In these deliberations we also recommend that the subcommittee give consideration to a proposal that counties be given an option of accepting either 25 percent of the net refuge receipts as at present or three-fourths of 1 percent of the adjusted cost. Such a proposal has merit and appears to offer a practical solution to a difficult situation wherein some few counties might be faced with financial hardship.

In conclusion, Mr. Chairman, we should like to make another observation. Unless the Congress can see fit to approve of a modified or revised revenue-sharing plan, the only alternative we can see to resolution of the problem is to remove the requirement for State approval for Federal acquisitions in the so-called Dingell Emergency Wetlands Act. The need for preserving wetlands becomes more pressing each year.

We are confident that the subcommittee recognizes the urgency for solving this problem. Early favorable action might allow time for the Congress also to consider the need for supplemental appropriations for wetlands acquisition. Thank you for the opportunity of making these observations.

Mr. CALLISON. I think Mr. Gutermuth is not here.

Mr. THOMPSON. Thank you very much.

Proceed, Mr. Dingell.

Mr. DINGELL (presiding). I do not mean to take a lot of time, but you good gentlemen from the Department of the Interior are familiar with H.R. 2393. I am sure you are familar with page 20 and following, which deals with the deposit of refuge revenues, that is 50 percent of the refuge revenues, for 10 years in the migratory bird fund for purposes of land acquisition, are you not?

How long is it going to take you under your present rate of land acquisition to meet your goals and what are those goals?

Mr. JANZEN. Mr. McBroom has the black book here, I think.

Mr. DINGELL. I think we have gotten it down from 330 years to 30 years, am I right? At the present rate it would be more on the order of 50 or 60 years, am I right?

Mr. McBROOM. Let me answer this way, Mr. Dingell. Our total goal for land acquisition for the program beginning in 1962 is 41⁄2 million acres.

Mr. DINGELL. All right. How much have you got?

Mr. McBROOM. The 7-year program would call for the acquisition of 212 million acres of that, including all of our goals for waterfowl production areas. The remainder, the difference between 22 and 4.5 million acres, is about 2 million. Of that, about 780,000 would be acquired by the Corps of Engineers or the Bureau of Reclamation around projects which they construct. This acquisition would be pursuant to the Fish and Wildlife Coordination Act, which this committee fathered.

This would mean then during the period of repayment to the Treasury of the loan fund, from 1969 until 1996, we would be able to acquire only 280,000 acres because 75 percent of our receipts would have to go to the Treasury. Then the final 933,000 acres would take from 1997 until the year 2017 to acquire under the full use of duck stamps revenues during that period.

Mr. DINGELL. And it can be fairly anticipated that by that time the habitat will have been gone, am I correct?

Mr. McBROOM. A good deal of it will.

Mr. DINGELL. First of all, am I correct in assuming that you will, under H.R. 2393, have sufficient revenues to utilize 50 percent of your refuge receipts for land acquisition?

Mr. McBROOM. As we testified here, we have testified that $3 million is our estimate of the net receipts. One-half of that, of course,

would be $12 million, and the other half would need to be paid to the counties under our bill. So this leave no margin.

Mr. DINGELL. But it leaves you enough so that you have $12 million to the counties and $12 million to put into the land acquisition program, am I correct?

Mr. JANZEN. Unless, as I mentioned earlier, the Supreme Court sustains the circuit court of appeals.

Mr. DINGELL. I intend to come around to that point in just a minute, but as of this time, and as of the time that your figures and so forth, as of the figures that are now available, you anticipate you would have enough so you could put this 50 percent into your land acquisition program, am I correct?

Mr. JANZEN. That is correct.

Mr. DINGELL. For this $12 million a year, how many acres of land could you buy? Just roughly it is costing you about $30 an acre, is it not?

Mr. JANZEN. I think it is running closer to $100 an acre.

Mr. McBROOм. 15,000 acres.

Mr. DINGELL. So, in 10 years you would buy 150,000 acres of additional habitat. That is important to you gentlemen, is it not, that you get that land?

Mr. JANZEN. Yes, sir; it is important, but

Mr. DINGELL. Now, you have given me the answer. Remember, we have a quorum call, Mr. Janzen.

You mentioned this case down in Louisiana. I want you to tell the committee about that case because I think it is important we know just what is going on. Is that with regard to lands in Plaquemines

Parish?

Mr. JANZEN. I am going to give that to Mr. Finnegan.

Mr. FINNEGAN. The case is The Leiter Minerals, Inc. v. U.S. The decision came down on March 3, U.S. Court of Appeals for the Fifth Circuit, and the number is 199-63 for your record.

Mr. DINGELL. Do you have a copy of the opinion here?

Mr. FINNEGAN. I have one copy. I will try and have some copies made for the record.

Mr. DINGELL. Will you submit them?

(The copy of the opinion to be furnished follows:)

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH DISTRICT

No. 19963

THE LEITER MINERALS, INC., APPELLANT,

v.

UNITED STATES OF AMERICA, ET AL., APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

LOUISIANA

(March 3, 1963)

S. W. PLAUCHE, Jr. of Plauche & Plauche and H. M. HOLDER (with them on the brief was JOHN H. TUCKER, Jr., of Tucker, Bronson & Martin), for appellant. ROGER P. MARQUIS, Attorney, Department of Justice (with him on the brief were Assistant Attorney General RAMSEY CLARK and United States Attorney LOUIS C. LACOUR), for appellee United States of America.

EUGENE D. SAUNDERS of Milling, Saal, Saunders, Benson & Woodward (with him on the brief was CHARLES D. MARSHALL), for appellee The California Company.

Before RIVES and GEWIN, Circuit Judges, and SHEEHY, District Judge. RIVES, Circuit Judge: The question presented is the right to mine and remove oil, gas, and other minerals from about 8711 acres of land in Plaquemines Parish, Louisiana, a right worth many millions of dollars. The mineral right was established in a deed dated December 21, 1938 from Thomas Leiter conveying the lands to the United States, and reserving the right to the minerals as follows:

"The vendor reserves from this sale the right to mine and remove, or to grant to others the right to mine and remove, all oil, gas and other valuable minerals which may be deposited in or under said lands, and to remove any oil, gas or other valuable minerals from the premises; the right to enter upon said lands at any time for the purpose of mining and removing said oil, gas and minerals, said right, subject to the conditions hereinafter set forth, to expire April 1, 1945, it being understood, however, that the vendors will pay to the United States of America, 5% of the gross proceeds received by them as royalties or otherwise from all oil or minerals so removed from in or under the aforedescribed lands, until such time as the vendors shall have paid to the United States of America, the sum of $25,000 being the purchase price paid by said United States of America for the aforedescribed properties.

"Provided, that if at the termination of the ten (10) year period of reservation, it is found that such minerals, oil and gas are being operated and have been operated for an average of at least 50 days per year during the preceding three (3) year period to commercial advantages, then, and in that event, the said right to mine shall be extended for a further period of five (5) years, but that the right so extended shall be limited to an area of twenty-five acreas of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: April 1, 1945.

"Provided, that this said right to mine as previously stated shall be further extended from time to time for periods of five (5) years whenever operation during the preceding five (5) year period has been for an average of 50 days per year during this period, and

"Provided that at the termination of the ten (10) year period of reservation, if not extended, or at the termination of any extended period in case the operation has not been carried on for the number of days stated, the right to mine shall terminate, and complete fee in the land become vested in the United States. "The reservation of the oil and mineral rights herein made for the original period of ten (10) years and for any extended period or periods in accordance with the above provisions shall not be affected by any subsequent conveyance of all or any of the aforementioned properties by the United States of America, but said mineral rights shall, subject to the conditions above above [sic] set forth, remain vested in the vendors."

The appellant, Leiter Minerals, Inc., hereafter Leiter, is the successor in interest to the right reserved by Thomas Leiter, and bases its claim upon that reservation. It concedes that no minerals have ever been produced by either Thomas Leiter or any successor in interest to the right established by that reservation. The United States issued four oil and gas leases to Frank J. Lobrano and Allen Lobrano, who entered into operating agreements with The California Company, hereafter California. California completed the first producing well in January 1950. By May of 1954, 80 wells were producing, under which the royalty paid to the United States had then exceeded $3,500,000.00.

Under the terms of the reservation, it would be clear that the right to mine terminated and complete fee in the land became vested in the United States but for the possible operation on the mineral right of two Louisiana statutes. Act No. 151 of 1938, in existence at the date of the deed, provided:

***That when real estate is acquired by the United States of America, the State of Louisiana, or any of its subdivisions, from any person, firm or corporation for use in any public work and/or improvement, and, by the act of acquisition, oil, gas and/or other minerals or royalties are reserved, prescription shall not run against such reservation of said oil, gas and/or other minerals or royalties."

That Act was repealed by Act 315 of 1940, which provides:

"*** That when land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its

subdivisions or agencies, from any person, firm or corporation, and by the act of acquisition, verdict or judgment, oil, gas, and/or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas and/or other minerals or royalties, still in force and effect, said rights so reserved or previously sold shall be imprescriptible."

The ownership of the mineral right depends upon whether the mineral reservation provided for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by the Louisiana statutes.

The first suit was filed in a Louisiana state court on August 13, 1953 by Leiter, against California and Allen L. Lobrano. The United States then filed in the federal district court the present action to quiet title, asserting its right to the minerals. The district court granted a preliminary injunction enjoining Leiter from prosecuting the state court action.1 This Court affirmed. On certiorari,

the Supreme Court modified the judgment of this Court to permit an interpretation of the Louisiana statute involved to be sought with every expedition in the Louisiana courts, saying:

"The Government contends that Act No. 315 of 1940 does not apply when the parties themselves have contracted for a reservation of specific duration and that if the statute is construed to apply to this situation, it would impair the obligation of the Government's contract. Petitioner disagrees. The Supreme Court of Louisiana has never considered the specific issue or even discussed generally the rationale of the statute, especially with reference to problems of constitutionality. The District Court recognized the importance of the statute in deciding this case; it also recognized that a problem of interpretation was involved, that the statute cannot be read by him who runs. What are the situations to which the statute is applicable? Is the statute merely declaratory of prior Louisiana law? What are the problems that it was designed to meet? The answers to these questions are, or may be, relevant. Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court. The Louisiana declaratory judgment procedure appears available to secure such an interpretation. La. Rev. Stat. 1950, 13: 4231 et seq., and the United States of course may appear to urge its interpretation of the statute. See Stanley v. Schwalby, 147 U.S. 508, 512-513. It need hardly be added that the state courts in such a proceeding can decide definitively only questions of state law that are not subject to overriding federal law.

"We therefore modify the judgment of the Court of Appeals to permit an interpretation of the state statute to be sought with every expedition in the state court in conformity with this opinion."

Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229, 230. The Louisiana courts rendered three published opinions, the last of which is presently of most importance. The Supreme Court of Louisiana summarized its advice to the federal courts as follows:

"To summarize in conclusion, it is our view, and we hold: First, that if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional extinguishment of the mineral servitude created, then Act 315 of 1940 is applicable and constitutional. The interpretation of the contract is for the United States courts."

Leiter Minerals, Inc. v. California Co., La. 1961, 132 So. 2d 845, 854, 855. The federal district court then granted summary judgment in favor of the United States. This appeal is from that judgment.

1 Opinion reported as United States v. Leiter Minerals, Inc., E.D. La. 1954, 127 F. Supp. 439.

2 The Leiter Minerals, Inc. v. United States, 5 Cir. 1955, 224 F. 2d 381.

3 Leiter Minerals, Inc. v. California Co., 1960, 118 So. 2d 124; Leiter Minerals, Inc. v. California Co., Ct. App. La. 4th Cir., 1961, 126 So. 2d 76; Leiter Minerals, Inc. v. Cali fornia Co., La. 1961, 132 So. 2d 845.

United States v. Leiter Minerals, Inc., E D. La. 1962, 204 F. Supp. 560.

The United States argues that the deed is explicit that under the admitted circumstances the right was "to expire" and "the right to mine shall terminate, and complete fee in the land become vested in the United States"; that such a contract is valid under federal law; and that the rights of the United States under the deed are governed by federal law, citing Clearfield Trust Co. v. United States, 1943, 318 U.S. 363; United States v. Allegheny County, 1944, 322 U.S. 174; Ivanhoe Irr. Dist. v. McCracken, 1958, 357 U.S. 275; Girard Trust Co. v. United States, 3 Cir. 1945, 149 F. 2d 872, 874; Whittin Machine Works v. United States, 1 Cir. 1949, 175 F. 2d 504, 507; United States v. Jones, 9 Cir. 1949, 176 F.2d 278, 281.

The land was acquired by the United States in order to establish the "Delta Migratory Waterfowl Refuge," pursuant to the authority of the Migratory Bird Conservation Act, 16 U.S.C.A. § 703, et seq. Sections 715d and 715e authorize the Secretary of the Interior (1) to purchase or rent appropriate areas for migratory bird sanctuaries; (2) to do all things necessay to make such acquisitions; and provide, (3) that no such acquisitions by the United States shall "be defeated because of rights-of-way, easements, and reservations which . . . will in the opinion of the Secretary . . . in no manner interfere with the use of the area so encumbered"; and (4) that such rights-of-way, easements, and reservations shall be subject to such regulations as the Secretary shall prescribe, and "it shall be expressed in the deed or lease that the use, occuaption, and operation of such rights-of-way, easements, and reservations shall be subordinate to and subject to such rules and regulations as are set out in such deed or lease," or if deemed necessary by the Secretary to such rules and regulations as may be prescribed by him.

In addition, section 715f of the Migratory Act reads:

"No deed or instrument of conveyance shall be accepted by the Secretary of the Interior under sections 715-715d, 715e, 715f-715k, and 715(1)-715r of this title unless the State in which the area lies shall have consented by law to the acquisition by the United States of lands in that State." [Emphasis added.] We have no doubt that the Congress could make federal law applicable, but we are equally clear that it had no intention to do so when it merely authorized the contract by which the United States acquired the property. State law must govern in the absence of a federal statute making federal law applicable. United States v. Certain Property, etc., 2 Cir. 1962, 306 F. 2d 439, 444, 445.

In effect, that is the teaching of the rules of decision act." While this is not a diversity case controlled by the Erie doctrine (Erie R. Co. v. Tompkins, 1938, 304 U.S. 64), the rules of decision act always has had "application to state laws, strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and charcter." Swift v. Tyson, 1842, 41 U.S. (16 Pet.) 1, 18. As to such matters, in the absence of a controlling decision by the highest court of the State, we should be guided by the best evidence available. In the classical language of Mr. Justice Cardozo, speaking for the Supreme Court in Hawks v. Hamill, 1933, 288 U.S. 52, 59, 60: "At least it is a considered dictum, and not comment merely obiter. It has capacity, though it be less than a decision, to tilt the balanced mind toward submission and agreement. . In controversies so purely local, little gain is to be derived from drawing nice distinctions between dicta and decisions. Disagreement with either, even though permissible, is at best a last resort, to be embraced with caution and reluctance. The stranger from afar, unacquainted with the local ways, permits himself to be guided by the best evidence available, the directions or the counsel of those who dwell upon the spot."

On “* * * questions of state law that are not subject to overriding federal law ***" (352 U.S. 230, the opinions of the Louisiana state courts, rendered in response to the suggestion of the Supreme Court (352 U.S. 229, 230) are all highly instructive, and the opinion of the State Supreme Court is controlling.

The State district court, Judge Bruce Nunez, entered judgment in favor of Leiter pursuant to an opinion which was adopted by Supreme Court Justice Hamlin as his dissent and is published in 132 So. 2d at pp. 856-860. In part, Judge Nunez said:

"S 1562. State laws as rules of decision

"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C.A. § 1652.