January 27, 1964 was subsequently issued to the State of Alaska for the land which had already been leased, the patent was necessarily subject to the lease. It could not destroy the rights represented by the lease. Accordingly, issuance of the patent furnishes no ground for canceling the lease. Because the five-year term of the lease has now expired, the Bureau should determine the current status of the lease and take whatever action may be necessary in this case in view of this decision. Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision appealed from is reversed and the case remanded for such further action as may be necessary in light of this decision. ERNEST F. HOM, A-29722 UNITED STATES DEPARTMENT OF AGRICULTURE Decided January 28, 1964 Mining Claims: Special Acts-Surface Resources Act: Verified Statement The purchaser under a contract of sale of an undivided two-thirds interest in a mining claim may file the verified statement required of a mining claimant by section 5 (a) of the act of July 23, 1955. APPEAL FROM THE BUREAU OF LAND MANAGEMENT The Forest Service, United States Department of Agriculture, has appealed to the Secretary of the Interior from a decision of the Division of Appeals, Bureau of Land Management, dated July 13, 1962, which reversed a decision of the Anchorage land office, dated February 13, 1962. The land office decision rejected a verified statement submitted by the Prince of Wales Mining Company, now the Utah Construction and Mining Co., in connection with the Iron King No. 3 lode mining claim, situated on the Kasaan Peninsula, Alaska. The land office decision held that the verified statement, which was executed and filed in the name of the mining company, was not acceptable because the company was only a lessee of the claim. The decision. held that a verified statement must be filed by the locator or purchaser of the claim in accordance with the requirements of section 5(a) of the act of July 23, 1955 (30 U.S.C., 1958 ed., sec. 613(a)), and regulation 43 CFR 185.126. The decision allowed a 30-day period for the filing of a verified statement executed by one of the purchasers of the claim. The Forest Service appealed this decision on the ground that more than 150 days had elapsed since the date of the first publication of the notice to mining claimants published pursuant to section 5(a) of the 1955 act and that "the law does not permit an extension of time in which to file a verified statement." The Bureau's decision of July 13, 1962, held that the language of section 5(a), which provides for the filing of a verified statement by *** any person claiming or asserting under, or by virtue of, any unpatented mining claim heretofore located, rights as to such lands or any part thereof, * is sufficiently broad to include filing by the mining company, which then asserted that it was the lessee of a one-third working interest and purchaser of the remaining two-thirds working interest in the claim, and reversed the land office decision. Thus, no further verified statement was required to be filed and the Bureau remanded the case to the land office for reinstatement of the original verified statement. The Bureau did not clearly indicate whether its decision was based upon an acceptance of the contention of the appellee that it was qualified to file the verified statement as a purchaser of a two-thirds working interest in the claim or whether it thought that a lessee was qualified to file the statement, or both. The Forest Service has taken this appeal from the Bureau decision, contending that the verified statement filed by the mining company showed that the company was the lessee of the claim. The verified statement, filed on August 21, 1959, provided in part that— E. the present owners of record are Erick Lindemen, Albert L. Howard, of Seattle, Washington, and the State of Alaska, Commission of Minerals, Juneau, Alaska; G. the above described unpatented lode mining claim is now held under valid existing agreement from the above lessors to the Prince of Wales Mining Company, 100 Bush Street, San Francisco 4, California; The appellant contends that a proper construction of the 1955 act indicates that a lessee may not file a verified statement. It also takes exception to a letter from the appellee to the Bureau, received March 12, 1962, in which the appellee stated, *** in addition to being the lessee of a one-third working interest from the State of Alaska, [the company] is the purchaser of the remaining two-thirds working interest from the respective owners under agreement dated October 14, 1958, thereby, in our opinion, placing the Utah Construction & Mining Co. in the position of being the purchaser of a two-thirds working interest and lessee only as to a one-third interest. * * * The appellant asserts that January 28, 1964 *** This statement is completely unsupported by any evidence and is in complete contradiction to the information provided in the verified statement filed by them * on August 18, 1959. Inasmuch as the verified statement asserts that *** [the company] is the lessee it is urged in the absence of additional evidence that they be considered only as lessees. At the request of this office the appellee has submitted a copy of the October 14, 1958, "Agreement of Purchase and Sale." This agreement provides for the purchase by the appellee of a two-thirds interest in the claim held by Albert Leighton Howard, Marguerite C. Howard, Erick Lindeman, and Sally Ann Lindeman. The agreement provides that the mining company shall complete payment of the purchase price of $1,000,000 by September 15, 1972, and that it may from the commencement of the agreement explore, mine, and remove all minerals in accordance with a royalty schedule set forth in the agreement. The execution of the agreement resulted in the passage of equitable title to a two-thirds interest in the claim to the appellee, and this equitable ownership of the appellee was fully in effect at the time of the filing of the verified statement, August 21, 1959. Section 5(a) of the 1955 act provides for the filing of a verified statement by any person claiming or asserting under, or by virtue of, any unpatented mining claim heretofore located, rights as to such lands or any part thereof * * *. The statute provides no indication whether the interest of an equitable owner is such as to permit the filing of a verified statement by it. Nor does the legislative history of the 1955 act provide any indication of the Congressional intent. I can, however, see no reason why the owner of equitable title to an interest in the claim would not hold a sufficient interest so as to qualify it to file a verified statement. Indeed, section 5 (a) of the 1955 act provides that the verified notice to be filed by a mining claimant shall set forth "whether such claimant is a locator or purchaser under such location." Since the appellee here does hold equitable title to a two-thirds interest in the claim under a purchase agreement, the filing by it of the statement fulfills the requirement of the 1955 act. Since the appellee has qualified to file as an equitable owner, the question of whether a lessee may properly file a verified statement need not be decided. To the extent that the Bureau decision may be inconsistent with this holding, it is hereby modified. Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision appealed from is affirmed as modified. ERNEST F. HOм, Assistant Solicitor. APPEAL OF CHARLES T. PARKER CONSTRUCTION CO. IBCA-335 Decided January 29, 1964 Contracts: Acts of Government-Contracts: Additional CompensationContracts: Interpretation-Contracts: Performance Under a contract for the construction of a transmission line containing the "Permits and Responsibility for Work, etc.," Clause of Standard Form 23A (March 1953), as implemented by a provision that "final acceptance is to be in writing at the time all work is completed to the satisfaction of the contracting officer," the contractor is responsible for repairing at his own expense a tower erected under the contract that before final acceptance of the line is damaged, without the fault of either party, by logs and debris thrown against the tower by forces of nature. Contracts: Acts of Government-Contracts: Additional Compensation— Contracts: Interpretation-Contracts: Performance The allegation that the logs and debris may have belonged to the Government is not sufficient to shift liability for the tower repairs to it. Final acceptance may be deferred until after the contracting officer has had a reasonable opportunity to satisfy himself that the work fully conforms to all requirements of the contract. Assumption by the Government of responsibility for removal of the logs and debris is not an assumption of liability for repairs to the tower which are made by the contractor with knowledge that the Government disclaims responsibility for such repairs. BOARD OF CONTRACT APPEALS This is a timely appeal from the contracting officer's denial of contractor-appellant's claim in the amount of $2,540.13 representing the cost of repairing a steel tower,1 damaged by an extensive mud flow, containing logs and debris, which was precipitated from a glacier following a rainstorm. The principal issue involved herein is whether the Government accepted the work prior to the mud flow and resulting damage to the tower. 1 Although appellant erected 75 other steel towers during construction of 15 miles of power transmission line, only this one tower designated as AA 156 (36/2) was damaged. The concomitant mud flow caused considerable damage to other Government property which is under the jurisdiction of the United States Forest Service. January 29, 1964 The claim is premised on the theory (1) that actual construction work had been completed and verbally accepted by the Government two weeks prior to the loss; (2) that the Government accepted responsibility for removal of the logs and debris which the mud flow had deposited about the damaged tower, and should therefore be responsible for the cost of repairing that tower; and (3) that the logs and debris belonged to the Government, not a third party, and by reason thereof the costs of repair should be borne by the Government. The appeal arises from the above-identified contract which was awarded appellant on June 28, 1960, by the Bonneville Power Administration. It called for the construction of a power transmission line, 15.4 miles in length, including installation of footings, erection of steel towers and stringing of ACSR "Chuker" conductors, located in Hood River and Clackamas Counties, Oregon. Under a schedule of unit prices for diverse phases of work, the contract price of $408,272.50 was increased to $421,490.23 as the result of the issuance of three change orders. The contract was executed on Standard Form 23 (Revised March 1953) and incorporated the General Provisions of Standard Form 23A (March 1953), which included a pertinent clause relating to appellant's responsibility for the work. It is quoted as follows: 11. PERMITS AND RESPONSIBILITY FOR WORK, ETC. The Contractor shall, without additional expense to the Government, obtain all licenses and permits required for the prosecution of the work. He shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work. He shall also be responsible for all materials delivered and work performed until completion and final acceptance, except for any completed unit thereof which theretofore may have been finally accepted. (Italics supplied.) Part II of the contract, entitled "Supplementary General Provisions," contained two clauses germane to the issues involved herein, which are quoted as follows: 2-108. Liabilities of the Contractor. C. The contractor shall have sole responsibility for all work until it is accepted in writing by the contracting officer. Materials or work damaged, lost, stolen, or destroyed prior to said acceptance by reason of any cause whatsoever, whether within or beyond the control of the contractor, shall be repaired or replaced in their entirety, as required by the contracting officer, by the contractor solely at his own expense. (Italics supplied.) |