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MINING CLAIMS-Con.
SURFACE USES-Con.

to constitute a discovery,
and whether the dis-
covery was made prior to
the effective date of the

Act.
2. Testimony by a government

mineral engineer that he
examined the mining
claims and the workings
thereon and sampled the

recommended by
the claimant but found
no evidence of a valuable
mineral deposit which
would have in the past
or present justified
person of ordinary pru-
dence in the further ex-
penditure of his time and
means in an effort to
develop a valuable mine,
is sufficient to establish a
prima facie case of ab-
sence of a discovery so as
to subject a mining claim
to the limitations imposed
by section 4 of the Act of

July 23, 1955.
3. Where a verified statement

filed pursuant to the
Surface Resources Act
of July 23, 1955, fails
to set forth, as required
by section 5(a) (3) of the
Act, all of the sections
of public land which are
embraced within each of
the

claimant's mining
claims, the statement is
defective

to
inadequately described
claim and said claim
is subject to the limita-
tions and restrictions of
the Act...

NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969

GENERALLY
1. It is not necessary for the

Government to prepare
an environmental impact
statement before issuing a
patent to a mining claim,
as the patenting of a
mining claim is not a
major Federal action"
within the ambit of sec-
tion 102 of the National
Environmental Policy
Act, 42 U.S.C. § 4332

(1970)
ENVIRONMENTAL STATEMENTS
1. In accordance with guide-

lines provided by the
Council on Environmen-
tal Quality, 36 F.R. 7724,
detailed environmental
statements are

not
quired under section 102
(2)(C) of the National
Environmental Policy
Act of 1969, 42 U.S.C.
§ 4331(2)(C) (1970), in
connection with the can-
cellation of timber
sale contract where it
is not reasonable to an-
ticipate a cumulatively
significant adverse effect

on the environment.---.
NAVIGABLE WATERS
1. A lake is navigable in fact

when it is used, or is sus-
ceptible of being used, in
its ordinary condition, as
a highway for com-
merce, over which trade
and travel are or may be
conducted in the cus-
tomary modes of trade
and travel on water. A
meandered lake in Mon-
tana, containing 125 acres
and which is not over

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of a

NAVIGABLE WATERS-Con.

waist deep, is nonnaviga-
ble where it is located in
a remote region and there
is no evidence to show
that it has been used in
the past or is susceptible
of being used as a high-
way for commerce in the

future.-..
2. Title to the underlying bed

meandered lake
which is held to be
nonnavigable remains in
the United States where
all of the abutting up-
lands surrounding the

lake are still public lands.
3. The Secretary of the Interior

has the authority and the
duty to determine what
lands are public lands of
the United States, includ-
ing the authority to deter-
mine navigability of a
lake to ascertain whether
title to the land underly-
ing the lake remains in
the United States
whether title passed to
a State upon its admission
into the Union.--.

OIL AND GAS LEASES-Con.
SURFACE USES-Con.

ered by the offer to lease
is satisfied by a statement
to the effect that the
offeror does not own an
oil and gas lease on any
part of the lands in

question.---
APPLICATIONS

Generally
1. The regulatory requirement

that an acquired lands
oil and gas lease offer
must be accompanied by
a statement showing the
extent of the offeror's
ownership of the

oper-
ating rights to the frac-
tional mineral interest not
owned by the United
States in each tract cov-
ered by the offer to lease
is satisfied by a statement
to the effect that the
offeror does not own an
oil and gas lease on any
part of the lands in
question..

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322

OIL AND GAS LEASES

GENERALLY
1. An oil and gas lessee must

comply with all the lease
terms, including the op-
erating regulations, at his

own expense.-
ACQUIRED LAND LEASES
1. The regulatory requirement

that an acquired lands
oil and gas lease offer
must be accompanied by
a statement showing the
extent of the offeror's
ownership of the operat-
ing rights to the frac-
tional mineral interest
not owned by the United
States in each tract cov-

1. Where an applicant for a

future interest oil and
gas lease of acquired
lands has interests only
in the land below 1,000
feet below the surface, it
does not own or control
all or substantially all
of the present operating
rights to the minerals in
the land; if it seeks only
a lease for the zone be-
low 1,000 feet, it is re-
questing a lease of
horizontal zone, which is
granted, if at all, only
where the need for it is
clear and convincing; in
either case its offer for a
future interest lease must
be rejected...

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OIL AND GAS LEASES-Con.

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ROYALTIES
1. In determining the amount of

royalty due to the United
States from production of
natural gas from an oil
and gas lease pursuant
to sec. 3, Act of August 8,
1946, 60 Stat. 951, it is
proper for the Geological
Survey to a base
value which includes
both the purchase price
paid for the natural gas
as established by the
Federal Power Commis-
sion plus any additional
sum paid by the pur-
chaser of the gas to unit
operator as consideration
for the purchase of gas
from the unit of which the

federal lease is a part.-
SUSPENSIONS
1. An oil and gas lessee must

comply with all the lease
terms, including the
operating regulations, at

his own expense.
PATENTS OF PUBLIC LANDS

GENERALLY
1. Where the Secretary of the

Interior is required by the
Act of June 21, 1934,
upon application by a
state, to issue a patent
to the state for school
lands and to show the
date title vested and the
extent to which the lands
are subject to prior con-
ditions, limitations, ease-
ments, or rights, if any,
he (and his delegates)
may determine questions
of law as well as fact, in-
cluding a determination
as to whether title passed
under the school land
grant.

PUBLIC LANDS

GENERALLY
1. From the latter part of the

19th century to the Tay-
lor Grazing Act of June
28, 1934, there was a gen-
eral policy of the federal
government to permit ac-
quisition of title to open,
unreserved public lands
by individuals settling
upon the land, including
Indians, but vested rights
were obtained to the
lands only upon compli-
ance with a specific act
of Congress, and only for
the maximum acreage al-

lowable under that law..
JURISDICTION OVER
1. The Secretary of the Interior

has the authority and the
duty to determine what
lands are public lands of
the United States, includ-
ing the authority to de-
termine navigability of a
lake to ascertain whether
title to the land under-
lying the lake remains in
the United States
whether title passed to
a State upon its admis-

sion into the Union.---
RAILROAD GRANT LANDS
1. A release filed by a land-grant

railroad pursuant to sec-
tion 321 (b) of the Trans-
portation Act of 1940, 54
Stat. 954, extinguishes
the right of the railroad
or its attorneys-in-fact to
select lands or receive
compensation in lieu of
lands originally acquired
by it under the Act of
July 27, 1866, in aid of
construction of the rail-
road but relinquished un-
der the Act of June 4,
1897..

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RIGHTS-OF-WAY
(See also Indian Lands.)

GENERALLY
1. There is no grant of a right-

of-way under the Act of
March 3, 1891, as to
withdrawn lands without
approval of the Secretary
of the Interior, who may
deny an application and
approval of maps filed
thereunder upon reason-
able grounds, or condi-
tion approval as to the
location of the improve-

ments to be constructed.
2. 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
Management must con-
sider the recommenda-
tions of the state and of
the Bureau of Sport Fish-
eries and Wildlife to

conservation of
the fish and wildlife be-
fore approving a right-
of-way application under
the Act of March 3, 1891,
for a pumping site and ir-

rigation system..
3. A Bureau of Land Manage-

ment decision which re-
jected application
under the Act of March 3,
1891, for a pumping sta-
tion and irrigation sys-
tem within a small cove
of a reservoir withdrawn
for a fish and wildlife
management area

pur-
suant to the Fish and
Wildlife Coordination
Act, will be sustained
where it was made in due
regard for the public
interest in managing the
area in light of that Act..

assure

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RIGHTS-OF-WAY-Con.

ACT OF MARCH 3, 1891
1. There is no grant of a right-

of-way under the Act of
March 3, 1891, as to
withdrawn lands without
approval of the Secretary
of the Interior, who may
deny an application and
approval of maps filed
thereunder upon reason-
able grounds, or condi-
tion approval as to the
location of the improve-

ments to be constructed.
2. 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
Management must con-
sider the recommenda-
tions of the state and of
the Bureau of Sport
Fisheries and Wildlife to
assure conservation of the
fish and wildlife before
approving a right-of-way
application under the Act
of March 3, 1891, for a
pumping site and irriga-

tion system.---
3. A Bureau of Land Manage-

ment decision which re-
jected an application
under the Act of March 3,
1891, for a pumping sta-
tion and irrigation sys-
tem within a small cove
of a reservoir withdrawn
for a fish and wildlife
management

pur-
suant to the Fish and
Wildlife Coordination
Act, will be sustained
where it was made in
due regard for the public
interest in managing the
area in light of that
Act.

area

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RULES OF PRACTICE
(See Also Contracts, Federal Coal

Mine Health and Safety Act of
1969, Indian Probate.)
GENERALLY
1. Under the Administrative

Procedure Act, if a li-
censee has made a timely
and sufficient application
for a renewal of a license
in accordance with
agency rules, a license
with reference to an ac-
tivity of a continuing
nature does not expire
until the application has
been finally determined
by the agency. This in-
cludes applications for
grazing licenses and per-
mits under the Taylor

Grazing Act..
APPEALS

Generally
1. A contractor's application to

take depositions of re-
tired Bureau employees
and of a newspaper re-
porter will be denied,
since such prospective
witnesses are not under
the control of the Gov-
ernment and the Board
has no jurisdiction over

third parties--
2. A contractor who fails to take

advantage of Govern-
ment offers to examine
certain information rela-
tive to its claims is not
entitled to have its appli-
cation to take the depo-
sitions of Government
employees for purposes of
discovery granted, as the
contractor has not shown
good cause as required by
the Board's rule govern-
ing discovery (43 CFR

4.115) --
3. An appeal will be dismissed

where there no justici-

RULES OF PRACTICE-Con.
APPEALS-Con.
Generally— Con.

able issue or where the

appeal is moot---
4. Upon appeal from a decision

of an Administrative Law
Judge, the Board of Land
Appeals may make all
findings of fact and con-
clusions of law based
upon the record just as
though it were making
the decision in the first

instance -
BURDEN OF PROOF
1. A construction contractor's

claim for an equitable
adjustment is denied
where the evidence shows
that payment for the
overlay work involved
in repairing eroded pave-
ment was provided for
in an accepted change
order and the appellant
failed to sustain its bur-
den of showing that the
straitened financial cir-
cumstances in which the
contractor was in at the
time of the change order
was the result of wrong-
ful action by the con-
tracting officer or other
Government

personnel
administering the con-
tract under which the
claim of duress was as-

serted.---
2. The Board denies a Govern-

ment motion for recon-
sideration where it finds
that a diary entry con-
tained in exhibit
offered in evidence by the
Government, together
with the testimony of a
witness for the appellant
created an inference that
the Government was re-
sponsible for an indeter-
minate portion of a pro-

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