October 30, 1964 upon consenting to a reservation of the oil or gas to the United States. Although there is nothing conclusive in the language of the 1958 amendments or their legislative history on the question, the Department thought that selections could still be made with a mineral reservation under the 1914 act where the base land was nonmineral in character. See Department's report of June 16, 1958, on H.R. 12117, a bill comparable to the legislation enacted as the act of August 27, 1958. S. Rep. No. 1735, 85th Cong., 2d Sess. 9 (1958). In its report the Department said: This bill clearly expresses the view that States may select land withdrawn for mineral classification. If this provision is enacted the States would be permitted to select such lands, and there would be a reservation of minerals only if the lands for which indemnity is sought had been of a nonmineral character. * * * If a State offering nonmineral lands as base may select land in the known geologic structure of a producing oil or gas field or land in a producing or producible oil and gas lease upon consenting to a reservation of the oil and gas under the 1914 act, no logical or reasonable ground appears for denying such a right of selection simply because the State offers mineral land as base. It is proper therefore to conclude that the right of selection exists in these circumstances. As we have concluded earlier, if a State offers mineral land as base, it may select land valuable for oil shale under paragraph (1) of subsection (a) of Rev. Stat. § 2276. See also subsection (d) of section 2276. As we have just concluded, whether a State offers mineral or nonmineral land as base, it may select land reported to be valuable for oil or gas which is situated within the known geologic structure of a producing oil or gas field or which is included in a producing or producible oil and gas lease, upon the State's consenting to a reservation to the United States under the 1914 act of the oil or gas in the land.5 It would appear to follow that, if the base land is mineral land and the selected land is both valuable for oil shale and valuable for oil or 5 It should be noted at this point that by the act of March 4, 1933, 47 Stat. 1570, 30 U.S.C. § 124 (1958), the right of selection under the 1914 act was modified to the extent that lands "lying within the geologic structure of a field, or withdrawn, classified, or reported as valuable for any of the minerals named" in the Mineral Leasing Act are not subject to selection "unless it shall be determined by the Secretary of the Interior that such disposal will not unreasonably interfere with operations" under the Mineral Leasing Act. This qualification governs all selections made in accordance with the 1914 act, that is, subject to a mineral reservation, and would, of course, apply to selections in the circumstances just discussed. gas and is situated within the known geologic structure of a producing oil or gas field or included in a producing or producible oil and gas lease, the State may obtain the selected land, including the oil shale deposits, upon consenting to a reservation to the United States under the 1914 act of the oil and gas in the selected land. We so conclude. If the State wishes to modify its applications in light of the conclusion reached, as suggested by the Governor's letter of October 1, 1963, it should submit promptly appropriate amendments to its applications to the Utah land office. This is not to be taken as a ruling or an expression of opinion that such amended applications will be approved by the Department. Before a State selection application can be accepted, the Secretary of the Interior must classify the selected land under applicable statutes as proper for State selection. Accordingly, any amended application that is filed by the State can be accepted only if the land selected is classified as being suitable for State selection. 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. A-30325 SOUTHERN CALIFORNIA EDISON COMPANY Rights-of-Way: Generally-Rights-of-Way: Act of March 4, 1911-Power: Generally An applicant for an amended transmission line right-of-way under the act of March 4, 1911, is properly required to file the stipulation required by the Department's regulations agreeing to permit the Department to utilize surplus capacity in the line, or to increase the capacity of the line for the transmission of power by the Department. See Decision dated May 28, 1964, p. 406. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Southern California Edison Company has appealed to the Secretary of the Interior from a decision dated May 28, 1964, whereby the Office of Appeals and Hearings, Bureau of Land Management, affirmed a decision of the Riverside, California, land office holding in abeyance its application for an amended transmission line right-of-way easement, Los Angeles 096498, filed pursuant to the act of March 4, 1911, 36 Stat. 1253, as amended, 43 U.S.C. § 961 (1958), until the applicant should file a stipulation in the land office as required by regulation 43 CFR, 1964 Supp., 2234.4-1 (c) (5), formerly 43 CFR, 1964 rev. 244.44 (e).1 The appellant filed an application dated January 8, 1963, for an amended right-of-way easement across public lands in Kern County, California, for the reconstruction, enlargement and conversion of an existing 33 kilovolt electric transmission line to a 115 kilovolt-volt line. The total length of the line is 28.69 miles, of which 1.87 miles cross Federal lands. The appellant was advised on May 2, 1963, that it would be required to file a stipulation as called for in 43 CFR 244.44 (e), now 43 CFR, 1964 Supp., 2234.4–1(c)(5). The stipulation provides for the agreement of the grantee of a right-of-way that this Department may utilize surplus capacity in the transmission line, or may increase the capacity of the line, for the transmission of power by the Department. The regulations also provide for the equitable sharing of operation and maintenance costs of the transmission facilities by the Department, for the designation of a board to resolve any disagreements over the existence or amount of surplus capacity and for the modification of the terms and conditions at any time by means of a supplemental agreement negotiated between the holder and the Secretary of the Interior or his designee. 1 California Electric Company, the original right-of-way applicant, merged with the Southern California Edison Company on December 31, 1963, thereby terminating its corporate existence. 71 I.D. No. 11 On October 18, 1963, the appellant filed a stipulation consentingto accept, comply with, and be bound by all lawful terms and conditions of the Bureau of Land Management Department of the Interior Regulations, Title 43, CFR, Part 244, as amended, in effect on the date of this Stipulation for so long as such terms and conditions remain in effect, but Applicant does not agree or consent to accept, comply with or be bound by any of the terms or conditions of any Regulations which may hereafter be finally determined by a court of competent jurisdiction to be unlawful, legally unenforceable or contrary to any statutory provision enacted by the Congress of the United States; nor does Applicant agree or consent to accept, comply with or be bound by the terms or conditions of any Regulations applicable to said right-of-way easements after the time that such terms or conditions are withdrawn or waived. By a decision of the land office dated January 2, 1964, the appellant was advised that its proposed stipulation did not meet the requirements of the regulations, and it was requested to execute and file a stipulation in conformance with the regulatory requirements. Following that decision, appellant appealed to the Director, Bureau of Land Management, and then to the Secretary. Appellant's contentions on this appeal have been carefully considered. However, they are essentially the same as the arguments advanced by appellant on its appeal to the Director and they are fully discussed and answered in the Bureau's decision. No purpose would be served by a repetition of the discussion. 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), for the reasons set forth in the decision of May 28, 1964, the decision is affirmed. EDWARD WEINBERG, May 28, 1964 The Southern California Edison Company has appealed from a letter-decision of the Riverside Land Office, dated January 2, 1964.1 That decision held that further action on the Company's request to convert its existing 33 kilovolt right-of-way to a 115 kilovolt rightof-way will be held in abeyance until the applicant files a stipulation in the Land Office, pursuant to the requirements of departmental regulation 43 CFR 2234.4–1 (c) (5), 1964 Special Supplement (formerly 43 CFR 244.44 (e)). The appellant's original application herein, filed on January 8, 1963, requests that its existing right-of-way easement under the act of March 4, 1911 (36 Stat. 1253; 43 U.S.C. 961), upon and across public 1 The decision was addressed to the original applicant, the California Electric Power Company, which merged with the Southern California Edison Company on December 31, 1963, and, thereupon, terminated its corporate existence. November 3, 1964 lands in Kern County, California for its 33 kilovolt Inyokern-Ridgecrest transmission line, be amended to permit the reconstruction, enlargement, conversion and operation of said line at 115 kilovolts. The remaining period of that existing easement is 40 years; the total length of the expanded right-of-way requested across public lands is 1.87 miles; the total length of the Inyokern-Ridgecrest line is 28.69 miles. The regulation in question, as amended, by Circular 2100, published March 23, 1963 (28 F.R. 2905), provides, among other things, that applicants for transmission line right-of-way permits shall execute a stipulation allowing the Government to utilize any surplus capacity in such transmission facilities crossing Government lands. The appellant declined to execute such stipulation. It here appeals the Land Office Manager's decision declining to consider the appellant's application further absent such stipulation, and prays that the easement requested be granted forthwith. The appellant claims the regulations cannot be applied to it for the following reasons (in the order presented by the appellant) : I. They are prospective and do not apply to appellant's application. B. They are unconstitutional administrative legislation, and violate the Due Process Clause; C. Applicant's freedom to reject permits made subject to the regulations does not cure the invalidity thereof; D. They are contrary to the intent and rate provisions of the Federal Power Act. III. They are ambiguous, uncertain, and impractical. * * * * As to argument I, the appellant says its January 8, 1963, application complied with the regulations then in effect, and that the regulations promulgated March 23, 1963, do not apply to applications filed prior thereto. As amended, March 23, 1963, Sec. 244.44 (e) of the regulations (now 43 CFR 2234.4-1 (c) (5)), provides, among other things, that an applicant for a permit must “* * * execute and file with its application a stipulation * * *" allowing the Government to use the surplus capacity of the transmission line. We agree that the amendment is prospective. But the subject of the amendment relates to permits, not applications. The subject of the amendment is: terms and conditions in permits issued on or after March 23, 1963. The Department has found that permits should not be issued for transmission lines on Government lands after that date unless applicants allowed the Government to use the lines' surplus capacity. The reference (in the regulation) to applications merely states how applicants may |