페이지 이미지
PDF
ePub

February 13, 1964

[ocr errors]
[ocr errors]

a

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.

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 NW14 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

a

* 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 lairs 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 raluable, together with the right to prospect for, mine, and remore 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

February 13, 1964

a

has held for many years that mineral reservations to the United States under the act of July 17, 1914, apply not only to lands known to be valuable for a leasable mineral, but also to lands reported by the Geological Survey to be prospectively valuable for one of the named minerals. Solicitor's opinion, 65 I.D. 39, 41-42 (1958), and cases cited therein; State of New Mexico, 52 L.D. 741 (1929). None of the matters asserted on appeal provides a basis for modifying the rule.

It has already been pointed out that the acts of August 27, 1958, and September 14, 1960, allowing selection of mineral land as indemnity only if the base is mineral, require that both base and selected lands be classified as to their mineral character before an indemnity selection can be allowed. Arizona objects to the determination under these provisions that selected indemnity is mineral when it is classified by the Geological Survey merely as “prospectively" valuable for oil and gas. However, the same standard is applied in determining whether base lands are mineral in character. That is, they are classified as mineral upon a finding that they are prospectively valuable for oil and gas. State of Arizona, supra.

The appeals to the Director in these cases included reports by a consulting geologist for the State of Arizona which concluded that the classification of the selected and base lands as prospectively valuable for oil and gas was not reasonable. After consideration of these reports, the Geological Survey concluded that they presented no new geologic information or findings warranting a change in the classification of the lands as prospectively valuable for oil and gas.

Arizona objects primarily to the inexactness of the term “prospectively valuable” as used by the Geological Survey, to the breadth of the criteria used in determining what lands are within that category, and asserts, additionally, that the classification is almost impossible to prove or disprove even when the possibility of oil and gas in the land is scientifically remote. The appeal asserts further, in effect, that the records show situations where classification by the Geological Survey of selected and base lands are inconsistent, although the lands are identical in known geology.

deposits on account of which the lands so patented were withdrawn or classified or reported as valuable, together with the right to prospect for, mine, and remove the same, such deposits to be subject to disposal by the United States only as shall be expressly directed by law. Any person qualified to acquire the reserved deposits may enter upon said lands with a view of prospecting for the same * * * Provided, That nothing herein contained shall be held to deny or abridge the right to present and have prompt consideration of applications to locate, select, enter, or purchase, under the land laws of the United States, lands which have been withdrawn or classified as phosphate, nitrate, potash, oil, gas, or asphaltic mineral lands, with a view of disproving such classification and securing patent without reservation •

[ocr errors]

Without specific instances of inconsistent classification, and the State has identified none, it is not possible to answer the last assertion except to say that, as a matter of course, the same criteria used in determining whether one section of land is prospectively valuable for oil and gas are presumably used in determining whether any other section is so valuable.

Arizona's remaining objections are directed against the classification policy of the Geological Survey. Arizona's opposition to the Survey's classification policy seems to be based on the incorrect assumption that the Survey's practice of classifying lands as prospectively valuable for oil and gas, if there is any possibiilty that the lands contain oil and gas, will almost preclude the patenting of indemnity lands to the State except with a reservation of minerals in the United States.

Arizona's assumption is mistaken because a reservation of minerals is required only if selected mineral land is indemnity for a numbered section (base) which is not mineral. Since the use by the Survey of a broad definition will also presumably increase the proportion of base which is classified as mineral, there should be no undue limitation in the amount of mineral lands which may be selected without a requirement for a mineral waiver.

A memorandum of November 16, 1960, from the Director of the Geological Survey to the Director of the Bureau of Land Management relating to these appeals, indicates that approximately two-thirds of Arizona may be regarded as prospectively valuable for oil and gas. It was pointed out in this memorandum that although Arizona might, when filing indemnity selections, have a problem anticipating what the Survey's classification of base and selected lands will be, the State may make adjustments after the Survey reports are made and attempt to match mineral base with mineral selections. If the selected and offered lands in a fairly large number of indemnity applications are considered at the same time, the State should be able to approximately balance mineral base lands with mineral selected lands so that reservations will not be required as to the selected lands. The memorandum of November 16, 1960, noted that in 78 recent Arizona indemnity selection applications, covering 37,000 acres of selected and base lands, 2,000 acres of the selected lands were classified as prospectively valuable for oil and gas, whereas 6,000 acres of the base lands were classified as prospectively valuable for oil and gas. Since the base included more mineral lands than did the selected lands, the State could substi. tute nonmineral base for all nonmineral selected lands and use the

February 13, 1964

a

excess mineral base only as base for selections classified as mineral. The practice of considering at one time a substantial number of indemnity selections after the selected and base lands have been classified by Survey should make it possible to match mineral base with mineral selections in a large proportion of applications.

a For the reasons discussed herein, Arizona's objections to the classification of indemnity selections as mineral on the basis of a determination by the Geological Survey that the land is prospectively valuable for oil and gas do not appear to be substantial. Arizona may amend any of its selection applications and avoid the imposition of a mineral reservation by substituting mineral for nonmineral base to correspond to selected lands which are classified as mineral. For this reason, there appears at this time to be no reason to engage in an evaluation of the criteria employed by the Geological Survey to determine when lands are prospectively valuable for oil or gas.

As was said earlier, the foregoing discussion has been of the issues raised at the time of the Director's decisions and the filing of the appeal, and, except in the instances noted, it has been concluded that the Director properly required the State to file a mineral waiver at the time he issued his decisions. The requirement was imposed under the departmental regulation then in effect, 43 CFR, 1954 rev., 102.22. This regulation provided that where the Geological Survey reported that land embraced in a nonmineral entry or claim which had not been perfected was, in effect, prospectively valuable for oil or gas, the entryman or claimant would be allowed 30 days from notice (1) to furnish consent to a mineral reservation (mineral waiver) under the 1914 act, (2) to apply for reclassification of the land as nonmineral and for a hearing if reclassification were denied, or (3) to appeal. The regulation further provided that if he did not take one of the actions indicated, his entry or claim would be canceled.

This regulation was amended on December 12, 1961 (26 F.R. 12128), to eliminate alternative (1), the requirement for a mineral waiver. The regulation now provides that an entryman or claimant will be notified of the Geological Survey's determination and allowed a reasonable time to take steps (2) or (3) and that if he does not “his entry or claim and any patent issued pursuant thereto will be impressed with a reservation of oil and gas to the United States."

The amended regulation is deemed applicable to the State's selections in this case and the case will be processed as though the State had appealed from a notification under the amended regulation and the propriety of the notification had been affirmed. The State will

« 이전계속 »