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Wildlife Management Area * * *.” the right-of-way under the Act of Public Land Order No. 4153, 32 March 3, 1891, as to withdrawn F.R. 2888 (February 15, 1967). The lands, without prior approval of the withdrawal order also provided for Secretary and subject to such conthe issuance of leases, licenses, or ditions as he may impose. Assistant permits and disposals but "only if Attorney General's Opinion, 33 the proposed use of the lands will L.D. 563 (1905); James W. Mcnot interfere with the proper man- Knight et al., 13 L.D. 165 (1891). agement of the C. J. Strike Wild- In an early court case interpretlife Management Area.Id.

ing the Act of March 3, 1891, United The withdrawal for the wildlife States v. Rickey Land and Cattle management area was made in

Company, 164 F. 496, 500 (C.C.N.D. furtherance of the purposes of the

the Act. Section 18 of the Act, as amended Fish and Wildlife Coordination

(43 U.S.C. $ 946 (1970)) provides : Act of March 10, 1934, as amended, "That the right of way through the public 16 U.S.C. SS 661-64 (1970), to pro

lands and reservations of the United States is

hereby granted to any canal ditch company, vide equal consideration of wild

irrigation or drainage district formed for the life conservation and coordination purpose of irrigation or drainage, and duly or

ganized under the laws of any State or Terri. with other water-resource develop- tory, and which shall have filed, or may

hereafter file, with the Secretary of the Inment programs. Under the Act (16

terior a copy of its articles or incorporation U.S.C. $ 661):

or, if not a private corporation, a copy of the

law under which the same is formed and due * the Secretary of the Interior is

proof of its organization under the same, to authorized (1) to provide assistance to, the extent of the ground occupied by the water and cooperate with, Federal, State and of any reservoir and of any canals and laterals

and fifty feet on each side of the marginal public or private agencies and organi

limits thereof, and, upon presentation of satiszations in the development, protection,

factory showing by the applicant, such addirearing, and stocking of all species of tional right of way as the Secretary of the wildlife, resources thereof, and their Interior may deem necessary for the proper habitat, in controlling losses of the same

operation and maintenance of said reservoirs,

canals, and laterals; also the right to take from disease or other causes, in minimiz

from the public lands adjacent to the line of ing damages from overabundant species, the canal or ditch, material, earth, and stone in providing public shooting and fishing necessary for the construction of such canal

or ditch : Provided, That no such right of way areas, including easements across public

shall be so located as to interfere with the lands for access thereto, and in carrying

proper occupation by the Government of any out other measures necessary to effectu- such reservation, and all maps of location ate the purposes of said sections; * * * shall be subject to the approval of the depart

ment of the Government having jurisdiction The withdrawn status of the land of such reservation; and the privilege herein places it within the ambit of the

granted shall not be construed Interfere with

the control of water for irrigation and other word "reservation" as used in the

purposes under authority of the respective

States or Territories." Act of March 3, 1891.1 It is well

Section 19 of the Act of March 3, 1891, 43 established that there is no grant of

U.S.C. $ 947 (1970), requires the filing of a map for approval by the Secretary of the

Interior. The regulations applicable to rights1 Section 20 of the Act of March 3, 1891 of-way under the Act of March 3, 1891, 43 (43 U.S.C. $ 948 (1970)) makes applicable to CFR Parts 2800 and 2870, contemplate offi. corporations, individuals. or associations of cial approval of the maps and location plans individuals the right-of-way provided for ir- of the proposed rights-of-way before the grant rigation purposes by sections 18 and 19 of under the Act may be effectual.

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February 14, 1973 Cal. 1908), where improvements tary of the Interior's refusal to aphad been constructed, it was stated: prove a right-of-way under the Act in order to acquire a right of

of March 3, 1891, for a ditch and way orer public lands for canal and reser- reservoir system where the State of voir purposes under the act of which it California had refused the appliforms a part, it is essential that the map

cant a water right. The Court deof the location of the canal and the reser

nied that there was an absolute voir shall be approved by the Secretary of the Interior. Such approval is a con

right to the grant stating at 231: dition precedent to the taking effect of The contention that the grant is one in the grant of right of way

praesenti, and therefore vests title in the In Rickey the lands were with

applicant, irrespective of the approval by drawn for a reservoir site and the

the Secretary of the Interior, cannot be

sustained. So long as the exercise of the Secretary of the Interior refused

power of approval by the secretary is to approve the maps filed by an ir- not unreasonable, or contrary to staturigation company under the Act of tory mandates governing the allowance March 3, 1891. The Court held that

of rights of way for canals and reserthe company acquired no right or

voirs, the jurisdiction of the secretary

to act under reasonable regulations reeasement to the land in the absence

specting such grants cannot be controlled of approval by the Secretary. Of a by the mandatory orders of the courts. similar effect is United States v. That a right of way grant in praesenti Henrylyn Irr. Co. et al., 205 F. 970

does not vest until approval of the appli(D. Colo. 1912), involving lands in

cation by the secretary has been deter

mined by direct interpretation of the a national forest reserve. The Court

statutes under which appellant company specifically referred to the Act of

claims its rights of way in the present March 3, 1891, in stating at 972: *** the legislative intent is manifest

In view of the foregoing discusthat as to these reserves, created as they sion of the Act of March 3, 1891, are for a special purpose, no occupancy and in view of the policies and renor use thereof by private parties shall be permitted save upon the exercise of

quirements imposed by the Fish and a discretion by the proper departments

Wildlife Coordination Act, it was as to whether such use will interfere with imperative of the Bureau of Land the purposes of such reserve. U.S. V. Management officials to consult Lee, 15 X.J. 382, 110 Pac. 607.

with and consider the recommenFurthermore, in any case where dations of the Bureau of Sport prior approval is requested, the Fisheries and Wildlife and the Secretary may deny approval or Idaho Fish and Game Department condition approval upon reasonable to assure conservation of the fish conditions. Thus, in a case not in- and wildlife together with appelvolving withdrawal, United lant's proposed usage of the water States ex rel Sierra Land & Water resource before appellant's appliCo. v. Ickes, 84 F. 2d 228 (D.C. Cir. cation could be approved. 1936), cert. denied, 299 U.S. 562 The essence of appellant's objec(1936), the Court upheld the Secre- tions to an alternative site for the

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proposed pumping station is a dis- as to the cove site is supported by agreement as to the reasonableness reasonable grounds. Appellants of alternative sites in view of envi- have not shown clearly that the exerronmental and engineering consid- cise of discretion in this matter is erations.

unfounded and arbitrary or capriAn investigative report by a Bu- cious. As the decision was predireau of Land Management official cated upon due regard for the pubstates that the cove desired by ap- lic interest in managing the wildlife pellants for its pumping station is area in light of the purposes of the the only cove on the east shore of Fish and Wildlife Coordination the Bruneau arm of the reservoir. Act, it was a proper exercise of disIts use for fish, wildlife, and recre- cretionary authority and is susational purposes has significant tained. Cf. George S. Miles, Sr., 7 value. The Regional Director of the IBLA 372 (1972); Clear Creek Inn Bureau of Sport Fisheries and Corporation, 7 IBLA 200, 79 I.D. Wildlife indicated that the site is 571 (1972). one of the few coves along the res- Therefore, pursuant to the auervoir, and the coves contain fish thority delegated to the Board of spawning and rearing habitat and

Land Appeals by the Secretary of wildlife cover. He stated that a re- the Interior, 43 CFR 4.1, the deciduction in fish spawning area, al- sion appealed from is affirmed. ready in short supply, would occur and young fish would be faced with JOAN B. THOMPSON, Jember. a hazard at the pump intake, and

WE CONCUR: cover vegetation for wildlife would be reduced if the pumping station Douglas E. HENRIQUES, Member. were allowed in the cove site desired by appellant.

MARTIN RITVO, M ember. As indicated previously, Morrison and representatives of the State

CLARK CANYON LUMBER and the two Bureaus within this De

COMPANY partment inspected the site together. His objections to the proposed al- 9 IBLA 347 ternative to the site were undoubt

Decided February 14, 1973 edly manifested at that time, but the alternative was determined to be

Appeal from a decision by the Dillon, better for the preservation of the

Montana, District Manager, Bureau fish and wildlife and over-all envi- of Land Management, unilaterally ronment than locating the pumping terminating appellant's timber sale station within the cove site. In view contract no. 25050-TS0-05. of the shortage of natural cove areas

Affirmed. along the shoreline of the reservoir and the alternatives offered appel- Delegation of Authority: Generallylants, the denial of the application Timber Sales and Disposals

February 14, 1973

Upon request of the State Director, a timber sale contract no. 25050– District Manager, Bureau of Land Man- TSO-05 because this sale does not agement, who has authority to enter into

meet the criteria of the National timber sale contracts also has authority to terminate such contracts when to do

Environmental Policy Act and its so would be in the best interest of the

continuance is not in the best interGovernment.

est of the public.” Timber Sales and Disposals

In June 1970 timber in the Jones

Creek watershed of the Centennial Section 1 of the Act of July 31, 1947, as amended, 30 U.S.C. $ 601 (1970) gives the

Mountain Range was advertised for Secretary the power to dispose of timber sale by the Bureau of Land Manon the public lands if to do so would not

agement pursuant to the Act of be detrimental to the public interest.

July 31, 1947, as amended, 30 U.S.C. National Environmental Policy Act of SS 601-604 (1970). The timber sale 1969: Environmental Statements contract was awarded to appellant Timber Sales and Disposals

as highest bidder, and the contract In accordance with guidelines provided

was approved on August 3, 1970. by the Council on Environmental Qual

The contract area consisted of sixity, 36 F.R. 7724, detailed environmental teen cutting units in the Jones Creek statements are not required under sec- area. The total sale price was tion 102 (2) (c) of the National Environ

$1,504.50 for an estimated 2145 mbf. mental Policy Act of 1969, 42 U.S.C. § 4331 (2) (c) (1970), in connection with

In July 1971, before appellant the cancellation of a timber sale con

had taken any action on the contract where it is not reasonable to an- tract, the Dillon District Manager ticipate a cumulatively significant ad- informed the Montana State Direcverse effect on the environment.

tor, Bureau of Land Management, Rules of Practice: Hearings

that an inspection of the proposed In connection with Government cancel

cutting area revealed potentially lation of a timber sale contract, a request

serious problems which could arise for a hearing will be denied where no from building roads and logging the facts are alleged which, if proved, would

area due to the proposed location warrant granting the relief sought.

of the roads and the extreme instaAPPEARANCES: Leonard B. Netzorg, bility of the soils. He recommended Esq., Portland, Oregon, for appellant.

that consideration be given to plac

ing the timber sale contract under OPINION BY MR. GOSS suspension. INTERIOR BOARD OF

By memorandum dated

dated AuLAND APPEALS

gust 19, 1971, the State Director ad

vised the Dillon District Manager Clark Canyon Lumber Company that because of the environmental has appealed from a decision dated

considerations it would be in the August 20, 1971, by the Dillion, best public interest for the Bureau Montana, District Manager which of Land Management to unilaterunilaterally terminated appellant's ally terminate the contract.

The State Director also received and recommending that all moneys a memorandum from the Chief, Di- paid by appellant be refunded. vision of Resources, Bureau of Land

On appeal, appellant has made Management, on August 23, 1971, the following arguments: which set forth findings and recom

(1) The officer who sought to terminate mendations following an August 5

the contract lacked authority to do so. inspection of the contract area. He (2) The contract should be performed, found that road construction in sev

and the Board should direct specific per

formance of the contract. eral places would cause stream

(3) The Government's evaluation of the blockage; that an earth movement

environmental consequences of timbering phenomenon existed in the area and

the contract area was wrong and in any disturbance would accelerate it; event, the decision to terminate the conthat natural reforestation was mini- tract was invalid because the Bureau mal and artificial reforestation had failed to follow the requirements on the never been done in any areas logged

National Environmental Policy Act and

the guidelines issued by the Council on in the past; that mistakes in layout

Environmental Quality. had been made and to log the area

(4) The contract should be amended by in view of forest management's in- eliminating the cutting areas about which creased concern with environmental there is environmental concern and by consequences would be disastrous substituting other areas which would inand not in the public interest. He

sure appellant a comparable volume of

timber without an increase in cost. Appeladded that the State Office Forester,

lant would assent to a substitution of the State Office Recreation Planner

other areas in lieu of cutting units 4, 5, and soil and watershed staff men 6, 14, 15 and 16. from the Division of Resources vis- (5) The Government's purported terited the area and concurred in the mination of the contract occurred while findings.

appellant was negotiating a sale of all

its assets and the Gorernment knew that The Chief, Division of Resources,

its action would cause appellant extrarecommended termination of the ordinary harm. subject contract and that an inten

The authority to enter into a govsive soil survey be undertaken in the

ernment contract carrries with it the whole Centennial area with a moratorium on future timber sales pend

power to terminate the contract

when it appears that such action ing the outcome of the study. He

would be in the best interest of the stated that the Dillon District Manager had been advised to proceed Corliss Steam Engine Co., 91 U.S.

Government. Cf. United States v. with the termination on August 12,

321 (1875); cf. 29 Comp. Gen. 36 1971.

(1949). The decision to terminate The Dillon District Manager, act

and the propriety of the termination ing upon the request of the Montana

are matters for administrative deState Director, issued his decision termination. 18 Comp. Gen. 826 unilaterally canceling the timber (1939). While the power to termisale contract, on August 20, 1971, nate is inherent, there is also a duty

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