navigable remains in the United States where all of the abutting uplands surrounding the lake are still public lands.

Secretary of the Interior-Navigable Waters-Public Lands: Jurisdiction Over-Title: Generally

The Secretary of the Interior has the authority and the duty to determine what lands are public lands of the United States, including the authority to determine navigability of a lake to ascertain whether title to the land underlying the lake remains in the United States or whether title passed to a State upon its admission into the Union.

APPEARANCES: Lawrence D. Huss, Esq., Office of the Attorney General, State of Montana, Helena, Montana, for appellant; David K. Grayson, Esq., Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., for appellee, Bureau of Land Management.

OPINION BY MRS. LEWIS INTERIOR BOARD OF LAND APPEALS

The State of Montana, by and through its Commissioner of State Lands, appealed from a decision by the Montana State Director, Bureau of Land Management (BLM), dated November 2, 1971. The decision held Indian Lake to be nonnavigable and asserted title in the United States to the lands covered by the lake.1

The State maintains that it was granted title to all lands underlying navigable bodies of water upon its admission to statehood in 1889, and that Indian Lake was a navigable body of water at that time.

1 The controversy arose over the desire of both the State and BLM to lease the lands for oil and gas.

Since the United States Supreme Court decision in Pollard's Lessee v. Hagan, 44 U.S. (3 How.), 212 (1845), it has been recognized that the lands under navigable bodies of water within the limits of a State passed to the State when it was admitted into the Union as an incident of sovereignty. Therefore, the first question to be determined in this proceeding is whether Indian Lake was navigable in 1889.

The record discloses that Indian Lake is meandered and contains approximately 125 acres.2 The facts on

which the decision below was based are set forth in a preceding letter dated September 30, 1971, from the BLM State Director to the Montana Commissioner of State Lands, as follows:

This definition is not compatible with the instructions given cadastral surveyors.

In the original surveys of the public domain, cadastral surveyors were instructed to meander the banks of all streams if more than three chains in width and the shores of all lakes having an area of

2 The lake is located in Secs. 21 and 22, T. 23 N., R. 30 E., P.M., Montana, and is entirely surrounded by lots bordering on the meander line. All of the lots are public lands. Thus, if the lake is nonnavigable, title to the bed of the lake would be in the United States. See RustOwen Lumber Company (On Rehearing), 50 L.D. 678, 682 (1924).

states to make a showing of actual past use of bodies of water, but only that they may have been used; and that the fact that the lake may have not been consistently used for travel is irrelevant and immaterial.

The State further asserts that the surveys of the government indicate that Indian Lake was a body of water of sufficient depth to accommodate the passage of flat bottom barges, canoes, rafts, and other modes of water travel commonly used by the Indian and pioneering populace of the western states. This is mere conjecture, as there is no evidence in the record to this effect, or to indicate that the lake has been used in the past or is susceptible of being used as a highway for commerce at present or in the future, nor has the State presented any such evidence. We do not rule out the possibility that it may have been used occasionally in the past by Indians or pioneers for fishing or boating in canoes or flat bottom boats, or that it may still be used by an occasional sportsman for similar recreational purposes. However, such uses could hardly be said to constitute the lake as a highway for commerce which is essential for a navigability classification.

In its reply to the State's appeal brief, BLM attached a copy of the northwest corner of the U.S. Geological Survey Quadrangle map entitled "Indian Lake, Mont." (1965) showing Indian Lake. This map shows an unimproved dirt road, the course of which would have taken it directly through the middle of the

508-212-73

lake. BLM stated: "Rather than attempt to join the two parts of this road by a system involving navigation of Indian Lake, the road builders simply ran their road around the lake." As the State did not question the propriety of this map, although it was afforded an opportunity by this Board to file an answer to the BLM brief, the map is accepted in evidence. It is strong persuasive evidence that the road builders chose the path of least resistance in skirting the lake.

We agree with the following rationale of BLM in its reply brief:

No evidence of any commercial use exists in this case, and that is not surprising. It passes credibility that intelligent "traders or travelers" would have undergone the expense and bother of maintaining vessels of virtually no draft (since Indian Lake is not more than waist deep, it is probable that much of the area near the shore is considerably more shallow) in order to effect a "highway for commerce" across a lake containing only 125 acres. Common sense dictates that such hypothetical traders or travelers would rather have formed their highway for commerce so as to go around Indian Lake.

Montana attempts to compare Indian Lake with the lake which was held navigable by the Court in United States v. Holt State Bank, supra, although the Court there noted that the lake ranged from three to six feet deep and that navigation was limited because trade. and travel in the vicinity was limited. Any comparison between the two lakes stops with a similarity in depth. Mud Lake in Minnesota, which was involved in that case,

covered almost 5,000 acres and in its natural and ordinary condition was from three to six feet deep. The Court set forth the following additional statements of fact upon which its conclusion of navigability was based:

*** Mud River traversed it [Mud Lake] in such way that it might well be characterized as an enlarged section of that stream. Early visitors and settlers in that vicinity used the river and lake as a route of travel, employing the small boats of the period for the purpose. The country about had been part of the bed of the glacial Lake Agassiz and was still swampy, so that waterways were the only dependable routes for trade and travel. Mud River after passing through the lake connected at Thief River with a navigable route extending westward to the Red River of the North and thence

test of a navigable body of water set forth by the Supreme Court. The Department has also held that an inland lake, two miles long and threefourths of a mile wide, is not navigable in the sense that its waters can be put to a public use for the purpose of trade or commerce. Reuben Richardson, 3 L.D. 201 (1883).

A United States District Court recently declared a 47-mile segment of a river to be nonnavigable although it was currently being used by very light sporting craft such as canoes, kayaks and rubber rafts. The Court stated: "It would be an affront to the public's intelligence to classify the river presently suitable for any kind of commercial navigation." United States v. Crow, Pope

Merchants in the settlements at Liner and Grygla, which were several miles up Mud River from the lake, used the river and lake in sending for and bringing in their supplies. True, the navigation was limited, but this was because trade and travel in that vicinity were limited. In seasons of great drought there was difficulty in getting boats up the river and through the lake, but this was exceptional, the usual conditions being as just stated. * * * Id. at 56-57.

In United States v. Oregon, 295 U.S. 1 (1935), the Supreme Court held five bodies of water in Oregon to be nonnavigable, even though some 10,800 acres of one of the lakes were between 3 and 4 feet deep and in spite of evidence of some actual use of the lakes for boating. In John Snyder, State of Montana, 72 I.D. 527 (1965), this Department determined that a shallow lake in Montana approximately a mile long and a half-mile wide did not meet the

Supp. 25, 34 (N.D. Ga. 1972).

Accordingly, we find that Indian Lake is not navigable as it does not meet the navigability test of the Supreme Court. Therefore, title to the lakebed is in the United States.

Finally, the State contends that this proceeding defies even the rudimentary principle of due process of law because the same administrative agency charged with the administration of the public lands is being called upon to decide the title of this land.

We find that appellant is not denied due process by this proceeding. The authority and the duty of the Secretary of the Interior to consider and determine what lands are public lands of the United States have been well established. See Burt A. Wackerli, 73 I.D. 280, 286 (1966). Furthermore, Montana has the right

WE CONCUR:

EDWARD W. STUEBING, Member. MARTIN RITVO, Member.

ASSOCIATED DRILLING COMPANY, INC. (KEPHART MINE)

2 IBMA 95

Decided May 17, 1973

Associated Drilling Company, Inc., appealing a decision of December 5, 1972, by Administrative Law Judge Littlefield assessing $550 for 11 violations pursuant to section 109 of the Federal Coal Mine Health and Safety Act of 1969.

Reversed in Part and Remanded.

Federal Coal Mine Health and Safety Act of 1969: Generally-Administrative Procedure: Decisions

It is error for an Administrative Law Judge to fail to make appropriate findings of fact and conclusions of law and to show the reasons therefor in his decision in any proceeding brought pursuant to section 109 of the Act (30 U.S.C. § 819) with respect to the occurrence of each violation alleged and as to each of the statutory criteria required by such sec

tion to be considered. Where such findings and conclusions are merely not labeled or mislabeled the Board will not normally remand; however, where these requisites are obfuscated or absent, a remand may be necessary to permit proper administrative and judicial review.

Federal Coal Mine Health and Safety Act of 1969: Penalties: Existence of Violation

Since section 303 (g) of the Act requires weekly ventilation examinations to be made in all underground coal mines and the air volume measurement to be recorded in a book approved by the Secretary, an operator cannot properly be charged for a violation of that section for merely failing to record such measurements when the Secretary had not yet approved the book for recording such measurements at the time of inspection. Federal Coal Mine Health and Safety Act of 1969: Penalties-Administrative Procedure: Decisions

Where an Administrative Law Judge is confronted with a factual determination of the effect of the amount of the penalty on the ability of an operator to continue in business under section 109 (a)(1) of the Act, and the record contains no evidence on that criterion, the Judge should apply the presumption of no adverse effect in making the necessary findings.

APPEARANCES: Benjamin Novak, Esquire, and Richard M. Sharp, Esquire, in behalf of appellant, Associated Drilling Company, Inc.; Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, Richard V. Backley, Trial Attorney, in behalf of appellee, U.S. Bureau of Mines.