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PUBLIC RECORDS

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1. Final determinations concerning the disclosure to contractors of rec

ords that the custodian of the records is unwilling to produce are,
as a matter of general practice, made by the Solicitor where the
the disclosure sought is not connected with any pending contract
appeal, and by the Board of Contract Appeals where the records

are sought in connection with a pending contract appeal.---
2. The phrase "prejudicial to the interests of the Government,” as used

in the statutes and regulations pertaining to disclosure of records
of the Department of the Interior, ordinarily comprehends those
documents as to which the Government possesses a privilege

against disclosure under the law of evidence--
3. The question of whether particular documents, sought by a contractor

for use in connection with a contract appeal, are within or without
the scope of the Government's privilege against disclosure is a
question that calls for the evaluation of such factors as: (1) the
relevancy of the documents to the subject matter involved in the
appeal; (2) the necessity of the documents for the proving of the
appellant's case; (3) the seriousness of the danger to the public
interests which disclosure of the documents would involve; (4) the
presence in the documents of factual data, on the one hand, or
of policy opinions, on the other; (5) the existence of confidential
relationships which disclosure of the documents might unduly im-
pair; and (6) the normal desirability of full disclosure of all facts
in the possession of either party to the appeal.

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PUBLIC SALES

PREFERENCE RIGHTS
1. One who fails to submit satisfactory evidence of his ownership of

contiguous land within 30 days after the date of a public sale

loses his preference right to purchase the land----
2. Where the owner of land contiguous to an isolated tract of public land

offered for sale properly asserts a preference right to purchase the
land, and then disposes of the contiguous land after the close of
the period allowed for the assertion of preference-right claims and
before he receives a cash certificate or patent for the isolated
tract, he does not thereby lose his preference right to buy the
isolated tract nor does his successor in title succeed to that

preference right----
3. Where preference-right claimants fail to reimburse the applicant for

a public sale for the costs of publication within the 10-day period ci after they are declared the purchasers or to file statements of

citizenship, as provided by the Department's regulations, their bid
is properly rejected and the land is properly awarded to the
applicant

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RAILROAD GRANT LANDS

1. The period for determination by the Department of the Interior

whether public land included within the primary limits of a
legislative grant-in-aid of the construction of a railroad which
excepts mineral land is mineral in character extends to the time
of issuance of patent to the railroad company-

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RAILROAD GRANT LANDS-Continued
2. Land known to be mineral in character at the time of definite location

of a railroad are excluded from the grant of place lands to the
railroad even though the lands may later lose their mineral

character
3. Pursuant to section 321 (b) of the Transportation Act of 1940 patent

may be issued for railroad grant lands sold by the railroad if
it is determined either (1) that the land was not mineral in char-
acter at the time of the sale and the purchaser was an innocent
purchaser for value, even though the land is subsequently deter-
mined to be mineral in character, or (2) that although the land
was mineral in character at the time of the sale the purchaser

was not chargeable with actual or constructive notice of that fact. 4. When the Department of the Interior finds that public land within

the place limits of a legislative grant-in-aid of the construction
of a railroad is mineral in character and the railroad company
challenges such finding, a hearing should be granted at which the
Department has the obligation of making a prima facie case of
mineral character whereupon the company has the burden of
establishing nonmineral character by a preponderance of the

evidence
5. To establish the mineral character of railroad grant land it must be

shown that known conditions on the critical date are such as
reasonably to engender the belief that the land contains mineral
of such quality and in such quantity as to render its extraction
profitable and justify expenditures to that end--

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REGULATIONS

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GENERALLY
1. When the Federal Government owns land which is under the ad-

ministration of the Secretary of the Interior as part of the Na-
tional Wildlife Refuge System, the Secretary may make rules and
regulations for the control and management of resident species
of game on the land even though these regulations may be more
restrictive than the hunting and fishing laws of the State within
which the land is located. These rules and regulations take

supremacy over State law where there is a conflict..
APPLICABILITY
1. Where a State has appealed to the Secretary from a requirement that

it file a mineral waiver for selected school indemnity land re-
ported to be prospectively valuable for oil and gas and the regula-
tion requiring such waiver is amended to eliminate the require-

ment, the case will be remanded for further processing under the
| amended regulation---
WAIVER
1. Where a mining contest was initiated by this Department and the

contestees did not file an answer but brought an action to enjoin the proceedings in the Federal courts and secured a temporary restraining order against the proceedings, but failed to obtain a

further stay after the district court dissolved the restraining "' order or otherwise to relieve themselves of the necessity of filing

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REGULATIONS-Continued
WAIVER-Continued

an answer to the contest complaint, the Secretary will nonetheless
entertain a petition to have a belated answer accepted where it
appears that the litigation was continued in the appellate courts
on the assumption of all parties and the courts that the contest
proceedings had been held in abeyance and no rights of third

parties are affected..
2. The Departmental regulation providing that, where a timely answer

is not filed in a contest proceeding, the case will be decided on the
basis of the allegations in the complaint cannot be waived in the
case of a private contest_

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RES JUDICATA
1. The doctrine of res judicata or its administrative law counterpart,

the doctrine of finality of administrative action, has been rec-
ognized and applied in appropriate cases before the Department
of the Interior since 1883. This doctrine is designed to achieve
orderliness in the administration of the public lands as well as
finality of decisions which have been closed finally and have not

been appealed or otherwise attacked -----
2. When an administrative officer has acted within his jurisdiction and

a judicial review of such action has not been sought on a timely
basis, the principles of estoppel, latches and res judicata are
merged in the doctrine of finality of administrative active and

are operative to bar a claim for relief_..-
3. The United States, not having intervened as a party and not being

suable without its consent, is not bound by either the finding, the
decision, of the final judgment of a state court in proceedings

held to confirm a repayment contract--RIGHTS-OF-WAY

GENERALLY
1. 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
2. The requirement imposed by the Department's regulations on an appli-

cant for a transmission line right-of-way that he agree to permit
the Department to utilize surplus capacity in the line or to in-
crease the capacity of the line for the transmission of power by the

Department is valid---
3. The existence of a contract between a power company and the United

States, acting through the Atomic Energy Commission, whereby
the company agrees to construct a transmission line from its facil.
ities to facilities of the Commission and the Commission agrees to
provide a right-of-way across land under its jurisdiction in Los
Alamos County, has no bearing upon and is not affected by condi-
tions imposed by this Department upon a grant of a right-of-way
for a portion of the line across public land under the jurisdiction
of this Department in Sandoval County---

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RIGHTS-OF-WAV-Continued

ACT OF JANUARY 21, 1896
1. A tramroad right-of-way granted under the act of January 21, 1895,

as amended, 43 U.S.C., sec. 956 (1958), creates no interest in the
land. It is a mere permit to use the land, revocable at the dis-

cretion of the Secretary-
ACT OF MARCH 4, 1911
1. 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
2. The requirement imposed by the Department's regulations on an ap-

plicant for a transmission line right-of-way that he agree to permit
the Department to utilize surplus capacity in the line or to in-
crease the capacity of the line for the transmission of power by

the Department is valid ---
3. The existence of a contract between a power company and the United

States, acting through the Atomic Energy Commission, whereby
the company agrees to construct a transmission line from its
facilities to facilities of the Commission and the Commission
agrees to provide a right-of-way across land under its jurisdic-
tion in Los Alamos County, has no bearing upon and is not af-
fected by conditions imposed by this Department upon a grant of
a right-of-way for a portion of the line across public land under

the jurisdiction of this Department in Sandoval County---
NATURE OF INTEREST GRANTED
1. A tramroad right-of-way granted under the act of January 21, 1895,

as amended, 43 U.S.C., sec. 956 (1958), creates no interest in the
land. It is a mere permit to use the land, revocable at the discre-

tion of the SecretaryRULES OF PRACTICE

GENERALLY
1. A petition for rehearing was properly denied for untimeliness under

25 CFR 15.17 by an Examiner of Inheritance when it was mailed
by the petitioner's attorney on the last day of the 60-day period
provided by the regulation but was not received by the Superin-

tendent until after the expiration date.. APPEALS

Generally
1. The Board of Contract Appeals has authority to apply equitable prin-

ciples in determining matters over which it has jurisdiction. It
has authority to direct contract administration action by the
contracting officer if the contractor has a substantive right to such
action, and if such action pertains to a matter over which the
Board has jurisdiction. Its powers and those of the Office of the

Survey and Review complement each other.--
2. The oral argument which is authorized on an appeal to the Secretary

is not a hearing at which evidence may be submitted but an oppor-
tunity to present argument orally on the case record as previ-

ously made.--1760-03965_10

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RULES OF PRACTICE-Continued
APPEALS-Continued

Dismissal
1. An appeal will not be dismissed where a waiver and exception pro-

vision in a payment voucher omitted mention of one of the con-
tractor's claims, but did not provide for release of all claims not
excepted, where it appears that the voucher was prepared prior
to the original submission of the omitted claim and the conduct
of both parties at all times until the hearing of the appeal indi-
cated an intent to preserve the claim. The presentation of such

a motion to dismiss during the hearing is untimely.
2. In situations where the certifying officer submits to the Comptroller

General a question of law for a decision pursuant to 31 U.S.C. 820,
since he doubts the legality of a payment, the Board will not dis-
miss the appeal for lack of jurisdiction under circumstances such
as present here. The Board is bound by a decision of the Comp-
troller General, pursuant to 31 U.S.C. 82d, that a specific change
order is null and void. However, this does not deprive the con-
tractor-appellant of his contractual right to be heard by the
Board concerning changes and extras which have not been dis-

posed of with finality by the Comptroller General--

Failure to Appeal
1. A decision declaring a mining claim null and void is conclusive and

will not be reopened and vacated in the absence of a strong legal
or equitable basis warranting reconsideration even though the
basis for the cancellation has been found, in other proceedings,
to be erroneous, where the claimant, who received notice of
adverse charges against his claim, fails to answer the charges as
required and fails to appeal or otherwise attack the decision de-
claring his claim invalid and takes no action with respect to the

claim for many years---
2. One who fails to appeal from the cancellation of a mining claim is not

entitled to a patent for which application is filed more than 25
years after such cancellation, even though the cancellation was

erroneous

Standing to Appeal
1. A person who is not a party to a decision by a land office has no

standing to appeal to the Director of the Bureau of Land Manage-
ment from that decision, and such an appeal is properly dis-

missed
2. An appeal will not be dismissed for technical defects consisting of the

inadvertent omission of the corporate name of the contractor in
the notice of appeal and the substitution therefor of the name

of the contractor's representative or officer----
3. An appeal will be remanded to the contracting officer for issuance of

new or supplemental findings of fact and decision where it appears
that the contractor was in receivership prior to the filing of the
notice of appeal and no information is contained in the appeal file
concerning the present status of the receivership or as to the
identity of the legal owners and representatives of the contractor..

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