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of this act shall apply to the said counties in said reserve only so far as is necessary to give and perfect title of such settlers or occupants to lands chiefly valuable for agriculture therein occupied or claimed by them prior to the said date, and all homestead entries under this act in said counties in said reserve shall be described by metes and bounds survey.

(Section 4 is amended to read as above by the act of February 8, 1907 (34 Stat., 883).) Settlement forbidden.

Sec. 5. That nothing herein contained shall be held to authorize any future settlement on any lands within forest reserves until such lands have been opened to settlement as provided in this act, or to in any way impair the legal rights of any bona fide homestead settler who has or shall establish residence upon public lands prior to their inclusion within a forest reserve.

(The act of May 30, 1908, 35 Stat., 554, provides that the above act“ be amended by striking out of section 1 the following words: 6 * Except the following counties in the State of California: Inyo, Tulare, Kern, Ventura, Los Angeles, San Bernardino, Orange, Riverside, and San Diego.?" It will be noted that while the excepting

' words are stricken out the names of San Luis Obispo and Santa Barbara Counties are not stricken out.)

Certain lands in Lawrence and Pennington Counties, S. Dak., excepted from the operation of section 4 of the act of June 11, 1906, but continued subject to all other provisions of said act. (Act July 3, 1912, 37 Stat., 188.) Status of lands listed.

Act of August 10, 1912 (37 Stat., 269). For the expenditure under the direction of the Secretary of Agriculture for survey and listing of lands within forest reserves chiefly valuable for agriculture and describing the same by metes and bounds, or otherwise, as required by the act of June eleventh, nineteen hundred and six, and the act of March third, eighteen hundred and ninety-nine, thirty-five thousand dollars: Provided, however, That any such servey and the plat and field notes thereof paid for out of this appropriation shall be made by an employee of the Forest Service under the direction of the United States Surveyor General, but no land listed under the act of June eleventh, nineteen hundred and six, shall pass from the forest until patent issues. Segregation of agricultural lands.

Act of August 10, 1912 (37 Stat., 269). That the Secretary of Agriculture is hereby directed and required to select, classify, and segregate, as soon as practicable, all lands within the boundaries of National Forests that may be opened to settlement and entry under the homestead laws applicable to the National Forests, and the sum of twenty-five thousand dollars is hereby appropriated for the purposes aforesaid.

Act of March 4, 1913 (37 Stat., 828). That the Secretary of Agriculture is hereby directed and required to select, classify, and segregate, as soon as practicable, all lands

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within the boundaries of National Forests that may be opened to settlement and entry under the homestead laws applicable to the national forests, and the sum of $100,000 is hereby appropriated for the purposes aforesaid : Provided, That not to exceed $35,000 of this sum may be expended under the direction of the Secretary of Agriculture for the examination, survey, and platting of certain lands now listed or to be listed within National Forests chiefly valuable for agriculture and describing such lands by metes and bounds, as required by the act of June eleventh, nineteen hundred and six (Thirty-fourth Statute, page two hundred and thirty-three), and the act of March third, eighteen hundred and ninety-nine (Thirtieth Statute, page ten hundred and ninety-five), and hereafter such surveys, and the plats and field notes thereof, shall be made by employees of the Forest Service, to be designated by the United States surveyor general, and such surveys and the plats and field notes thereof shall be approved by the United States surveyor general: Provided further, That any unexpended balance of an appropriation of $35,000 to be expended “under the direction of the Secretary of Agriculture for survey and listing of lands within the Forest reserves chiefly valuable for agriculture and describing the same by metes and bounds or otherwise, and so forth, provided by the Act of August tenth, nineteen hundred and twelve, entitled “An Act making appropriations for the Department of Agriculture for the fiscal year ending June thirtieth, nineteen hundred and thirteen," be, and the same is, hereby continued and made available for and during the fiscal year ending June thirtieth, nineteen hundred and fourteen, for the purpose of this appropriation;

Act of June 30, 1914 (38 Stat., 415). For the selection, classification, and segregation of lands within the boundaries of national forests that may be opened to homestead settlement and entry under the homestead laws applicable to the National Forests, $100,000;

For the survey and platting of certain lands, chiefly valuable for agriculture, now listed or to be listed within the national forests, under the Act of June eleventh, nineteen hundred and six (Thirtyfourth Statutes, page two hundred and thirty-three), and the Act of March third, eighteen hundred and ninety-nine (Thirtieth Statutes, page one thousand and ninety-five), as provided by the Act of March fourth, nineteen hundred and thirteen, $85,000: Provided, That any unexpended balance of an appropriation of $35,000 to be expended “under the direction of the Secretary of Agriculture for survey and listing of lands within the forest reserves chiefly valuable for agriculture and describing the same by metes and bounds or otherwise, and so forth, provided by the Act of March fourth, nineteen hundred and thirteen, entitled "An Act making appropriations for the Department of Agriculture for the fiscal year ending June thirtieth, nineteen hundred and fourteen,” be, and the same is hereby, continued and made available for and during the fiscal year ending June thirtieth, nineteen hundred and fifteen, for the purpose of this appropriation;

Act of March 4, 1915 (38 Stat., 1099). For the selection, classification, and segregation of lands within the boundaries of National Forests that may be opened to homestead settlement and entry under the homestead laws applicable to the National Forests, $100,000;

For the survey and platting of certain lands, chiefly valuable for agriculture, now listed or to be listed within the National Forests, under the act of June eleventh, nineteen hundred and six (Thirtyfourth Statutes, page two hundred and thirty-three), and the Act of March third, eighteen hundred and ninety-nine (Thirtieth Statutes, page ten hundred and ninety-five), as provided by the Act of March fourth, nineteen hundred and thirteen, $85,000: Provided, That any unexpended balance of an appropriation of $85,000 to be expended

for the survey and platting of certain lands, chiefly valuable for agriculture," and so forth, provided by the Act of June thirtieth, nineteen hundred and fourteen, entitled “An Act making appropriations for the Department of Agriculture for the fiscal year ending June thirtieth, nineteen hundred and fifteen,” be, and the same is hereby, continued and made available for and during the fiscal ending June thirtieth, nineteen hundred and sixteen, for the purpose of this appropriation;

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DECISIONS.

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Authority of Secretary to list lands.

Authority conferred by act of June 11, 1906 (34 Stat., 233), to list agricultural lands “not needed for public purposes," authorizes the Secretary of Agriculture to refuse to list lands within National Forests when needed for public recreation purposes, although such lands are of an agricultural character. (Opinion of the Solicitor in connection with City of Los Angeles case, dated Mar. 27, 1914.)

Lands within an abandoned military reservation included within a National Forest are subject to listing and entry under the act of June 11, 1906 (34 Stat., 233), without regard to the act of July 5, 1884 (23 Stat., 103), providing for the appraisal and sale of land in abandoned military reservations. (43 L. D., 33.)

Lands included in a temporary withdrawal with a view to the creation or enlargement of a National Forest, and which are chiefly valuable for agriculture, may be listed for entry under this act. (28 Op. Atty. Gen., 424, 522.)

The Secretary of Agriculture has authority, on his own motion, to list lands for entry under the act of June 11, 1906; and where lands are so listed by him, no preference right is awarded by the statute nor can be claimed except by settlers who were actually occupying the lands prior to January 1, 1906. (Benton v. Lynes, 42 L. D., 175.)

The act of June 11, 1906, contemplates that the lands which the Secretary of Agriculture may, in his discretion, list with the Secretary of the Interior with request that they be opened to entry under the homestead laws, shall be lands which are subject to homestead entry. (Benton v. Lynes, 42 L. D., 175.) The

act of June 11, 1906, specifically declares that upon the listing of lands thereunder, by the Secretary of Agriculture, the Secretary of the Interior shall declare such lands open to settlement and entry, but that they shall not be subject to settlement and entry until the expiration of 60 days from the filing of the list in the local office; and these requirements are mandatory and jurisdictional and can not

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be dispensed with by the Land Department. (Elizabeth Davis, 43 L. D., 522.)

The act of June 11, 1906, authorizing the opening of agricultural lands within National Forests to homestead entry, does not authorize either the Secretary of the Interior or the Secretary of Agriculture to impose upon entrymen thereunder, or insert in patents issued

upon the lands, any conditions, limitations, restrictions, or reservations not specifically authorized by existing laws. (M. R. Hibbs, 42 L. D., 408.) Effect of application for listing.

No rights are acquired by the filing of an application for the listing of lands under the act of June 11, 1906, while such lands are embraced in a prior uncanceled homestead entry. (Benton v. Lynes, 42 L. D., 175.) Effect of listing and entry.

The provision in the Agricultural appropriation act of August 10, 1912 (37 Stat., 269), that "no lands listed

shall pass from the forest until patent issues," taken in connection with the words preceding them, mean only that the lands shall not pass by virtue of the listing, and they do not limit the power of the President to eliminate lands by proclamation or Executive order. (Solicitor to the Forester, Aug. 31, 1912.)

Prior to the enactment of the provision quoted in the preceding paragraph, the Comptroller of the Treasury and the Solicitor had both made the following ruling:

Lands once listed under the act of June 11 are segregated from the National Forest, and the Forest Service is not authorized to expend its appropriations for surveying the same. (Op. Comp. Treas., Oct. 21, 1910 (unpublished); 1 Sol. Op., 363.)

Lands within a National Forest listed under the act of June 11, 1906, are not subject to disposition under the enlarged homestead act of February 19, 1909 (35 Stat., 639). (Burtis F. Oatman, 39 L. D., 604.)

A settler upon unsurveyed lands subsequently included in a National Forest may elect to stand upon his rights as a settler and await survey of the township, when he may make entry of 160 acres or less under the general homestead laws, or he may, without waiting for the regular survey, apply for listing of the lands under the act of June 11, 1906; and where he applies for listing under that act and makes entry of such part of the land embraced in his settlement as is found to be of the character subject to listing and opened to entry under the act he thereby waives all claim to the remainder and can not, after survey of the township, make entry under the general homestead law for the entire area covered by his settlement claim. (Hans Hansen Hedemark, 43 L. D., 237.)

The words “chiefly valuable for agriculture as used in this statute mean merely more valuable for agriculture than for forestry purposes and a listing of the lands involves no determination as to their mineral or nonmineral character. (1 Sol. Op., 188.)

One who in good faith settled upon lands prior to their withdrawal for forestry purposes and who makes entry thereof under the act of

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June 11, 1906, is entitled to claim credit for residence from the date of such settlement. (John T. Brunskill, 42 L. D., 475.)

A survey and entry of lands in a National Forest under the act of June 11, 1906, need not include the entire body of land applied for, listed, and opened to entry under that act, but the entryman may take any portion thereof in compact form. (John W. Hickcox, 42 L. D., 573.) Form of area listed.

Any forest reserve homestead listed under the act of June 11, 1906, which does not exceed 160 acres in area and which may be contained in a square mile the sides of which extend in cardinal directions will be regarded as within the provisions of said act limiting such homestead entries to “not exceeding 160 acres in area and not exceeding one mile in length.” (Instructions, 42 L. D., 20.)

The form of agricultural tracts within forest reserves listed for entry under the act of June 11, 1906, is wholly within the discretion of the Secretary of Agriculture, so long as the inhibitions contained in the act are not violated; and the Land Department has no jurisdiction to prescribe the form of an entry under that act, provided it is not more than 1 mile in length and does not embrace more than 160 acres. (Zera W. Ballinger, 42 L. D., 148.)

Any tract of agricultural land within a forest reserve, not exceeding 160 acres in area, which may be contained in a square mile the sides of which extend in cardinal directions is within the purview of the act of June 11, 1906. (Zera W. Ballinger, 42 L. D., 148.)

It is no objection to a homestead untry under the act of June 11, 1906, that it extends across a township line and lies partly in each of two adjoining townships. (John W. Hickcox, 42 L. D., 573.) Elimination of lands listed.

Where by change of boundary lands are eliminated from a National Forest which had prior thereto been listed by the Secretary of Agriculture for restoration under the act of June 11, 1906, upon the application of a qualified homesteader, or had been settled upon prior to January 1, 1906, and the settlement since maintained, the preference right secured to such applicant or settler under said act is not terminated or defeated by such elimination. (Instructions, 42 L. D., 425.)

Where lands in a National Forest embraced within a pending entry are restored to the public domain, and the entry is permitted to remain intact, publication of the usual formal notice of restoration should not be made. (Frank A. Devault, Jr., 42 L. D., 471.) Occupancy under permit.

One who applies to have land within a National Forest listed for opening under the act of June 11, 1906, and is thereafter granted a special-use permit to occupy the land, is entitled, in submitting proof upon his entry made in pursuance of such listing, to credit for residence since the dates of the special-use permit. (Robert G. McDougall, 43 L. D., 186; see also J. Paul Holden, 43 L. D., 525.)

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