April 17, 1964 tions therein, the contestees were allowed 30 days from notice in which to file a proper answer or appeal to the Secretary of the Interior and that if no action was taken within the time allowed the locations would be declared null and void without further notice. On August 25, 1931, the Register reported no action taken and transmitted evidence of service consisting of registry return receipt signed by E. B. McNair July 24, 1931. Accordingly, by our letter of October 12, 1931, to the Register, the locations were declared null and void as to the interest therein of E. B. McNair and the Register was directed to serve new notice of the decision of July 16, 1930, on George W. Habberset. The records show that such notice was served October 24, 1931, and in his letter of December 1, 1931, the Register reported that no answer was filed by Habberset within the time allowed. Accordingly by our letter of January 7, 1932, to the Register it was held that "The failure of the contestee to file answer denying the charge is taken as an admission by him of the truth thereof, in view of which the Sid Nos. 1 to 22, inclusive, oil shale placer locations are declared null and void in their entirety and the United States has taken possession of the land within the claims for its own uses and purposes." The case was also closed by that letter. However, in the case of the Shale Oil Company (55 I.D. 287) the Department held, in view of the decision of the Supreme Court in the case of The Virginia-Colorado Development Corporation (295 U.S. 639) that the adverse proceedings in that case, based on charges of failure to do annual assessment work must be held as without authority of law and void. Very truly yours, (Sgd.) FRED W. JOHNSON, Commissioner. APPENDIX C-5 July 17, 1935 Mr. EDWARD ALTENBERN De Beque, Colorado. MY DEAR SIR: Replying to your letter of June 25, 1935, addressed to the Register of the United States land office, Denver, Colorado, and referred here for reply, you are advised that on June 3, 1935, the Supreme Court of the United States held in the case of Ickes, Secretary of the Interior, vs. Virginia-Colorado Development Corporation that the oil shale claimant lost no rights by failure to do the annual assessment work on its claims, that such failure gave the Government no right to declare the claims null and void, and that the proceedings brought by the Government against the claims, based solely on that ground, went beyond the authority conferred by law and did not affect the validity of the claims. In view of that decision the Department, on June 24, 1935, in the case of the Shale Oil Company, Denver mineral application 042552, recalled and vacated its decision in the Virginia-Colorado Development Corporation case and overruled all its previous decisions in conflict with the decision of the Supreme Court. You are, therefore, advised that so far as the jurisdiction of this office is concerned, any declaration by it that an oil shale placer claim is null and void based solely on a charge that the claimant failed to perform annual assessment work or resume work on the claim is void and does not affect the right of the owner of the claim to maintain his possession thereof under the mining laws. However, so far as this office is able to determine from its records, it has never declared null and void any oil shale placers covering the land embraced in your homestead entry, as to such entry which is now pending, should you make satisfactory final proof thereon you will be entitled to a patent if all be found regular, in the absence of any contest or protest by any other parties making claim of a right to the land superior to yours. Your entry is the only claim of record on the tract books of the land office and if any other persons claim the land it is incumbent on them to contest the entry, and should they do so the burden of proof that they have valid claims which have not been abandoned would be upon them. In the event your homestead entry should be canceled after contest and hearing because of conflict with prior valid mining claims, you would have the right to apply for repayment of all fees and commissions paid by you in connection with your entry but no reimbursement will be made by the United States for any expenditures on improvements made for any purposes on the entry. So far as this office is concerned, no objection would be made by it to the removal of any such improvements by a homestead entryman after cancellation of his entry, but this should not be taken as authority for the removal of structures which are part of the realty in violation of state laws and of the rights of other parties. Very respectfully, (Sgd) FRED W. JOHNSON, Commissioner. April 17, 1964 APPENDIX C-6 October 31, 1935 The Honorable The SECRETARY OF THE NAVY. Reference is made to the letter of November 1, 1933, of Secretary Ickes, containing a list of oil shale placer mining claims, with descriptions of the land involved, situated within Naval Oil Shale Reserves Nos. 1 and 3 in Colorado and No. 2 in Utah, involved in adverse proceedings, and the status of each case. The adverse proceedings involving all of the said claims were based upon a charge that annual assessment work had not been performed upon the claim or claims involved for a stated assessment year and that work had not been resumed thereon. You were informed in the abovementioned letter that certain claims had been declared null and void in their entirety and others had been declared null and void to the extent of the interests of the parties served with notice, and that further action in all pending cases involving the question of assessment work on oil shale placers was suspended in this office pending a final decision in the courts upon the matter of the authority of this Department to attack the validity of oil shale placer claims upon the ground stated. On June 3, 1935, the Supreme Court, in the case of Ickes vs. Virginia-Colorado Development Corporation, held that the United States is without authority to challenge the validity of an oil shale placer claim on account of failure to perform the annual assessment work, or to resume work, thereon. All previous action taken upon such charges in the cases referred to therefore is without effect and void. The status of the claims so far as this Department is concerned is that they are subsisting claims which, if located on valid discoveries of mineral by qualified locators, segregate the land against its subsequent withdrawal for Naval Oil Shale Reserves unless the claims have been abandoned. Sincerely yours, CHARLES WEST, Acting Secretary of the Interior. CLAIM OF LAWRENCE M. MONTGOMERY AND PACIFIC INDEMNITY COMPANY Decided May 14, 1964 TA-266 Torts: Generally The United States can be held liable under the Federal Tort Claims Act only if the individual whose alleged act or omission led to a claim against the Government is an employee of the United States. Hence, any question concerning that individual's employment is a threshold issue and must be considered at the outset. Torts: Conflicts of Law-Torts: Scope of Employment The fact of whether an individual is or is not an employee of the United States is a Federal question to be determined under Federal law. The scope of the individual's employment is a question to be determined under the law of the pertinent State. Torts: Generally The fact that the United States supplies materials, personnel, and funds for a project, carried out in cooperation with other organizations, does not make the project a joint adventure, unless there was either an express or implied contract by which the United States undertook to bind itself to the consequences of a joint adventure. APPEAL FROM ADMINISTRATIVE DETERMINATION Dr. Lawrence M. Montgomery, 20 Clarendon Avenue, San Francisco, California, and Pacific Indemnity Company, his subrogee-insurer, by and through their attorneys, Messrs. Richards, Haga & Eberle of Boise, Idaho, have timely appealed from the administrative determination (T-P-B-29) dated March 22, 1963, of the Field Solicitor, Boise, Idaho, denying their claims in the amount of $100 and $617.05, respectively. The claims arose out of damage sustained by an automobile owned by Dr. Lawrence M. Montgomery in an accident with a Government-owned vehicle on April 25, 1962. At the time of the accident the Government-owned vehicle was being operated by an employee of the University of Idaho, on work incident to a gopher control project, which had been undertaken by the Gopher Control Board of Ada County, Idaho, in cooperation with the Bureau of Sport Fisheries and Wildlife of this Department. The administrative determination denied these claims under the Federal Tort Claims Act1 because "contributory negligence on the part of the claimant's driver was the proximate cause of the accident ***" The claimants except to the determination, in summary, for the following reasons: 128 U.S.C., 1958 ed., sec. 2671 et seq. May 14, 1964 1. The accident was proximately caused by the negligence of the driver of the Government-owned vehicle. 2. The driver of the claimant's car was not negligent in any manner. The Federal Tort Claims Act states: 2 The head of each federal agency, or his designee for the purpose, acting on behalf of the United States, may consider, ascertain, adjust, determine, and settle any claim for money damages of $2,500 or less against the United States accruing on and after January 1, 1945, for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (Italics added.) Whether The driver of the Government-owned vehicle was not an employee of the United States Government in the ordinary sense. or not he could be considered an employee of the Government for purposes of the Federal Tort Claims Act was not decided in the original determination. In that determination the Field Solicitor stated: The file accompanying the claim indicates that Mr. William R. Sproat, driver of the Government vehicle, was an employee of the University of Idaho who was engaged on a Cooperative Gopher Control Project with the Bureau of Sport Fisheries and Wildlife. In view of our determination of this claim on other grounds we do not comment further on the status of Mr. Sproat in relation to the Federal Tort Claims Act, but merely note this situation for the records. Since the Government can be held liable, in any event, only if Mr. Sproat was, at the time of the accident, an employee of the Government for purposes of the Federal Tort Claims Act, the question of whether he was such an employee is a threshold question that should, and will, be considered at the outset of this determination. Moreover, it is a question that must be determined in accordance with Federal law.3 Mr. Sproat was, as has been stated, an employee of the University of Idaho, and not an employee of the United States in the ordinary sense. The particular job for which he had been employed by the University was that of crew leader for the gopher control project. While the Government furnished the automobile to transport the crew leader and his crew, this circumstance would not by itself be sufficient to make Mr. Sproat an employee of the Government. 228 U.S.C., 1958 ed., Supp. I, sec. 2672. Pattno v. United States, 311 F. 2d 604 (10th Cir. 1962). This case distinguishes between the "fact of employment" which is a "federal" law question, and the "scope of employment" which is a "state" law question. |