VII. ACT OF FEBRUARY 1, 1905

Instructions of Oct. 16, 1931, rights-ofway for power purposes; payment of rentals. (Circulars dated Jan. 6, 1913 (41 L.D. 454) and Mar. 1, 1913 (41 L.D. 532), modified.) (Cir. No. 1260.) 53-511

VIII. ACT OF MARCH 4, 1911

The act of Mar. 4, 1911 (36 Stat. 1235), which authorized the granting of rights-ofway for a period not exceeding 50 years across and upon public lands, national forests and reservations of the United States, merely extended additional or larger grants without modifying or repealing the act of Feb. 15, 1901 (31 Stat. 790), and the two acts should therefore be construed and applied in harmony. 52-671

With respect to rights-of-way over the public lands for power purposes, the acts of Feb. 15, 1901 (31 Stat. 790) and Mar. 4, 1911 (36 Stat. 1235) were superseded by the Federal Power Act of June 10, 1920 (41 Stat. 1063) and whenever a grant of a right-of-way made under either the act of 1901, or the act of 1911, shall have expired by limitation, continued use of the right-of-way can be authorized only under a license issued by the Federal Power Commission. 52-671 Where a license is issued under section 23 of the Federal Water Power Act of June 10, 1920 (41 Stat. 1063), in place of a prior right-of-way grant under the act of Mar. 4, 1911 (36 Stat. 1235), the legal effect is that the prior grant is merged with and superseded by the license insofar as the license covers the project embraced in the prior grant. 53-442

Where a project for which a right-ofway was granted under the act of Mar. 4, 1911 (36 Stat. 1235) is partially covered by a license issued under section 23 of the Federal Water Power Act, the grantee will be required to make annual payments under the old grant only to the extent of that portion of it not covered by the license. 53-443

Instructions of Oct. 16, 1931, rights-ofway for power purposes; payment of rentals. (Circulars dated Jan. 6, 1913 (41 L.D. 454) and Mar. 1, 1913 (41 L.D. 532), modified.) (Cir. No. 1260.) 53-511 The adoption of departmental regulations prescribing identical conditions of the

grant of a revocable permit under the act of Feb. 15, 1901 (31 Stat. 790) and of an easement for a fixed term of years under the act of Mar. 4, 1911 (36 Stat. 1253) does not reduce the grant of an easement authorized by the act of 1911 to the level of the permit authorized by the act of 1901. 58-607

Under the act of Mar. 4, 1911 (36 Stat. 1253), authorizing the heads of departments having jurisdiction over public lands to prescribe the terms of the grants of rights-of-way over such lands and to refuse such grants as are incompatible with the public interest, such department heads have discretionary authority to grant or to refuse an application for right-of-way. Because the grantors have such discretion an applicant acquires no vested right in advance of the actual grant of a right-of-way and must accept the conditions of the grant defined by departmental regulations in force at the time of the grant rather than the regulations in force when the appli58-607 cation is filed.

The provisions of section 245.21(r) (43 CFR, 1944 Cum. Supp.), which give the Secretary of the Interior a conditional right to require transfer of a right-of-way, operate concurrently with the authority of the Federal Power Commission to approve sales of property in excess of $50,000.

58-608

It is within the discretionary power of the Secretary of the Interior to impose the conditions embodied in paragraphs (r) and (v) of 43 CFR 245.21 among the terms and conditions required to be agreed to by all applicants for rights-of-way for transmission lines across lands under the control of this Department. 60-444

No right in or to a right-of-way under the act of Mar. 4, 1911 (43 U.S.C. 961), arises until the granting of an easement by the head of the department having jurisdiction over a particular area of land.

60-444

IX. ACT OF FEBRUARY 25, 1920 Instructions of Feb. 21, 1931, rights-ofway for pipelines for transportation of oil and gas. 53-310

The purpose of the provision in section 29 of the Mineral Leasing Act requiring the insertion in permits and leases of a reser

vation of such easements as may be necessary or appropriate to the working of the permitted or leased lands for the deposits described in that act is to enable the Government to permit exploration, development, and mining of other kinds of minerals than that claimed by the first permittee or lessee. 53-508

to

A requirement that an applicant for a right-of-way for an oil or gas pipeline shall, as a condition precedent to the granting thereof, enter into a stipulation expressly consenting and agreeing purchase and/or transport oil or gas available on Government lands in the vicinity of its pipeline or gathering branches without discrimination as between Government lands and lands of others, and in such ratable proportions as may be satisfactory to the Secretary of the Interior, does not transcend the scope of section 28 of the act of Feb. 25, 1920 (41 Stat. 437, 448), governing applications of this character. 54-465

The authority granted the Secretary of the Interior by section 28 of the act of Feb. 25, 1920 (41 Stat. 437) to promulgate regulations to govern the use of rights-ofway through public lands for pipeline purposes includes regulation of the pipelines, the right-of-way being granted for "pipeline purposes", and the only use of the right-ofway contemplated by the statute being use for a pipeline. 54-465

The inclusion in the act of Feb. 25, 1920 (41 Stat. 437), of the express condition that the pipelines provided for must be operated as common carriers does not exclude, by implication, other control over the pipelines, but was intended merely to direct the exercise of the discretion of the Secretary of the Interior on one particular feature, leaving him freedom of discretion over the other elements of regulation as to the use of the pipeline.

54-465

Under section 32 of the act of Feb. 25, 1920 (41 Stat. 437), the Secretary of the Interior is authorized to do any and all things necessary to carry out and accomplish the purposes of the act. Held, a stipulation which requires that an applicant for a pipeline right-of-way across public lands shall agree to purchase and/or transport oil or gas available on Government lands in the vicinity of its pipeline or gathering

branches, without discrimination as between Government lands and lands of others, and in such ratable proportions as may be satisfactory to the Secretary of the Interior, is within the purview of this statute. 54-465

A stipulation required of applicants for rights-of-way for pipelines over public lands, embodied in regulations promulgated under authority of section 28 of the act of Feb. 25, 1920 (41 Stat. 437), included the following: "and further expressly consents and agrees *** that the use of the pipeline for the transportation of oil or gas shall be limited to oil or gas produced in conformity with State and/or Federal laws, *** and further expressly consents and agrees to purchase and/or transport oil or gas available on Government lands", etc. Held: If the applicant is merely a carrier, and not a purchaser as well, the stipulations apply to it as a carrier only, and if it carries oil but not gas the applicant is affected only as a carrier of oil, the language of each term of the stipulation being in the disjunctive, and not intended to have the effect of changing the business of a pipeline right-of-way grantee. 55-214

The Secretary may make a reasonable charge (a) for rights-of-way for oil pipelines over the public land granted pursuant to section 28 of the act of Feb. 25, 1920 (41 Stat. 437, 449), as amended, but not (b) for right-of-way for transmission line under section 5(d) of the act of Dec. 21, 1928 (45 Stat. 1057). 57-31

An application by an oil and gas lessee under the Mineral Leasing Act for a grant across public land not covered by the lease, on a basis which would exclude the common-carrier condition of section 28, must be denied, even though it merely involves a pipeline for the transportation of oil or gas from one portion of the leased land to another portion of such land across an intervening 40-acre tract. 60-366

The Secretary of the Interior has no authority to grant rights-of-way for pipeline purposes for the transportion of oil or gas over the public domain, except in accordance with the provisions, limitations, and conditions embodied in section 28 of the Mineral Leasing Act. 60-366

The Secretary of the Interior has no discretion to excuse any applicant for a rightof-way for a natural gas pipeline across public land from a statutory requirement to maintain such pipeline as a common carrier. 61-403

X. ACT OF NOVEMBER 9, 1921 Regulations of Aug. 19, 1933, in re tracings and duplicates showing public highway rights-of-way. (Cir. No. 1310.)

54-270

XI. CANCELLATION Section 2 of the act of Feb. 21, 1911 (36 Stat. 925), authorizes the Secretary of the Interior, "upon such terms as may be agreed upon, to cooperate with irrigation districts, for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water users associations, corporations, entrymen, or water users for impounding, delivering, and carrying water for irrigation purposes." Ordinarily, the legal effect of approval of a map of location of rights-of-way by the Secretary pursuant to the act of Mar. 3, 1891 (26 Stat. 1095), is that title to the rights-of-way vests, subject only to forfeiture by judicial decree or act of Congress. Held, rights-of-way granted under the act of Mar. 3, 1891, may be forfeited and canceled without judicial decree or act of Congress if (1) they are granted as an incident to an agreement under section 2 of the act of Feb. 21, 1911, (2) the approval or reapproval of the maps of rights-of-way is made subject to the terms of the agreement, and (3) the agreement provides for such forfeiture or cancellation.

56-98

Maps of rights-of-way under the 1891 statute (26 Stat. 1095) were reapproved, subject to the terms of an agreement under the 1911 statute (36 Stat. 925) between the United States and an irrigation district.

The agreement provided that the failure of the district to comply with its terms would ipso facto render the rightsof-way null and void. The agreement also provided that the district was to supply certain Indians with fixed quantities of water each year; it failed to specify when delivery was to begin. More than six years have passed, the district has failed to supply the water, has failed to construct

waterworks, and there is no reasonable prospect that they will be constructed. Held: (1) a reasonable time for performance has passed and the district must be considered as having failed to perform its agreement to deliver water. (2) The rights-of-way are null and void and the Commissioner of the General Land Office (Director, BLM) and the Department may officially note and announce their termination. (3) No judicial decree or act of Congress is required to render them null and void. 56-99

XII. MATERIAL SITES

Where a highway being built under the Federal Highway Act (23 U.S.C., 1946 ed., sec. 18), is approximately 2 miles distant from public land on which a material site permit was issued to the State of Oregon Highway Commission, a determintion that the land is "adjacent" to the road within the meaning of section 17 of the Federal Highway Act is not unreasonable. 61-256

XIII. NATURE OF INTEREST GRANTED

The fact that the grantee of a railroad right-of-way is restricted to the use of the lands for railroad purposes only and is not invested with any right to mine and remove the minerals for any other purpose does not render the land subject to location under the mining laws. 53-340

The grant of Dec. 19, 1913, to the city and county of San Francisco of public lands for development and use of the Hetch Hetchy water supply and power project is similar to the grant of Mar. 3, 1875, of rights-of-way and station grounds for railroad purposes, and of Mar. 3, 1891, for reservoir sites, that is, a base or qualified fee not subject to interference by subse53-425 quent disposals.

Upon a grant by the United States of a right-of-way for railroad purposes over public lands, the company's interest is "neither a mere easement nor a fee simple absolute, but a limited fee, made on the implied condition of reverter in the event that the company ceases to use or retain the land for the purposes for which it is granted." 54-392

A right-of-way through the public domain granted to a railroad by Congress may be used only and exclusively for rail

Only such interest in the right-of-way was vested in the grantee as may be essential to the continued use and enjoyment of the land for the purpose specified in the grant. 56-206

Under the Granting Act of Mar. 3, 1875 (18 Stat. 482), the Great Northern Railway Company acquired neither the right to use any portion of its right-of-way for the purpose of drilling for and removing subsurface oil nor any title or interest in or to such oil. 56-206

The right-of-way granted to the Northern Pacific Railroad Company by section 2 of the act of July 2, 1864 (13 Stat. 365), is a limited fee upon an implied condition of reverter. Section 3 of that act which conveyed an absolute fee in the odd-numbered sections which it granted does not apply to the segments of the right-of-way over odd-numbered sections. The rightof-way grant is for railroad purposes only. It conveyed no interest in the underlying minerals since their extraction is not essential for such purposes. Nor is it material that a proposed use for other than railroad purposes will not interfere with the continued operation of the railroad. 58-160

A right-of-way under section 1 of the act of Aug. 30, 1890 (26 Stat. 391; 43 U.S.C. 945), is not limited in its use to the transportation of water for irrigation purposes but may be used to carry water for domestic purposes. 58-490

The adoption of departmental regulations prescribing identical conditions of the grant of a revocable permit under the act of Feb. 15, 1901 (31 Stat. 790), and of an easement for a fixed term of years under the act of Mar. 4, 1911 (36 Stat. 1253) does not reduce the grant of an easement authorized by the act of 1911 to the level of the permit authorized by the act of 1901.

58-607

The provisions of section 345.21 (i) of the regulations of Dec. 14, 1942 (43 CFR, 1944 Cum. Supp.), which require the grantee of a right-of-way to consent to the reservation by the United States of the right to use the right-of-way land for

Appearance of a contestee before the local office after the expiration of the period provided by the Rules of Practice for service of notice of contest to move the dismissal of the proceedings is merely a plea to the jurisdiction and is in no sense an answer or joinder of action. 52-577

Except where otherwise specifically provided by statute, the territorial and official jurisdiction of the register is limited by the boundaries of his land district and to those matters the care and administration of which are charged to him. 52-673

For the Secretary of the Interior to require all who have secured permits for the use of public lands for power purposes under the act of Feb. 15, 1901 (31 Stat. 790) to conform to a uniform system of regulations, or to change such regulations as he may deem proper, regardless of the time when the permission to use the land was granted, is not an arbitrary or unreasonable exercise of the power conferred upon him by that act. 52-705

In adverse proceedings under section 2326, Revised Statutes, as amended by the act of Mar. 3, 1881, each party is nominally plaintiff and must show his title, and the applicant for patent cannot go forward with his proceedings in the Land Department simply because the adverse claimant had failed to make out his case, if he also had failed. 53-115

A decision of an officer of a local land office, in a proceeding in which the United States is made a party, is subject to review suo sponte by the Commissioner of the General Land Office, even though no appeal be filed by a party adversely affected by the decision. 53-245

The departmental ruling holding that where more than one action has been commenced, based upon separate adverse minIng claims, the Land Department will await a judgment determining the rights of all the parties, does not apply to adverse claims not filed in compliance with the statute.

53-712

Section 201 of title 18, United States Code [** appropriations to influence Member of Congress], being a criminal statute, must be strictly construed; and a construction adopted and acted upon for 15 years without objection is entitled to great weight. 55-103

A case should not be reopened on the basis of additional facts unless proof of those facts would warrant a change in the previous action. 55-532

A stipulation made pursuant to a joint resolution of Congress is not binding upon the parties beyond the limits fixed by the resolution. 55-532

A stipulation in one action affects another between the same parties only if it is of such a nature as to warrant a dismissal of the action as a matter of law or if either the agreement upon or the performance of its terms tends toward a determination of the issue involved.

55-532

Mere informality in bringing a matter to the attention of the Secretary should not prevent a consideration of its merits.

55-532

Motion for rehearing will not be granted where there is no showing that a new question of vital importance is involved, or that fair minds could not, from the testimony previously adduced, come to the conclusion complained of, or where, without any reason for not then presenting such facts, no facts are alleged in support of the motion that could affect the decision complained of that might not have been presented at the previous hearing. 57-183

A junior applicant for an oil and gas lease is not entitled to notice and hearing with respect to departmental proceedings

which adjudicate the rights of a prior applicant, since he gains no rights by reason of his application unless and until the prior application is finally rejected.

59-235

The concurring decisions of the register (now manager) of the local land office and the Commissioner of the General Land Office (now Director of the Bureau of Land Management) on questions of fact are generally not disturbed on appeal to the Secretary unless clearly wrong.

59-446

There is no requirement in the Rules of Practice that the initial decision in a public-land proceeding shall be rendered by the person who presided over the hearing in such proceeding. 61-43

The rule of the Department that no application will be received and no rights will be recognized as initiated by the tender of an application for a tract of land embraced in an entry of record until such entry has been canceled and the cancellation noted on the records of the local land office is not applicable to the initiation of rights under the mining laws on lands subject to such laws. 61-161

In the absence of an appeal to the Secretary, the Director of the Bureau of Land Management may, on his own motion, reconsider a decision previously rendered by him and correct any errors which may have been made in the former decision. 61-407

II. APPEALS Generally

Rule 40 of Practice, which prescribes the procedure for the conduct of trials in contest cases in which demurrers to the sufficiency of evidence are entered, relates to proceedings before the local officers and is without applicability to the consideration of appeals in the General Land Office and the department. 52-176

Instructions of May 18, 1933, providing for appeals and motions for rehearing by special agents in charge (Cir. No. 1299, amending Cir. No. 460 (44 L.D. 572)).

54-214

Grazing Cir. No. 4 of Oct. 7, 1935, governing appeals from decisions of the Director of Grazing. 55-368

The rules governing proceedings upon special agents' reports expressly provide