페이지 이미지
PDF
ePub

November 25, 1964 Myll contends first that he must meet only the requirements for reclamation proof for which there is no time limit for compliance. This contention is not well taken. All those who enter on reclamation land or who have entries on land which benefits from a reclamation project must comply with both the requirements of the law under which their entry was made and of the reclamation law.

For example, a homestead entryman on a reclamation project must comply with the residence and cultivation requirements of the regular homestead law or suffer cancellation of his entry. Hulse v. Griggs, 67 I.D. 212 (1960); 43 CFR, 1964 Supp., 2211.7–6(d), formerly 43 CFR, 1964 rev., 230.41, 230.46. While it is true that the reclamation law demands that the entryman cultivate more of the entry, the increased obligation is in addition to, not in lieu of, the requirements of the ordinary homestead and desert land acts. 43 CFR, 1964 Supp., 2211.7-6(a)(4), formerly 43 CFR, 1964 rev., 230.44.

Myll next argues that under the doctrine announced in John H. Haynes, 40 L.D. 291 (1911), the time limit for compliance could have been set out in the first public notice but that, this procedure not having been followed, no time limit for compliance has been established. While the Haynes case did hold that the 7-year time limitation of the original homestead law, Rev. Stat. $ 2291 (1875), did not apply to homestead entries upon lands later proposed to be irrigated under the reclamation law, the Department thereafter made it clear in the pertinent regulation, 43 CFR, 1964 Supp., 2211.7-6(a) (4), that the Haynes case was limited to entries made prior to June 25, 1910.2 Since Mrs. Patton's entry is a desert land entry made in 1917, it does not come within the scope of the Haynes case.

Myll also argues that the entry is entitled to the benefits of section 5 of the act of June 27, 1906, 34 Stat. 520, as amended by the act of June 6, 1930, 46 Stat. 502, 43 U.S.C. $ 448 (1958). Section 5 provides

[ocr errors]

in part:

* *

* where any bona fide desert-land entry has been or may be embraced within the exterior limits of any land withdrawal or irrigation project under * [the reclamation law) and the desert-land entryman has been or may be directly or indirectly hindered, delayed, or prevented from making improvements or from reclaiming the land embraced in any such entry by reason of such land

? This is the date of the act prohibiting entry on reclamation reserved lands until the Secretary had established the farm unit and water was available. 36 Stat. 836 (1910), 43 U.S.C. $ 436 (1958).

It is also the date of an act (36 Stat. 864) granting a leave of absence to homesteaders who had theretofore made entry on lands proposed to be irrigated under the reclamation law until water became available. In addition, the act of April 30, 1912, 37 Stat. 105, excused entrymen who made entries prior to June 25, 1910, from compliance with residence requirements on land to be irrigated prior to the time when water became available.

withdrawal or irrigation project, the time during which the desert-land entryman has been or may be so hindered ,delayed, or prevented from complying with the desert-land law shall not be computed in determining the time within which such entryman has been or may be required to make improvements or reclaim the land embraced within any such desert-land entry: *** Myll contends that the mere fact that the entry is within the limits of a first form withdrawal constitutes hindrance and brings him under the act. In a similar case involving lands in sec. 20, T. 5 S., R. 8 E., S.B.M., the Department rejected the same argument and held that the relief provisions of the act are not available where, as here, the method of irrigation was to be by use of water to be procured from wells sunk in the lands, and there is no showing that the withdrawal prevented the entryman from carrying out his original plan. Donald K. McLennan, 53 I.D. 21 (1930). That the withdrawal was no hindrance to Mrs. Patton is evident from the fact that in neither of her three applications for extension did she allege that it was. But, for reasons set out below, the statute would not help Myll, eren if it covered his entry.

Myll also urges that to set a date for filing final desert land proof which he cannot meet will be, in effect, to apply a time limit to him retroactively.

No cases have been called to our attention, and we have found none, which have ruled upon or discussed the time within which an entryman holding an entry suspended under the Havens case must comply with the requirements of the desert land law after water becomes available. The problem, then, is one of first impression and its resolution cannot be said to constitute the retroactive application of a rule to the entry nor a change of a previous practice, to the disadvantage of the appellant, first announced in this decision. Therefore, it is our opinion that there is nothing improper in concluding that the time has passed which the entrywoman or her successors had for meeting their obligations under the desert land law.

The primary issue, then, is how long after water became available did the entrywoman or her successors have to comply with the requirements of the desert land law.

The record shows plainly that the entry allowed in 1917 had run for the statutory 4-year life of a desert land entry and would have expired in 1921, except for a 3-year extension that was added to the statutory life of the entry at that time. The entry was, as we have seen, suspended October 11, 1923, by the Maggie L. Havens decision. There were then 7 months and 21 or 22 days of the first 3-year exten

3 To the same effect : Frank 0. Jones, 41 L.D. 377 (1912).

November 25, 1964

sion, which ran to June 2, 1924, remaining in the extended life of the entry. This period was, in the absence of a continuance of the suspension for a further period of time or a further extension of the entry, the only time remaining for the completion of the requirements of the desert land law when the suspension was lifted in 1954. It is arguable, therefore, that in the case of a Havens entry, the entryman is entitled, upon termination of the suspension, only to the time remaining in the life of his entry at the time when the suspension became effective.

This conclusion, however, would be meaningless in cases where very little time remained in the life of an entry at the time when the entry was suspended. For example, if only a week remained it would be impossible to assume that the entryman could meet the reclamation and cultivation requirements in the week ensuing after the suspension was terminated. The question then is whether a minimum period can be fixed upon the termination of a Havens suspension which will give the entryman a reasonable time to meet the reclamation and cultivation requirements. An answer is suggested by a relevant statutory provision.

As we have seen, section 5 of the act of June 27, 1906, as amended, supra, provides that if a desert land entry has been embraced within the limits of a reclamation withdrawal which hinders or delays the entryman in improving or reclaiming the land the time during which the delay persists shall not be computed in determining the time within which the entryman is required to make improvements on or reclaim the land in his entry. See 43 CFR, 1964 Supp., 2226.4–1(a), formerly 43 CFR, 1964 rev., 230.101.

Section 5 of the act of June 27, 1906, as amended, supra, contains the following proviso:

* * * Provided, That if after investigation the irrigation project has been or may be abandoned by the Government, time for compliance with the desert land law by any such entryman shall begin to run from the date of notice of such abandonment of the project and the restoration to the public domain of the lands withdrawn in connection therewith, and credit shall be allowed for all expenditures and improvements theretofore made on any such desert-land entry of which proof has been or may be filed; but if the reclamation project is carried to completion so as to make available a water supply for the land embraced in any such desert-land entry the entryman shall thereupon comply with all the provisions of the aforesaid action [sic] of June 17, 1902, and shall relinquish within a reasonable time after notice as the Secretary may prescribe and not less than two years all land embraced within his desert-land entry in excess of one farm unit, as determined by the Secretary of the Interior, and as to such retained farm unit he shall be entitled to make final proof and obtain patent upon compliance

[ocr errors]
[ocr errors]
[ocr errors]

with the regulations of said Secretary applicable to the remainder of the irrigable land of the project and with the terms of payment prescribed in said Act of June 17, 1902, and not otherwise. But nothing herein contained shall be held to require a desert-land entryman who owns a water right and reclaims the land embraced in his entry to accept the conditions of said reclamation Act.

Since section 5, as amended, extends the life of an entry by the time that a reclamation withdrawal hindered or delayed the entryman if the reclamation project is later abandoned and provides another method for computing that period when the project is carried to completion, it cannot have intended the time period to be the same in both situations and must have meant to give the entryman more time in the second case than in the first.

While the time remaining to a desert land entryman who intends to use a reclamation developed water supply is not expressly stated in the act or the pertinent regulation, it may be deduced from it. The proviso, supra, limits a desert land entryman to a farm unit instead of the 160 acres he originally had, gives him not less than two years to conform his entry to the farm unit, and otherwise brings him under the regulations applicable to the other irrigable land in the project. This seems clearly to give the entryman a minimum period of two years after water becomes available to meet the requirements of the desert land and reclamation laws, notwithstanding that there may have been less than two years remaining in the life of the entry at the time when it was included in the reclamation withdrawal.

In some situations it appears that the suspension granted by the statute and that granted by the Havens decision may both be applicable. Although the two methods of extending the effective period of a desert land entry overlap in some cases, there does not seem to have been any departmental discussion of why the statute was not sufficient or when one was to be used and not the other.' In any event, the two are so similar that the practice under the statute may well suggest how entries suspended under the Havens decision should be handled.

Following this through, it would appear that in the case of a Havens suspension the entryman should be entitled, upon termination of the

• In a letter dated June 2, 1933, to the Register, The Dalles, Oregon, from the Commissioner, General Land Office, approved by the Secretary, two desert land entries, The Dalles 625437 and 028450, were extended under the statute even though they were covered by a first form reclamation withdrawal in connection with the Owyhee Irrigation Project. The Havens case was not mentioned.

Compare also Donald K. McLennan, supra, in which relief under the act of June 27, 1906, was denied a desert land entryman and the entry canceled for lands embraced in the withdrawal of October 19, 1920, because he could not show that the withdrawal had hindered his plans to Irrigate by wells, with Hazel, A88ignee of Patterson, 53 I.D. 644 (1932), in which a similar entry cornering on the other was found to be eligible for relief under the Havens doctrine or the purchase relief act of March 4, 1929, 45 Stat. 1548, 43 U.S.C. $ 339 (1958), as the entryman chose.

November 25, 1964

[ocr errors]

suspension, to a minimum period of two years in which to meet the cultivation and reclamation requirements necessary for final proof, regardless of what time remained in the life of the entry when the suspension became effective.

This establishes the minimum time. If more than two years remained when the entry was suspended, it would seem logical and reasonable that the entryman would be entitled to the longer period. This is consonant with the concept of the act of June 27, 1906, which speaks in terms simply of not computing the time when an entryman is prevented by a reclamation withdrawal from meeting the requirements of the desert land law in determining the time in which he must reclaim the land. It is also consistent with the statement in the Havens decision that an entry shall simply be "suspended” until water becomes available. Both the statute and the decision convey the notion of simply carving out of the life of an entry the period of suspension granted.

As we have seen, a desert land entry suspended under the Havens doctrine has not as much claim to leniency as one coming under the act of June 27, 1906, as amended. The holder of such an entry cannot even allege that the reclamation withdrawal hindered or delayed its completion while one benefiting from the statute must perforce have been so obstructed. Furthermore, the suspension granted by the Havens case rests solely upon an administrative policy while the Department's actions under the statute are, of

course,
based

upon a Congressional direction.

Thus, there is no reason for treating a Havens entry any more generously than one that falls within the terms of the statute. In other words, a Havens entry can have, from the date of notice of the availability of water and of the designation of the entry as a farm unit, no more than two years or the time remaining in the life of the entry at the time when the suspension was granted, whichever is longer, to satisfy the obligations of the desert land law.

In this case the requisite notice was given by registered mail and publication no later than June 5, 1954, so that at the most the entry had two years of life from that date. Since Myll did not file his request for approval of the assignment of the entry to him until March 24, 1959, and did no work on the entry until August 1960, the requirements of the desert land law were not met within the period allotted for compliance and the entry must be canceled.

Myll contends that the decision of the land office "is without the scope of the remand of the Secretary of the Interior dated September 27, 1961,” that the denial of a hearing is a violation of the Admin

« 이전계속 »