Ranch as though it adjoined the OX Ranch, as one unit (Tr. 82, 84), and that there were cattle on the North Ranch in 1934. Finally, when J. W. Smith first applied for grazing privileges in an application dated March 24, 1935, he listed both ranches as comprising his operation. In their appeal the appellants have attempted to show by analysis that J. W. Smith could not logically have used the North Ranch in the spring of 1933. However, their own witness testified to the contrary and they offered no evidence on which to base any other finding. Therefore, I must conclude that the appellants have failed to establish that the North Ranch was not used in conjunction with the OX Ranch for at least part of one year and all of another. The question remains whether the use to which the North Ranch was put is sufficient to qualify it under the pertinent regulations as land used as part of an established, permanent and continuing livestock operation for any 2 consecutive years of the priority period, in connection with the same part of the public domain. (43 CFR, 1957 Supp., 161.2(k) (1).) As the Director pointed out, the Department has applied the rule that use during any season of the priority period must have been a substantial one, but not necessarily for the whole of a year. John D. Assuras, supra; Auguste Nicolas, 57 I.D. 110 (1940). At the very least, on the evidence in the record, the North Ranch was used in conjunction with the public domain from sometime in the first half of April 1933 through the end of the priority period on June 27, 1934. Such use constitutes, I believe, a substantial use and meets the requirement of the regulation. The appellant also contends that the total demand of the OX Ranch and its forage production have been incorrectly computed, but he offered no evidence on these points at the hearing. Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 23, Order No. 2509, as revised; 17 F.R. 6794), the decision of the Acting Director of the Bureau of Land Management is affirmed. EDMUND T. FRITZ, A-27710 CALAZONA FERTILIZER COMPANY Phosphate Leases and Permits: Generally The amendment of the phosphate regulations to omit the minimum expenditure requirement did not of itself amend the terms of pending offers of sale which included a minimum expenditure requirement as prescribed in the former regulations, nor does the amended regulation prevent the imposition of a minimum expenditure requirement in future offers of sale. January 19, 1959 Phosphate Leases and Permits: Leases-Contracts: Generally A decision declaring a high bid at a phosphate lease sale and stating that a lease will be offered to the high bidder but not until the lands are surveyed does not constitute an acceptance of the bid. Phosphate Leases and Permits: Leases-Contracts: Generally Where a phosphate lease sale is held with a minimum expenditure requirement as a condition of the sale and a bid is offered on that basis and the manager purports to accept the bid free from the minimum expenditure requirement, the purported acceptance is not an acceptance but a counter offer which does not result in a contract. Phosphate Leases and Permits: Leases Where a phosphate lease sale is advertised on terms which include a minimum expenditure requirement and a bid is submitted on that basis, but after the offer of sale is issued and before the date of the sale the phosphate regulations are amended to eliminate the minimum expenditure requirement, the bid will not be accepted but the sale will be readvertised. Contests and Protests One who does not bid at a lease offering can, as a protestant, call to the Department's attention any irregularities in the handling of the offering. Federal Employees and Officers: Authority to Bind Government The United States cannot be bound by the unauthorized acts of its agents. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Calazona Fertilizer Company has appealed to the Scretary of the Interior from a decision of the Director, Bureau of Land Management, dated April 10, 1958, which affirmed a decision of the manager of the Phoenix, Arizona, land office, dated August 8, 1957, holding in effect, that a proposed sale of a phosphate lease (for which the appellant had been declared the high bidder) was without authority and void. On October 16, 1956, the manager, pursuant to the provisions of the Mineral Leasing Act, as amended (30 U.S.C., 1952 ed., sec. 211), and the pertinent regulations (43 CFR, Part 196), authorized publication of a notice of an offer for sale by competitive bidding of a phosphate lease of certain lands located in T. 31 N., R. 14 W., G and SRM, Arizona.1 The notice stated that the sale would be held on December 6, 1956, at 1 p.m. in the land office at Phoenix, and that a detailed statement of the terms and conditions of the lease offer could be obtained from the manager of the land office. One of the terms of the lease offer set out in that statement was that a minimum expenditure of $25,000 on or for the benefit of Unit 1 and of $75,000 for Unit 2 was required to be made during the first 3 years of the leases. This requirement was made pursuant to the pertinent regulation which pro 1 The advertisement of the proposed lease sale appeared in a Mohave County newspaper on November 1, 8, 15, and 22, 1956. Copies of the notice of sale were also mailed on October 16, 1956, to a list of prospective bidders, including Randall Mills Corporation. vided that a bona fide expenditure for mine operations, development, or improvement purposes of the amount determined by the authorized officer would be a condition of each lease (43 CFR 196.4(a)). A few days later the Department on October 19, 1956, amended the regulation by omitting the minimum expenditure requirement. (Circular 1965, filed in the Division of the Federal Register on October 25, 1956, and published in 21 F.R. 8217 on October 26, 1956.) On December 6, 1956, the sale was held as advertised. At the sale the sole bidder was the Calazona Fertilizer Company, whose total bid for the two units was $5,000. On December 11, 1956, the manager issued a decision declaring the Calazona Fertilizer Company bid to be the high bid and stating that a lease would be offered to the high bidder at that price. The decision also stated that: The high bidder is also advised that under the amended phosphate lease regulations, Circular 1965, sec. 196.4, the minimum expenditure as noted under the terms of the sale and lease will not be required. On January 23, 1957, Randall Mills Corporation filed a protest with the manager of the Phoenix land office against the manager's decision of December 11, 1956. The basis of the protest was that the amendment of the phosphate lease regulations on October 19, 1956, effected a material and substantial change in the published terms of the sale, and in view thereof the manager was required to issue and publish amended or corrected "Terms of Sale" and deliver copies thereof to the prospective bidders. The protest also alleged that Randall Mills Corporation would have made a monetary bid in excess of the Calazona bid had it been aware of the elimination of the $100,000 minimum expenditure requirement. Following receipt of the protest and an answer thereto by the Calazona Fertilizer Company, the Administrative Assistant Secretary of the Department requested an opinion of the Comptroller General of the United States on the question presented. By a decision dated May 3, 1957 (36 Comp. Gen. 759), the Comptroller General held that "since the award purportedly made on December 11, 1956, in favor of the Calazona Fertilizer Company, was not made in accordance with the stated terms of the offer, the said award should be canceled forthwith as unauthorized.". In accordance with the Comptroller General's opinion, on August 8, 1957, the manager canceled the award to the appellant and authorized a refund of the bonus bid of $5,000. A right of appeal to the Director was allowed. On September 3, 1957, the appellant filed a notice of appeal to the Director from the manager's decision. The main thesis of the appeal to the Director was that the notice of the amended regulation when published in the Federal Register was notice to the entire public of the amendment of the regulation and January 19, 1959 there was no necessity for personal notice being given to any person of the change in the regulation. The appellant contended that the pertinent statute is section 7 of the Federal Register Act, as amended (44 U.S.C., 1952 ed., sec. 307), which states in part: No document required under section 5(a) to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division and a copy made available for public inspection as provided in section 2; and, unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published under section 5, shall, except in cases where notice by publication is insufficient in law, be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. * * * Since the amendment of the Department's regulation was duly published in the Federal Register (supra), the appellant argued that the publication was notice of the change to Randall Mills Corporation and any interested bidder. In his decision the Director conceded the point that publication of the amended regulation in the Federal Register may have constituted notice thereof to all prospective bidders, but he pointed out that since the revised regulation is silent as to its effect on outstanding offers of leases and does not appear necessarily to constitute a prohibition against inclusion of the previous requirements in leases thereafter to be awarded under outstanding offers, he was unable to agree that such publication of itself amended the provisions of the then outstanding terms of sale. In its appeal to the Secretary the appellant contends that although the Director's decision admits the force and validity of section 7 of the Federal Register Act, it "reaches an inequitable conclusion by enlarging upon the meaning and the intent of the statute." The appellant makes no attempt to point out in what respect the Director's conclusion is inequitable, nor in what manner the meaning and intent of the statute have been enlarged. In my opinion the Director correctly concluded that under the factual situation presented in this case, i.e., the lack of any statement in the revised regulation as to whether or not the amendment of the regulation constituted a prohibition against inclusion of the previous requirement in leases thereafter to be awarded under outstanding offers, the publication of itself did not amend the outstanding terms of sale. In his decision of May 3, 1957, supra, the Comptroller General also stated that: * * * since the revised regulation is silent as to its effect on outstanding offers of leases, and does not appear necessarily to constitute a prohibition against the inclusion of the previous requirements in leases thereafter to be awarded under outstanding offers, we do not feel that its publication constituted an automatic amendment of the terms of the offer of October 16. (36 Comp. Gen. 761.) Furthermore, the removal of the compulsory minimum expenditure requirement from the regulation did not mean that such a requirement could not be imposed in a proper case. The authorized officer at all times had the authority to make the offer to lease subject to terms and conditions specified in the notice of lease offer. 43 CFR, 1957 Supp., 196.10. In other words, Circular 1965 did not make it improper for lease offers to contain a minimum expenditure requirement; it only eliminated the requirement as an obligatory condition of a lease offer. Therefore, the publication of Circular 1965 could not of itself by any means be deemed to be an amendment of the terms of the sale. The case then comes to this: On December 6, 1956, the date of the sale, the terms of the sale remained as originally published, including the requirement for a minimum expenditure. It was on those terms that bids were to be made and accepted. Indeed, inconsistently with its argument based on the Federal Register Act, the appellant states that it was unaware that no minimum expenditure requirement was to be made until after its bid had been accepted. The appellant's bid, therefore, must be presumed to have been made on the basis of the terms of the sale as published. The question then is whether there was an acceptance of appellant's bid on that basis so that a binding contract ensued. Here the appellant shifts its position and demands that a contract be given to it "as originally awarded," in other words, without the minimum expenditure requirement. The answer to this demand is twofold. First, the manager's decision of December 11, 1956, did not award a lease to the appellant. The decision stated that other than the appellant's bid of $5,000 no other bid had been received, that accordingly the $5,000 bid was declared the high bid, and that "the lease will be offered to the high bidder at that price." The decision also stated that: Inasmuch as the SE sec. 16, T. 31 N., R. 14 W., G & SRM, is the only portion of the land that is surveyed, no lease will be offered, and compliance with 43 CFR 196.4 as to the bonds and the first year's rental under sec. 196.12 (b) will not be required until a survey is made at the expense of the Government. A survey will be requested immediately. [Italics supplied.] Secondly, even if the manager's decision is considered to have been intended to be an acceptance of the bid, it could not have had that effect because it stated that the minimum expenditure as noted in the terms of the sale would not be required. It is a fundamental principle of law that in order to create a contract an acceptance must be "unequivocal" (Restatement, Contracts, § 58 (1932)), "positive and unambiguous" (1 Williston, Contracts, § 72, Rev. ed. 1936), and "must comply exactly with the requirements of the offer" (Restatement, Contracts, § 59 (1932)). Iselin v. United States, 271 U.S. 136 (1926); |