Albert Thomas and Ellora Thomas, His Wife, Appellants, v. Cecil Andrus (roger C. B. Morton), Secretary of Theinterior, Sam A. Devilbiss and Laura Devilbiss,his Wife, William Howard and Dianehoward, His Wife, Appellees, 552 F.2d 871 (9th Cir. 1977)

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US Court of Appeals for the Ninth Circuit - 552 F.2d 871 (9th Cir. 1977) March 28, 1977. Rehearing and Rehearing En Banc Denied May 16, 1977

Hale C. Tognoni, argued, Phoenix, Ariz., Richard J. Riley, Bisbee, Ariz., for appellants.

Peter R. Taft, Asst. Atty. Gen., Edward J. Shawaker, argued, Land of Natural Resources, U. S. Dept. of Justice, Washington, D. C., P. Michael Drake, Asst. U. S. Atty., Phoenix, Ariz., for appellees.

Appeal from the United States District Court for the District of Arizona.

Before TRASK and GOODWIN, Circuit Judges, and TURRENTINE,*  district judge.


Albert Thomas and wife appeal a judgment in the district court which affirmed a decision by the Secretary of Interior declaring invalid certain mining claims for want of a valid discovery. See Thomas v. Morton, 408 F. Supp. 1361 (D. Ariz. 1976).

The principal issue on appeal is whether the owners of surface (grazing) rights had standing to challenge the mineral discoveries claimed by the Thomas interests.

The district judge was confronted with a question that had not been squarely presented in this court. He reasoned by analogy from Duguid v. Best, 291 F.2d 235 (9th Cir. 1961), cert. denied, 372 U.S. 906, 83 S. Ct. 713, 9 L. Ed. 2d 716 (1963), that if an owner of a special use permit under the Forest Service could challenge an encroaching mining claim, the owner of grazing rights ought to be able to pursue a similar remedy. We agree, and affirm on the basis of the reasoning of the district judge.

On the secondary issue, the sufficiency of the evidence to support the findings of the administrative law judge, we agree with the district judge that substantial evidence in the record supports the essential findings of fact. Beyond that, we have no warrant to review the evidence as to its weight and credibility. Multiple Use, Inc. v. Morton, 504 F.2d 448, 452 (9th Cir. 1974).

We express no opinion on other parts of the decision below which have not been brought before us in this appeal.



The Honorable Howard B. Turrentine, United States District Judge for the Southern District of California, sitting by designation