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not be required to furnish mineral waivers in those cases in which it has selected lands determined to be prospectively valuable for oil and gas but has not offered mineral lands as base. However, if the State desires to maintain such selections and they are processed to approval, the certification or clear listing of the selections will be with a reservation to the United States of the oil and gas in the selected lands. See Milton H1. Lichtenwalner et al., supra.
Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decisions of the Director are set aside and the case is remanded for further proceedings consistent herewith.
OTTO AND DELENA DELMOE
Decided February 18, 1964
Public Sales: Preference Rights
land within 30 days after the date of a public sale loses his preference right
to purchase the land. Public Sales: Preference Rights 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.
Public Sales: Preference Rights
sale for the costs of publication within the 10-day period 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. Rules of Practice: Appeals: Standing to Appeal 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 Management from that decision, and such an appeal is properly dismissed.
February 18, 1964
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Otto and Delena Delmoe and Charles Andreas have appealed to the Secretary of the Interior from a decision dated January 10, 1963, whereby the Division of Appeals, Bureau of Land Management, dismissed the appeal of Andreas from a decision of the Montana land office awarding a tract of land, offered at public sale pursuant to section 2455 of the Revised Statutes, as amended (43 U.S.C., 1958 ed., sec. 1171), to Paulino Graff Redmond and affirmed that decision.
On May 1, 1957, lots 10, 11, 12, 13, and 14, sec. 28, E12NE14 sec. 32, NW14NE1/4 and N1/2NW14 sec. 33, T. 3 N., R. 8 W., M.P.M., Montana, were offered for public sale pursuant to an application filed by Pauline Graff, now Pauline Graff Redmond. By a decision dated May 2, 1957, Mrs. Redmond was declared the high bidder at the sale. Within 30 days, Charles Andreas submitted a preference-right bid on the lands in behalf of Otto and Delena Delmoe and the Butte Ski Club. The preference-right claim was timely supported by certificates of ownership which showed that as of May 28, 1957, Otto and Delena Delmoe and the Butte Ski Club were the respective owners in fee simple of tracts of land contiguous to the offered lands. Final action on the public sale was thereafter suspended until determination could be made of the validity of a number of unpatented mining claims of Agnes Osenbrug, which were thereafter held invalid (United States v. Agnes Osenbrug et al., Contest No. 1721 (Montana) (October 20, 1961)).
On June 11, 1962, Otto and Delena Delmoe and the Butte Ski Club were declared to be preference-right purchasers of the offered lands, subject to their meeting the additional requirements set forth in 43 CFR 250.12(a) and (b)(1). No evidence of compliance with those requirements was filed within the prescribed time, and on August 7, 1962, the decision of June 11, 1962, was reversed, and Mrs. Redmond was declared the purchaser.
In affirming the land office decision of August 7, 1962, the Bureau held that the Delmoes had not shown or attempted to show in what
143 CFR 250.12 provides in part that:
“(a) **. If the applicant for the sale is an unsuccessful bidder, the person awarded the land must reimburse and pay directly to him the amount expended for publication of notice and file evidence thereof in the district land office within 10 days from the date he is declared the purchaser. If the evidence is not furnished, the manager will reject the bid and will accept the bid next in order, subject to the same conditions. *
“(b) (1) Unless he has previously done so, the purchaser must, within 10 days after he has been so declared, file with the manager a statement of his citizenship, or if a partnership, a statement of the citizenship of its members. If the purchaser is an unincorporated association, a statement must be filed showing the citizenship of each member.
to him their preference right and since he did not assert one on his own behalf, there is no basis for holding that he had one.3
The appellants have cited the Department's decision in Charles II. Ilunter, 60 I.D. 395 (1950), as authority for the proposition that once a right is asserted, though done informally and not in strict compliance with the provisions of the applicable statute, it will be recognized and the party asserting the right will be given notice of what need be done to comply with the provisions of the statute.
That decision held that a preference-right claim for an isolated tract offered at public sale may be asserted by a person who acquires the ownership of contiguous land after the date of the sale but during the period of time allowed for the assertion of preference-right claims and that a preference-right claimant is not necessarily required to submit, prior to the expiration of that period, proof that he is the owner of contiguous land but may submit such proof within a reasonable time thereafter. The holding of that decision was subsequently modified by the amendment of the regulations to require that proof of ownership of contiguous land be submitted within the same 30-day period allowed for the assertion of preference-right claims. See Fred and Mildred M. Bohen et al., 63 I.D. 65 (1956).
Aside from the change in the regulations, the holding in the Ilunter case, supra, is not applicable to this case. Hunter asserted a preference-right claim within 30 days after the high bid but failed to submit proof of his ownership of contiguous land within that time. Andreas did not assert any claim in his own right until four years after the bidding was completed. At that time, the assertion of a claim could gain him no rights, and he was, therefore, not deprived of the opportunity to perfect the rights he asserted in his letter of April 26, 1961, as he had no rights to perfect. Inasmuch as he did not assert a claim during the period allowed for that purpose, he was properly not included as a party to the decision awarding the land as between claimants. As Andreas was not a party to that decision, he had no standing to appeal from it, and the dismissal of his appeal by the Bureau was proper. See 43 CFR 221.1.
With respect to the appeal as it concerns the Delmoes, in their appeal to the Secretary, as in their appeal to the Director, Bureau of Land Management, they have not attempted to show any error in the decision appealed from nor have they submitted any evidence of compliance with the regulations.
* This is not to be interpreted as a ruling that the preference right of an owner of contiguous land is a right that can be assigned, even to a purchaser of the contiguous land.
February 20, 1964
Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision appealed from is affirmed.
ERNEST F. HOM,
APPEAL OF COSMO CONSTRUCTION COMPANY
Decided February 20, 1964
Contracts: Appeals—Rules of Practice: Appeals: Generally
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.
Contracts: Appeals-Rules of Practice: Appeals: Timely Filing
appeal with respect to a claim which the contracting officer has neither determined, nor refused to determine, nor delayed unreasonably in determining.
BOARD OF CONTRACT APPEALS
Department Counsel transmitted the appeal file and simultaneously moved the Board to dismiss the appeal on the grounds (1) that the Board lacks jurisdiction since the contracting officer has not rendered a final decision as yet; (2) that the Board cannot direct a contract administration action; and (3) that the Board does not possess general equity powers. He contends that, since the appeal is premature, and does not set forth a cause of action upon which the Board may grant relief, it should be dismissed.
Appellant, through its President, opposed the motion and stated :
The purpose of filing a Notice of Appeal was to obtain relief as provided for under the terms of the contract. The ultimate end sought by the Appellant is an “Equitable Adjustment.” In Appellant's prayer for relief, any reference to “equity” is not intended to imply that the Board of Contract Appeal is a Court of Equity, but rather the enforcer of the terms of the contract to the extent that the administrative action provided for therein be adhered to by the Contracting Officer. ***
* * * Contracting Officer was repeatedly requested by written communications to take the administrative action required to relieve the Appellant of the burden imposed upon it as a result of the changed conditions. The Contracting Officer's 1 IBCA-275 (November 29, 1962), 69 I.D. 215, 1962 BCA par. 3583.
failure in this regard constituted a proper basis on which the Appellant was entitled to file its Notice of Appeal, and vested in the Board of Contract Appeal the necessary jurisdiction to grant the relief prayed for.
Jurisdiction of the Board and"Equity"
agree with appellant's interpretation concerning the authority of the Board to apply equitable principles in determining matters over which it has jurisdiction. In Eastern Maintenance Company, the Board emphasized that two Court of Claims decisions ? would provide the basic guidelines for the proper exercise of the functions of the Board. These—and other—Court of Claims decisions enjoin contracting officers, boards of contract appeals, and the heads of departments "to prevent unjust and inequitable results.” 3
In Globe Indemnity Company v. United States,* Judge Whitaker stated:
From this case two lessons are to be drawn: (1) contracting officers and heads of departments should exercise the great powers conferred on them by these contracts to do equity; they should not feel under obligation to take advantage of technicalities, where to do so would defeat justice; (2) contractors must study their contracts and insist on compliance with their terms; before relying on any promise they should ascertain that it is made by a person having authority to make it. (Italics supplied.)
Judge Madden construed the authority and jurisdiction of the Armed Services Board of Contract Appeals broadly in McWilliams v. United States : 5
It is evident that the Secretary was authorizing the Board to act for him in the way that any owner would act if a contractor was dissatified with the way he was treated by the owner's representative in charge. He would listen to the contractor's story, and if he thought that his representative had been unfair, he would reverse him. He would do this, not because the contract gave him any authority to make a final decision which would bar the contractor from relief in the courts for breach of contract, but because it would be the natural and fair way for an owner to act. * * *
The authority given to the Interior Board of Contract Appeals is broader than the authority given to the Armed Services Board of Contract Appeals. But-even in absence of any difference—Judge Madden's counsel would equally apply to either Board.
2 Globe Indemnity Company v. United States, 102 Ct. Cl. 21 (1944), cert, den. 324 U.S. 852 (1945) ; McWilliams Dredging Company v. United States, 118 Ct. Cl. 1 (1950).
2 H. B. Fowler & Company, Inc., IBCA-294 (October 23, 1961) ; 61-2 BCA par. 3168. 3 Gov. Contr. 551(c), and decisions of the Court of Claims cited therein.
4 Fn. 2 supra, at 38.