. United States V. Coleman, 390 U.S. 599, 602 (1968). The Court went on to uphold the Secretary's requirement that only minerals which could be marketed at a profit could qualify for location under the mining law. As applied to SRHA lands, what that test means is that the mineral reservation embraces only deposits of gravel and other mineral materials which are commercially exploitable and would justify a mineral entry. Cf. United States V. Isbell Construction Co., 78 Interior Dec. 385, 394 (1971). The very abundance of the resource is a limitation on the mineral prospector's ability to extract it at a profit. Commercial exploitability will also depend on the quality of the gravel, the condition of the market, and the distance from buyers. The corollary principle is that use by the stock-raising homesteader of mineral materials for purposes consistent with the objectives of the Act is permitted (see Br. in Opp. App. 5a-6a). /16/ See United States V. Union Oil Co. of California, supra, 549 F.2d at 1280-1281 n.21; Pacific Power & Light Co., 45 I.B.L.A. 127, 138 (1980). Congress has frequently recognized the desirability of allowing free use of reserved minerals by the holder of the surface interest where it promotes larger statutory purposes at little cost. The Coal Lands Acts of 1909 and 1910, for example, explicitly provided that "(t)he owner under such patent shall have the right to mine coal for use on the land for domestic purposes prior to the disposal by the United States of the coal deposit." 30 U.S.C. 81, 85. See also Taylor Grazing Act of 1934, 43 U.S.C. 315d (use of timber, stone, gravel, clay, coal, and other deposits for firewood, fencing, buildings, mining, prospecting, and domestic purposes); 30 U.S.C. 612(c) (miner's right to use timber for prospecting, mining, or processing prior to issuance of patent); Northern Pacific Ry. V. Soderberg, supra, 188 U.S. at 529 (railway's right, despite a mineral reservation, to use dirt, stone, and timber for construction). In contrast to those acts, the homesteader's rights under the SRHA are not explicitly stated. Such an interpretation is nonetheless manifestly consistent with the SRHA's intent to encourage settlement of largely barren western lands. Appropriation to the extent necessary for a stock-raising homestead results in only a minimal reduction of the reserved resources. The Department and the courts have, under similar circumstances, recognized the same right where it was not explicit in the statute. See, e.g., Alabama Coal Lands-Act of Apr. 23, 1912, 41 Pub. Lands Dec. 32, 33 (1912) ("There is at this time no law which provides for the disposition of the coal in these lands. Persons having homestead entries, pending or perfected, obtain no right to mine coal therefrom, except for their own domestic use * * *"); Shiver V. United States, 159 U.S. 491, 497 (1895) (right of homesteader to use timber for house and fences before patent obtained). The uses which respondent has made of gravel deposits on the SRHA lands it acquired, however, bear no resemblance to the kind of appropriation tolerated by the purposes of the Act. It is true that Western Nuclear did not resell the 43,000 cubic yards of gravel it removed from the patented lands. But trespass on the government's reserved interest is not defined by whether mineral materials taken from SRHA lands are later resold at a profit. 30 U.S.C. 601 -- the statute which respondent was cited for violating -- states that the Secretary is authorized in his discretion to permit any Federal, State, or Territorial agency, unit or subdivision, including municipalities, or any association or corporation not organized for profit, to take and remove, without charge, materials and resources subject to this subchapter, for use other than for commercial or industrial purposes or resale. The regulations implementing that section provide that government agencies may be permitted free use for "public project(s)" upon acquisition of a permit. 43 C.F.R. 3621.2. They also allow issuance of free-use permits to non-profit organizations, limited to "disposition of mineral materials having an in-place value (not) in excess of $100 during any one calendar year." 43 C.F.R. 3621.3. The law thus contemplates that free use may be made if gravel is not resold, but only by government and non-profit organizations, only upon acquisition of a permit, only for non-commercial and non-industrial purposes, and (except for government use) only in limited amounts. Respondent, of course, satisfies none of those criteria. Moreover, unlike homesteaders, whose use is confined to the patented land for purposes consistent with the aims of the SRHA, respondent has used the reserved materials directly or indirectly to further its business of mining and milling of uranium ore. The district court recited the background of Western Nuclear's acquisition and use of the SRHA property (Pet. App. 20a-21a): Western Nuclear has been located in Jeffrey City, Wyoming since the early 50's when uranium was first discovered on Green Mountain. Exploration in the area has been going on for more than 10 years. After Western Nuclear had done initial exploration and location of the ore bodies, it began sinking a shaft in September 1975. To keep the sides of the shaft from caving in, the company has been using concrete to shore the shaft. To date, the shaft is about 1500 feet deep. Western Nuclear's contractor hauled gravel from Lander and Casper to use in the concrete that was mixed in Jeffrey City. This method of concrete production was very expensive so Western Nuclear began looking for a local source of material. In March 1975 they * * * bought * * * the subject land * * * . * * * * * Western Nuclear has taken some 43,000 cubic yards of gravel from the site. The majority of it was used for black-topping streets and pouring sidewalks in Jeffrey City. The court of appeals concluded that respondent used the gravel "to further its own commercial operations" (Pet. App. 3a). The Interior Board of Land Appeals calculated that the value of the gravel taken was $12,802.50 (id. at 4a). To forbid such exploitation of the government's reserved minerals will have little impact on ranchers whose settlement the SHRA sought to encourage; to fail to do so, however, would frustrate the Act's direction that people interested in mineral resources must acquire them under the mining laws. B. The Other Provisions Of The SRHA Governing Mineral Development Demonstrate Congress's Intent To Grant Patentees A Limited Surface Estate Both respondent (Br. in Opp. 9) and the court of appeals (Pet. App. 19a) have attempted to stand the Act's limitation of the patentee's rights on its head, by arguing that gravel lying close to the surface is part of the surface estate granted by the SRHA. Cf. Bumpus V. United States, supra, 325 F.2d at 267. But the Act does not say that a stock-raising homesteader acquires title to anything lying on or near the surface. The Act's history makes clear that his estate does not extend beyond the surface, but the United States retained title to "all the * * * minerals in the lands" regardless of their location. 43 U.S.C. 299. The homesteader would not acquire any rights to gold mixed with superficial gravel. It is undeniable that mining of minerals lying near the surface will often entail some destruction of the surface. But it does not follow that reserving title to gravel would frustrate the purpose of stock-raising homestead grants (Br. in Opp. 13-14; Pet. App. 19a). In the first place coal, which is specifically mentioned in the mineral reservation, had long been mined from the surface by open pit or strip-mining methods, and there is no indication that the Congress which enacted the SRHA intended to preclude such methods of extraction. See Mall, supra, 20 Rocky Mtn. Min. L. Inst. at 438. Moreover, the BLM State Office appraisal report on the land at issue in this case stated that "(t)he land was used for grazing before location of the pit and after rehabilitation will most likely be used as grazing land" (Pet. App. 51a). More important, however, Congress included in the SRHA and in subsequent legislation a provision for damages to be paid the homesteader whose land was mined. And the measure of damages allowed provides, in effect, an itemized list of the homesteader's interest in the land, making clear that Congress did not anticipate his assertion of rights to commercially exploitable deposits of gravel. 1. As originally passed, the SRHA provided that one who acquired the right to remove mineral deposits could occupy as much of the surface as necessary for the removal, and was required to pay damages to the surface owner only for "the crops or tangible improvements." 43 U.S.C. 299. The kinds of improvements contemplated were those "tending to increase the value of the (land) for stock-raising purposes," 43 U.S.C. 293, e.g., wells and fences. H.R. Rep. No. 626, supra, at 13. Representative Mondell rightly pointed out that "(t)he land * * * occupied for mining purposes might be the major portion of his entry in some cases, and yet there is no provision in the bill for payment for the land itself." 53 Cong. Rec. 1233 (1916). In Kinney-Coastal Oil Co. V. Kieffer, 277 U.S. 488 (1928), this Court interpreted a parallel damages provision in the Agricultural Entry Act of 1914, 30 U.S.C. 122, which states in terms similar to the SRHA that prospectors on lands subject to the Act must post security for "all damages to the crops and improvements * * * ." /17/ The Court held that the government's mineral lessee was entitled to an injunction against the construction of houses and commercial buildings by the homesteader. The only requirement which had to be satisfied was provision for "any damages which the plaintiffs' entry and operations under the lease may have caused to the agricultural improvements or crops of the owner of the surface estate * * * ." 277 U.S. at 507. There was no right to damages for "the use made of the surface." id. at 505, even though the mineral operations would necessitate occupation of the entire surface. Id. at 496. The reason for that limitation on compensation to the homesteader, according to the district court, was that the homestead entry was understood to be for agricultural purposes. Kinney-Coastal Oil Co. V. Kieffer, 1 F.2d 795, 797 (D. Wyo. 1924). /18/ In the words of this Court, "a servitude is laid on the surface estate for the benefit of the mineral estate to the end, as the acts otherwise show, that the United States may realize, through the separate leasing, a proper return from the extraction and removal of the minerals." 277 U.S. at 504. See also Holbrook V. Continental Oil Co., 73 Wyo. 321, 338-339, 278 P.2d 798, 804-805 (1955) (SRHA). Congress later realized that restricting damages to the value which the homesteader had added to the land unfairly deprived him of at least part of the interest he had acquired with a patent. When the extraction was done by strip mining and the land not restored to its original contour, the stock-raising homesteader lost not just his crops and improvements, but also the very value which had attracted him to the land in the first place. See S. Rep. No. 405, 81st Cong., 1st Sess. 3-4 (1949). To rectify that inequity, Congress passed the Open Pit Mining Act of 1949, 30 U.S.C. 54, which provides: any person who * * * removes by strip or open pit mining methods, any minerals from any land included in a stock raising * * * homestead entry or patent, and who had been liable under * * * (the Stock Raising Homestead) Act only for damages caused thereby to the crops or improvements of the entryman or patentee, shall also be liable for any damage that may be caused to the value of the land for grazing * * * . The specific language of the Act rules out the homesteader's right to recover for other values the land may have. Mall, supra, 20 Rocky Mtn. Min. L. Inst. at 422. Thus for example if the government's lessee, in strip mining for some other mineral, were to remove an overlying layer of gravel, the homesteader would not be entitled to compensation for its value. But if that is so, it is difficult to maintain that the right to exploit the deposit of gravel itself belongs to the patentee, and not the United States. III. THE INTERPRETATION OF THE TERM "MINERAL" IN ANALOGOUS CONTEXTS SHOWS THAT CONGRESS INTENDED TO INCLUDE COMMERCIALLY EXPLOITABLE DEPOSITS OF GRAVEL IN THE SRHA MINERAL RESERVATION The examination of the history of the SRHA and its explicit terms in Parts I and II has demonstrated that the estate given by Congress to the stock-raising homesteader was not thought to encompass commercially exploitable deposits of gravel. A consideration of the way in which the courts, the Department of the Interior, and Congress itself have interpreted the term "mineral" in analogous contexts confirms that the right to develop gravel deposits was affirmatively reserved to the United States. The cases upon which the court of appeals relied, and the interpretation of the term "minerals" in private conveyances, do not suggest a contrary intent. A. Gravel Was Included In The Class Of Minerals Locatable Under The General Mining Law, Which Defined The Scope Of The SRHA Mineral Reservation In Part II it was pointed out that the SRHA mineral reservation was designed to preserve the federal interest in minerals which were subject to location under the Mining Act of 1872, 30 U.S.C. 21 et seq. The interpretation of the term "minerals" in that statute demonstrates that Congress meant to include commercially exploitable deposits of gravel within Section 9 of the SRHA. 1. In Layman V. Ellis, 52 Pub. Lands Dec. 714 (1929), the Department of the Interior held that land from which the Laymans had removed some 40,000 cubic yards of superficial gravel pursuant to entry under the general mining law was properly classified as mineral land, and not open to entry under the original Homestead Act, 43 U.S.C. 161 et seq. In the course of its decision the Department cited the following test for determining the mineral character of public land: "The mineral character of the land is established when it is shown to have upon or within it such a substance as -- (a) Is recognized as mineral, according to its chemical composition, by the standard authorities on the subject; or -- (b) Is classified as a mineral product in trade or commerce; or -- (c) Such a substance (other than the mere surface which may be used for agricultural purposes) as possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts * * * ." 52 Pub. Lands Dec. 719-720, quoting 1 Lindley on Mines Section 98 (3d ed. 1914). /19/ The Department concluded that gravel, useful for building, paving and railroad ballast, 52 Pub. Lands Dec. at 718, fell within categories (b) and (c). Id. at 720. A similar test was announced by this Court in Northern Pacific Ry. V. Soderberg, 188 U.S.C. 526 (1903). There the Railway had been granted land in alternate sections along its line, with the reservation of "all mineral lands." Id. at 529. It challenged Soderberg's right to enter one such section under the general mining law to quarry granite useful for building stone. The Court concluded that the mineral lands reserved "include not merely metalliferous lands, but all such as are chiefly valuable for their deposits of a mineral character, which are useful in the arts or valuable for purposes of manufacture." Id. at 536-537. By way of illustration the Court quoted the following passage from Midland Ry. V. Checkley, L.R. 4 Eq. 19 (1867): "Stone is, in my opinion, clearly a mineral; and in fact everything except the mere surface, which is used for agricultural purposes; anything beyond that which is useful for any purpose whatever, whether it is gravel * * * or the like, comes within the word 'mineral' when there is a reservation of the mines and minerals from a grant of land." 188 U.S. at 536. Applying these criteria, the courts, the Department, and treatise writers who considered the question before passage of the SRHA in 1916 concluded that gravel and similar mineral materials, if commercially exploitable, should be considered "minerals" within the meaning of the general mining law. See Loney V. Scott, 57 Or. 378, 385, 112 P. 172, 175 (1910) (building sand); Bennett V. Moll, 41 Pub. Lands Dec. 584, 586 (1912) (pumice); Pacific Coast Marble Co. V. Northern Pacific R.R., 25 Pub. Lands Dec. 233, 240, 244-245 (1897) (marble); H.P. Bennett, Jr., 3 Pub. Lands Dec. 116 (1884) (granite); W.H. Hooper, 1 Pub. Lands Dec. 560 (1881) (gypsum); 1 & 2 Lindley on Mines Sections 97, 424 (3d ed. 1914) (gravel). Cf. Department of the Interior, United States Geological Survey, Bulletin 537, The Classification of the Public Lands 138-142 (1913) (lands containing gravel deposits could be withdrawn or classified as mineral lands); T.D. 25627, 8 Treas. Dec. 356 (1904). There is a consistent line of authority to the same effect since the passage of the SRHA. This Court itself stated in United States V. Coleman, supra, 390 U.S. at 604, that "common types of sand, gravel, and stone * * * served as a basis for claims to land patents (under the mining laws) * * * ." See also Andrus V. Charlestone Stone Products Co., 436 U.S. 604, 606-607 (1978) ("At the administrative hearing * * * the principal issue was whether the sand and gravel deposits were 'valuable' * * * , in which case the claims would be valid."); Hallenbeck V. Kleppe, 590 F.2d 852, 856-858 (10th Cir. 1979) (sand and gravel); Edwards V. Kleppe, 588 F.2d 671 (9th Cir. 1978) (sand and gravel); Melluzzo V. Morton, 534 F.2d 860, 862-865 (9th Cir. 1976) (sand and gravel); Verrue V. United States, 457 F.2d 1202 (9th Cir. 1972) (sand and gravel); United States V. Schaub, 163 F. Supp. 875, 877-878 (D. Alaska 1958) (sand and gravel); United States V. Isbell Construction Co., 78 Interior Dec. 385, 390, 393 (1971) (sand and gravel); Taking of Sand & Gravel from Public Lands For Federal Aid Highways, 54 Interior Dec. 294 (1933); Stephen E. Day, Jr., 50 Pub. Lands Dec. 489 (1924) (trap rock); Pacific Power & Light Co., 45 I.B.L.A. 127, 138 (1980) (scoria); Department of the Interior, Division of Public Lands, Solicitor's Opinion, M-36417 (Feb. 15, 1957) (sand and gravel). Cf. United States V. Barrows, 404 F.2d 749, 752 (9th Cir. 1968), cert. denied, 394 U.S. 974 (1969); Palmer V. Dredge Corp., 398 F.2d 791 (9th Cir. 1968), cert. denied, 393 U.S. 1066 (1969); Foster V. Seaton, 271 F.2d 836, 838 (D.C. Cir. 1959); Burris V. State ex rel. State Highway Commission, 88 N.M. 146, 538 P.2d 418 (N.M. 1975); Matthews V. Department of Conservation, 355 Mich. 589, 595, 96 N.W.2d 160, 164 (1959); United States V. McCall, 78 Interior Dec. 71, 78-79 (1971); United States V. Clear Gravel Enterprises, Inc., 2 I.B.L.A. 285, 299-301 (1971). But see Anchorage Sand & Gravel Co. V. Schubert, 114 F. Supp. 436 (D. Alaska 1953), aff'd on other grounds, 224 F.2d 623 (9th Cir. 1955); State ex rel. State Highway Commission V. Trujillo, 82 N.M. 694, 487 P.2d 122 (1971). Congress itself, in passing the Common Varieties Act in 1955, 30 U.S.C. 611, stated its understanding that gravel, sand, and other mineral materials had theretofore been locatable under the mining law. The purpose of the 1955 Act was to remove such minerals from the coverage of the mining laws, which permitted the obtaining of a land patent, and to provide for disposition of these common minerals under the Materials Act of 1947, 30 U.S.C. 601 et seq. United States V. Coleman, supra, 390 U.S. at 604; S. Rep. No. 554, 84th Cong., 1st Sess 2 (1955); H.R. Rep. No. 730, 84th Cong., 1st Sess. 5-6, 8 (1955); 101 Cong. Rec. 8743 (1955) (remarks of Rep. Engle). /20/ 2. Against this long line of authority the court of appeals cited, in support of its contrary conclusion, a decision by the Department of the Interior rendered six years before the SRHA was passed (Pet. App. 12a-13a). /21/ In Zimmerman V. Brunson, 39 Pub. Lands Dec. 310 (1910), the Secretary reversed a decision of the Commissioner of the General Land Office and held that deposits of gravel did not render land mineral in character -- and so ineligible for homestead entry -- unless the deposits had "a peculiar property or characteristic giving them a special value * * * ." 39 Pub. Lands Dec. at 312. Of course, as contemporary authorities were quick to point out, such a requirement was inconsistent with the "marketability" test the Department applied in most other cases to determine whether lands were open to mineral entry. See, e.g., 2 Lindley on Mines, supra, Section 424, at 995. Cf. Northern Pacific Ry. V. Soderberg, supra, 188 U.S. at 534 ("The rulings of the Land Department * * * almost uniformly, particularly of late years, have lent strong support to the theory * * * that the words 'valuable mineral deposits' should be construed as including all lands chiefly valuable for other than agricultural purposes * * * .") See also cases cited in note 21, supra. The Zimmerman decision is also inconsistent with the reading Congress later gave to the mining laws when it passed the Common Varieties Act. As discussed above, the purpose of the Act was to remove gravel, sand, and other mineral materials from location under the mining law and to provide for their sale outright. But the Act would have been redundant if Congress had read the mining law as Zimmerman did, for it expressly stated that "'(c)ommon varieties' as used in this subchapter * * * does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value * * * ." 30 U.S.C. 611. The regulations implementing the Act also recognized that "uncommon varieties" of gravel and sand remain -- as all varieties once were -- subject to the general mining laws. 43 C.F.R. 3711.1(b); 1 American Law of Mining, supra, Section 2.7N, at 182.19. /22/ Even if the Congress which enacted the SRHA was aware of the Zimmerman decision (a hypothesis which the legislative history does not substantiate), there is little reason to suppose that it intended to carry that interpretation of the mining law over the SRHA's mineral reservation. The result which Zimmerman achieved was to open lands bearing gravel deposits to homestead entry, though at the cost of preventing development of the minerals by individuals more anxious than the homesteader to do so. By contrast, the SRHA directed that lands which might hold virtually any kind of minerals were open to stock-raising homestead entries; for purposes of settlement it was thus irrelevant whether gravel was characterized as a mineral or not. On the other hand, to forbid exploitation of mineral materials after settlement would have frustrated Congress's other objective -- permitting multiple use of SRHA lands in order to achieve the maximum public benefit from land grants under the Act. It is thus more consistent with the purposes of the SRHA to suppose that Congress, in framing the mineral reservation in Section 9, proposed to incorporate the generally accepted understanding of the term "mineral" rather than the wayward reading given it in Zimmerman V. Brunson. B. Cases Construing Reservations Of "All Minerals" In Private Conveyances Are Irrelevant To Interpertation Of The SRHA In interpreting the mineral reservation in Section 9 of the SRHA the court of appeals (Pet. App. 10a-11a) and respondent (Br. in Opp. 10) have relied on cases construing mineral reservations in deeds and leases between private parties. Those cases have no bearing on whether the SRHA mineral reservation includes commercially exploitable deposits of gravel. 1. The most frequently voiced objection to reading mineral reservations in private conveyances as including gravel is that, because mining it would entail destruction of the surface, it would frustrate the purpose of the parties' agreement not to assume that gravel passed with the surface estate. See, e.g., Morrison V. Socolofsky, 600 P.2d 121, 123 (Colo. Ct. App. 1979); Harper V. Talladega County, 185 So. 2d 388, 393 (Ala. 1966); Bambauer V. Menjoulet, 214 Cal. App. 2d 871, 872-873, 29 Cal. Rptr. 874, 875-876, 95 A.L.R.2d 839, 841-842 (1963); Farrell V. Sayre, 129 Colo. 368, 373, 270 P.2d 190, 192 (1954); Witherspoon V. Campbell, 219 Miss. 640, 649-650, 69 So. 2d 384-387, 388 (1954); Psencik V. Wessels, 205 S.W.2d 658, 659 (Tex. Civ. App. 1947); Beck V. Harvey, 164 P.2d 399, 401 (Okla. 1945); Holloway Gravel Co. V. McKowen, 200 La. 917, 931, 9 So. 2d 228, 233 (1942); Kinder V. LaSalle County Carbon Coal Co., 310 Ill. 126, 134, 141 N.E. 537, 540 (1923). /23/ That argument, however, has little bearing on the mineral reservation of the SRHA which, unlike private conveyances, contains an express provision for damages caused by mining activity on homesteaded lands. 43 U.S.C. 299. See 1 American Law of Mining, supra, Section 3.51A, at 580.20. Indeed, in passing the Open Pit Mining Act of 1949, 30 U.S.C. 54, Congress expressly addressed the fact that strip mining on SRHA lands would destroy their value for grazing, and directed that the loss of grazing value (in addition to the crops and improvements covered by the original Act) should be compensated. /24/ Moreover, the emphasis in construction of private conveyances on the parties' intent underlines an equally significant distinction from the reservations made in government grants. Proper construction of the writings of private parties demands, in the first instance, restricting one's vision to the document itself, Praeletorian Diamond Oil Association V. Garvey, 15 S.W.2d 698, 700 (Tex. Civ. App. 1929), and considering where appropriate the situation of the parties and their mutual intent as it is otherwise disclosed. Witherspoon V. Campbell, supra, 219 Miss. at 646, 69 So.2d at 386; Holloway Gravel Co. V. McKowen, supra, 200 La. at 926-927, 9 So.2d at 231-232; Kinder V. LaSalle County Carbon Coal Co., supra, 310 Ill. at 134, 141 N.E. at 540. By contrast, the only relevant intent in the construction of the SRHA's mineral reservation is that of Congress. Even the failure to include a reservation in the patent itself will not confer any greater rights on the homesteader, when the reservation is directed in the statute. See Swendig V. Washington Water Power Co., 265 U.S. 322, 332 (1924); Proctor V. Painter, 15 F.2d 974, 975 (9th Cir. 1926). 2. These differences in effect and intent between private and public conveyances have led to different principles of construction which not only invalidate the comparison to private land transfers, but also provide an independent reason for concluding that the SRHA mineral reservation includes commercially exploitable deposits of gravel. It is frequently said that "ambiguities in private deeds reserving mineral rights are construed strictly against the grantor, who is also normally the draftsman." Mall, supra, 20 Rocky Mtn. Min. L. Inst. at 410 & n.44; Holloway Gravel Co. V. McKowen, supra, 200 La. at 931, 9 So. 2d at 233. By contrast, this Court has consistently adhered, in reading federal mineral reservations, to the "principle * * * that grants for the sovereign should receive a strict construction -- a construction which shall support the claim of the government rather than that of the individual. Nothing passes by implication, and unless the language of the grant be clear and explicit as to the property conveyed, that construction will be adopted which favors the sovereign rather than the grantee." Northern Pacific Ry. V. Soderberg, supra, 188 U.S. at 534, United States V. Union Pacific R.R., 353 U.S. 112, 116 (1957). See also Andrus V. Charlestone Stone Products Co., supra, 436 U.S. at 617. It is particularly inappropriate to read the government's mineral reservation narrowly when the relevant statutory and historical context, and the understanding of Congress, the courts, and the Department, all weigh in favor of a broad interpretation. CONCLUSION The decision of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General CAROL E. DINKINS Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General ROBERT L. KLARQUIST Attorney JULY 1982 /*/ The plaintiff in the district court was Western Nuclear, Inc. The Wyoming Stock Growers Association, John Orr, and the Associated General Contractors of Wyoming were permitted to intervene as parties plaintiff. Defendants in the district court were Cecil B. Andrus, Secretary of the Interior, and the United States. Only Western Nuclear, Inc., appealed from the district court's decision. The Associated General Contractors of Wyoming, and the State of Utah, appeared as amici curiae in the court of appeals. Because Secretary Watt is the successor to Secretary Andrus, we have substituted Secretary Watt as a federal party in this case, pursuant to Rule 40.3 of the Rules of this Court. /1/ Section 1-8 of the SRHA, 43 U.S.C. 291-298, were repealed by Section 702 of the Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, Pub. L. No. 94-579, 90 Stat. 2787. The repeal does not affect this controversy. The government's petition in this case stated that patents had been granted on approximately 70 million acres of land subject to the Stock-Raising Homestead Act (Pet. 7). See Department of the Interior, Bureau of Land Management, Public Land Statistics 1980, Table 24 at 50. We are now informed by the Department of the Interior that although homestead entries were made on more than 70,000,000 acres, patents were issued for slightly more than 33,000,000 acres. See Department of the Interior, Report of the Director of the Bureau of Land Management, 1948, Statistical Appendix, Table 17 at 22. The number of unperfected entries pending does not appear to be large. See Public Land Statistics 1980, supra, Table 20 at 46. Further entries are not possible since the repeal of the SRHA /2/ Section 1 of the Materials Act of 1947, 30 U.S.C. 601, authorizes the Secretaries of the Interior and Agriculture to dispose of common varieties of gravel and similar substances found on the public lands to private parties upon the payment of adequate compensation as determined by the Secretary administering the area. Section 3 of the Surface Resources Act of 1955, 30 U.S.C. 611, generally known as the Common Varieties Act, provides that no deposit of common varieties of gravel and similar substances "shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States * * * ." Consequently, private parties now seeking to exploit deposits of common varieties of gravel occurring on the public lands must comply with the provisions of the Materials Act of 1947 and the applicable regulations. See United States V. Coleman, 390 U.S. 599, 604 (1968). /3/ The IBLA adjusted the damages to $12,802.50 (Pet. App. 67a). /4/ Though it sustained the IBLA's determination concerning the scope of the SRHA mineral reservation, the district court ordered "that the element of damages shall be determined by the collaboration of the Wyoming State Office of the Bureau of Land Management and the landowners, Western Nuclear, Inc." (Pet. App. 40a). The court later amended its judgment to indicate that it might not reach the same conclusions under different factual circumstances. This amended judgment was entered upon the stipulation of the government and the intervenors, Wyoming Stock Growers Association, John Orr, and the Associated General Contractors of Wyoming. Among other things, the intervenors expressed concern that the judgment as originally entered might have the effect of barring a surface owner from using gravel on the lands where the use was related to the stock-raising purposes of the Act (Pet. App. 43a-44a). /5/ One of the arguments made by Western Nuclear in the court of appeals was that the Secretary was required by the Administrative Procedure Act, 5 U.S.C. 552(a)(1)(D), to assert the government's right to reserved mineral materials through rule-making rather than adjudication (79-2290 Appellant's Opening Br. at 60 (10th Cir.)). The government's Reply Brief in this Court incorrectly stated that this contention was not raised in the court of appeals (Reply Br. 4). The court of appeals did not address the argument. /6/ One of these state cases, State ex rel. State Highway Commission V. Trujillo, 82 N.M. 694, 487 P.2d 122 (1971), concerned the same issue presented here: whether the mineral reservation of Section 9 of the SRHA extends to deposits of gravel. The other state case, State Land Board V. State Department of Fish & Game, 17 Utah 2d 237, 408 P.2d 707 (1965), did not arise under the SRHA. It involved a conveyance from the State of Utah which reserved to the State "all coal and other minerals." /7/ Stock-Raising Homestead Act of 1916, 43 U.S.C. 299; Color of Title Act of 1928, 43 U.S.C. 1068 ("coal and all other minerals"); Underground Water Reclamation Act of 1919, ch. 77, Section 8, 41 Stat. 295 ("all the coal and other valuable minerals") (repealed 1964). /8/ Bankhead-Jones Farm Tenant Act of 1937, ch. 517, Section 44, 50 Stat, 530 (three-fourths interest in "all coal, oil, gas and other minerals") (repealed 1961). /9/ Taylor Grazing Act of 1934, ch. 865, Section 8, 48 Stat. 1272 ("mineral deposits") (repealed 1976); Recreation Act of 1926, 43 U.S.C. 869-1 ("all mineral deposits"). Cf. Federal Land Policy and Management Act of 1976, Section 209(a), 43 U.S.C. 1719(a) ("all minerals"). /10/ At the time the SRHA was passed, the only mineral the government actually sold and received revenue from was coal. See infra, pages 18-19. Metalliferous minerals were subject to location under the general Mining Act of 1872, 30 U.S.C. 21 et seq. But with the passage of the Mineral Lands Leasing Act of 1920 lands valuable for phosphate, potassium, asphalt, oil, oil shale, gas, and sodium, as well as coal, were leased rather than opened to free mining. 30 U.S.C. 181 et seq. And with the passage of the Common Varieties Act in 1955, 30 U.S.C. 611; see 30 U.S.C. 601 et seq., minerals such as gravel became subject to sale by competitive bidding. The SRHA provided that reserved minerals would "be subject to disposal * * * in accordance with the provisions of the coal and mineral land laws in force at the time of such disposal." 43 U.S.C. 299. /11/ Each act had antecedents in the prior decade which included many of its essential features. The Mining Act of 1872 was preceded by the Mining Act of 1966, ch. 262, 14 Stat. 251, and the Placer Act of 1870, ch. 235, 16 Stat. 217. The Coal Lands Act was preceded by laws in 1864 and 1865 setting acreage and payment provisions for coal lands. 13 Stat. 343; 13 Stat. 529. /12/ In contrast to coal, petroleum was generally thought to be subject to disposition under the Placer Act of 1870. See Roberts V. Jepson, 4 Pub. Lands Dec. 60 (1885); Piru Oil Co., 16 Pub. Lands Dec. 117 (1893). Although there was some uncertainty about the question, see Downey V. Rogers, 2 Pub. Lands Dec. 707, 709 (1883); Union Oil Co., 23 Pub Lands Dec. 222 (1896), it was resolved by the Oil Placer Act of 1897, ch. 216, 29 Stat. 526, which simply provided "(t) hat any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims * * * ." /13/ The distinction between coal and other minerals was so marked that an earlier version of SRHA, H.R. 9582, 63d Cong., 2d Sess. (1914), actually speaks of coal as though it were not a mineral at all. The reservation clause in that bill provided"(t)hat all entries * * * shall * * * contain a reservation to the United States of all the minerals and coal in the lands so entered and patented * * * . The mineral and coal deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the mineral and coal land laws in force at the time of such disposal. Any person qualified to locate and enter mineral or coal deposits * * * shall have the right at all times to enter upon the lands * * * ." The bill is reproduced in H.R. Rep. No. 626, supra, at 1-2 (emphasis added). /14/ The notable exception was the Agricultural Entry Act of 1914, 30 U.S.C. 121 et seq., which reserved phosphate, nitrate, potash, oil, gas, and asphalt. That Act followed what Congress apparently viewed as a successful experiment with a similar reservation applicable only to the State of Utah. 37 Stat. 496; see P. Gates, supra, at 740. There were during the nineteenth century several reservations of quite limited scope. See Bate, Mineral Exceptions and Reservations in Federal Public Land Patents, 17 Rocky Mtn. Min. L. Inst. 325, 368-377 (1972); Mall, Federal Mineral Reservations, 20 Rocky Mtn. Min. L. Inst. 399, 401-403 (1975). /15/ The extent of Congress's reliance on the Coal Lands Act for drafting purposes goes beyond the reservation itself. The language describing the entry rights of prospectors, the rights of mineral developers who have acquired deposits, and the provisions for protection of the surface owner is, with a few modifications, identical to that in the 1910 Act. Compare 43 U.S.C. 299 with 30 U.S.C. 85. See also 30 U.S.C. 81. /16/ The Department's attorney correctly stated to the trial court that "(t)he United States * * * has no intention of claiming trespass for using sand and gravel on his own land for purposes related to ranching" (Br. in Opp. App. 5a). However, he incorrectly interpreted 43 C.F.R. 3601.1 to mean that the United States would not sell sand and gravel from SRHA lands (Br. in Opp. App. 5a). 43 C.F.R. 3601.1 provides that (m)ineral material disposals may not be made * * * from public lands on which: (1) There are valid, existing claims to the land by reason of settlement, entry, or similar rights obtained under the public land laws * * * . Its intent is simply to segregate lands to which there are inchoate claims -- acquired by settlement, entry and the like, and not yet patented -- for the orderly administration of the public land laws. Such entries may have been made under numerous statutes which, unlike the SRHA, contained no reservation of minerals. See, e.g., Homestead Act, 43 U.S.C. 161 et seq.; Desert Land Act, 43 U.S.C. 321 et seq.; Enlarged Homestead Act of 1909, ch. 160, 35 Stat. 639. See also Bureau of Land Management Manual Section 3600.09-(A)(2)(Aug. 1976) ("Any applications for mineral materials must be suspended until the conflicting applications or entries are adjudicated"). 43 C.F.R. 3600.0-3 states that "(t)he Materials Act * * * authorizes the disposition of mineral materials including * * * gravel, * * * in the public land of the United States * * * ." The BLM Manual provides in Section 3600.08 (Aug. 1976) that "(i)ncluded in the public lands are * * * minerals reserved to the U.S.C (including Stock Raising Homestead Act Lands)." In the section dealing with sales of mineral materials the prior edition of the Manual stated: "If the land is patented under the Stock Raising Homestead Act, a bond * * * may be required if other means of protecting the surface owners * * * are not used." VI BLM Manual, Pt. 4, ch. 4.6, Section 4.6.21 (Rel. No. 98) (Jan. 9, 1961). Cf. Department of the Interior, Division of Public Lands, Solicitor's Opinion, M-36417 (Feb. 15, 1957). /17/ The damage provisions of the Agricultural Entry Act of 1914 were arguably more generous than those in the SRHA. The former Act states, in the sentence following that quoted from in text, that those who enter to mine (rather than prospect) are liable for "damages caused thereby to the owner of the land * * * ." 30 U.S.C. 122. The Court in Kinney-Coastal held, however, that the word "damages" was to be read in light of the specification in the preceding sentence. 277 U.S. at 505. A damage clause similar to that in Section 9 of the SRHA is also found in the Coal Lands Act of 1910, 30 U.S.C. 85 ("all damages to the crops and improvements") though it, like the 1914 Act, is slightly ambiguous. /18/ A similar understanding was voiced in Congress with respect to homestead entries which were allowed under the Coal Lands Act of 1910, 30 U.S.C. 83 et seq. In the debates on its passage Rep. Mondell said, if the land "is fit for agricultural purposes it ought to be farmed * * * ." 45 Cong. Rec. 6048 (1910). /19/ The same test is equally valid today. 1 American Law of Mining, Section 2.4, at 172 (1981). /20/ See also the Building Stone Act of 1892, 30 U.S.C. 161, in which Congress declared that lands "chiefly valuable for building stone" were subject to entry under the mining laws. /21/ In State ex rel. State Highway Commission V. Trujillo, 82 N.M. 694, 487 P.2d 122 (1971), also relied on by the court of appeals, the New Mexico Supreme Court held that gravel was not a reserved mineral within the meaning of Section 9 of the SRHA. But see Burris V. State ex rel. State Highway Commission, supra (sand ang gravel are reserved minerals in lands patented by the state of New Mexico). The Trujillo court based its conclusion on the erroneous supposition that gravel, in order to be a locatable mineral, had to be of a rare or exceptional quality. 82 N.M. at 696, 487 P.2d at 124. But the proper test is simply whether such minerals are presently marketable. See, e.g., United States V. Coleman, supra, 390 U.S. at 601-603; Hallenbeck V. Kleppe, supra; Edwards V. Kleppe, supra; Melluzzo V. Morton, supra; Palmer V. Dredge Corp., supra; Foster V. Seaton, Supra; United States V. Schaub, supra. The Ninth Circuit has concluded that Trujillo's erroneous interpretation of SRHA Section 9 could be attributed to its failure to examine the legislative history of the Act. United States V. Union Oil Co. of California, supra, 549 F.2d at 1276 n.11. /22/ Though it affected not to be, see 39 Pub. Lands Dec. at 312, the decision in Zimmerman was no doubt influenced by the register and receiver's opinion that "the portion of this entry involved in this contest is (not) more valuable for its deposits of gravel and sand than it is for agricultural purposes." Id. at 311. The Secretary also laid great stress on the "fact that deposits of sand and gravel occur with considerable frequency in the public domain * * * ." Id. at 312. The abundance of a particular mineral is indeed relevant to its locatability under the mining laws. But the reason is that widespread occurrence affects its value, rather than disqualifies it altogether from location. See United States V. Coleman, supra, 390 U.S. at 603. Only "valuable mineral deposits" are open to exploration under the mining laws. 30 U.S.C. 22. /23/ Other cases suggest that the proper test for inclusion of gravel in a mineral reservation is whether the deposit has some exceptional or unique properties. Bambauer V. Menjoulet, supra, 214 Cal. App. 2d at 874, 29 Cal. Rptr. at 876, 95 A.L.R.2d at 842; Farrell v. Sayre, supra, 129 Colo. at 372-373, 270 P.2d at 192-193; Watkins V. Certain-Teed Products Corp., 231 S.W.2D 981, 985 (Tex. Civ. App. 1950) (dictum); Psencik V. Wessels, supra, 205 S.W.2d at 661. However valid that requirement might be to indicate the intent of private parties, it is clear that it surpasses the demands made by the mining laws, and the SHRA, for determining what substances are mineral. See page 36 note 21 & pages 37-38, supra. /24/ That there is a difference between reservations in private conveyances and those in statutory transfers is a point explicitly acknowledged in some cases addressing the former problem. See, e.g., Bambauer V. Menjoulet, supra, 214 Cal. App. 2d at 874, Cal. Rptr. at 876, 95 A.L.R. 2d at 842.