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April 2, 1964

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support of his premise, and, aside from the contingent interests of curtesy and dower, which are not pertinent for our purposes, there seems to be no basis for so sweeping an assertion. However, it is unnecessary to treat the contention in general because the laws of the States in which the lands involved in these appeals lie, California and West Virginia, permit a husband and wife to own and convey property and to contract without the other's consent and for each's sole interest even though, in the case of California, it is a community property State. 2 W. Va. Code ch. 48, § 4731 et seq.; 10 Cal. Jur. 2d Community Property $$ 43, 21; 26 id., Husband and Wife $$ 6, 40, 41. Thus, so far as the present appeals are concerned, a claim of unfairness cannot rest solely upon the existence of a marital relationship between two of the offerors.

Appellants' protests were, therefore, properly dismissed.

In addition to the issue raised by the protests, McIntosh has appealed from the conditional rejection of his offer upon the determination that it did not receive first priority in the drawing. His principal contention is that the Bureau's procedure in conditionally rejecting offers, subject to a right of reinstatement if offers having a higher priority are disqualified, is inconsistent with the Department's regulations. In substance, he contends that the Bureau's procedure is not authorized by the Department's rules of practice and there is a possibility that an offeror may be deprived of his rights by failure to appeal from a conditional rejection of his offer if the Bureau's procedure should be changed in the meantime.

The same contentions as those now urged upon the Department have previously been considered at length, and, while flaws in the Bureau's procedure have been acknowledged, the procedure has not been shown to be inherently unfair to any offeror, nor has it been found incompatible with other practices or regulations of the Department, nor has any complainant been found to be deprived of any right by the conditional rejection of his lease offer. Robert B. Nation, Theodore R. Barker, A-29071, A-29523 (December 5, 1962); Katherine M. Barker, A29566 (November 26, 1963); Robert B. Nation, A-29822 (February 18, 1964). The appellant's arguments are not persuasive that a different conclusion should be reached here.

It may be noted that the Department has recently adopted new regulations which eliminate the procedure complained of by McIntosh. See 43 CFR 3123.9, 29 F.R. 4519. They will not, of course, affect this decision.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4)(a); 24 F.R. 1348), the decisions appealed from are affirmed.

ERNEST F. Hom,
Assistant Solicitor.

WILLIAM B. COLLISTER

A-30116

Decided April 15, 1964 Oil and Gas Leases: Description of Land Under regulation 43 CFR 3123.8, which requires that oil and gas lease offers

for lands shown on protracted surveys include only entire sections of land or describe all of the lands available for leasing in each section by legal subdivisional parts, where only a portion of a section is available, it is not proper to reject an offer for such land which describes all of the land in the section with a statement that the offer is to be deemed to include all of the land in the described section which is available for lease if the offer is accompanied by the first year's rental payment for the entire section.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

William B. Collister has appealed to the Secretary of the Interior from a decision dated August 2, 1963, whereby the Division of Appeals, Bureau of Land Management, modified and affirmed a decision of the Colorado land office rejecting his noncompetitive oil and gas lease offer filed pursuant to section 17 of the Mineral Leasing Act, as amended, 74 Stat. 782 (1960), 30 U.S.C. $ 226 (Supp. IV, 1963).

On November 15, 1962, Collister filed lease offer Colorado 096913 for all of the land available for leasing in sec. 6, T. 2 N., R. 89 W., and sec. 1, T. 2 N., R. 90 W., 6th P.M., Colorado. The land office rejected the offer because the lands were embraced in prior oil and gas leases Colorado 012761, 014367, 016342 and 021078, and any of the lands which might have been available had not been posted for filing in accordance with 43 CFR, 1964 rev., 192.43, now 43 CFR 3123.9, 29 F.R. 4519.

The Division of Appeals found that there was no indication that any of the lands which might be available for leasing were included in canceled, relinquished or terminated leases, thus requiring posting as provided in the cited regulation. It further found that the SE 14 sec. 6, T. 2 N., R. 89 W., and the S12SE14 sec 1, T. 2 N., R. 90 W., appeared to be available for leasing, but that the appellant's lease offer was properly rejected since it did not describe the available lands by subdivisional parts as required by 43 CFR, 1964 rev., 192.42a (c) (1), now 43 CFR 3123.8(c)(1), 29 F.R. 4519.

The appellant contends that he did comply with the regulation, since the regulation provides that if it is not feasible to describe land by subdivisional parts, the offer must describe the entire section and contain a statement that it shall be deemed to include all of the land in the section which is available for leasing.

All of the lands embraced by the appellant's offer are in unsurveyed townships in the Routt National Forest. The four leases cited in the land office decision described, by metes and bounds, lands which

April 15, 1964

included all of what would, supposedly, when surveyed, be sec. 6, T. 2 N., R. 89 W., and sec. 1, T. 2 N., R. 90 W. Upon the approval, subsequent to the issuance of those leases, of protracted surveys of the two townships in question, tracts of land approximating the SE14 sec. 6, T. 2 N., R. 89 W., and the S42SE14 sec. 1, T. 2 N., R. 90 W., were found to be not included in the description of any existing lease. Thus, it appears that the Division of Appeals was correct in its conclusion that those tracts had not been under lease, and posting in the land office was not a prerequisite to the leasing of the tracts.

However, the decision would appear to place an unduly narrow construction upon regulation 43 CFR 3123.8(c), which provides that:

When protracted surveys have been approved and the effective date thereof published in the Federal Register, all offers to lease lands shown on such protracted surveys, filed on or after such effective date, must, except as provided below, include only entire sections described according to the section, township, and range shown on the approved protracted surveys.

(1) An offer may include less than an entire protracted section where only a portion of such a section is available for lease. In such case the offer must describe all the available lands by subdivisional parts in the same manner as provided in paragraph (a) of this section for officially surveyed lands. If this is not feasible, as e.g., in the case of an irregular section, the offer must describe the entire section and contain a statement that it shall be deemed to include all of the land in the described section which is available for lease.

The clear intent of the regulation is to facilitate the leasing of lands in protracted surveys by entire sections and to eliminate small unleased tracts surrounded by leased areas. Thus, an offeror is required to apply for all of a section, or, if only part of the section is available for leasing, he may apply only for that part but must describe all of the available land in the section in the same manner as in describing surveyed land. However, the language is permissive as to the manner for describing the land when only a portion of a section is available,

a i.e., the offeror is not precluded from describing the entire section if only part of it is available for leasing. The offeror may, in that event, describe the entire section, remitting with his offer the first year's rental for the entire acreage as required by 43 CFR 3123.2(b), 29 F.R. 4517, or he may describe only the subdivisions that are available for leasing, remitting the correspondingly smaller rental for that acreage.

The Department has never required the rejection of a lease offer merely because it described land that was not available for leasing. On the contrary, if an offer describes an entire section of land and only one quarter of that section is available for leasing, a lease is issued for that quarter and the offer is rejected as to the balance of the section.

1

1 See former provisions of the regulation (24 F.R. 4141) and Departmental decision interpreting the effect of those provisions (Jack V. Walker, A-29402 etc. (July 22, 1963)).

See Charles J. Babington, 71 I.D. 110 (A-29688, March 20, 1964). Had the appellant omitted his reference to "all of the land in the described sections which are available for lease,” his description would have been clearly acceptable. I am unable to see any reason for a different result in the present situation.

The appellant's lease offer was accompanied by the rental payment for 1,348 acres, the total acreage of the two sections applied for. No additional burden was imposed upon the land office by the appellant's statement that his offer was deemed to include all of the land available for lease. Whether the offer had described all of the sections without qualification or had described the particular subdivisions thought to be available, it would have been incumbent upon the land office to make a determination as to the exact land available for leasing. Had the appellant described only the subdivisions, and the land office found other adjacent land available, the offer would have been subject to rejection. 43 CFR 3123.1(d), 29 F.R. 4517. Moreover, the unleased tracts may not correspond exactly with the respective legal subdivisions. It was, therefore, quite natural that, in view of some uncertainty as to what was the exact description of the available lands, the appellant chose what appeared to be the safest description. The purpose of the regulations is to insure the orderly leasing of the public lands, not to impose unnecessarily burdensome technical requirements upon applicants for the use of those lands. Accordingly, the rejection of the appellant's lease offer for the failure to describe each subdivision was improper.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), the decision appealed from is reversed, and the case is remanded to the Bureau of Land Management for further action consistent with this decision.

ERNEST F. HOM,

Assistant Solicitor.

ATHERTON SINCLAIR BURLINGHAM ET AL.

Decided April 16, 1964 Public Lands: Classification-Taylor Grazing Act: Classification-State

A-30118

Selections State selections in satisfaction of a legislative grant of public land are pre

ferred over conflicting private applications even though the State application may have been filed subsequent to the private application if the interval between the two filings is not so great as to indicate that the State failed to exercise reasonable diligence in exercising its selection right.

April 16, 1964

Public Lands: Classification—Taylor Grazing Act: Classification State

Selections The filing of a State selection application within six weeks after the filing of

public sale applications for the same land evidences reasonable diligence by the State in the exercise of its selection right so that the State application merits consideration with the public sale applications and allowance unless such allowance would serve the public interest less effectively than allowance

of the public sale applications. Public Lands: Disposals of—State Selections The statutory grant of a 6-month preference period for the filing of State

selection applications after every revocation of a withdrawal of public land within 10 years after August 27, 1958, is entirely consistent with the existent departmental policy of permitting the public interest in the satisfaction of a legislative grant of public land to a State to tip the scales in favor of the State in the Department's consideration of a State selection application

and a conflicting application for the initiation of private rights in the land. State Selections The period of delay in the filing of a State selection application by which the

diligence of a State in exercising its selection right is measured runs from the time an application for the acquisition of private rights in public land is filed until the State selection application is filed.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Atherton Sinclair Burlingham and Hilda S. Burlingham have appealed to the Secretary of the Interior from a decision dated June 5, 1963, of the Division of Appeals of the Bureau of Land Management which vacated a land office decision dismissing their protests to suspension of their public sale applications covering certain public land in New Mexico on the ground that the State of New Mexico had filed an application to select some of the same land, New Mexico 0321650, and that, because the State had exercised reasonable diligence in the attempted exercise of its right to select, its application was entitled under Bureau policy to priority over the private applications.

The Division of Appeals vacated the land office decision on the grounds that the validity of the State selection application had not been considered and that a determination had not been made as to the applicable law under which the lands are subject to disposal. The decision directed that the case files be returned to the land office for further appropriate action without, however, giving any directive as to what further action would be appropriate in the present posture of the conflicting applications.

In this state of affairs, the Burlinghams insist that further action in the land office would be prejudicial to their rights since, in the absence of instruction from the Bureau, the land office would persist in its announced purpose to afford the State's application priority over their

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