CURTIS D. PETERS

13 IBLA 4

Decided August 29, 1973

Appeal from decision (S 3830) of California State Office, Bureau of Land Management, rejecting application for Indian allotment for national forest land.

Affirmed as modified.

Act of June 25, 1910-Indian Allotments on Public Domain: GenerallyIndian Allotments on Public Domain: Lands Subject to

Where the Secretary of Agriculture has made a determination pursuant to section 31 of the Act of June 25, 1910, 36 Stat. 863, 25 U.S.C. § 337 (1970), that lands within a national forest are more valuable for argricultural or grazing purposes than for the timber found thereon, the Secretary of the Interior is authorized, in his discretion, to accept an application for an Indian allotment thereon, and to cause the allotment to be made. Even where such a determination by the Secretary of Agriculture has been made, the Secretary of the Interior may reject the allotment on any rational basis, including, without limitation, considerations of public policy. Such considerations may encompass recreational and watershed values and avoidance of erosion.

APPEARANCES: William H. Cozad, Esq., of the California Indian Legal Services, Eureka, California, for appellant.

OPINION BY MR. FISHMAN INTERIOR BOARD OF

LAND APPEALS Curtis D. Peters has appealed from a decision of the California

State Office, Bureau of Land Management, dated November 17, 1972, which rejected his Indian allotment application embracing lands within

the Klamath National Forest, California. This case is a sequel of Curtis D. Peters, 6 IBLA 5 (1972).

Appellant originally filed an application for an Indian allotment for lands within the Klamath National Forest on January 26, 1970. The application was rejected by the Bureau on the basis that neither appellant nor any of his ancestors occupied the land in accordance with 25 U.S.C. §§ 336, 337 (1970). The decision of the Bureau was reversed on appeal on the basis that there was no indication in the record that the Secretary of Agriculture had made a determination, in accordance with the Act of June 25, 1910, that the land in issue was more valuable for agricultural or grazing purposes than for the timber found thereon. Curtis D. Peters, supra.

The case was remanded to the Supervisor of the Klamath National Forest. On August 25, 1972, the Acting Regional Forester, acting on behalf of the Secretary of Agriculture, informed the Bureau of Land Management that a determination had been made in accordance with the decision in Peters, supra, that the land in issue was "more valuable for agricultural or grazing purposes than for the timber found thereon."

Notwithstanding the finding that the land was more valuable for agricultural or grazing purposes rather than for the timber found

80 I.D. No. 9

thereon, the Acting Regional Forester concluded that the land in issue was more valuable for "national forest purposes," as set forth in the Organic Act of June 4, 1897, 30 Stat. 34, 16 U.S.C. § 475 (1970), and the Multiple-Use SustainedYield Act of June 12, 1960, 74 Stat. 215, 16 U.S.C. § 528 (1970), than for agricultural or grazing purposes.

The Bureau of Land Management, relying on the several determinations made by the Acting Regional Forester rejected appellant's application. Based upon our review of the record, we are of the opinion that appellant's application should not have been rejected on the basis of the determination made by the

Forest Service that the land in issue was more valuable for "national forest purposes" than for agricultural or grazing purposes.

able for agricultural or grazing purposes, then the Secretary of the Interior shall cause allotment to be made as herein provided. (Italics supplied.)

It is obvious from the language quoted in the Act of June 25, 1910, that the proper legal standard to be applied by the Secretary of Agriculture is whether the land applied for as an Indian allotment is more valuable for agricultural or grazing purposes or for the timber found thereon. Nowhere in the Act of June 25, 1910, is there any reference to a legal standard to be applied which relates to "national forest purposes." References to the Organic Act of June 4, 1897, and the Multiple-Use Sustained-Yield Act of June 12, 1960, are, in our view, inapposite for the determination by the Department of Agriculture. The term "forest purposes" is much broader in scope than the term "timber." Congress used the word "tim

The Secretary of the Interior is authorized, in his discretion, to make allotments within the national forests in conformity with the general allotment laws, to any Indian occupying, living on, or having improvements on land included within any such national forest who is not entitled to an allotment on any existing Indian reservation, or for whose tribe no reservation has been provided, or whose reservation was not sufficient to afford an allotment to each member thereof. All applications for allotments under the provisions of this section shall be submitted to the Secretary of Agriculture

who shall determine whether the lands applied for are more valuable for agricultural or grazing purposes than for the timber found thereon; and if it be found that the lands applied for are more valu

refers to "forest purposes" in the Organic Act and the Multiple-Use Sustained-Yield Act. At the time that Congress enacted the 1910 Act, it was, of course, aware of the term "forest purposes" employed in the 1897 Act. Had Congress intended to utilize the same standard, it would have employed the same term. Moreover, the Multiple-Use SustainedYield Act of June 12, 1960, does not grant any substantive authority to the Department of Agriculture, but simply reiterates the then existing practices of the Forest Service as having Congressional policy approval. We can only conclude that by using different terms Congress

intended the terms to have different meanings.

If the applicant has otherwise met the requirements for an Indian allotment, his application should not be denied on the basis of the Department of Agriculture's determination that the land is more valuable for national forest purposes than for agricultural or grazing purposes.1 The Secretary of Agriculture, through his delegate, specifically made a determination that the land in issue is more valuable for agricultural or grazing purposes than for the timber found thereon. This is the standard which appears in the Act of June 25, 1910, and it is the only proper standard to be applied by the Department of Agriculture.

In Peters, supra, the question of appellant's occupancy of the land in issue was not reached. The case was remanded to the Supervisor of the Klamath National Forest to determine, as required by the Act of June 25, 1910, whether the land was more valuable for agricultural or grazing purposes or for the timber found thereon. Since the determination has been made that the land is more valuable for agricultural or grazing purposes, we now reach the issue of the exercise of this Department's discretion.

This Department is not required to grant an Indian allotment within a national forest merely because the statutory criteria have been satisfied. The 1910 Act is crystal clear that, "[t]he Secretary of the In

1 See Junior Walter Daugherty, 7 IBLA 291 (1972).

terior is authorized, in his discretion" to make such a grant. The proper exercise of discretionary authority by this Department has received judicial sanction. See Udall v. Tallman, 380 U.S. 1 (1965), rehearing denied, 380 U.S. 989 (1965); Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965), cert. denied, 383 U.S. 912 (1966); Pease v. Udall, 332 F.2d 62 (9th Cir. 1964); Thor-Westcliffe Development, Inc. v. Udall, 314 F.2d 257 (D.C. Cir. 1963), cert. denied, 373 U.S. 951 (1963); Haley v. Seaton, 281 F.2d 620 (D.C. Cir. 1960).

Approval of an Indian allotment never was and is not now a mere ministerial duty of this Department Finch v. United States, 387 F.2d 13 (10th Cir. 1967), cert. denied, 390 U.S. 1012 (1968). The exercise of discretionary authority must be predicated upon rational grounds. United States v. Maher, 5 IBLA 209,79 I.D. 109 (1972). See Hopkins v. United States, 414 F.2d 464 (9th Cir. 1969); Daniels v. United States, 247 F. Supp. 193 (W.D. Okla. 1965).

The information of record indicates that the land could not support reasonably an Indian family. See Hopkins v. United States, supra. This conclusion stems from the finding that under optimum conditions the lands applied for could support 10 to 13 cows for one year and in the general area the smallest marginal family unit is considered to be 200 cows. Although it is true that Indian allotment applications for lands in national forests are not subject to the classi