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August 29, 1973

Notice No. 4 DCM 11/13/70 8 317 under section 109(a) (1) of the Act (s)

5

and was properly completed pursuNotice No. 1 MM 12/16/70 $ 303

ant to the Act after compliance with (0)

5 Notice No. 2 MM 12/16/70 g 303

all procedural requirements. (t)

5

ORDER Total Assessments_

$167

WHEREFORE, it is ordered For the reason hereinbefore

that: found, the Bureau's Petition for

(A) Respondent is assessed civil Assessment of Civil Penalty should be dismissed insofar as it sought

penalties totaling $167 which it

shall pay within 30 days from the assessment of civil penalties for vio

date of this decision. lation of section 316 (Notice No. 4 DCM 5/8/70) of the Act.

(B) The Bureau's Petition for I find and conclude that Respond- missed insofar as it sought assess

Assessment of Civil Penalty is disent's Mine No. 2 is, and was at all

ment of civil penalties with respect pertinent times, subject to the pro

to section 316 of the Act. visions of the Act and to the safety and health standards promulgated

RICHARD C. STEFFEY, thereunder, and that this case arose Administrative Law Judge.

August 29, 1973

CURTIS D. PETERS

State Office, Bureau of Land Man

agement, dated November 17, 1972, 13 IBLA 4

which rejected his Indian allotment Decided August 29, 1973

application embracing lands within

the Klamath National Forest, CaliAppeal from decision (S 3830) of

fornia. This case is a sequel of CurCalifornia State Office, Bureau of Land Management, rejecting application for

tis D. Peters, 6 IBLA 5 (1972). Indian allotment for national forest

Appellant originally filed an apland.

plication for an Indian allotment

for lands within the Klamath NaAffirmed as modified.

tional Forest on January 26, 1970. Act of June 25, 1910—Indian Allot- The application was rejected by the ments on Public Domain: Generally

y— Bureau on the basis that neither Indian Allotments on Public Domain: appellant nor any of his ancestors Lands Subject to

occupied the land in accordance

with 25 U.S.C. SS 336, 337 (1970). Where the Secretary of Agriculture has

The decision of the Bureau was remade a determination pursuant to section 31 of the Act of June 25, 1910, 36 versed on appeal on the basis that Stat. 863, 25 U.S.C. $ 337 (1970), that there was no indication in the record lands within a national forest are more

that the Secretary of Agriculture valuable for argricultural or grazing

had made a determination, in acpurposes than for the timber found there

cordance with the Act of June 25, on, the Secretary of the Interior is authorized, in his discretion, to accept an

1910, that the land in issue was more application for Indian allotment valuable for agricultural or grazthereon, and to cause the allotment to

ing purposes than for the timber be made. Even where such a determina

found thereon. Curtis D. Peters, tion by the Secretary of Agriculture has been made, the Secretary of the Interior

supra. may reject the allotment on any rational The case was remanded to the basis, including, without limitation, con- Supervisor of the Klamath National siderations of public policy. Such con

Forest. On August 25, 1972, the Actsiderations may encompass recreational

ing Regional Forester, acting on beand watershed values and avoidance of erosion.

half of the Secretary of Agriculture,

informed the Bureau of Land ManAPPEARANCES: William H. Cozad, agement that a determination had Esq., of the California Indian Legal been made in accordance with the Services, Eureka, California, for appel decision in Peters, supra, that the lant.

land in issue was more valuable for

agricultural or grazing purposes OPINION BY MR. FISHMAN

than for the timber found thereon." INTERIOR BOARD OF

Notwithstanding the finding that LAND APPEALS

the land was more valuable for Curtis D. Peters has appealed agricultural or grazing purposes from a decision of the California rather than for the timber found

an

80 I.D. No. 9

thereon, the Acting Regional For- able for agricultural or grazing purposes, ester concluded that the land in then the Secretary of the Interior shall

cause allotment to be made as herein issue was more valuable for "na

provided. (Italics supplied.) tional forest purposes," as set forth

It is obvious from the language in the Organic Act of June 4, 1897, 30 Stat. 34, 16 U.S.C. $ 475 (1970), quoted in the Act of June 25, 1910, and the Multiple-Use Sustained

that the proper legal standard to be Yield Act of June 12, 1960, 74 Stat. applied by the Secretary of Agri

culture is whether the land applied 215, 16 U.S.C. 8 528 (1970), than

for as an Indian allotment is more for agricultural or grazing pur

valuable for agricultural or grazing poses.

purposes or for the timber found The Bureau of Land Manage- thereon. Nowhere in the Act of ment, relying on the several deter- June 25, 1910, is there any reference minations made by the Acting Re

to a legal standard to be applied gional Forester rejected appellant's which relates to “national forest application. Based upon our review

purposes." References to the Orof the record, we are of the opinion ganic Act of June 4, 1897, and the that appellant's application should Multiple-Use Sustained-Yield Act not have been rejected on the basis

of June 12, 1960, a re, in our view, of the determination made by the inapposite for the determination by Forest Service that the land in issue

the Department of Agriculture. The was more valuable for "national

term “forest purposes" is much forest purposes” than for agricul- broader in scope than the term “timtural or grazing purposes.

ber.” Congress used the word "timSection 31 of the Act of June 25, ber" in the Act of June 25, 1910, and 1910, provides:

refers to "forest purposes” in the The Secretary of the Interior is author

Organic Act and the Multiple-Use ized, in his discretion, to make allotments

Sustained-Yield Act. At the time within the national forests in conformity that Congress enacted the 1910 Act, with the general allotment laws, to any

it was, of course, aware of the term Indian occupying, living on, or having

"forest purposes” employed in the improvements on land included within any such national forest who is not en

1897 Act. Had Congress intended to titled to an allotment on any existing utilize the same standard, it would Indian reservation, or for whose tribe no have employed the same term. Morereservation has been provided, or whose

over, the Multiple-Use Sustainedreservation was not sufficient to afford

Yield Act of June 12, 1960, does not an allotment to each member thereof. All applications for allotments under the

grant any substantive authority to provisions of this section shall be sub- the Department of Agriculture, but mitted to the Secretary of Agriculture simply reiterates the then existing who shall determine whether the lands

practices of the Forest Service as applied for are more valuable for agri. having Congressional policy apcultural or grazing purposes than for the timber found thereon; and if it be found

proval. We can only conclude that that the lands applied for are more valu- by using different terms Congress

August 29, 1973

intended the terms to have different terior is authorized, in his discremeanings.

tion” to make such a grant. The If the applicant has otherwise met proper exercise of discretionary authe requirements for an Indian al- thority by this Department has relotment, his application should not ceived judicial sanction. See Udall v. be denied on the basis of the Depart- Tallman, 380 U.S. 1 (1965), rehearment of Agriculture's determination ing denied, 380 U.S. 989 (1965); that the land is more valuable for Duesing v. Udall, 350 F.2d 748 national forest purposes than for (D.C. Cir. 1965), cert. denied, 383 agricultural or grazing purposes. U.S. 912 (1966); Pease v. Udall, 352 The Secretary of Agriculture, F.2d 62 (9th Cir. 1961); Thor-Westthrough his delegate, specifically cliffe Development, Inc. v. Udall, made a determination that the land 314 F.2d 257 (D.C. Cir. 1963), cert. in issue is more valuable for agri- denied, 373 U.S. 951 (1963); IIalcy cultural or grazing purposes than v. Seaton, 281 F.2d 620 (D.C. Cir. for the timber found thereon. This

1960). is the standard which appears in the Approval of an Indian allotment Act of June 25, 1910, and it is the never was and is not now a mere only proper standard to be applied ministerial duty of this Departnıent by the Department of Agriculture. Finch v. United States, 387 F.2d 13

In Peters, supra, the question of (10th Cir. 1967), cert. denied, 390 appellant's occupancy of the land

U.S. 1012 (1968). The exercise of in issue was not reached. The case discretionary authority must be was remanded to the Supervisor of predicated upon rational grounds. the Klamath National Forest to de- United States v. Maher, 5 IBLA termine, as required by the Act of

209,79 I.D. 109 (1972). See Hopkins June 25, 1910, whether the land was v. United States, 414 F.2d 464 (9th more valuable for agricultural or Cir. 1969); Daniels v. United States, grazing purposes or for the timber 247 F. Supp. 193 (W.D. Okla. 1965). found thereon. Since the determina- The information of record indition has been made that the land is cates that the land could not supmore valuable for agricultural or port reasonably an Indian family. grazing purposes, we now reach the See Hopkins v. United States, issue of the exercise of this Depart- supra. This conclusion stems from ment's discretion.

the finding that under optimum This Department is not required conditions the lands applied for to grant an Indian allotment within

could support 10 to 13 cows for one a national forest merely because the year and in the general area the statutory criteria have been satis

smallest marginal family unit is fied. The 1910 Act is crystal clear considered to be 200 cows. Although that, "[t]he Secretary of the In- it is true that Indian allotment ap

plications for lands in national 1 See Junior Walter Daugherty, 7 IBLA 291 (1972).

forests are not subject to the classi

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