APEX MINING CO., INC., MT. DIWATA EXPLORATION AND MINING CORPORATION, CAMILO BANAD, PRUDENCIO SUAREZ, AURORA SUAREZ, RODOLFO BOLO, LEONILA VILLAFLOR, MAURICIA AMACIO, ANITA BITA…

This is a petition
for certiorari with prayer for the issuance of a writ of preliminary
injunction and/or restraining
order seeking to nullify and set aside the July 27, 1989 decision of the Office
of the President* in O.P. Case No. 3728 dismissing
the appeal of Apex Mining, Co., Inc. and affirming the April 15, 1987 decision
and January 14, 1988 order of the Department of Environment and Natural
Resources (DENR), respectively, declaring that the respective mining claims of
Apex Mining Co., Inc., et al., as well as Small Scale Mining Permits Nos. (X1) 04 (X-1) 05, are null and
void and/or inoperative and the Permit to Explore No. 133 of Marcopper Mining Corporation as valid and subsisting; and
denying the motion for reconsideration.

The controversy in this case involves conflicting mining claims
between herein petitioners Apex Mining Co., Inc., et al.  (APEX for short) and private respondent Marcopper Mining Corporation (MARCOPPER for short).  The disputed area is inside a timberland area
located at Moncayo, Davao
del Norte and Cateel, Davao
Oriental, consisting of 4,941.0 hectares (Rollo, p.
64).

MARCOPPER was one of the first mining claimants in the disputed
area, having registered its 16 claims on January 19 and 20, 1984 through the
filing of declarations of location pursuant to Presidential Decree No. 463,
otherwise known as the Mineral Resources Development Decree.  MARCOPPER, allegedly, after registering its mining claims, learned from the
central office of the Bureau of Forest Development (BFD) that the disputed area
is within an existing forest reservation known as the “Agusan-Davao-Surigao
Forest Reserve” established by Proclamation No. 369 on February 27, 1931
by then Governor General Dwight F. Davis, and realizing the invalidity of its
mining claims for having availed of a wrong procedure, abandoned its 16 mining claims and
applied for a prospecting permit instead with the BFD on April 11, 1984.  The area covered by its application consisted
of 4,941.0 hectares overlapping its abandoned mining claims.  On July
1, 1985, the BFD issued to it a Permit to Prospect No.
755-123185.  Discovering strong evidence
of mineral deposits in the area, it applied for a permit to explore with the then
Bureau of Mines and Geo-Sciences (BMGS). 
On March 10, 1986, it was issued Permit to Explore No. 133.  However, upon verification from the records
of the BMGS, Davao City Mineral District Office, it
found that the area covered by its Permit to Explore No. 133 is also the
subject of several claims/declarations of APEX. 
Thus, on August 11, 1986, MARCOPPER filed with the BMGS a “Petition
for Cancellation of Mining Claims and/or Small Scale Mining Permits” against
APEX, alleging, among others and in substance, that the area covered by its
Permit to Explore No. 133 and the declarations of locations/mining claims
belonging to APEX are within an established and existing forest reservation (Agusan-Davao-Surigao Forest Reserve) under Proclamation No.
369, dated February 27, 1931, that the said mining claims/declarations of
location of APEX are invalid for being violative of
Presidential Decree No. 463 and its implementing rules and regulations since
the acquisition of mining rights within a forest reserve is through the filing
of application for a permit to prospect with the BFD and not through
registration of declarations of location with the BMGS p. 65; O.P. Decision, p.
2).

On September 23, 1986, APEX filed a Motion to Dismiss Marcopper’s petition, alleging, in substance, that their
mining claims are not within any established or proclaimed forest reserve, and
as such, the acquisitions of mining rights thereto must be undertaken through the registration of
declaration of location with the BMGS and not through the filing of an
application for permit to prospect with the BFD; and that the permit to
prospect and permit to explore issued to MARCOPPER are inoperative and of no
legal force and effect (Ibid., pp.
587-588).

On December 9, 1986,
after MARCOPPER filed its reply, the BMGS issued an order, the dispositive portion of which reads:

“VIEWED IN THE LIGHT OF THE FOREGOING, the motion to dismiss
should be, as hereby it is GRANTED. 
Accordingly, the Permit to Explore No. 133 of the MMC is hereby declared
null and void.” (Rollo, p. 110).

MARCOPPER appealed the said order, and the DENR after due
hearing, rendered the appealed decision on April 15, 1987, the dispositive
portion of which reads:

“WHEREFORE, the Order dated 9 December 1986 of the Director,
Bureau of Mines and Geo-Sciences, is hereby REVERSED or SET ASIDE.  Accordingly Permit to Explore No. 133 of appellant Marcopper
Mining Corporation is hereby declared valid and subsisting.  The respective mining claims of appellees Apex Mining Corporation, et al., as well as Small
Scale Mining Permit Nos. (X-1) 04 and (X-1) 05, are hereby declared null and
void and/or inoperative.  The Director,
Bureau of Mines and Geo-Sciences, is hereby directed to cancel the registered
mining claims and to revoke Small Scale Mining Permit Nos. (X-1) 04 (X-1)
05 of Apex Mining Co., et al.” (Ibid., p. 100).

The motion for reconsideration of said decision having been denied by the DENR on
January 4, 1988, APEX
Appealed the case to the Office of the President (Ibid., p. 591), which
on July 27, 1989, through,
the Assistant Executive Secretary for Legal Affairs, Cancio
C. Garcia, rendered a decision, the dispositive
portion of which reads:

“IN VIEW OF THE FOREGOING, the instant appeal is hereby dismissed
for lack of merit and the appealed DENR decision and order, dated April 15, 1987 and January 4, 1988, respectively, are hereby AFFIRMED. 
The stay-order issued by this Office on February
11, 1988 is
accordingly LIFTED.

“Further the Petition To Intervene As Party filed by Minfed dated May
21, 1988, is hereby DENIED.” (Ibid., pp. 74-75; O.P.
Decision, pp. 11-12).

APEX filed a motion for reconsideration, but the same was denied
on November 16, 1989.  Hence, this petition.

This Court, after the parties had submitted the required
pleadings, in its resolution of August
7, 1990 (Ibid., p. 637), resolved to give due course to the
petition.

The instant petition is devoid of merit.

The main issue in
this case is whether or not the disputed area is within an established and
existing forest reservation.

The answer is in the affirmative.

The thrust of the petitioners’ argument is that the subject area
is not situated within a forest reserve and that Proclamation No. 369 did not
establish a forest reservation.  The said
proclamation merely withdrew from settlement or disposition certain tracts of
land described therein situated in the Province
of Davao,
Agusan and Surigao.  It did so on the basis of Section 8 of Act
No. 2874, otherwise known as “the Public Land Act”, which was
promulgated on November 29, 1919
(Rollo, pp. 654-657). 
Proclamation No. 369 could not have, as a matter of law, established a
forest reserve for the simple reason that it was issued not on the basis of
Chapter XII, Title V of Act No. 2874 nor on the basis of Section 1826 of Act
2711 (the Revised Administrative Code which took effect on June 15, 1939), but
on the basis of Section 8 of Act 2874 which empowers the Governor-General only to reclassify
lands of the public domain.  In
confirmation, Proclamation No. 369 does not even use the word “reserve”
or “forest reserve” (Ibid., p. 24; Petition, p. 17).

Section 8 of Act No. 2874, the former Public Land Act, the basis
of Proclamation No. 369, provides –

“Section 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited and
classified and, when practicable, surveyed, and which have not been reserved
for public or quasi-public uses, nor
appropriated by the Governor, nor in any manner become private property, not
those on which a private right authorized and
recognized by this Act or any other valid law may be claimed, or which, having been reserved or appropriated, have ceased to do so.  However, the Governor-General may, for
reasons of public interest, declare lands of the public domain open to
disposition before the same have had their boundaries established or been
surveyed, or may, for the same reasons, suspend their concession or disposition
by proclamation duly published or by Act of Legislature.” (Rollo, pp. 745-746).

From the above-quoted provision, the Governor?General was
specifically empowered not only to declare lands of public domain open to
disposition but also to suspend their concession or disposition.  Accordingly, withdrawal of a certain area to
establish a forest reserve is, without question, within the power of the
Governor-General.  The then
Governor-General Dwight F. Davis, in issuing Proclamation No. 369, withdrew
from settlement or disposition the tracts of
land described therein to establish a forest reserve.  The intention can be gleaned from the last
paragraph of Proclamation No. 369, which reads:

“From this reserve
shall be considered automatically excluded all areas which had already been certified and which in the
future may be proclaimed as classified and certified by the Director of
Forestry as non-forest lands and approved by the Secretary of Agriculture and
Natural Resources.” (Rollo, p. 768).

Moreover, then President Carlos P. Garcia confirmed that Proclamation
No. 369 did establish a forest reserve when he issued an May 8, 1959
Proclamation No. 583 entitled “Excluding From the Operation of
Proclamation No. 369, Dated February 27, 1931, Which Established The
Agusan-Davao-Surigao Forest Reserve,
Certain Parcels of Land Embraced Therein, And Declaring the Same Open to
Disposition Under the Provisions of the Mining Act.” (Underscoring
supplied).  This proclamation was
concurred in by the Congress of the Philippines on May 21, 1959 through Concurrent
Resolution No. 17 entitled “Concurrent Resolution Concurring in
Proclamation Numbered Five Hundred Eighty-Three of the President of the
Philippines, Dated May Eight, Nineteen Hundred Fifty Nine, Excluding From the
Operation of Proclamation Numbered Three Hundred Sixty-Nine,
which Established the Agusan-Davao-Surigao
Forest Reserve, Certain Parcels of Land Embraced Therein, and
Declaring the Same Open to Disposition Under the Provisions of the Mining
Act.” (Underscoring supplied).

In this connection, it should be stated that the findings of
government agencies with respect to the construction
of statutes the implementation of which has been reposed in them, are
controlling on the Court (Greenhills Mining Company
v. Office of the President, 163 SCRA 350 [1988]).

The disputed areas, being clearly within a forest reserve, are
not open to mining location.  Sections 8
and 13 of P.D. No. 463, as amended by P.D. No. 1385, provide:

“Sec. 8. Prospecting, Exploration and Exploitation of Minerals
in Reserved Lands.  Prospecting,
exploration and exploitation of minerals in reserved lands other than mineral
reservations may be undertaken by the
proper Government agencies.  In the event
that said agencies cannot undertake the
prospecting, exploration and exploitation of mineral in reserved lands,
qualified persons may be permitted to undertake such prospecting, exploration
and exploitation in accordance with the rules and regulations promulgated by
the Secretary.  The right to exploit the
minerals found therein shall be awarded by the President under such terms and
conditions as recommended by the Director and approved by the Secretary: Provided,
That the party who undertook prospecting, exploration and exploitation of said
area shall be given priority.

“Notwithstanding the provisions of the preceding paragraph, a
special permit may be issued by the Director to the exploration permittee to extract, remove and dispose of minerals in
limited quantities as verified by the Bureau of Mines.”

“Sec. 13. Areas Closed to Mining Location.  No prospecting and exploration shall be
allowed:

‘a) In military, or other Government
reservations except when authorized by the proper Government agency concerned;

xxx                xxx                   xxx.”

Pursuant to P.D. No. 463, as amended, one can acquire mining
rights within forest reserves by initially applying for a permit to prospect
with the Bureau of Forest and Development (BFD) and subsequently for a permit
to explore with the Bureau of Mines and Geo-Sciences (BMGS).  Such procedural requisites were complied with
and undertaken by MARCOPPER after it had ascertained that its mining claims
were found to be within the Agusan-Davao-Surigao Forest Reserve.  On the other hand, the mining claims and SSMPs of APEX being located within said forest reserve are
in violation of the law and therefore result in a failure to validly acquire
mining rights.

Finally, invariable is the rule that in reviewing administrative
decisions of the Executive Branch of the government, the finding of fact made
there in must be respected, as long as they are supported by substantial
evidence, even if not overwhelming or preponderant.  It is not for the reviewing court to weigh
the conflicting evidence,
determine the credibility of the witnesses, or otherwise substitute its own
judgment for that of the administrative agency on the sufficiency of the evidence.  The administrative decision in matters within
the executive jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud or error of law (Assistant Executive Secretary for Legal
Affairs of the Office of the President v. Court of Appeals, 169 SCRA 27
[1989]).

PREMISES CONSIDERED, the appealed decision of the Office of the President is AFFIRMED and
the petition for certiorari is DISMISSED.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano,
Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado, and Davide, Jr., JJ., concur.

Gancayco, J., on leave.

* Signed by Assistant Executive
Secretary for Legal Affairs Cancio C. Garcia