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392

SOHOOL LANDS-Continued

MINERAL LANDS
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 in-

demnity for mineral sections lost to the State prior to survey --
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 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.--
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 selec-
tion and until classification the lands are not available for selec-

tion
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 currently 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.--

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SCHOOL LANDS-Continued

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

land which is both valuable for oil shale, and yaluable 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---
SECRETARY OF THE INTERIOR
1. The authority to regulate hunting and fishing on Federally owned

land has been delegated to the Secretary of the Interior by specific
legislation

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199

SMALL TRACT ACT

CLASSIFICATION
1. Land embraced in unpatented mining claims which display no indica-

tions of abandonment is properly classified as not suitable for

small tract purposes.-
STATE EXCHANGES

GENERALLY
1. Where after an application for a State exchange is filed it appears

that the selected lands are covered by apparently valid mining
claims, the State, if it denies the validity of the claims, is to be
allowed a hearing on the issue of whether or not the claims are
valid

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121

STATE LAWS
1. A protest by a junior offeror in a drawing of simultaneously filed oil

and gas lease offers which charges disqualification of a senior
offeror because the senior offeror is married to another offeror so
that neither was actually the sole party in interest in the separate
offers filed is properly dismissed in the absence of any proof that
either of the two offerors in question was not acting in his own
behalf and that under the law of the State in which the land
applied for lies a married person cannot hold or acquire property

for his sole benefit without the other spouse's consent--
STATE SELECTIONS
1. State selections in satisfaction of a legislative grant of public land

are preferred over conflicting private applications even though
the State application may have been filed subsequent to the private
application if the interval between the two filings is not so great
as to indicate that the State failed to exercise reasonable diligence

in exercising its selection right-----
2. The filing of a State selection application within six weeks after the

filing of public sale applications for the same land evidences rea-
sonable diligence by the State in the exercise of its selection right
so that the State application merits consideration with the public
sale applications and allowance unless such allowance would serve
the public interest less effectively than allowance of the public
sale applications---

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STATE SELECTIONS—Continued

Pago

3. The statutory grant of a 6-month preference period for the filing of

State selection applications after every revocation of a withdrawl
of public land within 10 years after August 27, 1958, is entirely
consistent with the existent departmental policy of permitting the
public interest in the satisfaction of a legislative grant of public
land to a State to tip the scales in favor of the State in the De-
partment's consideration of a State selection application and a
conflicting application for the initiation of private rights in the

land
4. The period of delay in the filing of a State selection application by

which the diligence of a State in exercising its selection right is
measured runs from the time an application for the acquisition
of private rights in public land is filed until the State selection
application is filed.-

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340

STATUTORY CONSTRUCTION

GENERALLY
1. While both the Indian Allotment Act of 1887, 24 Stat. 388, and the

Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, are
representative of the method which was used to grant land to
"uncivilized” persons in the late nineteenth and early twentieth
centuries, the specific requirements of the numerous allotment
statutes enacted during that time vary according to the particular
situations which they were intended to meet and the two acts
should not be read in pari materia to impose identical require

ments on applicants under each statute---
2. The effect of the enactment of Departmental regulations in the 1956

amendment to the Alaska Allotment Act, 70 Stat. 954, was to
make mandatory under the statute the determination of use and
occupancy which, prior to the 1956 amendment, had been dis-
cretionary except where the claim of a preference right was in-
volved, but the amendment did not bind the Department to the
exclusive consideration of the specific elements of proof which,
though listed in the regulations, were not made a part of the

amendment
3. Where a federal statute provides that the reclamation laws shall gov-

ern the construction, operation, and management of project works,
the excess land provisions of the reclamation laws are thereby
carried into effect unless the terms of the statute provide other-

wise_----
4. The language of section 1 of the Boulder Canyon Project Act (45 Stat.

1057; 43 U.S.C. sec. 617) does not by its plain terms create or

recognize a water right----
5. Where Congress has deemed it proper to waive or modify the excess

land laws in certain projects, it has always found it appropriate
to enact positive legislation setting forth the exemption or other

modification in unmistakable terms..
6. Statutes which grant privileges or relinquish rights of the public are

to be strictly construed against the grantee----

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Paro

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STATUTORY CONSTRUCTION Continued

ADMINISTRATIVE CONSTRUCTION
1. The departmental regulation, currently found at 43 CFR 230.70, which

provides that section 5 of the Act of June 17, 1902 (32 Stat. 388,
389; 43 U.S.C. sec. 431), does not prevent the recognition of a
vested water right for more than 160 acres and the protection of
same by allowing the continued flowing of the water covered by
the right through works constructed by the Government under
appropriate regulations and charges, applies only to special situ-
ations where existing physical facilities or water rights are ac-
quired under the authority of section 10 of the 1902 Act (32 Stat.
389, 390; 43 U.S.C. sec. 373) for incorporation in a project and
where the lands to which the water right appertains are not in-
cluded within that project. This regulations was intended as a
codification of the Opinion of Assistant Attorney General, 34 L.D.

351 (January 6, 1906)-
LEGISLATIVE HISTORY
1. The legislative history of section 2(f) of the Bonneville Project Act

as amended on October 23, 1945 (59 Stat. 546, 16 U.S.C. 832a (f)),
expresses an intent on the part of Congress to authorize the Bon-
neville Power Administrator to conduct his affairs in a matter
which equates his authority with that of private business enter-

prises -
2. The legislative history of the Boulder Canyon Project Act (45 Stat.

1057, 1066 ; 43 U.S.C. secs. 617–617t) does not reveal that Congress
intended to exempt, by implication or otherwise, the private lands

within Imperial Valley from the federal excess land laws.-
SUBMERGED LANDS ACT

GENERALLY
1. The Departmental decision in Henry 8. Morgan, Floyd A. Wallis,

et al., BLM-A-036376 (1956), affirmed by the Secretary of the In-
terior, 65 I.D. 369 (1958), is overruled to the extent that it is in-
consistent or in conflict with the conclusion reached in the opinion

of the Solicitor General issued December 20, 1963--
2. The Submerged Lands Act of May 22, 1953, 67 Stat. 29; 43 U.S.C., sec.

1301 et seq., released to the States any former title of the United
States to lands which were formerly beneath navigable waters as
defined in section 2(a) of the Act, but which emerged as islands
through natural processes within the boundaries of the States

before the effective date of the Act----
3. Lands which are "made” as that term is used in section 2(a)(3) of

the Submerged Lands Act of May 22, 1953, 67 Stat. 29; 43 U.S.C.,
sec. 1301 et seq., include lands which are formed by natural proc.

esses as well as those which are man made_
4. The Submerged Lands Act (act of May 22, 1953, c. 65, 67 Stat. 29, 43

U.S.C. 1301-1315) relinquished any former title of the United
States to lands naturally made as islands, which formerly were
"lands beneath navigable waters," as that phrase is defined in the
act. Title to accretions to public lands of the United States was

not affected by the act-
5. The ruling of the Bureau of Land Management of the Department of

the Interior in the case of Floyd A. Wallis (BLM-A-036376), as
affirmed by the Secretary of the Interior (65 I.D. 369 (1958)), to
the contrary is erroneous and should be revoked.-

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SURFACE RESOURCES ACT

Page

VERIFIED STATEMENT
1. The purchaser under a contract of sale of an undivided two-thirds

interest in a mining claim may file the verified statement required
of a mining claimant by section 5(a) of the act of July 23, 1955.-

3

SURVEYS OF PUBLIC LANDS

GENERALLY
1. A description in an oil and gas lease offer for acquired land of land in

a right-of-way which is excluded from the land applied for is
insufficient where the right-of-way is described only by giving the
course and distance of the center line and the width of the right-
of-way and by tieing the description to a quarter-quarter section
corner.

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TAYLOR GRAZING ACT

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CLASSIFICATION
1. State selections in satisfaction of a legislative grant of public land are

preferred over conflicting private applications even though the
State application may have been filed subsequent to the private
application if the interval between the two filings is not so great
as to indicate that the State failed to exercise reasonable diligence

in exercising its selection right---
2. The filing of a State selection application within six weeks after the

filing of public sale applications for the same land evidences
reasonable diligence by the State in the exercise of its selection
right so that the State application merits consideration with the
public sale applications and allowance unless such allowance
would serve the public interest less effectively than allowance of

the public sale applications.----
3. As a result of the general withdrawals accomplished by Executive

Orders Nos. 6910 and 6964 and the provisions of sec. 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.----

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392

TIMBER SALES AND DISPOSALS

1. Where damages for default by a bidder in a timber sale have been

liquidated by the parties in the amount of a deposit submitted with
the bid, such liquidated damages are for assessment as measuring
the extent of the bidder's obligation in the matter without the
necessity of inquiring into the question of the actual damages
incurred.--

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TORTS

GENERALLY
1. The United States can be held liable under the Federal Tort Claims

Act only if the individual whose alleged act or omission led to a
claim against the Government is an employee of the United States.
Hence, any question concerning that individual's employment is
a threshold issue and must be considered at the outset---

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