the review of an order of withdrawal. In addition, the determinations relating to the issuance of an order of withdrawal and the consequences to the operator of the issuance of such order involve considerations, discussed below, which necessitate a distinction between the review of a notice of violation and the review of an order of withdrawal. We find, therefore, that our holding in Reliable does not dictate the result we must reach in this case.

The Bureau maintains that a section 105 proceeding to review an order issued under section 104 (a) of the Act could not afford any practical relief to an operator where the order has already been terminated. The Bureau argues that an administrative agency should not decide a case where no legal or practical remedy can be afforded to the litigant and thus urges that the doctrine of mootness warrants dismissal of this case. We disagree.

In the case of an order issued under section 104 (a), the determination of whether conditions found by an inspector constitute imminent danger is clearly a subjective one." Where such latitude in discretion exists, the need for review of a given order of withdrawal is necessary to insure against arbitrary judgments by the enforcement arm of the Department of the Interior. Additionally, there are consequences flowing from the issuance of an order of withdrawal, such as loss of production and the operator's liability for compensation to miners under section 110 of the Act, which require that the operator be given an opportunity to obtain a decision on review as to whether an inspector's findings underlying his issuance of an order of withdrawal were correct. Such a decision would help establish guidelines as to the proper basis for the issuance of an order of withdrawal and would help to protect all operators from the adverse effects of improperly issued orders.

The fact that an order being reviewed has been terminated by the Bureau is not relevant to the above considerations. We believe that this type of review was contemplated by Congress and is in accordance with case law which recognizes that the doctrine of mootness is not properly applicable to proceedings involving orders, such as those issued under section 104, which are of short duration and capable of repetition. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Friend v. United States, 388 F.2d 579 (D.C. Cir. 1967); Meyers v. Jay Street Connecting R.R., 288 F.2d 356 (2d Cir. 1961). The Examiner concluded that the dismissal of Zeigler's Application for Review would not prejudice Zeigler's rights under the Act because

5 Although the issue is not presented in this case, another question which could arise in a proceeding under section 105 to review an order issued under section 104 (a), is whether the inspector correctly determined the area throughout which the imminent danger allegedly existed.

December 20, 1971

he found that the question of whether a violation existed could be fully litigated "in any future" proceeding under the Act. We need not not decide whether this finding is correct because even if Zeigler could obtain, under another provision of the Act, all the rights of review granted by section 105, the opportunity to litigate certain issues under more than one provision of the Act cannot be the basis for depriving Zeigler of its statutory right to litigate under a specific provision of the Act. That such was the intent of Congress is substantiated by the provision in section 109 (a) (3) of the Act which provides for a consolidation of proceedings under section 109 with proceedings under section 105.

We believe that our reasoning as to the review of an order of withdrawal issued under section 104(a) of the Act, where abatement of the conditions underlying the order has occurred, also applies to orders of withdrawal issued under sections 104(b), 104(i) or 104(c). The issuance of a 104 (c) (1) order of withdrawal makes the operator vulnerable to an order of withdrawal issued under section 104(c)(2). Therefore, the operator may obtain relief by having an order issued under 104(c) (1) reviewed in a proceeding under section 105 of the Act, for if such order is vacated the operator will obtain relief from the possible issuance of an order under 104(c)(2). With respect to orders issued under sections 104 (b) or (i), we think that the several findings which the inspector must make in issuing such orders involve subjective judgments by the inspector which should be subject to review, even after termination of such an order, for the same reasons expressed in reference to orders issued under section 104(a) of the Act.

Therefore, we conclude that any order issued under section 104 may be reviewed under section 105, even after such order has been terminated.

In view of the foregoing, IT IS ORDERED that the Examiner's Decision on Reconsideration IS REVERSED: the Order of Dismissal IS VACATED; and the case IS REMANDED to the Examiner for hearing on the merits.

C. E. ROGERS, JR.,

Chairman.

DAVID DOANE, Member.

Sec. 104 (b) states in part: "* * * If, upon the expiration of the period of time as originally fixed [in a notice of violation] or subsequently extended, an authorized representative of the Secretary finds that the violation has not been totally abated, and if he also finds that the period of time should not be further extended, he shall find the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or his agent to cause immediately all persons, except those referred to in subsection (d) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that the violation has been abated."

ERNEST SMITH

RUTH SMITH

4 IBLA 192

Decided December 27, 1971

Mining Claims: Generally-Mining Claims: Lands Subject to

Absent a statutory direction to the contrary, lands acquired by purchase do not thereby acquire a public land status and are therefore not subject to the operation of the United States mining laws.

The Act of August 10, 1939, 53 Stat. 1347, adding certain lands to the Kaniksu National Forest, constitutes such a statutory direction.

Statutory Construction: Generally-Statutory Construction: Administrative Construction

It is an elementary rule of statutory construction that effect must be given, if possible, to every word, clause and sentence of a statute. Where contemporaneous and practical interpretation of a statute had stood unchallenged for some 26 years, it will be regarded as of great importance in arriving at the proper construction of a statute.

Where a statute recites that "[1]ands *** purchased under * * *this Act shall be open to mineral locations ***", the statute contains no purchase authority, but another section of the statute refers to laws under which such purchases have been made, the phrase quoted will be construed as meaning “[1]ands * * * purchased under * * * the laws set forth in this Act. * * *” Administrative Practice-Administrative Procedure Act: Hearings-Mining Claims: Lands Subject To-Rules of Practice: Hearings

Mining claims located on lands purchased by the United States under the Act of April 8, 1935, 49 Stat. 115, and added to the Kaniksu National Forest by the Act of August 10, 1939, 53 Stat. 1347, may not be declared null and void ab initio, but the mining claimants must be afforded notice and an opportunity for hearing before the claims are subject to cancellation.

INTERIOR BOARD OF LAND APPEALS

Ernest Smith and Ruth Smith have appealed to the Board of Land Appeals from a decision dated July 7, 1971, in which the Oregon state office, Bureau of Land Management, declared the Holt No. 1 and Holt No. 2 placer mining claims null and void ab initio, and rejected application OR 6177 (Washington) for mineral patent. The decision stated that the subject lands had been patented to the Northern Pacific Railway on September 4, 1902, were subsequently reacquired by the United States through purchase by the Farm Security Administration on May 2, 1936, under the provisions of the Act of April 8, 1935, 49 Stat. 115, and were added to the Kaniksu National Forest by the Act of August 10, 1939, 53 Stat. 1347. The decision held that reacquisition of the lands by the United States did not, per se, make them open to

December 27, 1971

mining location; it required some specific statutory direction which was not given by the Kaniksu Act, or by any other statute.

The appellants contend that the wording of section 2 of the Kaniksu Act does not support the interpretation given by the state office decision.

In his report on H.R. 2752, 76 Cong., 1st Sess. (1939) (which culminated in the Act of August 10, 1939), the Secretary of Agriculture indicated the bill proposed to give "a national forest status to all lands of the United States" and to extend the provisions of the Forest Exchange Act of March 20, 1922, 42 Stat. 465, 16 U.S.C. sec. 485 (1970), to all other lands within a described area of approximately 459,400 acres lying between the Colville and the Pend Oreille Valleys in the northeastern part of the State of Washington. The Secretary stated that "addition of the lands to the national forest will in no way interfere with legitimate mining activities." Id. p. 2. He recommended that the bill be given favorable consideration so that national forest status can be given to the described lands.

Absent a statutory direction to the contrary, lands acquired by purchase and made a part of a national forest do not thereby acquire a public domain status. See Rawson v. United States, 225 F.2d 855 (9th Cir. 1955), cert. denied, 350 U.S. 934 (1955), 40 Op. Atty. Gen. 389 (1945). It is clear, therefore, that unless the 1939 Act contains such a direction, the lands in issue would not be subject to mining location under the United States mining laws. Thompson v. United States, 308 F.2d 628, 631 (9th Cir. 1962); Bobby Lee Moore et al., 72 I.D. 505, 508-510 (1965).

The 1939 Act provides in applicable portion as follows:

[Sec. 1] That all lands of the United States situated within the area hereinafter described, including those acquired, or in course of acquisition, under the provisions of the National Industrial Recovery Act, approved June 16, 1933 (48 Stat. 195), the Emergency Relief Appropriation Act, approved April 8, 1935 (49 Stat. 115), or the Bankhead-Jones Farm Tenant Act, approved July 22, 1937 (50 Stat. 522), are hereby added to and made parts of the Kaniksu National Forest, Washington, and shall hereafter be subject to the rules and regulations applicable to national-forest lands, but claims, entries, filings, or appropriations under the public-lands laws, or special provisions included in conveyances of title to the United States, valid and subsisting at the date of this Act and thereafter legally maintained, shall not be affected by this Act.

Sec. 2. Any of the lands described in the first section of this Act which are privately owned may be accepted in exchange by the Secretary of the Interior under the provisions of the Act entitled, "An Act to consolidate national-forest lands", approved March 20, 1922, as amended (U.S.C., title 16, secs. 485, 486).

All of such lands so accepted in exchange shall thereupon be added to and made a part of the Kaniksu National Forest in the State of Washington and shall' thereafter be administered under the laws and regulations relating to the national forests. Lands received in exchange or purchased under the provisions of this Act shall be open to mineral locations, mineral development, and patent, in accordance with the mining laws of the United States.

The fact that section 1 of the 1939 Act provides that these acquired lands "are hereby added to and made parts of the Kaniksu National Forest *** and shall hereafter be subject to the rules and regulations applicable to national-forest lands***" distinguishes these acquired lands from those acquired under the Weeks Act, as amended, 16 U.S.C. secs. 480, 500, 513-519, and 521 (1970). Section 10 of the Weeks Act, March 1, 1911 (36 Stat. 962, 16 U.S.C. sec. 519 (1970)), after providing for sale of certain agricultural lands at their true value, further

states:

*** And no right, title, interest, or claim in or to any lands acquired * ** or the products, resources, or use thereof after such lands shall have been so acquired, shall be initiated or perfected, except as in this section provided.

Section 11 of the Weeks Act, 16 U.S.C. sec. 521 (1970), directs that the land acquired under its authority "be permanently reserved, held, and administered as national-forest lands" under the Act of March 3, 1891, as amended, 16 U.S.C. sec. 471 (1970). Cf. 40 Op. Atty. Gen. 389 (1945).

Turning to section 2 of the 1939 Act, we note a dichotomy-the lands in section 1 are made subject to the "rules and regulations applicable to national-forest lands,” in contradistinction to lands acquired in exchange under the Forest Exchange Act of March 20, 1922, as amended, 16 U.S.C. secs. 485, 486 (1970), which are to "be administered under the laws and regulations relating to the national forests." [Emphasis supplied.]

However, section 2 of the 1939 Act further provides that

*** Lands received in exchange or purchased under the provisions of this Act shall be open to mineral locations, *** [Emphasis supplied.]

But the 1939 Act makes no provision for purchase of lands. What meaning is therefore to be given to the word "purchased"?

“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute." 1 KENT COMM. 462 (13th ed. 1884). This rule is particularly appropriate where, as here, the language in question was added to the bill by the Senate Committee on Public Lands and Surveys. S. Rept. 959, 76th Cong., 1st Sess. (1939). Although the matter is not entirely free from doubt, it would appear logical to read "Lands *** purchased under