held pending possible future availability of the land or interests in the land, when approval of the application is prevented by:
(a) Withdrawal or reservation of the lands;
Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of
the Interior, 43 CFR 4.1, the decision appealed from is affirmed.
ANNE POINDEXTER LEWIS, Member. JOAN B. THOMPSON, Member.
(Note-See front of this volume for tables.)
1. Historical differences between
the situation in Alaska
and the other states af-
ford reasons for different
interpretations of legis-
lation pertaining to
Alaska natives and legis-
lation pertaining to
Indians in the other
states. Therefore section
8 of the Act of May 17,
1884, regarding the oc-
cupancy of Alaska natives
and others upon public
land, is not in pari ma-
teria with the disclaimer
provision in section 3 of
the Utah Enabling Act
of 1894, as to lands
"owned or held by any
Indian or Indian
Tribes.".
ACT OF AUGUST 1892
1. The Act of July 23, 1955, as
amended, 30 U.S.C. §611
(1970), had the effect
of excluding from the
coverage of the mining
laws "common varieties"
of building stone, but
left the Act of August 4,
1892, 30 U.S.C. $161
(1970), authorizing the
location of building stone
placer mining claims, ef-
fective as to building
stone that has "some
property giving it distinct
and special value.".
ACT OF AUGUST 4, 1892-Con.
2. To determine whether a de-
posit of building stone is
of a common or un-
common variety, there
must be a comparison of
the deposit with other
deposits of similar type
materials in order to as-
Icertain whether the de-
posit has a property
giving it a distinct and
special value. If the de-
posit is to be used for the
same purposes as minerals
of common occurrence,
then there must be a
showing that some prop-
erty of the deposit gives
it a special value for such
use and generally this
value is reflected by the
fact that the material
commands a higher price
in the market place. ---
ACT OF JULY 16, 1894
1. Title to school sections
granted to the State of
Utah by section 6 of the
Utah Enabling Act, 28
Stat. 109, vests in the
State on the date of
Statehood (January 4,
1896), or upon comple-
tion and acceptance of
the survey of the sections
if the lands were not then
ACT OF JULY 16, 1894-Con.
To determine whether any
Indian occupancy by
Navajos outside their
recognized reservation
boundaries was
ognized by the Utah
Enabling Act of 1894 so
as to prevent the opera-
tion of the grant
of
lands for school purposes
to the State, the intent of
Congress must be as-
certained by reading the
provisions of the grant
and the disclaimer of
lands "owned or held by
any Indian or Indian
tribes" together, by con-
sidering the usual mean-
ing of the words, by
determining the overall
purpose of the Act, and
by considering the pro-
visions in accordance with
the historical milieu and
public policy of that time,
well as any court
interpretations of other
3. Historical differences be-
tween the situation in
Alaska and the other
states afford reasons for
different interpretations
of legislation pertaining
to Alaska natives and leg-
islation pertaining to In-
dians in the other states.
Therefore section 8 of the
Act of May 17, 1884, re-
garding the occupancy of
Alaska natives and others
upon public land, is not
in pari materia with the
disclaimer provision in
section 3 of the Utah En-
abling Act of 1894, as to
lands "owned or held by
any Indian or Indian
Tribes".
ACT OF JULY 16, 1894-Con.
4. By the Utah Enabling Act of
1894, Congress did not
intend the grant of school
lands to the State of
Utah, effective upon sur-
vey in 1900, to be held in
abeyance as to unreserved
public lands which may
have been within a wide,
undefined perimeter of
use by a proportionately
few Navajo families out-
side their reservation
grazing flocks of sheep
with transitory encamp-
ments in an area also used
by non-Indians for graz-
ing purposes and wan-
dered over by Indians
from other tribes------
ACT OF JUNE 25, 1910
1. Where the Secretary of Agri-
culture has made a deter-
mination pursuant to sec-
tion 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 graz-
ing purposes than for the
timber found thereon,
the Secretary of the In-
terior is authorized, in
his discretion, to accept
an application for an In-
dian allotment thereon,
and to cause the allot-
ment to be made. Even
where such a determina-
tion by the Secretary of
Agriculture has been
made, the Secretary of
the Interior may reject
the allotment on any ra-
tional basis, including,
without limitation, con-
siderations of public pol-
icy. Such considerations
may encompass recrea-
ACT OF JUNE 25, 1910-Con.
tional and watershed val-
ues and avoidance of
erosion.
ADDITIONAL HOMESTEADS
1. A homestead settlement claim
for an additional home-
stead entry under the
Act of April 28, 1904
(33 Stat. 527), 43 U.S.C.
$213, may be made for
unsurveyed lands in
Alaska by a person other-
wise qualified who has
filed an application for
homestead entry on a
form approved by the
Director, Bureau of
Land Management, and
made acceptable final
proof on his original
homestead settlement
claim, where the com-
bined area of the two
claims does not. exceed
160 acres.
ADMINISTRATIVE PRACTICE
1. Where land has been with-
drawn for state manage-
ment as a wildlife area
under the Fish and Wild-
life Coordination Act, the
Bureau of Land Manage-
ment must consider the
recommendations of the
state and of the Bureau
of Sport Fisheries and
Wildlife to assure con-
servation of the fish and
wildlife before approving
a right-of-way application
under the Act of March 3,
1891, for a pumping site
and irrigation system....
2. The procedures followed by
the Department of the
Interior in the initiation,
prosecution, hearing and
administrative decision of
mining contests are in
ADMINISTRATIVE PRACTICE-Con.
full compliance with the
requirement of the Ad-
ministrative Procedure
Act, 5 U.S.C. $ 554
(1970), as to separation
of investigative or pros-
ecuting functions from
decision making, and such
procedures do not deny
due process_
3. Although the Board of Land
Appeals takes official
notice of the findings and
conclusions in an inter-
locutory order of the
Indian Claims Commis-
sion on the claim of the
Navajo Tribe of Indians
against the United States,
the Board's decision on
a protest by the Tribe
against issuance of a
confirmatory patent to
the State of Utah for
school land sections now
included within the
boundaries of the Tribe's
reservation is based solely
upon the evidence in the
hearing in the Depart-
ment on this protest and
upon its own application
of the law to the facts
in this case. - -
4. An applicant who asserts a
preference to receive a
grazing lease under sec-
tion 15 of the Taylor
Act must have grazing
rights in excess of 50
percent on the cornering
or contiguous land, and
where his rights are
merely permissive and
are subject to revocation
at any time at the will
of the owner(s), no pre-
ference will be recog-
nized.....
ADMINISTRATIVE PRACTICE-Con.
5. Remedies for alleged breach
of a private agreement be-
tween parties who have
conflicting grazing lease
applications must be
sought in the courts, not
in the Department of the
Interior, which has no
jurisdiction over such
6 Under the Administrative
Procedure Act, hearsay
evidence is admissible at a
hearing if it is relevant,
material and not unduly
repetitious, but it has
little or no weight where
the circumstances do not
establish its reliability...
ADMINISTRATIVE PROCEDURE
(See also Rules of Practice.)
1. A mining claimant is not
denied due process merely
because of prehearing
publicity where he fails to
show that there was any
unfairness in the contest
proceeding itself.
2. The Board of Land Appeals
has authority to reverse
the findings of an Ad-
ministrative Law Judge.
However, where the res-
olution of a case depends
primarily upon the
Judge's findings of credi-
bility, which in turn are
based upon his reaction to
the demeanor of wit-
nesses, his findings will
not be lightly set aside___
3. Although the Board of Land
Appeals takes official no-
tice of the findings and
conclusions in an inter-
locutory order of the In-
Idian Claims Commission
ADMINISTRATIVE PROCEDURE-Con.
GENERALLY-Con.
on the claim of the
Navajo Tribe of Indians
against the United
States, the Board's de-
cision on a protest by the
Tribe against issuance of
a confirmatory patent to
the State of Utah for
school land sections now
included within the
boundaries of the Tribe's
reservation is based solely
upon the evidence in the
hearing in the Depart-
ment on this protest and
upon its own application
of the law to the facts in
this case.
ADJUDICATION
1. The procedures followed by
the Department of the
Interior in the initiation,
prosecution, hearing and
and administrative deci-
sion of mining contests
are in full compliance
with the requirement of
the Administrative Pro-
cedure Act, 5 U.S.C.
§ 554 (1970), as to separa-
tion of investigative or
prosecuting functions
from decision making,
and such procedures do
not deny due process----
ADMINISTRATIVE LAW JUDGES
1. An Administrative Law
Judge is not disqualified
nor will his findings be set
aside in a mining contest
because of a mere charge
of bias in the absence of a
substantial showing of
bias....
2. No request for a prehearing
conference having been
made, the failure of an
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