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Act, 28 Stat. 422 (1894), as amended, 43 tion of desert lands and the State U.S.C. $$ 641 et seq. (1970).

was not authorized to lease any of Color or Claim of Title: Generally the lands, or to use or dispose of

them in any manner, except to seThe period of possession of a color of

cure their reclamation, cultivation, title claim, having been initiated when the land was subject to appropriation

and settlement. under the public land laws, is not inter- A Carey Act project involving rupted by a subsequent period of time

the lands in issue was commenced during which the land was not open for appropriation.

but not completed. By deed dated

September 4, 1942, the State of APPEARANCES: William G. Carlson, Idaho reconveyed the lands to the Esq., Arco, Idaho, for appellant. United States. However, the lands

were not available for appropriOPINION BY MR. GOSS

ation under the public land laws INTERIOR BOARD OF LAND

until provisions for the opening of APPEALS

such lands were made by Bureau of

Land Management order, Misc. Appellant has appealed from an

55813, dated March 30, 1950. Idaho State Office, Bureau of Land

The pertinent part of the Color Management, decision dated June

of Title Act, 45 Stat. 1069, as 30, 1971, rejecting his class 1 color

amended, 43 U.S.C. $ 1068 (1970), of title applications, I 4369 and

reads as follows: I 4370, for two 40-acre tracts of land in Butte County, Idaho. The deci- The Secretary of the Interior (a) sion held that at the time of initi

shall, whenever it shall be shown to his

satisfaction that a tract of public land ation of the color of title claims the

has been held in good faith and in peaceland was not vacant, unappropri- ful, adverse, possession by a claimant, ated, unreserved public land sub- his ancestors or grantors, under claim ject to the public land laws. No

or color of title for more than twenty ruling was made as to whether ap

years, and that valuable improvements

have been placed on such land or some pellant complied with the other

part thereof has been reduced to cultirequirements of the Color of Title

vation, *** issue a patent for not to Act.

exceed one hundred and sixty acres of The land involved in this appeal

such land upon the payment of not less was patented to the State of Idaho

than $1.25 per acre: under the provisions of the Carey This type of claim is designated by Act, 28 Stat. 422, as amended, 43 43 CFR 2540.0–5(b) as a class 1 U.S.C. SS 641 et seq. (1970), on

claim. July 31, 1923. The Carey Act pro- The basis for appellant's color of vided for the donating, granting title claims are two tax deeds exeand patenting of desert lands to a cuted in 1937 by Butte County, state that complied with the require- Idaho, in favor of appellant's predments of the Act. The purpose of ecessors in interest. The State Office the Act was to promote the reclama- decision held that adverse posses

February 14, 1973

one

sion could not have begun to run tion of the color of title claims. The against the United States in 1937 Department stated in Ilarry H. because the State of Idaho owned Scott and Nion R. Tucker, supra, the lands. Appellant argues that ad- that: verse possession was initiated in

In the decision appealed from it was 1942 when the State of Idaho re- held that in the requirement of adverse conveyed the lands to the United possession for at least 20 years, the law States.

contemplates that the possession must

be of public lands, as such, for that A question exists in connection

length of time, and that the requirement with application I 4369. The origin of the law is not met where the land had of the claim in that application was the status of private land for a portion

of that period. The Department regards a tax deed to A. R. Babcock in 1937.

this as an extreme and harsh interpretaBy probate decree of distribution

tion. The act is remedial in nature and the subject land passed to Maude E.

should be liberally construed. The interBabcock. May A. R. Babcock be pretation complained of is not only not considered of appellant's liberal but is actually strained and un

natural. We are authorized to sell only "grantors" under the Color of Title

public land, but if the land be public at Act, 43 U.S.C. $ 1068 (1970)? The

this time it is immaterial to the purpose courts have interpreted "grant"

of the act that the land may have been broadly to include a devise. Com- claimed or held in private ownership missioner of Internal Revenue v. during a portion of the required 20-year

period of possession. Furthermore, while Plestcheeff, 100 F. 2d 62 (9th Cir.

this land may be regarded in a technical 1938), as well as transfers by oper

sense as having been in private owneration of law, White v. Rosenthal,

ship under the patent to the railroad 35 P. 2d 154 (1934). The term

company, nevertheless the Government "grantor" is defined in Black's Law had such interest in it as to justify re

sumption of the legal title in order to enDictionary 829 (4th ed. 1951) as

force the purpose of the original grant. "the person by whom a grant is made"; "grant” being defined as a Appellant's period of good faith generic term applicable to all trans- holding began to run in 1937 and fers of real property." These inter- continued until 1969 when appelpretations coupled with the fact

lant learned he did not have good that the Color of Title Act is re

title to the land. Even though a medial and to be liberally con

color of title claim could not have strued, Harry H. Scott and Nion R. been initiated between 1942 and 1950 Tucker, A-15425 (April 10, 1933),

when the lands were not open to make it clear that A. R. Babcock appropriation under the public may be considered a grantor within land laws, such intervening period the meaning of the Color of Title cannot now operate to defeat apAct.

pellant's color of title claims. The Even though the lands were

1942-50 period is somewhat analoowned by the State of Idaho in gous to a period of withdrawal. 1937, such is not a bar to the incep- Clearly, a color of title claim could not be initiated upon withdrawn or Accordingly, pursuant to the aureserved lands. 43 CFR 2540.0–5 thority delegated to the Board of (b); Margaret C. More, 5 IBLA 252 Land Appeals by the Secretary of (1972); Palo Verde Color of Title the Interior, 43 CFR 4.1, the deciClaims, 72 I.D. 409 (1965); Claude

sion appealed from is reversed and M. Williams, Jr., et al., A-29928

the case is remanded for appropri(March 26, 1964). However, if a

ate action consistent with this decicolor of title claim arose before a

sion. withdrawal of the lands, the with

JOSEPH W. Goss, Member. drawal would not preclude perfection of the claims under the Color WE CONCUR: of Title Act. Clement Vincent Tillion, Jr., A-29277 (April 12, 1963).

FREDERICK FISIMAX, Jember. The subject lands are presently public lands, having been restored

ANNE POINDEXTER LEWIS, Member. to that status by the 1950 order. The definition commonly assigned

PLACID OIL COMPANY to “public lands” is those lands subject to sale and disposition under

9 IBLA 384 the general laws. Borax Consoli

Decided February 16, 1973 dated, Ltd., et al. v. Los Angeles, 296 U.S. 10, 17 (1935). Appellant Appeal from a decision of the New has fulfilled the requirement of Mexico State Office, Bureau of Land holding a tract of public land in ad- Management, denying offers for future verse possession for more than

interest oil and gas leases, unless evitwenty years.

dence of a continued control over the Applications H 369 and 1-4370

operating rights by applicant is subshow that Asa V. Perkes took title

mitted within 30 days. as "Asa V. Perkes, et ux." Therefore, appellant should be required Affirmed as modified. to amend his applications to include as applicants his wife or her succes

Oil and Gas Leases: Future and Fracsors in interest or file on record any

tional Interest Leases relinquishment of her interest in the Where an applicant for a future interest lands.

oil and gas lease of acquired lands has If appellant has fulfilled the other

interests only in the land below 1,000 feet

below the surface, it does not own or conrequirements, patents should issue.

trol all or substantially all of the present The July 23, 1953, amendment, 67

operating rights to the minerals in the Stat. 227, to the Color of Title Act, land; if it seeks only a lease for the zone supra, makes the issuance of a patent below 1,000 feet, it is requesting a lease by the Secretary to a class 1 claim

of a horizontal zone, which is granted, if

at all, only where the need for it is clear ant mandatory if it is found that

and convincing; in either case its offer the conditions prescribed in the

for a

future interest lease must be statute are met.

rejected.

February 16, 1973

APPEARANCES: Walter Fraker, for By "Oil and/or Gas Lease" Placid Oil Company; Gayle E. Manges, Agreement dated May 27, 1969, Field Solicitor, for Department of the Temple Industries, Inc., successor Interior.

to the mineral interests in the land,

granted to Placid Oil Company an OPIVION BY MR. RITVO

oil and gas lease for lands below INTERIOR BOARD OF LAND

1,000 feet below the surface for a APPEALS

period of five years. Concerning the Placid Oil Company has ap

possibility of extension of the peri

od of rental, in a letter of January pealed from a decision 1 by the New

18, 1972, to the Bureau, applicant Mexico State Office, Bureau of Land

stated : Management, denying future interest oil and gas lease applications

At the time applicant acquired its

present lease covering the present minNM A-10938, NM A-10940 through

eral interest, we were unable to negotiate NM A-10943, unless Placid Oil

for a primary term longer than 5 years. Company submits evidence within

Based upon our prior negotiations with 30 days to demonstrate its con- the owner of the present mineral intinued control over the operating

terest, we doubt that we would be suc

cessful in renewing the present lease rights between the expiration date

upon the expiration of its primary term of the primary term of its lease, for a term of more than five years. May 28, 1974, and the date the min

Appellant thus in essence admits eral interest will vest in the United

that absent production, it will not States, January 2, 1985.

have continued ownership or conPlacid Oil Company filed future

trol of operating rights to the presinterest offers on December 10, 1969,

ent mineral interests, between the for lands located in the Sabine Na

expiration date of May 28, 1971, and tional Forest in Texas. The records

January 2, 1985. However, citing show that the United States ac

Clare Davis Pickens, Colorado quired title to the lands by war

0109978, November 15, 1963, appelranty deed dated December 27,

lant argues that the policy of the 1935, subject to a reservation by the

Bureau of Land Management in isgrantor of all the minerals until

suing future interest leases should January 1, 1985, to be extended in

encourage further resource developthe event of commercial production.

ment. Therefore, appellant argues, 1 The December 23, 1971, decision covered

since he cannot operate beyond the offers NM-A-10937 through 10939. The Jan

1974 lease date, he will be discouruary 3, 1972, decision modified the December 23, 1971, decision is that it required a

aged from now attempting to defurther certificate of title for offers XM-A

velop the land for oil and gas. Since 10937 and NM-A-10939, certifying the mineral interest outstanding only in these two his future interest lease rights tracts; the earlier decision had required a further certificate of title. as required by reg.

would not vest unless he produces ulation 43 CFR 3130.4-5. for all the offers. oil, appellant further argues, the These two offers are not involved in this appeal.

Government will have nothing to 497-456-73—-13

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lose by granting a future interest The Department's disapproval of lease.

leasing future or fractional interThe State Office's decision deny- ests where the applicant does not ing the applications was based on own substantially all of the present 43 CFR 3130.4–5. Citing Smead operating interests is based upon the Stewart, BLM A-047789–92 (May concept that any leasehold should 8, 1961), the State Office decided have a continuity of term. Fritz, that since Placid did not have Mineral Problems Relating to ACcontinued control over the operat- quired Lands, 3 Rocky Mt. Min. L. ing rights between the expiration Inst. 379, 385 (1957). To give date of the primary term of its lease Placid a future interest lease for and the date the mineral interest the first 1,000 feet would violate this would vest in the United States, its practical policy, since it has no presapplications for future interest ent operating rights for that zone. leases should be rejected.

Even if the “ownership’ required We believe the Bureau's ruling by the regulation were to be conshould be upheld, but on a different sidered as applying only to the ground. 43 CFR 3130.4–5 dealing rights Placid has, that is, those with future interest offers states: below 1.000 feet from the surface, a

lease granting such rights to it (a) Application. A noncompetitive lease for a whole or fractional future interest

would be a lease of a separate horiwill be issued only to an offeror who owns zontal zone. While there are no speall or substantially all of the present op

cific prohibitions against such leaserating rights to the minerals in the lands

ing in the law or regulations, the in the offer as mineral fee owner, as les

practice has been "most uncommon an operator holding such rights. * * * (Italics added)

in the Department." Clear Creek Without deciding whether Placid Inn Corporation, 7 IBLA 200, 202,

79 I.D. 571 (1972). would otherwise qualify as an ap

However, as that case points out, plicant, we find the requirement that

the Secretary may approve assignan offeror own or lease-"all or substantially all" of the present operat- it in an existing oil and gas lease.

ments of a separate zone or depos" ing rights disqualifies Placid since

The Mineral Leasing Act so prothe lease granted by Temple to

vides, 30 U.S.C. $ 187(a); but the Placid gives rights to oil and gas

pertinent regulation states that such exploration only below 1,000 feet. We note that Placid's offer was

an assignment will not be approved

unless the necessity therefor is esnot limited to the zone covered by its lease from Temple. Such partial evidence. 43 CFR 3106.3-2.

tablished by clear and convincing ownership does not constitute sub

Applying this standard, to Placstantially all of the present operat

id's request for future interest ing rights in the lands in the offer, leases, we can find no necessity for as required by the regulation. creating leases of a separate zone.

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