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of water which will inundate the powersite reserve lands here in issue. Since February 11, 1957, the State has had an order from the Commission for this Project which, though it has been amended, is in full force and effect.
In April of 1960, the Railway wrote to the Bureau of Land Management inquiring as to the status of its right-of-way and the basis for the $30 annual payment. In response to this inquiry the Railway was advised by letter dated June 14, 1960, that its right-of-way permit had “terminated by expiration in 1947," but that it could apply for an extension.
The Railway never responded to this letter. Accordingly, on October 18, 1960, a formal decision was issued canceling the Railway's permit but without prejudice to the filing of an application for extension. The Railway was given the right of appeal; but again the Railway made no response. No appeal was taken and no application for extension made. Therefore, on December 2, 1960, the case records, Right-of-way, Sacramento 013803, were noted “case closed. Permit canceled."
Notwithstanding the aforementioned decision canceling its permit, the Railway continued to occupy and use the lands in question. Accordingly, the cease and desist order of March 18, 1964, heretofore mentioned, and, subsequently, the show cause order of June 11, 1964, were issued.
From the recitation of the facts we think it altogether too clear to warrant argument that the Feather River Railway is occupying and using public lands without lawful authority. Utah Power & Light Co. v. United States, 243 U.S. 389 (1917).
The original authority of the Railway to occupy and use the lands in question stemmed from the right-of-way permit which was issued to it in 1922. The permit was limited by its own terms to a period of time not to exceed 25 years. The common carrier certificate from the Interstate Commerce Commission added not one second to the life of the permit. At best, between 1947, when the permit expired by its own terms, and 1960, the Railway might be considered to have occupied the lands in question as a tenant by sufferance because of the annual rental or fee it paid. 1 Tiffany, Real Property (1939 ed.), secs. 174, 175. But clearly, since 1960 the Railway has not enjoyed even the protection provided by that possible relationship. See 16 Ops. Atty. Gen. 205, 212 (1878); 20 Ops. Atty. Gen. 93 (1891); 20 Ops. Atty. Gen, 527, 529 (1893).
In the last cited case a railroad was given a lease to occupy and
* In 1962, all the assets of the Feather River Plne Mills, Inc., including the Rallway were acquired by the Georgia Pacific Corporation. I.C.C. Finance Docket No. 22060, January 24, 1964,
November 5, 1964
use certain lands on a lighthouse reservation at Cape May, New Jersey. The Attorney General said:
*** I am of opinion that the instrument called a "lease" only operated as a revocable license, if it had any legal effect, and did not convey any estate in the strip of land now occupied by the Delaware Bay and Cape May Railroad Company, and that the Secretary of the Treasury has the power to revoke the license at pleasure, and to remove the property of the company from the reservation upon its failure to do so, after reasonable notice. The company, having entered and occupied under the license and authority of the Secretary of the Treasury, is in no condition to question that authority.
In its response to the show cause order the Feather River Railway, while admitting that the Bureau of Land Management (B.L.M.) has unquestioned jurisdiction to determine questions affecting public lands, nevertheless argues that it has no authority to issue a cease and desist order. The argument stems from an apparent misunderstanding of the nature of the cease and desist order. Admittedly, B.L.M. has no authority to enforce such orders. Enforcement is by suit. Cameron v. U.S., 252 U.S. 450, 464 (1920); Kennedy v. U.S. (C.C.A. 9, 1941), 119 F. 2d 564. But the cease and desist order is a determination of rights to public lands, and, in this case, an assertion by the proprietor of its title. It is a notice to cease and desist from an unauthorized use or suffer the consequences of a suit. This is clearly within the admitted competence of B.L.M. See Cameron v. U.S., supra; Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); Reed v. St. Paul, M. & M. Ry. Co., et al., 234 Fed. 123 (1915); Rev. Stat. 453, 43 U.S.C. sec. 2 (1958); 5 U.S.C. sec. 485 (1958).
The Railway also argues that B.L.M. has no authority to interfere with the operations of a common carrier railroad without prior approval from the Interstate Commerce Commission. But B.L.M. is not interfering with the Railway's lawful operation. So far as this Department is concerned the Railway may operate between land and Feather Falls as long as it wishes. It may not, however, operate on public lands without proper authority. We are unaware that the Interstate Commerce Commission has the power to bestow on a common carrier railroad the authority to use public lands for its right-ofway. Quite the contrary, Congress has given this Department the exclusive jurisdiction to grant such rights-of-way. Act of March 3, 1875, 43 U.S.C. sec. 934, et seq. (1958). Though the Railway suggests that its limited permit has somehow been enlarged into a right under that Act, it is clear that it has not. Apart from the fact that the Rail
s Contrast in this regard the powers of the Interstate Commerce Commission with those of the Federal Power Commission. Subject to limitations not here material, the latter has the authority by statute to license projects upon the public lands and reservations of the United States. 16 U.S.C. sec. 797,(e) (1958).
way never complied with the procedural requirements of the 1875 right-of-way act, see, Utah Power & Light Co. v. United States, supra, the short answer to this contention is that the lands here in question were not available and could not have been granted after the withdrawal action of 1911.
Finally, the Railway has argued that the 25 year limitation on the life of the tramroad right-of-way granted it by this Department was invalid. The point is without merit. Moreover, the regulations of this Department under which the right-of-way permit was issued to the Railway's predecessor made it clear that the permittee obtained only a license which was revocable at any time by the Secretary of the Interior in his discretion. 36 L.D. 567, 584. Thus, even if the 25 year limitation had not been imposed, the right-of-way could have been terminated at the will of the Secretary. But, in the last analysis, the language of the Attorney General in 20 Ops. Atty. Gen. 527, 529 (1893), is dispositive.
*** The company, having entered and occupied under the license and authority of the Secretary ** * is in no condition to question that authority.
Accordingly, it is concluded that the Feather River Railway Com. pany is using and occupying the public lands in question without proper authority. The cease and desist order of March 18, 1964, as modified by the show cause order of June 11, 1964, is hereby affirmed.
Insofar as the Railway's Response to the show cause order may be considered an application to continue use of the lands in question, it is denied. This is a final departmental decision.
JOHN A. CARVER, JR., Assistant Secretary of the Interior.
APPEAL OF CONCRETE CONSTRUCTION CORPORATION
Decided November 10, 1964
Contracts: Changed Conditions—Contracts: Unforeseeable Causes
Veither weather phenomena nor alterations in the physical features of the work site caused by weather phenomena, after initiation of the process of contract formation, constitute changed conditions within the meaning of Clause 4 of a standard-form construction contract. Where the subsurface moisture conditions found when driving test holes are correctly recorded in the contract, neither the underground water encountered during contract performance nor the earth caving induced thereby constitute changed conditions if they are caused by rainfall greater than that which prevailed when the test holes were driven, irrespective of whether the excess rainfall was a normal seasonal erent or was an abnormal and unusual occurrence.
November 10, 1964
Contracts: Changed Conditions-Contracts: Delays of Government
Delay by the Government in performing its own obligations under a contract does not constitute a changed condition within the meaning of Clause 4 of a standard-form construction contract.
BOARD OF CONTRACT APPEALS This appeal pertains to a contract of the Bureau of Indian Affairs for the performance of road work on the Navajo Indian Reservation in Arizona. A major part of the work to be done under the contract was the construction of a bridge across Coyote Wash. The bridge was to be supported by concrete piles, that were to be cast in place within holes drilled in the floor of the Wash. The contract, which was dated April 30, 1963, was on Standard Form 23 (January 1961 edition) and incorporated the General Provisions of Standard Form 23A (April 1961 edition) for construction contracts. Neither party has asked for an oral hearing, and the appeal will be decided on the basis of the appeal file and the other documents of record before the Board.
Appellant encountered substantial quantities of underground water in the course of drilling holes for the concrete piles. The water caused the sides of some of the holes to cave before the piles could be cast and made some of the holes too wet for the concrete to be poured. In order to overcome these difficulties, appellant placed casings in the holes and took other measures to dewater the site. Appellant alleges that the dewatering increased the cost of the pile operations above the amount included in its bid estimates. It contends that the underground water was a changed condition within the meaning of the “Changed Conditions" clause (Clause 4) of the General Provisions, and that it is, therefore, entitled to an equitable adjustment in the contract price on account of the alleged increase in the cost of the pile operations. The amount claimed is $14,434.10.
The contracting officer, in a decision dated February 28, 1964, found that the underground water was not a changed condition, since "the possibility of an excess amount of subsurface water was set forth in
1 The “Changed Conditions" clause reads as follows:
"The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (a) Subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (b) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do so materially differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. Any claim of the Contractor for adjustment hereunder shall not be allowed unless he has given notice as above required; or unless the Contracting Oficer grants a further period of time before the date of inal payment under the contract. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 of these General Provisions."
the plans, and means and methods prescribed therein to cope with the condition.” From this decision, the appeal now before us was timely taken.
Both parties to the dispute rely heavily upon test hole data set forth in one of the contract drawings (Drawing C-7). This data shows the materials that were encountered in each of five test holes driven in the immediate vicinity of the places where the piles for the bridge were to be located. It also gives certain figures which, according to a legend appearing on the drawing, show the “Number of hours holes remained clean without any indicated caving of side walls." The figures so given are 6 for two holes, 18 for one, and 24 for the remaining two. It is conceded that caving of the holes subsequently drilled for the piles occurred at a much faster rate than these figures would indicate, and that the faster rate of caving was due to the volume of underground water present when the holes for the piles were being drilled.
In evaluating the test hole data just described, the time when the test holes were driven would be an important factor. Data obtained during the dry season of the year would not necessarily reveal the degree of caving that could be expected to occur during or just after the rainy season. Data obtained during a month in a year of normal rainfall would not necessarily reveal the degree of caving that could be expected to occur during or just after the same month in a year when rainfall was abnormally high. In the instant case, however, the contract revealed nothing concerning the time when the test holes were driven.
The record shows that the test holes were actually driven in midDecember of 1960, that December is within the dry season of the year, and that in 1960 the month of December, together with the two preceding months, was a period when the rainfall appears not to have varied materially from the normal pattern. The work of drilling the holes for the concrete piles was begun about October 1, 1963, and appellant gave written notice of the alleged changed condition on October 7, 1963. The rainy season, according to findings of the contracting officer which have not been controverted by appellant, comprises August, September, and part of October. It is conceded that the rainfall in August of 1963 was far greater than the normal precipitation for that month.
A second portion of the drawings upon which the Government, but not appellant, relies is a note that appears on Drawing C-6. This note is entitled “Concrete Piles Cast-in-Drilled-Holes” and reads as follows:
Drawing C-7 18 dated "June 1961,” but it would hardly be reasonable to infer from this that the test holes were driven during June 1961, particularly since the drawing also covered a number of other subjects.