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, even 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 entry woman 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

To the same effect: Frank C. 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

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

4 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, Assignee 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

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

istrative Procedure Act, and that there is no law under which the entry in question can be canceled. He requests that he be allowed a reasonable time to submit final proof or, in the alternative, that he be granted equitable relief.

The action of the land office following the departmental decision in response to Ritchey's appeal is precisely within the directive contained in that decision. There was no violation of the Administrative Procedure Act since Myll was not denied an opportunity to present evidence of facts which are determinative of the legal issue presented on this appeal. He does not deny any of the facts shown by the record and he concedes that the announcement of the availability of irrigation water for the entry lifted the suspension. Nor does he claim that he ever inquired as to the length of time available to him for development of the entry during the eight years which elapsed between that announcement and the decision of May 1, 1962. He requested a hearing seemingly for the purpose of showing his efforts to obtain title from the Patton heirs and his belated development work, none of which has been questioned. The entry was properly held for cancellation under the desert land law because final proof of the development of the entry within the life of the entry, as extended, was not submitted. United States v. Cale Clinton Smith, A-28408 (November 30, 1960); Ted Orlan Hicks, A-29350 (July 2, 1963); Marvin M. McDole, A-29376 (April 1, 1963).

Finally, equitable relief can be granted only in those cases wherein "the law has been substantially complied with" and an error of informality is satisfactorily explained as arising from ignorance, accident, or mistake or obstacle over which the entryman had no control. Rev. Stat. § 2457 (1875), 43 U.S.C. § 1164 (1958); 43 CFR, 1964 Supp., 2011.1-1. In a case wherein neither cultivation nor reclamation has been accomplished on the entry within the time allowed by law, there is no opportunity for equitable adjudication. George Arnold Jurn, A-28948 (August 16, 1962); Umberto Sarno, Phyllis Ruggio, A-29220 (March 11, 1963).

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 affirmed.

EDWARD WEINBERG,
Deputy Solicitor.

5 On April 28, 1964, appellant and counsel, pursuant to their request, discussed the appeal with the Assistant Solicitor, Branch of Land Appeals.