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In this case, despite the Tribe's riginal rights to lands outside the claims, the evidence indicates the 1868 reservation were extinguished Indians knew or should have known by the Treaty of 1868; (4) there was the land was outside the area al- no other tribal occupancy of the lowed for tribal occupancy in 1894 area including the sections in 1900 and 1900. The San Juan River was under the standards whereby tribal a definite and recognizable natural occupancy has been recognized boundary, unlike the artificial sur- which could preclude the grant to vey line which was the north bound- the State; (5) any use of the disary of the 1905 Executive Order puted sections by a proportionately Withdrawal, where the Indians and few Navajo families for grazing others could be confused as to the purposes together with other lands boundary. Navajo rights to land out- in the area did not affect the State's side the reservation superior to the title; (6) a Navajo tribal right of State's rights could then only be ac- occupancy outside the established quired by individual Navajos in boundaries of the Navajo reservacompliance with the settlement tion was not protected or recognized laws, and not by the Tribe until a by Congress in the Utah Enabling proper withdrawal of the land was Act; (7) fee simple title to these authorized for the Tribe's behalf. disputed sections passed to the State Such actions had not been taken in of Utah on May 1, 1900, when the 1900. Therefore, an unencumbered plats of survey were accepted. fee simple title then passed to the The Tribe's challenge to the issuState.

ance of the confirmatory patent to As indicated in the Solicitor's de- the States goes to the entire fee title cision, 72 I.D. 361, 366, the Tribe of the State with all of the incihad the burden of proof to overcome

dental benefits of ownership, in parthe presumptive vesting of the ticular, the mineral values which State's title. This burden has not have been exploited under the been satisfied in this case.

State's oil and gas leases. The school To summarize, we sustain the find- grant to the State of Utah contemings and conclusions of the Director plated passage of a full fee simple except insofar as they have been title to the State. Margaret Scharf, modified by our discussion. We ex- supra. Except for easements or pressly find and conclude: (1) there rights granted to private persons was no occupancy of the disputed prior to the vesting of the State's sections by any individual Navajo title, subsequent Congressional leg

, in 1900, which could preclude the islation could not impose further grant to the State; (2) there was amendments or limitations to burno aboriginal occupancy of a tribe den the State's grant. The Act of to the disputed sections in 1900 to June 21, 1934, did not change this. which the State's title would be sub- Associate Solicitor's Opinion, ject; (3) the Navajo Tribe's abo- M-36484 (December 26, 1957). The

June 29, 1973

Tribe has not contended there are Tribe's protest on the merits is any easements, rights, or other in

affirmed as modified by this decision. terests in the land to which the State might take subject by virtue of any

Joan B. THOMPSON, Member. Indian use of the land. As we have

I CONCUR: held, there was no Indian occupancy in this case which could preclude the

MARTIN Ritvo, Member. fee simple absolute grant to the State. The Tribe's protest affords no basis for expressing any limiting

Frederick Fishman, concurring rights, easements, conditions, etc., specially. to the State's confirmatory patents

I agree with the result reached in to these two sections, as provided the main opinion, but believe that under the Act of June 21, 1934.

the Director's decision more than Therefore, the Bureau of Land adequately discussed the pertinent Management shall issue the patents issues. I would adopt the Director's to the State, when this case is re

decision in toto, except to hold that turned to it.

the Navajo Tribe had standing to Accordingly, pursuant to the au

protest the State's application for a thority delegated to the Board of confirmatory patent to the two secLand Appeals by the Secretary of tions in question. the Interior, 43 CFR 4.1, the decision of the Director dismissing the FREDERICK FISHMAN, Member.

U.S. GOVERNMENT PRINTING OFFICE: 1973

11

ROBERT W. SCHULTZ, APPELLEE

July 24, 1973
HARRY AND MARJORY GRAB- conflicting applicant would be

BERT, APPELLANTS, ROBERT awarded the disputed land.
W. SCHULTZ, APPELLEE

In December 1971 Harry and

Marjory Grabbert filed an applica12 IBLA 255

tion to renew their lease, Worland Decided July 24, 1973 44, which they had held since 1954 Appeal from a decision (Worland 44) but which would expire on Januby the District Manager, Worland, ary 31, 1972. Robert W. Schultz Wyoming, Bureau of Land Manage- filed a conflicting application. The ment, dated April 6, 1972, denying the District Office found them both to appellants' grazing lease application be qualified preference applicants and granting the appellee's grazing under 43 CFR 4121.1-1. After it was application to the extent of the conflict determined that there could be no between the two applications.

agreement between the parties as to

a division of the land, it was decided Reversed.

that an award would be made purAdministrative Practice Grazing suant to certain criteria contained

Leases: Preference Right Applicants in 43 CFR 4121.2–1(d) (1) and

(2); that is, historical use, proper An applicant who asserts a preference to

use of the preference lands, and genreceive a grazing lease under section 15 of the Taylor Grazing Act must have cral needs of the applicants. The grazinz rights in excess of 50 percent on decision found that other criteria the cornering or contiguous land, and

specified in the regulations were where his rights are merely permissive

either not applicable in the instant and are subject to revocation at any time at the will of the owner(s), no preference

case or that both applicants were will be recognized.

equally qualified as to these factors.

The decision held that Schultz APPEARANCES: Harry and Marjory

better deserved the lease from the Grabbert, pro se; Richard W. Ferry of

standpoint of land pattern, proper McCarty and Ferry, Cody, Wyoming,

use of preference land, and general for appellee.

need. It held that the historical use OPINION BY JR. STUEBING

of the Grabberts was insufficient to INTERIOR BOARD OF LAND

overcome those considerations, and

it awarded the conflict area to APPEALS

Schultz. Harry and Marjory Grabbert After the Grabberts filed their have appealed from an April 6, notice of appeal and statement of 1972, decision of the Worland,

reasons on May 4, 1972, the situation Wyoming, District Office which of the parties in relation to the prefdecided that as between them and a erence land involved in this appeal conflicting applicant to a portion of changed. In their original statement a grazing lease, Worland 44, the of reasons the Grabberts attacked the District Office's decision for its transaction, ranging from mortgage coleffect on their ranching operations lateral to probative wills. At present there

80 I.D. Nos. 7 & 8

are thirty-four owners of record holding and they included allegations of Schultz's misuse of his grazing County records are not complete in that

9594 percent of the ownership. The Park privileges and a discussion of his

at least one bequest dividing ownership insincerity as a stable rancher. To of a share is not fully recorded. This those charges Schultz filed an an

serves to illustrate the complexity of the

situation when we set out to determine swer and the Worland District Of

the status of preference of land listed fice sent a review of the case refut

in the Schultz application. At that time, ing the Grabberts' appeal. Because the situation was as follows: of the District Office's action we al

Schultz leased from:

Percent lowed both parties an opportunity

Marathon Oil Company-- 29. 2277743 to respond to the material contained

Helen and Robert Ehrin the District Office's review. All

lich

16. 9088818 prior documents had relied, in their Ehrlico, a corporation--- 16. 8899469 discussions of the situation, upon

Schultz owned..

4. 3707041 Schultz's control of the leased land

Total control.-------- 67. 3973071 which he had listed in his applica

We have talked to Mr. W. C. Silvester, tion as preference land. However,

land man for Marathon Oil Company, and the Grabberts included with their

the Marathon lease to Schultz has been answer to the District Office's re- canceled and reissued to Grabbert. The view, a letter from Marathon Oil present situation is as follows: Company, the partial owner of the

Schultz leases :

Percent land which Schultz used as his pref- Helen and Robert Ehrence land, which revoked the graz

lich

--- 16. 9088818 ing privileges on that land which

Ehrlico, a corporation.-- 16. 8899469
Schultz owns.

4. 3707011 Marathon had granted to Schultz. By a second letter-agreement Mara

Total

38. 1695328 thon awarded those same grazing Grabbert leases :

Percent privileges to Grabbert.

Marathon Oil Company-- 29. 2277743 The Wyoming State Director forwarded to this Board a memoran

Accordingly, the primary ques

tion to be resolved is whether, in the dum which explains the ownership situation regarding the land which light of existing circumstances,

Schultz still can be treated as standSchultz had used as his preference land:

ing on an equal plane of preference

with the Grabberts. That is, do These two quarter-sections are part of Schultz's total undivided interests a group of oil placer claims patented in

of less than 39 percent invest him 1921. The corporation to which the patent was issued was later desolved and owner

with "control of the base land ship of the land was distributed to the within the context of 43 U.S.C. $ 315 stockholders and directors in proportion

(m) (1970)? We think not. to their holdings. In the intervening

The outstanding interests, years, every portion of the distributed ownership has been through at least one

amounting to 61.8304671 percent

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