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January 10, 1973 case, is that the Department did not tinguishes the fact situation of State recognize an equitable right to select of New Mexico, case in that in the additional land once the mistake was New Mexico case the State made discovered. Although the State the resurvey, but in the present case, points to certain factual variations the federal government made the in the situations involved, the law resurvey. This does not change the is settled that once a State gives up fact that the grant was finalized at its base and accepts lieu, the ex- the time title passed to the State, change is final.

and so the State is bound by the The State, in cases one and two, original plat upon which that grant next points to 43 U.S.C. $ 851 which

was based. provides for lieu selections where

One further question remains in the base had been in some manner the third appeal. The State enclosed taken from the State in whole or in

a letter, 1364141 "F" WJC, dated part. The significant part of that January 30, 1930, from the General statute, here, reads:

Land Office, Washington, to the * Provided, That the selection of

Commissioner of Public Lands in any lands under this section in lieu of Wyoming, granting the State a lieu sections granted or reserved to a State selection for base in a situation shall be a waiver by the State of its right to the granted or reserved sections. *

closely resembling the present case.

In light of our analysis of the precThe intent of the statute is that

edent relied upon for our holding once the exchange has been made

in this case, we cannot regard this the matter is settled, and no further

letter as having continuing authoradjustments may be made. This is

ity. pointed out in the cases discussed

The fourth case involves the above.

situation where the State selected The third case involves a situation

lands were, by a dependent resurwhere the State is asking a lieu

vey, determined to contain less than selection based upon a resurvey of they had originally been shown to the base land which it still retains.

contain. The question involved in Again the arguments relating to that situation has been decided in 43 U.S.C. $S 2851 and 852 were uti

the first two cases discussed above. lized. The basic rule of law, as we

However, here the State also asserts see it, is that the area shown on the

an equitable ground. The State adplat at the time title passes is to con- mittedly must reduce its entitletrol what the State receives, and ment to select lieu land to the extent that a later survey will not affect of the half section of school land in that grant. This is the general prin- place which was ultimately deterciple set out in State of New Mexico, mined to be in Montana, not Wyo51 L.D. 409, 412 (1926), and the ming. In return the State asks that cases cited at 43 U.S.C.A. $ 752 N3 it be allowed to offset the land lost (1961). To rebut this, the State dis- by that resurvey against the half

section of selected land for which it the lands in the field, which are found to admits it must now offer new base,

have been made on sections sixteen or

thirty-six, those sections shall be subject leaving only an overselection of

to the claims of such settlers; and if such 15.78 acres. In support of its equity sections or either of them have been or argument, the State cited the State

shall be granted, reserved, or pledged for of New Mexico, 53 I.D. 222 (1930), the use of schools or colleges in the State which grants equity by allowing in which they lie, other lands of equal the State to keep the already ap

acreage are hereby appropriated and

granted, and may be selected, in accordproved lieu lands selected on the

ance with the provisions of section 852 basis of an enlarged resurveyed of this title, by said State, in lieu of such base section. The equities are not as may be thus taken by preemption or directly similar, in that the base homestead settlers. And other lands of land here was not ever in the State

equal acreage are also hereby appropri

ated and granted and may be selected, of Wyoming, so that no equitable

in accordance with the provisions of secinterest therein can be vested in the

tion 852 of this title, by said State where State.

sections sixteen or thirty-six are, before

title could pass to the State, included Accordingly, pursuant to the au

within any Indian, military, or other thority delegated to the Board of

reservation, or are, before title could Land Appeals by the Secretary of pass to the State, otherwise disposed of the Interior, 43 CFR 4.1, the deci- by the United States : Provided, That the sions appealed from are affirmed. selection of any lands under this section

in lieu of sections granted or reserved EDWARD W. STEUBING,

to a State shall be a waiver by the State Member

of its right to the granted or reserved

sections. And other lands of equal acreWE CONCUR:

age are also appropriated and granted, MARTIN RITVO, Member.

and may be selected, in accordance with

the provisions of section 852 of this title, FREDERICK FISHMAX, Member. by said State to compensate deficiencies

for school purposes, where sections six

teen or thirty-six are fractional in quan: CONCURRING OPINION OF tity, or where one or both are wanting FREDERICK FISHMAN by reason of the township being frac

tional, or from any natural cause whatAt first blush the main opinion's ever. And it shall be the duty of the Sec.

retary of the Interior, without awaiting rationale in part suggests that the

the extension of the public surveys, to grant under the Lieu Selection Act

ascertain and determine, by protraction [43 U.S.C. $S 851-852 (1970)] is in or otherwise, the number of townships terms of sections, not acres.

that will be included within such Indian,

military, or other reservations, and there The opinion does not discuss the

upon the State shall be entitled to select apparently disparate provisions of

indemnity lands to the extent of section 43 U.S.C. $ 851 (1970), which reads

for section in lieu of sections therein as follows:

which have been or shall be granted, reWhere settlements with a view of pre

served, or pledged; but such selections emption or homestead have been, or shall may not be made within the boundaries of hereafter be made, before the survey of

said reservation: Provided, however,

January 23, 1973

That nothing in this section contained change in any relevant part, it manifested shall prevent any State from awaiting its approval and ratification of the adthe extinguishment of any such military, ministrative construction of the earlier Indian, or other reservation and the Resurvey Acts by the Department of the restoration of the lands therein embraced Interior, the effect given thereto by such to the public domain and then taking the Department, and such practices and prosections sixteen and thirty-six in place cedures. (Footnote omitted] therein. [Italics supplied]

The soundness of this approach, in Concededly the statute speaks of its evenhandedness and practical"section for section"; however, it ity, is articulated in State of New also addresses itself to "other lands

Mexico, 51 L.D. 409 (1926), quoted of equal acreage," a contradiction in the main opinion. in many situations.

In view of the fairly consistent inAs I see it, the crucial point is the

terpretation given by the Departfact that the school indemnity stat

ment to the lieu selection statutes utes, Rev. Stats. SS 2275 and 2276

and the reasonableness of such inwere amended by the Acts of Feb

terpretation, I see no reason to deruary 28, 1891, 26 Stat. 796, the Act

part therefrom and therefore concur of August 27, 1958, 72 Stat. 928, the

in the main opinion. Act of September 14, 1960, 74 Stat. 1024, and the Act of June 24, 1966, SO Stat. 220 at which times Congress

JAMES C. GOODWIN must be presumed to have known the

9 IBLA 139 interpretations put on the lieu selec

Decided January 23, 1973 tion law by the Department. That Congress did nothing by statute to

Review of recommended decision of change the administrative practice

Administrative Law Judge Dent D. and interpretation is tantamount to Dalby, recommending reversal of a Congressional approval thereof. Bureau of Land Management decision

This view is buttressed by State of rejecting applications for coal prospectWyoming v. United States, 310 F. ing permits C-0127891, 0127926 and

y 2d 566, 580 (10th Cir. 1962), cert.

0127927. denied, 372 U.S. 953 (1963), as fol

Affirmed as modified. lows:

When Congress passed the Resurvey Coal Leases and Permits: Permits: Act of 1908, it must be presumed to have Workability known the construction which had been placed on the Resurvey Acts of 1903 and

The workability of any coal will ulti1905 and the effect given to such earlier

mately be determined by two offsetting Acts by the Department of the Interior

factors-(1) its character and heat-girand the practices and procedures followed

ing quality, whence comes its value, and and carried out by such Department, with

(2) its accessibility, quantity, thickness, respect to the lands in the original school

depth, and other conditions that affect sections and resurveyed school sections. the cost of its extraction. It must be Therefore, when Congress enacted the considered a workable coal if its value, Resurvey Act of 1908, without substantial as determined by its character and heattary. In a letter decision dated DeIn determining whether lands are of such character as to subject them to leasing

was

giving quality, exceeds the cost of the Secretary of the Interior is entitled extraction.

to rely upon the reasoned opinion of his

technical expert, the Geological Survey. Coal Leases and Permits: Permits:

Only upon a clear showing that the SurWorkability

vey's determination

improperly Workability as defined by the USGS is

made, will the Secretary act to disturb concerned with the economics of the in

the determination. trinsic factors. Extrinsic factors such as

APPEARANCES: Darrell J. Skelton, transportation, markets, etc., are not considered. However, the cost of mining must Esq., for James C. Goodwin; John F. be considered. In its classification of coal Hughes, Esq., Office of the Solicitor, lands, USGS has anticipated and assumed

U.S. Department of the Interior, for the ultimate coming of conditions favor. able for mining and marketing of any coal

the Bureau of Land Management and if the coal is workable in terms of the

the U.S. Geological Survey. intrinsic factors. In this respect, the test of workability under the Mineral Leasing OPINION BY MR. DAY Act differs from the prudent man rule OFFICE OF HEARINGS AND under the mining laws.

APPEALS Coal Leases and Permits: Permits:

This matter is before the Board Workability

via a long, unusual, and circuitous Although workability is basically a prob- route. It had its origin on April 20, lem of the physical parameters of the

1966, when Mr. James C. Goodwin coal, the test of workability is dependent upon economic factors. If the value of

filed three applications for coal the coal is greater than the cost of its prospecting permits (Colorado extraction, the deposit is workable. 0127891, 0127926 and 0127927) purCoal Leases and Permits: Permits:

suant to the provisions of the Min

eral Leasing Act of February 25, Workability

1920, as amended, 30 U.S.C. $ 201 Workability may be established by geo

(b) (1970), hereinafter called the logic inference where detailed informa

“Act". tion is available regarding the existence of a workable deposit in adjacent lands On June 20, 1966, the Colorado and there are geologić and other sur- Land Office denied the applications rounding conditions from which the work

"because the lands are known to ability of the deposit can be reasonably

contain a workable coal deposit and

a inferred. However, geologic inference, as a tool for determining workability, has are more properly subject to the certain limitations. The mere fact that leasing provisions of the Mineral lands applied for adjoin other lands Leasing Act than the prospecting which contain workable coal deposits does

provisions thereof.” After Mr. not, per se, permit the inference that they

Goodwin's appeal to the Director, contain coal deposits in workable quality and quantity.

Bureau of Land Management, was

denied, he appealed to the SecreCoal Leases and Permits: Permits

1 Appendix A contains a description of the rather than prospecting under permits, original permit application and amendments. the national domain." Act of March 3, regarding the workability of a coal 1879, 20 Stat. 377, 394; 43 U.S.C. $ 31 deposit has had the advantage of a (1970). Therefore, when the Geological hearing on the facts. Further, be

7

January 23, 1973 cember 19, 1969, the Assistant Sec- testify as witnesses for the appelretary of the Interior set aside the lant.* Bureau's decision and remanded the In Clear Creek Inn Corporation, case for a hearing and a recom- 7 IBLA 200, 213, 79 I.D. 571, 577– mended decision by a Hearing Ex- 578 (1972), the Board clearly put aminer "on the question of the cases of this nature in their perspecexistence and workability of such tive with respect to Departmental coal deposits as there may be in the authority to determine workability land." 2

and the burden of proof. Extensive hearings were held in * * * It has long been accepted that Denver, Colorado, on April 20, it is for the Secretary or his delegate to

determine whether, from the information May 1, and June 16, 17 and 18, 1970.

which he has at the time he considers In his recommended decision, dated

an application for prospecting permit, November 3, 1970, the Judge con- prospecting or exploratory work is necescluded that the prospecting permits sary to determine the existence or workshould be issued for the lands con

ability of coal deposits. D. E. Jenkins, 55

I.D. 13 (1934). Of course, we recognize tained in the amended applications.

that the Geological Survey in conducting On November 27, 1970, the Assist

its field examinations and collection of ant Secretary requested the Board

other data is acting as the Secretary's of Land Appeals to consider and de- expert and is providing technical advice cide the appeal.3 Upon request of

so that a proper determination can be

made in these matters. In addition, the the Bureau and appellant, oral

Director of the Geological Survey has argument was held on June 2, 1971.

been expressly entrusted by Congress This matter is novel in a number with the “classification of the public lands of ways. To the best of our knowl

and examination of the geological struc

ture, mineral resources, and products of edge, it is the first time a decision

Survey has concluded from all the availcause the Assistant Secretary recog

able geological data that further explora

tion is, or is not, needed to determine the nized "that there are strong differ- existence or workability of coal deposits ences of views on this subject *** in a particular area, the Secretary is and as to the proper criteria to be entitled to rely upon the reasoned opinion

of his technical expert in the field. Roland employed in cases of this kind,” he

C. Townsend, A-30250 (September 14, permitted two USGS employees to 1965 ) ; Carl Nyman, 59 I.D, 238 (1946).

This accepted procedure has been fol2 The title "Hearing Examiner” was super

lowed consistently, placing a burden on seded by “Administrative Law Judge." 37 F.R. the applicant to present a convincing and 16787 (August 19, 1972).

persuasive argument to rebut the conclu3 Jurisdiction over appeals to the Director, Bureau of Land Management, was delegated • John P. Storrs, Regional Mining Superto the Board of Land Appeals, June 18, 1970. visor, Branch of Mining Operations, and J. D. Cir. 2273, 35 F.R. 10009, 10012.

Turner, Chief of Branch of Mining Operations.

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