RULES OF PRACTICE-Continued APPEALS-Continued Dismissal Page 1. An appeal will not be dismissed where a waiver and exception pro- 2. In situations where the certifying officer submits to the Comptroller Failure to Appeal 1. A decision declaring a mining claim null and void is conclusive and 2. One who fails to appeal from the cancellation of a mining claim is not erroneous Standing to Appeal 1. A person who is not a party to a decision by a land office has no 2. An appeal will not be dismissed for technical defects consisting of the 3. An appeal will be remanded to the contracting officer for issuance of AUTH. OF THE SEC. OF THE INT. TO MANAGE AND CONTROL OWNED REAL PROPERTY WITHIN THE NATIONAL WILDLIFE 469 LIBRARY AUTHORITY OF THE SECRETARY OF THE INTERIOR TO MANAGE 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 Interior. These rules and regulations 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 The Secretary of the Interior has promulgated general regulations, contained in Title 50 of the Code of Federal Regulations, and special regulations,1 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. 71 I.D. No. 12 འ འ། 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 petition for rehearing will be dismissed_____. Timely Filing 1. The Board of Contract Appeals does not have jurisdiction to entertain 2. The timeliness of an appeal is governed by the period of time elapsed 1. To establish the mineral character of railroad grant land it must be 2. The question of whether particular documents, sought by a contractor for use in connection with a contract appeal, are within or without 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 confidential 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 considered 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 proceedings and secured a temporary restraining order when thereafter 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____ Pago 119 61 68 224 301 369 434 RULES OF PRACTICE-Continued GOVERNMENT CONTESTS-Continued 2. Where a mining contest was initiated by this Department and the contestees did not file an answer but brought an action 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---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 proceedings and secured a temporary restraining order when thereafter 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_-_. Page 435 224 869 442 442 427 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- 49 |