rich concentration of 25% free sulphur, its removal by Frasch process would leave intact the original host rock skeleton, with little or no reduction in its competence. Sulphur core drilling has occurred in this area, and the largest areal extent of probable commercial sulphur encountered is four to five acres. Mining such a deposit or a somewhat larger one would not cause a threat of subsidence. In the improbable event of encountering a deposit substantially larger than this, further engineering and geological work would be possible based on actual known and existing conditions prior to issuance of the actual lease. A decision based on such information and the probable value of the sulphur to the operator and royalty owner could be made at that time. Their position is buttressed by written statements from Harry A. Miller, Jr., a geologist, and from Clyde S. McCall, Jr., a consulting engineer. A supplemental report from the Commissioner of Reclamation agrees generally with the subsurface petrologic data submitted by the appellants, but suggests: Extraction of sulphur would create voids in a highly skeletonized pattern following fractures, joints, and porous vuggy bedding in the rock. Porosity and permeability would be greatly increased. At the relatively shallow depths of 300 to 1,500 feet, the multitude of voids created by sulphur removal would cause relaxation of the structural framework and weakening of the rocks. This relaxation and weakening would probably result in opening up vertical joints extending downward to depth of sulphur removal. Eventually, surface subsidence might occur. However, more surely, gaping joints and fissures would develop; those in vicinity of Bureau-constructed works and privately owned building would result in damages. Equally important would be pollution of Twin Buttes Reservoir by following artesian sulphur water and salt water welling up along joints and fissures. The Commissioner indicates that normal prospecting activities could be detrimental to the Bureau of Reclamation programs: Prospecting, developing, and producing sulphur requires drilling of test holes and wells for injection and mining. Test holes may or may not be permanently cased; moreover, when abandoned they may or may not be effectively sealed permanently. Injection and production wells normally have permanent steel casing cemented in place; nonetheless, over periods of years, steel casing corrodes and fails and furthermore, over the long term cement deteriorates under the attack of sulphur water. Serious pollution problems of flowing sulphur water and salt water from abandoned test holes and wells cannot be discontinued. He then reiterates his original recommendation that no prospecting permits for sulphur should be allowed for acquired lands in the Twin Buttes Dam and Reservoir area. The Director, Geological Survey, after reviewing both the appellants' contentions and the Commissioner's supplemental report, states: In short the Bureau of Reclamation contends that sulfur prospecting or mining operations on these lands could cause damage to surface installations by ground subsidence as well as pollution of reservoir waters by sulfur and other saline compounds. EDWARD R. HUDSON January 15, 1971 We recognize that sulfur mining operations in the United States which utilize the Frasch process do cause surface subsidence in some instances. Whether or not this would happen on the lands under application is difficult to predict with the information presently available. However, since a possibility of surface subsidence under the reservoir and only a mile from the dam does exist, we believe that the public interest would not be served by the issuance of sulfur prospecting permits which would entitle the permittees to a preference right lease if valuable deposits of sulfur were discovered on the lands. We feel it would, at this time, be much more equitable to reject the permit applications at the onset rather than to deny or strongly circumscribe subsequent preference right lease applications after time and money have been spent prospecting and sulfur deposits may have been discovered on the lands. It is within the discretion of the Secretary of the Interior to issue leases or prospecting permits on acquired lands of the United States, subject to the limitations imposed by the Mineral Leasing Act for Acquired Lands, 30 U.S.C. sec. 351, et seq. (1964). Alexander Grinstein, A-27037 (March 7, 1955). Even if it could be determined that exploration for and extraction of sulphur from the subject lands would not interfere with surface use thereof by the Bureau of Reclamation, engender subsequent water pollution problems through subsurface seepage, or cause subsidence to the detriment of the adjacent Twin Buttes Dam and other surface structures, and even though the Secretary of the Interior clearly has authority to issue the requested permits, he is not required to do so. His discretionary authority to refuse to issue a prospecting permit is well established. Pease v. Udall, 332 F.2d 62 (9th Cir. 1964); Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965), cert. denied, 383 U.S. 912 (1966); cf. Thomas D. Chace, 72 I.D. 266 (1965). It has not been shown by the appellants that any compelling public interest requires the issuance of the prospecting permits, nor has it been shown conclusively that impairment to Bureau of Reclamation structures will not occur if prospecting activities are undertaken. Rejection of the applications was well within the Secretary's discretionary authority. The Secretary of the Interior may, in the exercise of his discretion, refuse to issue prospecting permits for lands which are subject to permit and lease under the Mineral Leasing Act for Acquired Lands, supra, where such prospecting may cause hidden or latent damage to Bureau of Reclamation structures or projects for which the lands were acquired by the United States. Cf. H. T. Birr, III, et al., A-27947 (July 23, 1959); John R. Roderick and C. Calvert Knudsen, A-29044 (March 1, 1963). 419-351-71- -2 Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior (211 DM 13.5; 35 F.R. 12081), the decisions appealed from are affirmed. WE CONCUR: MARTIN RITVO, Member. EDWARD W. STUEBING, Member. NEWTON FRISHBERG, Chairman. APPLICABILITY OF THE WHOLESOME MEAT ACT OF 1967 ON INDIAN RESERVATIONS Indian Lands: Generally-Statutes-Act of December 15, 1967 The Secretary of Agriculture is not authorized or required to conduct meat inspection programs on Indian reservations under the provisions of the Wholesome Meat Act of 1967, 81 Stat. 584, 21 U.S.C. secs. 601-691 (Supp. V. 1965-1969). Indians: Civil Jurisdiction-Indians: Criminal Jurisdiction-Indian Lands: Generally-Statutes-Act of August 15, 1953-Act of December 15, 1967-Regulations: Generally-Act of February 15, 1929 States which have assumed the requisite jurisdiction over Indian country under Public Law 280 (Act of August 15, 1953, 67 Stat. 588, as amended, 18 U.S.C. sec. 1162 and 28 U.S.C. sec. 1360) or under the Civil Rights Act of 1968 (Act of April 11, 1968, 82 Stat. 77-81, 25 U.S.C. secs. 1321–1322 (Supp. V., 1965-1969)) are required by the Wholesome Meat Act of 1967 to enforce their meat inspection laws on Indian reservations if the enforcement does not involve the regulation of property held in trust by the United States for the benefit of the Indians. States which have not assumed the aforementioned jurisdiction over Indian country are not authorized or required by the Wholesome Meat Act of 1967 to enforce their meat inspection laws on Indian reservations unless the Secretary of the Interior were to enact regulations authorizing such enforcement under the authority granted him by the Act of February 15, 1929, 45 Stat. 1185, as amended, 25 U.S.C. sec. 231. M-36811 Mr. EDWARD M. SHULMAN, General Counsel, DEAR MR. SHULMAN: February 1, 1971 We have considered your letter of February 25, 1970, requesting our opinion on the applicability on Indian reservations of the Wholesome Meat Act of December 15, 1967, 81 Stat. 584, 21 U.S.C. secs. 601-691 ON INDIAN RESERVATIONS (Supp. V. 1965-1969) (originally enacted as the Act of March 4, 1907, 34 Stat. 1260-1265, as amended, 21 U.S.C. secs. 71-91). You raise two questions which for convenience we shall consider in reverse order. 1. Does the Wholesome Meat Act of 1967 require the Secretary of Agriculture to conduct meat inspection programs on Indian reservations? Nowhere in the act or in its legislative history is there any reference to Indians or Indian reservations, thus raising the question of whether legislation which makes no mention of Indians or Indian reservations applies to them. There is case law which indicates that general acts of Congress do not apply to Indians unless Congress has manifested an intent to include them.1 However, the recent trend indicates that general acts of Congress applying to all persons includes Indians and their property interests.2 There is, however, limiting language in 21 U.S.C. sec. 601 (g) and (h) which indicates that the Secretary of Agriculture is not authorized or required to conduct meat inspection programs on Indian reservations. The act provides that the Secretary of Agriculture must appoint inspectors to conduct ante-mortem and post-mortem examinations and inspections of various animals and meat food products prepared for "commerce" in any slaughtering, meat-canning, salting, packing, rendering or similar establishment. 21 U.S.C. secs. 603, 604 and 606. In the definition, section 21 U.S.C. sec. 601 (h) provides: The term "commerce" means commerce between any State, and Territory, or the District of Columbia, and any place outside thereof; or within any Territory not organized with a legislative body, or the District of Columbia. (Italics added) The act defines "Territory" in 21 U.S.C. sec. 601(g), which states: The term "Territory" means Guam, the Virgin Islands of the United States, American Samoa, and any other territory or possession of the United States, excluding the Canal Zone. (Italics added) We do not read these definitions as including Indian reservations. Ex Parte Morgan, 20 Fed. 298, 305–306 (W.D. Ark. 1883); In re Lane, 1 Elk v. Wilkins, 112 U.S. 94, 100 (1884); McCandless v. United States ex rel. Diabo,. 25 F. 2d 71 (3d Cir. 1928), aff'g sub nom, United States ex rel. Diabo v. McCandless, 18 F. 2d 282 (E.D. Pa. 1927); United States v. 5,677.94 Acres of Land, 162 F. Supp. 108, 110-111 (D. Mont. 1958); Seneca Nation of Indians v. Brucker, 162 F. Supp. 580, 581-582 (D. D.C. 1958), aff'd ; 262 F. 2d 27 (D.C. Cir. 1958), cert. denied, 360 U.S. 909 (1959); and Nicodemus v. Washington Water Power Co., 264 F. 2d 614, 617 (9th Cir. 1959). 2 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870); Choteau v. Burnet, 283 U.S. 691 (1931); Superintendent v. Commissioner, 295 U.S. 418, 420 (1935); Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 115-118, 120 (1960); Navajo Tribe v. N.L.R.B., 288 F. 2d 162, 164–165 n. 4 (D.C. Cir. 1961), cert. denied, 366 U.S. 928 (1961); Commissioner v. Walker, 326 F. 2d 261, 263 (9th Cir. 1964); Colliflower v. Garland,. 342 F. 2d 369, 376 (9th Cir. 1965); Holt v. Commissioner, 364 F. 2d 38, 40 (8th Cir. 1966), cert. denied, 386 U.S. 931 (1967); and Mann v. United States, 399 F. 2d 672, 673: (9th Cir. 1968). 135 U.S. 443, 447-448 (1890). Since an Indian reservation is not included within the definition of "Territory" under 21 U.S.C. sec. 601 (g), the definition of "commerce" in 21 U.S.C. sec. 601 (h) as "*** commerce between any * * * Territory *** and any place outside thereof ***" cannot mean commerce flowing from or to an Indian reservation and any place within the same state but outside the reservation. In the exercise of its plenary power over Indian affairs and property, the Congress has assigned the management of Indian affairs to the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior. 25 U.S.C. sec. 2; Reorganization Plan No. 3 of 1950, 5 U.S.C. 1332–15, note. If Congress had intended, through the Wholesome Meat Act, to give the Secretary of Agriculture any regulatory authority over Indian reservations, we think it would have done so by a specific grant of power in the act. For these reasons, we conclude that the Secretary of Agriculture is not authorized or required to conduct meat inspection programs on Indian reservations under the provisions of the Wholesome Meat Act of 1967, except as hereinafter provided. 2. Does the Wholesome Meat Act of 1967 require the states to conduct meat inspection programs on Indian reservations within their borders? The relevant provisions are contained in 21 U.S.C. sec. 661. This section authorizes the Department of Agriculture to cooperate with appropriate state agencies in developing and administering a state meat inspection program in any state which has enacted a meat inspection law imposing mandatory inspection and sanitation requirements for intrastate operators, at least equal to the Federal requirements under 21 U.S.C. ch. 12, subch. I. 21 U.S.C. sec. 661(a)(1). Section 661 (c) (1) provides for the extension of the Federal standards to intrastate operations and transactions within two years after enactment of the Wholesome Meat Act, if the Secretary believes that a state has failed to develop or is not enforcing with respect to all establishments within its jurisdiction, requirements at least equal to those imposed under 21 U.S.C. ch. 12, subchs. I and IV. The adequacy of the state system would be determined by the Secretary after consultation with the governor, and the provisions of 21 U.S.C. ch. 12, subchs. I and IV, would become applicable to intrastate transactions 30 days after publication in the Federal Register of the Secretary's designation of the state. If the Secretary has reason to believe that the state will activate the requirements within one additional year, he may delay the designation for that period of time. If the state subsequently established a system equal to Federal standards, the designation could be revoked. 21 U.S.C. sec. 661 (c) (1). After the initial period, the Fed |