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AUTH. OF THE SEC. OF THE INT. TO MANAGE AND CONTROL

469
RESIDENT SPECIES OF WILDLIFE WHICH INHABIT FEDERALTY 399
OWNED REAL PROPERTY WITHIN THE NATIONAL WILDLIFE
REFUGE SYSTEM

LIBRARY

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AUTHORITY OF THE SECRETARY OF THE INTERIOR TO MANAGE

AND CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT
FEDERALLY OWNED REAL PROPERTY WITHIN THE NATIONAL
WILDLIFE REFUGE SYSTEM

Constitutional Law
Under the Constitution the United States may acquire land for many purposes,

including wildlife refuges; may make all needful rules and regulations
respecting this land; and may delegate such powers to the Secretary of the
Int or. These rules and re lations are superior to those of the State

where there is a conflict.
Secretary of the Interior
The authority to regulate hunting and fishing on Federally owned land within

the National Wildlife Refuge System has been delegated to the Secretary

of the Interior by specific legislation.
Regulations: Generally
When the Federal Government owns land which is under the administration

of the Secretary of the Interior as part of the National 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.
Words and Phrases
Title, Fish and Wildlife. Such title as a State may hold to wild animals is a

trust interest for the benefit of its citizens, not a possessory title.
M-36672

December 1, 1964

TO: ASSISTANT SECRETARY FOR FISH AND WILDLIFE

SUBJECT: AUTHORITY OF THE SECRETARY OF THE
INTERIOR TO MANAGE AND CONTROL RESIDENT
SPECIES OF WILDLIFE WHICH INHABIT FEDERALLY
OWNED REAL PROPERTY WITHIN THE NATIONAL
WILDLIFE REFUGE SYSTEM

The Secretary of the Interior has promulgated general regulations, contained in Title 50 of the Code of Federal Regulations, and special regulations, published annually in the Federal Register, that control

1 The authority of the Secretary to promulgate special hunting and fishing regulations for particular refuges, ranges, or areas has been delegated to the Regional Directors of the Bureau of Sport Fisheries and Wildlife. See 25 F.R. 8524, 4 AM 4.9C, Administrative Manual of the Bureau of Sports Fisheries and Wildlife, as amended by 28 F.R. 12834.

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RULES OF PRACTICE-Continued
APPEALS-Continued

Standing to Appeal-Continued
4. Where regulations (25 CFR 15.19) provide an appeal to the Secretary

of the Interior by a party aggrieved by a decision of the Examiner
of Inheritance on a petition for rehearing, an appeal which is
based on matters which were not before the Examiner on the peti-

tion for rehearing will be dismissed..

Timely Filing
1. The Board of Contract Appeals does not have jurisdiction to entertain

an appeal with respect to a claim which the contracting officer
has neither determined, nor refused to determine, nor delayed

unreasonably in determining---
2. The timeliness of an appeal is governed by the period of time elapsed

between the date when the findings of fact and decision were re-
ceived by the contractor and the date when the notice of appeal
was mailed or otherwise furnished to the contracting officer. The
day on which the findings of fact and decision were received by

the contractor is not included in the computation.-
EVIDENCE
1. 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------
2. The question of whether particular documents, sought by a contractor

for use in connection with a contract appeal, are within or with-
out 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 confiden-
tial relationships which disclosure of the documents might unduly
impair; and (6) the normal desirability of full disclosure of all

facts in the possession of either party to the appeal.-----
3. Evidence submitted outside a hearing in a contest case cannot be con-

sidered in deciding the case on the merits but can be considered to

determine whether or not a further hearing is warranted.-------
GOVERNMENT CONTESTS
1. A determination of the invalidity of a mining claim by the manager

of a land office is proper in a Government contest when the claimant
fails to answer within the period allowed by the departmental
rules of practice; it is no excuse that the contestee has brought
an action in the Federal district court to enjoin the contest pro-
ceedings and secured a temporary restraining order when there-
after the restraining order is dissolved and, although the contestee
appeals to the circuit court, he fails to have the injunction restored
or a new one granted -

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RULES OF PRACTICE-Continued

GOVERNMENT CONTEST8-Continued
2. Where a mining contest was initiated by this Department and the

contestees did not file an answer but brought an aetion 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
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..
HEARINGS
1. 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
2. Evidence submitted outside a hearing in a contest case cannot be

considered in deciding the case on the merits but can be considered
to determine whether or not a further hearing is warranted.-----

a
PRIVATE CONTESTS
1. A determination of the invalidity of a mining claim by the manager

of a land office is proper in a private contest when the claimant
fails to answer within the period allowed by the departmental
rules of practice; it is no excuse that the contestee has brought
an action in the Federal district court to enjoin the contest pro-
ceedings and secured a temporary restraining order when there-
after the restraining order is dissolved and, although the contestee
appeals to the circuit court, he fails to have the injunction restored

or a new one granted.---
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.
SUPERVISORY AUTHORITY OF SECRETARY
1. The Secretary of the Interior may assume jurisdiction over an appeal

to the Director, Bureau of Land Management, without waiting for

a decision by the Director-
SCHOOL LANDS

INDEMNITY SELECTIONS
1. Since sections 2275 and 2276 of the Revised Statutes, as amended,

permit a State to select mineral lands as indemnity for numbered
school sections if the land for which indemnity is being sought was
mineral in character, Arizona may select school indemnity land
which is mineral in character if such land is selected as indemnity
for mineral sections lost to the State prior to survey-

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SOBOOL LANDS—Continued

INDEMNITY SELECTIONS-Continued
2. Where the Geological Survey classifies both selected and base lands in

an indemnity selection as mineral, the State is entitled to the
indemnity land without a reservation in the United States under

the act of July 17, 1914, of minerals designated in the act----
3. Where a State has appealed to the Secretary from a requirement that

it file a mineral waiver for selected school indemnity land reported
to be prospectively valuable for oil and gas and the regulation
requiring such waiver is amended to eliminate the requirement, the
case will be remanded for further processing under the amended

regulation----
4. The date as of which the determination is to be made whether public

land is eligible for selection as school land indemnity is the date
on which the State has complied with all the requirements of the
statute and regulations, including publication, and not the date

when the State selection is filed..
5. As a result of the general withdrawals accomplished by Executive

Orders Nos. 6910 and 6964 and the provisions of section 7 of the
Taylor Grazing Act, a State's application for indemnity school
lands is a petition to classify the lands as suitable for State
selection and until classification the lands are not available for

selection -
6. School land indemnity selections for lands within the known geo-

logic structure of a producing oil and gas field, unless the lost
lands are similarly situated, or for lands in a producing or pro-
ducible lease, must be rejected, and the date of determination as
to whether the selected lands are in the known geologic structure
of a producing oil and gas field or are in a producing or producible
lease is the date when the State has complied with all require-

ments for making a selection.---
7. The phrase "known geologic structure of a producing oil and gas field"

has been so long understood to include oil and gas fields which once
produced and are still capable of production, although not cur-
rently producing, that the phrase as used in Rev. Stat. 2276(a)(2)
will be considered to have the same meaning, despite the fact that
the word “producing" is used in the next paragraph of the statute

to mean actual production-----
8. Land in any lease of a unit agreement which is in a participating area

is to be considered as land in a producing or producible status so
that all lands subject to that lease, whether in the unit or partici-
pating area, are not eligible for selection by a State as school

indemnity lands----
9. If a State offers mineral land as base for an indemnity selection of

land which is both valuable for oil shale and valuable for oil or
gas and is situated within the known geologic structure of a pro-
ducing oil or gas field (and the base land is not so situated) or is
included in a producing or producible oil and gas lease, the State
may obtain the selected land, including the oil shale deposits,
upon consenting to a reservation to the United States of the oil
and gas in the selected land---

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