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school land indemnity selections1 authorized by sections 2275 and 2276 of the Revised Statutes, as amended (43 U.S.C., 1958 ed., secs. 851, 852; id., Supp. IV, sec. 852). Under these sections States may make indemnity selections of lands granted for the State's schools by enabling acts if, prior to survey, the numbered sections granted, which were designated by statute, had been appropriated under the public land laws, thus defeating the grant to the State. Four sections of land in each township were granted to Arizona in aid of the common schools of the State by the Enabling Act of June 20, 1910 (36 Stat. 557, 572). The applications here involved are lieu selections for all or parts of numbered school sections which did not vest in Arizona because the land was appropriated under the public land laws prior to survey. The numbered sections for which indemnity is sought, referred to hereafter as base lands, are identified in each of the selection applications along with the land selected as indemnity.

The Director's decisions affirmed requirements that Arizona file mineral waivers in accordance with the act of July 17, 1914 (30 U.S.C., 1958 ed., sec. 121 et seq.), which permits surface entries under the nonmineral laws on lands containing certain valuable minerals, including oil and gas, only if such minerals are reserved to the United States. In some instances, the decisions appealed from permitted the State to file mineral base to support mineral indemnity selections.

After the issuance of the Director's decisions and while this appeal was pending, a material change was made in the departmental regulation applicable to this case. 43 CFR 102.22. The effect of the change is to eliminate the necessity for the filing of a mineral waiver but to provide for a mineral reservation upon final approval and certification of a State selection where the circumstances require. See Milton II. Lichtenwalner et al., 69 I.D. 71 (1962). However, the change in the regulation does not affect the substantive issues of law raised by the State's appeal. Accordingly, the case will first be discussed on the basis of the law and regulations in effect at the time the appeal was taken. Then consideration will be given to the effect of the change in the pertinent regulation.

Until recently, only nonmineral land could be selected as indemnity school land except as provided in the act of July 17, 1914, supra. However, sections 2275 and 2276 of the Revised Statutes were amended by the acts of August 27, 1958 and September 14, 1960 (43)

1 Arizona 011895, 011897, 013295, 016923, 016934, 016935, 016942, 016945, 016947, 017497, 019136, 019139, 019140, 019143, 019144, 019145, 019147, 019806.

Subsequent to the filing of the appeal, the State filed on August 5, 1963, a withdrawal of selection Arizona 016923 as to 200 acres of land.

February 13, 1964

U.S.C., 1958 ed., secs. 851, 852; id., Supp. IV, sec. 852), to provide generally that a State may select mineral land as indemnity for numbered school sections if the land for which indemnity is being sought was mineral in character. Thus, before mineral land may be granted to a State as indemnity for numbered school sections without a mineral reservation to the United States, it must appear that the base lands for which indemnity is sought are mineral in character.

All but one of the applications involved in this appeal were filed before the 1958 amendments to sections 2275 and 2276 of the Revised Statutes. However, the Geological survey reported on the mineral values of both the selected and the base lands in most of the applications, since administrative action had not been completed on them. when the provisions of the act of August 27, 1958, became effective. But according to the records submitted with this appeal, Survey reports have been made only as to the selected lands and not as to the base lands included in at least five of the applications. Almost all of the selected lands in these five applications are classified as prospectively valuable for oil and gas, and the Director's and the land office decisions required the State to file a mineral waiver of oil and gas deposits in the lands included in these five applications. This requirement was correct at the time only if the base lands were found to be nonmineral in character. State of Arizona, A-27743 (August 16, 1961). As the records do not show that the base in these five applications is nonmineral, the Director's decision was erroneous to the extent that it required a mineral waiver as to the selected lands which are prospectively valuable for oil and gas without a showing that the corresponding base is nonmineral.

In a number of other instances, the Director's affirmance of the land office requirement that the State file mineral waivers appears to have been incorrect. Specifically, Arizona 019136 includes selected and base lands, both of which were apparently reported by the Geological Survey to be valuable prospectively for oil and gas. If that is so, the application for the selected lands should have been allowed. without a requirement of mineral waiver in accordance with the acts of August 27, 1958, and September 14, 1960 (State of Arizona, supra). Unless the Bureau had information not appearing in the appeal record showing that the base land listed in the application is nonmineral, the Director's decision affirming the land office requirement of a mineral waiver as to these selected lands was erroneous.

Similarly, the Geological Survey report on both the selected and the base lands included in Arizona 011897 indicates that all of the lands are valuable prospectively for oil and gas. Consequently, the

These are Arizona 013295, 016935, 016942, 016947, 017497.

school land indemnity selections1 authorized by sections 2275 and 2276 of the Revised Statutes, as amended (43 U.S.C., 1958 ed., secs. 851, 852; id., Supp. IV, sec. 852). Under these sections States may make indemnity selections of lands granted for the State's schools by enabling acts if, prior to survey, the numbered sections granted, which were designated by statute, had been appropriated under the public land laws, thus defeating the grant to the State. Four sections of land in each township were granted to Arizona in aid of the common schools of the State by the Enabling Act of June 20, 1910 (36 Stat. 557, 572). The applications here involved are lieu selections for all or parts of numbered school sections which did not vest in Arizona because the land was appropriated under the public land laws prior to survey. The numbered sections for which indemnity is sought, referred to hereafter as base lands, are identified in each of the selection applications along with the land selected as indemnity.

The Director's decisions affirmed requirements that Arizona file mineral waivers in accordance with the act of July 17, 1914 (30 U.S.C., 1958 ed., sec. 121 et seq.), which permits surface entries under the nonmineral laws on lands containing certain valuable minerals, including oil and gas, only if such minerals are reserved to the United States. In some instances, the decisions appealed from permitted the State to file mineral base to support mineral indemnity selections.

After the issuance of the Director's decisions and while this appeal was pending, a material change was made in the departmental regulation applicable to this case. 43 CFR 102.22. The effect of the change is to eliminate the necessity for the filing of a mineral waiver but to provide for a mineral reservation upon final approval and certification of a State selection where the circumstances require. See Milton H. Lichtenwalner et al., 69 I.D. 71 (1962). However, the change in the regulation does not affect the substantive issues of law raised by the State's appeal. Accordingly, the case will first be discussed on the basis of the law and regulations in effect at the time the appeal was taken. Then consideration will be given to the effect of the change in the pertinent regulation.

Until recently, only nonmineral land could be selected as indemnity school land except as provided in the act of July 17, 1914, supra. However, sections 2275 and 2276 of the Revised Statutes were amended by the acts of August 27, 1958 and September 14, 1960 (43

1 Arizona 011895, 011897, 013295, 016923, 016934, 016935, 016942, 016945, 016947, 017497, 019136, 019139, 019140, 019143, 019144, 019145, 019147, 019806.

Subsequent to the filing of the appeal, the State filed on August 5, 1963, a withdrawal of selection Arizona 016923 as to 200 acres of land.

February 13, 1964

U.S.C., 1958 ed., secs. 851, 852; id., Supp. IV, sec. 852), to provide generally that a State may select mineral land as indemnity for numbered school sections if the land for which indemnity is being sought was mineral in character. Thus, before mineral land may be granted to a State as indemnity for numbered school sections without a mineral reservation to the United States, it must appear that the base lands for which indemnity is sought are mineral in character.

All but one of the applications involved in this appeal were filed before the 1958 amendments to sections 2275 and 2276 of the Revised Statutes. However, the Geological survey reported on the mineral values of both the selected and the base lands in most of the applications, since administrative action had not been completed on them when the provisions of the act of August 27, 1958, became effective. But according to the records submitted with this appeal, Survey reports have been made only as to the selected lands and not as to the base lands included in at least five of the applications. Almost all of the selected lands in these five applications are classified as prospectively valuable for oil and gas, and the Director's and the land office decisions required the State to file a mineral waiver of oil and gas deposits in the lands included in these five applications. This requirement was correct at the time only if the base lands were found to be nonmineral in character. State of Arizona, A-27743 (August 16, 1961). As the records do not show that the base in these five applications is nonmineral, the Director's decision was erroneous to the extent that it required a mineral waiver as to the selected lands which are prospectively valuable for oil and gas without a showing that the corresponding base is nonmineral.

In a number of other instances, the Director's affirmance of the land office requirement that the State file mineral waivers appears to have been incorrect. Specifically, Arizona 019136 includes selected and base lands, both of which were apparently reported by the Geological Survey to be valuable prospectively for oil and gas. If that is so, the application for the selected lands should have been allowed without a requirement of mineral waiver in accordance with the acts of August 27, 1958, and September 14, 1960 (State of Arizona, supra). Unless the Bureau had information not appearing in the appeal record showing that the base land listed in the application is nonmineral, the Director's decision affirming the land office requirement of a mineral waiver as to these selected lands was erroneous.

Similarly, the Geological Survey report on both the selected and the base lands included in Arizona 011897 indicates that all of the lands are valuable prospectively for oil and gas. Consequently, the

2 These are Arizona 013295, 016935, 016942, 016947, 017497.

selected lands listed in this application may be granted to the State without mineral waiver, and the Director's decision to the contrary is set aside as to this application, all else being regular.

The Geological Survey report on the base and selected lands in Arizona 019139 indicates that all of the selected land is valuable prospectively for oil and gas as is one-half of the base land. If this is correct, the State is entitled to choose one-half of the selected land without a mineral reservation since one-half of the base land listed is mineral in character. Likewise, the Geological Survey report on the lands listed in Arizona 019806 classified the NW4 of a section of selected land as valuable prospectively for oil and gas and the remaining portion of the section as nonmineral (only one section is included in this application). All of the base land listed in the application is nonmineral. All else being regular, the application should have been allowed as to three-fourths of the selected land without a requirement of mineral waiver, that part of the selected land being nonmineral. The Director's decision as to these two applications should be set aside to permit partial allowance of the selections in the absence of an objection not appearing in this record.

The Director's decisions affirming the requirement that the State file mineral waivers or substitute new mineral base appear to have been proper as to the rest of the applications involved in this appeal, since in each of them mineral lands were selected and the corresponding base listed is classified by the Geological Survey as nonmineral. The mineral reservations were properly required at the time because the lands had been classified by the Geological Survey as prospectively valuable for oil and gas.

On this appeal, the State asserts that a mineral reservation under the act of July 17, 1914, is not authorized on the basis of a finding that land is "prospectively valuable" for oil and gas. In effect, the State argues that a mineral reservation under the act of July 17, 1914, is authorized only as to land which is withdrawn, is classified, or is valuable for one of the minerals designated in the act, and that the requirement is improper as to land which is classified only as "prospectively" valuable for one of the named minerals. The Department

Sections 1 and 2 of the act of July 17, 1914, provide in pertinent part as follows: "That lands withdrawn or classified as phosphate, nitrate, potash, oil, gas, or asphaltic minerals, or which are valuable for those deposits, shall be subject to appropriation, location, selection, entry, or purchase, if otherwise available, under the nonmineral land laws of the United States, whenever such location, selection, entry, or purchase shall be made with a view of obtaining or passing title with a reservation to the United States of the deposits on account of which the lands were withdrawn or classified or reported as valuable, together with the right to prospect for, mine, and remove the same

"Sec. 2. That upon satisfactory proof of full compliance with the provisions of the laws under which the location, selection, entry, or purchase is made, the locator, selector, entryman, or purchaser shall be entitled to a patent to the land located, selected, entered, or purchased, which patent shall contain a reservation to the United States of the

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