case, is that the Department did not recognize an equitable right to select additional land once the mistake was discovered. Although the State points to certain factual variations in the situations involved, the law is settled that once a State gives up its base and accepts lieu, the exchange is final.

The State, in cases one and two, next points to 43 U.S.C. § 851 which provides for lieu selections where the base had been in some manner taken from the State in whole or in part. The significant part of that statute, here, reads:

Provided, That the selection of any lands under this section in lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. *

The intent of the statute is that once the exchange has been made the matter is settled, and no further adjustments may be made. This is pointed out in the cases discussed above.

The third case involves a situation where the State is asking a lieu selection based upon a resurvey of the base land which it still retains. Again the arguments relating to 43 U.S.C. §§ 2851 and 852 were utilized. The basic rule of law, as we see it, is that the area shown on the plat at the time title passes is to control what the State receives, and that a later survey will not affect that grant. This is the general principle set out in State of New Mexico, 51 L.D. 409, 412 (1926), and the cases cited at 43 U.S.C.A. § 752 N3 (1964). To rebut this, the State dis

tinguishes the fact situation of State of New Mexico, case in that in the New Mexico case the State made the resurvey, but in the present case, the federal government made the resurvey. This does not change the fact that the grant was finalized at the time title passed to the State, and so the State is bound by the original plat upon which that grant was based.

One further question remains in the third appeal. The State enclosed a letter, 1364141 "F" WJC, dated January 30, 1930, from the General Land Office, Washington, to the Commissioner of Public Lands in Wyoming, granting the State a lieu selection for base in a situation closely resembling the present case. In light of our analysis of the precedent relied upon for our holding in this case, we cannot regard this letter as having continuing authority.

The fourth case involves the situation where the State selected lands were, by a dependent resurvey, determined to contain less than they had originally been shown to contain. The question involved in that situation has been decided in the first two cases discussed above. However, here the State also asserts an equitable ground. The State admittedly must reduce its entitlement to select lieu land to the extent of the half section of school land in place which was ultimately determined to be in Montana, not Wyoming. In return the State asks that it be allowed to offset the land lost by that resurvey against the half

section of selected land for which it admits it must now offer new base, leaving only an overselection of

the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such

argument, the State cited the State of New Mexico, 53 I.D. 222 (1930), which grants equity by allowing the State to keep the already approved lieu lands selected on the basis of an enlarged resurveyed base section. The equities are not directly similar, in that the base land here was not ever in the State of Wyoming, so that no equitable interest therein can be vested in the State.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decisions appealed from are affirmed.

EDWARD W. STEUBING, Member.

WE CONCUR:

MARTIN RITVO, Member. FREDERICK FISHMAN, Member.

shall be granted, reserved, or pledged for the use of schools or colleges in the State in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State, in lieu of such as may be thus taken by preemption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted and may be selected, in accordance with the provisions of section 852 of this title, by said State where sections sixteen or thirty-six are, before title could pass to the State, included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States: Provided, That the selection of any lands under this section in lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. And other lands of equal acreage are also appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being frac tional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and there upon the State shall be entitled to select indemnity lands to the extent of section for section in lieu of sections therein which have been or shall be granted, reserved, or pledged; but such selections may not be made within the boundaries of said reservation: Provided, however,

That nothing in this section contained shall prevent any State from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein. [Italics supplied]

Concededly the statute speaks of "section for section"; however, it also addresses itself to "other lands of equal acreage," a contradiction in many situations.

As I see it, the crucial point is the fact that the school indemnity statutes, Rev. Stats. §§ 2275 and 2276 were amended by the Acts of February 28, 1891, 26 Stat. 796, the Act of August 27, 1958, 72 Stat. 928, the Act of September 14, 1960, 74 Stat. 1024, and the Act of June 24, 1966, 80 Stat. 220 at which times Congress must be presumed to have known the interpretations put on the lieu selection law by the Department. That Congress did nothing by statute to change the administrative practice and interpretation is tantamount to Congressional approval thereof.

This view is buttressed by State of Wyoming v. United States, 310 F. 2d 566, 580 (10th Cir. 1962), cert. denied, 372 U.S. 953 (1963), as follows:

When Congress passed the Resurvey Act of 1908, it must be presumed to have known the construction which had been placed on the Resurvey Acts of 1903 and 1905 and the effect given to such earlier Acts by the Department of the Interior and the practices and procedures followed and carried out by such Department, with respect to the lands in the original school sections and resurveyed school sections. Therefore, when Congress enacted the Resurvey Act of 1908, without substantial

change in any relevant part, it manifested its approval and ratification of the administrative construction of the earlier Resurvey Acts by the Department of the Interior, the effect given thereto by such Department, and such practices and procedures. [Footnote omitted]

The soundness of this approach, in its evenhandedness and practicality, is articulated in State of New Mexico, 51 L.D. 409 (1926), quoted in the main opinion.

In view of the fairly consistent interpretation given by the Department to the lieu selection statutes and the reasonableness of such interpretation, I see no reason to depart therefrom and therefore concur in the main opinion.

JAMES C. GOODWIN

9 IBLA 139

Decided January 23, 1973 Review of recommended decision of Administrative Law Judge Dent D. Dalby, recommending reversal of a Bureau of Land Management decision. rejecting applications for coal prospecting permits C-0127891, 0127926 and

0127927.

Affirmed as modified.

Coal Leases and Permits: Permits: Workability

The workability of any coal will ultimately be determined by two offsetting factors (1) its character and heat-giving quality, whence comes its value, and (2) its accessibility, quantity, thickness, depth, and other conditions that affect the cost of its extraction. It must be considered a workable coal if its value, as determined by its character and heat

giving quality, exceeds the cost of extraction.

Coal Leases and Permits: Permits: Workability

Workability as defined by the USGS is concerned with the economics of the intrinsic factors. Extrinsic factors such as transportation, markets, etc., are not considered. However, the cost of mining must be considered. In its classification of coal lands, USGS has anticipated and assumed the ultimate coming of conditions favorable for mining and marketing of any coal if the coal is workable in terms of the intrinsic factors. In this respect, the test of workability under the Mineral Leasing Act differs from the prudent man rule under the mining laws.

Coal Leases and Permits: Permits: Workability

Although workability is basically a problem of the physical parameters of the coal, the test of workability is dependent upon economic factors. If the value of the coal is greater than the cost of its extraction, the deposit is workable.

Coal Leases and Permits: Permits: Workability

Workability may be established by geologie inference where detailed information is available regarding the existence of a workable deposit in adjacent lands and there are geologic and other surrounding conditions from which the workability of the deposit can be reasonably inferred. However, geologic inference, as a tool for determining workability, has certain limitations. The mere fact that lands applied for adjoin other lands which contain workable coal deposits does not, per se, permit the inference that they contain coal deposits in workable quality and quantity.

Coal Leases and Permits: Permits

In determining whether lands are of such character as to subject them to leasing rather than prospecting under permits,

the Secretary of the Interior is entitled to rely upon the reasoned opinion of his technical expert, the Geological Survey. Only upon a clear showing that the Survey's determination was improperly made, will the Secretary act to disturb the determination.

APPEARANCES: Darrell J. Skelton, Esq., for James C. Goodwin; John F. Hughes, Esq., Office of the Solicitor, U.S. Department of the Interior, for the Bureau of Land Management and the U.S. Geological Survey.

OPINION BY MR. DAY OFFICE OF HEARINGS AND APPEALS

This matter is before the Board via a long, unusual, and circuitous route. It had its origin on April 20, 1966, when Mr. James C. Goodwin filed three applications for coal prospecting permits (Colorado 0127891, 0127926 and 0127927) pursuant to the provisions of the Mineral Leasing Act of February 25, 1920, as amended, 30 U.S.C. § 201 (b) (1970), hereinafter called the "Act".1

On June 20, 1966, the Colorado Land Office denied the applications "because the lands are known to contain a workable coal deposit and are more properly subject to the leasing provisions of the Mineral Leasing Act than the prospecting provisions thereof." After Mr. Goodwin's appeal to the Director, Bureau of Land Management, was denied, he appealed to the Secretary. In a letter decision dated De

1 Appendix A contains a description of the original permit application and amendments.

7]

cember 19, 1969, the Assistant Secretary of the Interior set aside the Bureau's decision and remanded the case for a hearing and a recommended decision by a Hearing Examiner "on the question of the existence and workability of such coal deposits as there may be in the land." 2

Extensive hearings were held in Denver, Colorado, on April 20, May 1, and June 16, 17 and 18, 1970. In his recommended decision, dated November 3, 1970, the Judge concluded that the prospecting permits should be issued for the lands contained in the amended applications. On November 27, 1970, the Assistant Secretary requested the Board of Land Appeals to consider and decide the appeal. Upon request of the Bureau and appellant, oral argument was held on June 2, 1971.

This matter is novel in a number of ways. To the best of our knowledge, it is the first time a decision regarding the workability of a coal deposit has had the advantage of a hearing on the facts. Further, because the Assistant Secretary recognized "that there are strong differences of views on this subject and as to the proper criteria to be employed in cases of this kind,” he permitted two USGS employees to

***

2 The title "Hearing Examiner" was superseded by "Administrative Law Judge." 37 F.R. 16787 (August 19, 1972).

3 Jurisdiction over appeals to the Director, Bureau of Land Management, was delegated to the Board of Land Appeals, June 18, 1970. Cir. 2273, 35 F.R. 10009, 10012.

testify as witnesses for the appellant.*

In Clear Creek Inn Corporation, 7 IBLA 200, 213, 79 I.D. 571, 577578 (1972), the Board clearly put cases of this nature in their perspective with respect to Departmental authority to determine workability and the burden of proof.

*** It has long been accepted that it is for the Secretary or his delegate to determine whether, from the information which he has at the time he considers an application for prospecting permit, prospecting or exploratory work is necessary to determine the existence or workability of coal deposits. D. E. Jenkins, 55 I.D. 13 (1934). Of course, we recognize that the Geological Survey in conducting its field examinations and collection of other data is acting as the Secretary's expert and is providing technical advice so that a proper determination can be made in these matters. In addition, the Director of the Geological Survey has been expressly entrusted by Congress with the "classification of the public lands and examination of the geological structure, mineral resources, and products of the national domain." Act of March 3, 1879, 20 Stat. 377, 394; 43 U.S.C. § 31 (1970). Therefore, when the Geological Survey has concluded from all the available geological data that further exploration is, or is not, needed to determine the existence or workability of coal deposits in a particular area, the Secretary is entitled to rely upon the reasoned opinion of his technical expert in the field. Roland C. Townsend, A-30250 (September 14, 1965); Carl Nyman, 59 I.D. 238 (1946).

This accepted procedure has been followed consistently, placing a burden on the applicant to present a convincing and persuasive argument to rebut the conclu

4 John P. Storrs, Regional Mining Supervisor, Branch of Mining Operations, and J. D. Turner, Chief of Branch of Mining Operations.