below the lowest elevation, reached at the bottom of the affected wells. They are also farther from the drainage ditch than the wells which went dry. The sixth circumstance raises a question as to what effect the drought had in the drying up of the wells. This question would be more serious if the wells were new and had not been furnishing necessary water to the claimants for several years. The drought experienced could hardly be the first drought experienced by this area in the lifetime of the wells; nor would a drought explain why the wells went dry in the order of their proximity to the then excavated portions of the ditch. The seventh circumstance shows that the Bureau of Reclamation expected the ditch to affect the water table on adjacent lands, and, hence lends support to the conclusion that a causal relationship existed between the construction of the ditch and the drying up of the wells. All in all, the administrative record establishes at least a prima facie case in favor of the claimants' contention that the construction of the drainage ditch caused their wells to go dry. There is nothing in the administrative record which adequately rebuts the prima facie case. Therefore, it is determined that the damages of which the claimants complain were the direct result of activities of employees of the Bureau of Reclamation. There remains to be determined how much damage was suffered by each claimant. A Bureau of Reclamation engineer visited the sites of the wells in question to assess the cost of deepening or replacing the wells as necessary. He found that in all instances, the claimants who had completed the necessary work now had wells superior to the old wells, and the claimants who had not done so had submitted estimates for work which would give them wells superior to the old wells. Since the measure of damages is the cost necessary to furnish the claimants with wells of the same quality as the old ones, but deep enough to supply water to the claimants notwithstanding the presence of the drainage ditch, the amounts claimed are excessive. The engineer's estimate of the reasonable and necessary costs of obtaining proper wells is: March 4, 1964 It is determined that the engineer's appraisal of the amount of damages sustained by each claimant is reasonable, fair and equitable. Accordingly, the original determination is hereby reversed, and the following sums are awarded to the claimants: Oil and Gas Leases: Cancellation-Oil and Gas Leases: Six-Mile Square Rule An oil and gas lease offer which describes land within an area over six miles in width and within an area covering five whole sections and parts of two end sections in width does not comply with the regulation requiring that land sought for leasing must be within an area six miles square or within an area not exceeding six surveyed sections in length or width, and a lease issued in response to such offer is improperly issued and subject to cancellation if proper junior offers have been filed for the land. APPEALS FROM THE BUREAU OF LAND MANAGEMENT Hugh E. Pipkin and Raymond J. Stipek have appealed separately to the Secretary of the Interior from a decision of the Division of Appeals of the Bureau of Land Management which affirmed decisions of the Sacramento land office rejecting their noncompetitive oil and gas lease offers for certain public land in Kern County, California, on the ground that the land had been leased to Mrs. Verna I. Clancy in response to her simultaneously filed offer, which included the land covered by both of their offers. Mrs. Clancy's offer, Sacramento 072582, described the land to be leased as: Pipkin's offer, Sacramento 072766, described the same land in secs. 3 and 4 of T. 30 S., R. 21 E., M.D. Meridian. Stipek's offer, Sacramento 072809, described the same land as Mrs. Clancy's in secs. 2 and 3, T. 30 S., R. 20 E., M.D. Meridian. Mrs. Clancy's offer was awarded first priority as the result of a public drawing and she was awarded a lease for the land described in her offer, and the second priority offers of Pipkin and Stipek were rejected in their entirety. Pipkin and Stipek base their appeals upon the contention that each of them was the first qualified applicant for the land described in his offer because Mrs. Clancy's offer, which was the only one with a higher priority, did not comply with either of the alternative requirements of departmental regulation 43 CFR 192.42 (d) which states that: *** The lands in the offer must be entirely within an area of six miles square or within an area not exceeding six surveyed sections in length or width.*** An examination of the official plats of the two townships in which the land described in the Clancy offer is located, discloses that this land comprises four noncontiguous tracts and that the east boundary of the most easterly tract is located in the sixth section east of, and exclusive of, the section in which the western portion of the most westerly tract is located. If these seven sections were each one mile square, the distance from the west boundary to the east boundary of an area encompassing all of the tracts sought for leasing would be 534 miles. However, none of these sections is of normal size with the consequence that the western limit of the area encompassing all the tracts is more than six miles from the eastern limit of that area. Although the extension of the entire area from north to south is less than two miles, it is clear that the land cannot be contained within an area six miles square. It is, therefore, necessary to consider whether the Clancy offer meets the alternative requirement that the land sought for leasing be within an area "not exceeding six surveyed sections" in length or width. Because this requirement is stated as an alternative, March 4, 1964 it is obvious that it cannot be construed to mean that the land is merely limited to the extent of six normal sections, for this, obviously, would be saying, in part, the same thing as the first requirement. Accordingly, it can mean only that an area described in a lease offer must be within an area six miles square or within an area not longer or wider than six of the surveyed sections shown by the official plats of the land described in the offer. Thus, an area not extending beyond six contiguous sections in length or width is acceptable, even though, because some of these sections are oversize, one dimension of the area encompassing the land sought exceeds six miles. As we have seen, however, the tracts described in the Clancy offer cannot be encompassed in an area comprising six whole sections running in an east-west direction. The question then is whether "six surveyed sections" means only six whole sections or whether it includes, as well, five sections plus parts of each of the two sections abutting on the ends of the five sections so long as the whole is equivalent to six sections. For example, does it apply to a description covering the W12 sec. 1, secs. 2, 3, 4, 5, 6, and the E2 sec. 1 of the next township west where the lineal distance is more than six miles? The answer seems clearly to be in the negative. The regulation speaks of an "area not exceeding six surveyed sections in length or width." It does not say an "area equivalent to six surveyed sections in length or width." To interpret it in this fashion would be to create difficulties of administration, for it would require in each case taking the fractions of the two end sections covered by the tracts applied for and adding them together to determine whether they total one section, so that added to the five intervening sections they make an area six sections in length or width. There is nothing whatever in the language of the regulation to suggest that such a mathematical exercise was contemplated to determine compliance with the regulation. In view of the plain language of the regulation limiting the exception to six "surveyed" sections, it is our opinion that its coverage cannot be extended to lands lying in seven surveyed sections. Because Mrs. Clancy's lease offer did not meet either of the two requirements imposed by 43 CFR 192.42 (d), it did not qualify her for the award of a lease, and the lease was improperly issued to her in response to her offer. Because the lease was improperly is sued, it must be canceled (see Boesche v. Udall, 373 U.S. 472 (1963)) if there is another applicant or applicants qualified to hold a lease.1 Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a) ; 24 F.R. 1348), the decision appealed from is reversed, and the case is remanded for further proceedings consistent herewith. ERNEST F. HOм, A-29761 EMPIRE STATE OIL COMPANY JACK J. GRYNBERG Decided March 6, 1964 Oil and Gas Leases: Cancellation An oil and gas lease is properly canceled where it was issued pursuant to an application which described less than 640 acres which were available for leasing at the time the application was filed and did not include adjoining lands which were available for leasing. Oil and Gas Leases: Known Geological Structure Oil and Gas Leases: Lands Subject to-Oil and Gas Leases: 640-Acre Limitation A determination that land is within the undefined known geologic structure of a producing oil or gas field is, in effect, a withdrawal of that land from noncompetitive leasing, and where that determination is reflected by the records of the Bureau of Land Management, the land is unavailable for noncompetitive leasing and must be excluded in determining whether a lease offer complies with the requirements of 43 CFR 192.42 (d). Oil and Gas Leases: Lands Subject to-Oil and Gas Leases: 640-Acre Limitation-Words and Phrases "Available for leasing," as used in 43 CFR 192.42 (d) and decisions interpreting that regulation, means lands which are availabe for noncompetitive leasing under the Mineral Leasing Act. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Empire State Oil Company has appealed to the Secretary of the Interior from a decision of the Division of Appeals, Bureau of Land Management, dated July 27, 1962, which directed the Colorado land 1 In her appeal Mrs. Clancy alleged that each of the appellants was part of a separate group that may have sought to obtain an unfair advantage in the drawing by which priorities were determined. This matter is to be investigated before Mrs. Clancy's lease is canceled, for if the appellants are disqualified her lease may remain in effect, in the absence of other offerors who have maintained their rights. D. Miller, 63 I.D. 257, 258 (1956). |