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three months from the filing of the township plat and prior to the withdrawal. (Op. Asst. Atty. Gen., 34 L. D. 347.)

By the mere filing of an application to enter under the homestead law, upon which action is suspended, and tender of the necessary fees, the applicant acquires no vested right to or interest in the land applied for, nor does such application have the effect to segregate the land from the public domain, so as to prevent a withdrawal thereof for reclamation purposes. (John J. Maney, 35 L. D. 250; Charles G. Carlisle, 35 L. D. 649. Decision modified ; see 48 L. D. 153; C. L. 1013, June 15, 1921.)

4. Lands not subject to withdrawal.-A mineral location founded on actual discovery of a valuable deposit of mineral within the limits of the claim, and maintained in accordance with the mining laws and local regulations, excepts the land from the operation of a withdrawal under this act. (Secretary's instructions of January 13, 1904; 32 L. D. 387.)

Congress having by the act of July 5, 1884 (33 Stat. 103), provided for the disposal of lands in abandoned military reservations, the Secretary of the Interior is without authority to dispose of such lands in any other manner or to segregate them for use in connection with an irrigation project. (Secretary's instructions of July 20, 1904; 33 L. D. 130.)

5. Effect of withdrawal.-A withdrawal of lands by competent authority for a lawful purpose operates to sever such lands from the public domain. (Kansas Pac. Ry. Co. v. Atchison, T. & S. F. R. Co. (1881), 13 Fed. 106.) But is ineffectual as against a title previously acquired. (Northern Pac. Ry. Co. v. Mitchell (1913), 208 Fed. 469; Knudsen v. Omanson (1894), 10 Utah 124; 37 Pac. 250.)

A withdrawal of lands under this act will defeat a prior application to purchase the same under the timber and stone laws where, at the date of withdrawal, the applicant had acquired no vested right to the lands embraced in his application. (Board of Control, Canal No. 3, State of Colorado v. Torrence, 32 L. D. 472.)

Upon the cancellation of a homestead entry covering lands embraced within a subsequent withdrawal made under the act, the withdrawal becomes effective as to such lands without further order. (Cornelius J. MacNamara, 33 L. D. 520.)

Where, under the act of March 3, 1905 (33 Stat. 1069), lands of the Vintah Indian Reservation have been set apart and reserved as a reservoir site for general agricultural development and subsequently have been withdrawn, under section 3 of the reclamation act, from all forms of sale and entry, the United States is liable upon an implied contract to the Indians of said reservation for the occupancy and use of said lands to the extent that the use made of them is inconsistent with the rights of the Indians to use and occupy them or leave them open to sale and entry for their benefit, and the reclamation fund is applicable to the payment thereof. (14 Comp. Dec. 49.)

The proviso of act of June 25, 1910, section 5, as amended by section 10, act of August 13, 1914 (36 Stat. 686), making lands reserved for irrigation purposes and relinquished from prior entries subject to entry under the reclamation act, applies only to lands withdrawn under the reclamation act, as susceptible of irrigation under a proposed project, and not to lands withdrawn under the latter act as required for the construction of irrigation works. (U. S. v. Fall (App. D. C. 1921), 276 Fed. 622.)

A homestead entry, which was void when made, because the land was withdrawn as required for reclamation construction, is not validated by a subsequent order of the Secretary of the Interior declaring the land not needed for construction purposes. (Idem.)

6. Waters not reserved by withdrawal.-There is no authority to make such executive withdrawal of public lands in a State as will reserve the waters of a stream flowing over the same from appropriation under the laws of the State, or will in any manner interfere with its laws relating to the control, appropriation, use, or distribution of water. (Op. Asst. Atty. Gen., 32 L. D. 254.)

7. Rights of way over withdrawn lands.—The use of rights of way over public lands within reservations for the purposes contemplated by either the act of

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February 15, 1901 (31 Stat. 790), or the act of June 17, 1902 (32 Stat. 388), will not be permitted if such use is incompatible with the public interest; and if at any time the public interest is jeopardized by the use of such rights of way after they have been granted, they may be revoked. (Op. Asst. Atty. Gen., 33 L. D. 389.)

No authority to convey land. The only authority vested in the Secretary of the Interior for conveyance of land is under the act of February 15, 1901, 31 Stat. 790, which provides that the Secretary may permit the use of the land for right-of-way purposes, which permit would also provide for revocation subject to the discretion of the Secretary. (Decision of First Assistant Secretary, September 26, 1934.)

8. Failure to note withdrawal on tract book.–Any withdrawal otherwise valid shall not be affected by failure to note same on tract book or otherwise follow the usual procedure. (Secretary's instructions of August 12, 1913; 42 L. D. 318.) See 48 L. D. 153, amending paragraphs 13,-14, and 16, and revoking paragraph 15 of general reclamation circular of May 18, 1916.

9. Contests affecting withdrawn lands. -See Secretary's instructions of August 24, 1912 (41 L. D. 171), overruling Fairchild v. Eby (37 L. D. 362), revoking General Land Office regulations of January 19, 1909 (37 L. D. 365), and restoring paragraphs 6 (modified) and 7 of General Land Office instructions of June 6, 1905 (33 L. D. 607). See Secretary's instructions of September 4, 1912 (41 L. D. 241), amending said instructions of August 24, 1912. See also New Castle Co. v. Zanganella (38 L. D. 314.)

See note 46 under this section. Lands reserved until reservations extinguished.-The State of Utah appealed from decision of the General Land Office, dated January 14, 1930, that the rights of the State of Utah did not attach to certain land in sec. 16, T. 3 S., R. 25 E., S. L. M., beause of a phosphate reserve. The Department ruled that inasmuch as the lands were embraced in a reclamation withdrawal and later a phosphate reserve, they were not subject to section 6 of the Utah Enabling Act (granting, with other land, all sections 16 to the state, unless in a reservation) and would not be until the reservations, including the reclamation withdrawal, were extinguished and the lands restored to and become a part of the public domain. (Decision of Assistant Secretary, April 18, 1931.)

10. Miscellaneous references.-General Land Office circular of September 9, 1902, giving notice of the reclamation act of June 17, 1902, to registers and receivers. (31 L. D. 420.)

General Land Office circular of October 25, 1902, to registers and receivers, in reference to withdrawals for surveys. (31 L. D. 423.)

Secretary's instructions of February 11, 1903, regarding withdrawals. (32 L. D. 6.)

Geological Survey circular of March 31, 1904, regarding withdrawals and other matters. (32 L. D. 537.)

General Land Office circular of June 15, 1904, in reference to notice to entrymen. (33 L. D. 38.)

General Land Office circular of June 6, 1905, to registers and receivers in reference to withdrawals. (33 L. D. 607.)

Secretary's instructions of October 12, 1905, regarding withdrawals. (34 L. D. 158.)

Secretary's order of October 3, 1912, directing notice to persons unlawfully settled upon withdrawn lands. (41 L. D. 293.)

General reclamation circular, approved May 18, 1916 (45 L. D. 385), superseding general reclamation circular, approved February 6, 1913. (42 L. D. 349.)

General reclamation circular approved May 18, 1916, was amended by instructions printed at 47 L. D. 417; 48 L. D. 113; 48 L. D. 153.

For digest of decisions and opinions in connection with oil and gas permits for withdrawn lands issued under act of February 25, 1920 (41 Stat. 437), see 47 L. D. 463.

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11. Effect of withdrawal.-Withdrawals made by the Secretary of the Interior under the first form, of lands which are required for irrigation works have the force of legislative withdrawals and are effective to withdraw from other disposition all lands within the designated limits to which a right has not vested. (Secretary's instruction of January 13, 1904; 32 L. D. 387.)

Under this act withdrawal is absolute, and no rights can be initiated by a settler during the existence of the withdrawal order. (Donley v. Van Horn (1920), 193 Pac. 514, 49 Cal. App. 383, writ of certiorari dismissed (1922), 42 Sup. Ct. 383, 258 U. S. 634, 66 L. Ed. 803, and writ of error dismissed (1922), 43 Sup. Ct. 87, 260 U. S. 697, 67 L. Ed. 469. Donley v. West (1920), 193 Pac. 519, 49 Cal. App. 796, reversing on rehearing (1920), 189 Pac. 1052, writ of error dismissed (1922), 43 Sup. Ct. 87, 260 U. S. 697, 67 L. Ed. 469.)

Occupancy by a private individual of public lands during the time that an order of withdrawal from entry under this section is in force constitutes trespass, and the occupant's improvements are made at his own risk. (Capron v. Van Horn (Cal. Sup. 1927), 258 Pac. 77.)

12. Discretion of the Secretary.—The discretion of the Secretary of the Interior in making first-form withdrawals of lands can not be questioned, and no application to enter can be allowed on the ground that the land is not needed. (Ernest Woodcock, 38 L. D. 349.)

The withdrawal of land for irrigation purposes under this section is a matter that was committed to the Land Department exclusively, and, in the absence of fraud on the part of the officials of that department, can not be reviewed by the courts. (Donley y. West (Cal. App. 1920), 189 Pac. 1052; reversed on other grounds on rehearing (1920), 193 Pac. 519, 49 Cal. App. 796; writ of error dismissed (1922), 43 Sup. Ct. 87, 260 U. S. 697, 67 L. Ed. 469.)

13. Rights of settlers and entrymen. The reclamation act contains no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in the act of June 27, 1906 (34 Stat 519), or other statute of the United States, and such settler has no right which he can oppose to the taking of the land for such purpose. (United States v. Hanson (Wash. 1909), 167 Fed. 881; 93 C. C. A. 371.)

An application to make homestead entry for land embraced within a firstform withdrawal should not be allowed nor received and suspended to await the possible restoration of the lands to entry, but should be rejected. (Ernest Woodcock, 38 L. D. 349.)

See instructions of General Land Office, January 25, 1921, 47 L. D. 624, directing attention to sections 4, 13, and 20 of general reclamation circular May 18, 1916, 45 L. D. 385.

Where homestead or desert-land entries are included within first-form reclamation withdrawals, they should not be suspended, but allowed to proceed to final proof, certificate, and patent, and the land, if thereafter needed by the United States for reclamation purposes, reacquired by purchase or condemnation. (Secretary's instructions of August 26, 1914, 43 L. D. 374, overruling Op. Asst. Atty. Gen., 34 L. D. 421, and Agnes C. Pieper, 35 L. D. 459.)

14. Forest reserve lands.-Under the act of February 15, 1901 (31 Stat. 790), lands in forest reserves created under authority of the act of March 3, 1891 (26 Stat. 1095), may be appropriated and used for irrigation works constructed under authority of the act of June 17, 1902 (32 Stat. 388), as well as for works constructed by individuals. (Op. Asst. Atty. Gen., 33 L. D. 389.)

Reclamation withdrawals within the national forests are dominant, but until needed by the Reclamation Service (Bureau of Reclamation) the lands will remain for administrative and protection purposes under control and direction of the Forest Service. (Departmental decision, February 27, 1909.)

While the Secretary of the Interior may determine what lands within national forests withdrawn for reclamation purposes are necessary for the proper protection of reservoirs constructed under the reclamation act, he has no power to lease such lands, since authority in that regard is specifically granted to the Secretary of Agriculture. But in recognition of the needs of the Reclamation Service (Bureau of Reclamation) and to forestall any contracts

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detrimental to a reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior, (31 Op. Atty. Gen. 56.)

But see act of July 19, 1919 (41 Stat. 163, 202), conferring jurisdiction on the Secretary of the Interior.

15. Mineral lands. The right of the Government to appropriate public land for use in the construction and operation of irrigation works under the act of June 17, 1902 (32 Stat. 388), is not affected by the fact that the land is mineral in character. (Secretary's instructions of October 6, 1906; 35 L. D. 216; Loney v. Scott (1910), 57 Or. 378; 112 Pac. 172.)

A mining claim as to which the claimant was in default in the performance of annual assessment work at the date of a withdrawal for the construction of irrigation works under the reclamation act does not except the land from the force and effect of the withdrawal. (Mrs. E. C. Kinney, 44 L. D. 580.) See note following section 9 of the act of December 21, 1928, entitled "Assay of gold and silver ore samples on withdrawn land."

Mining claims, Boulder Canyon project.—Default in the performance of assess. ment work on mining claims cannot be made the subject of adverse proceedings or a basis for forfeiture. A charge of abandonment should be preferred where po assessment work has been done for several years past and where the land has not been used for mining purposes. Also, if gold and silver do not appear to exist in such quantity and quality as to be worked profitably, charges of no discovery and nonmineral land may be made. Service by publication under tion 2335 of the Revised Statutes may be obtained against claimants not found in cases where there is issue as to the mineral or nonmineral character of the land. (Departmental instructions, July 7, 1930, 53 I. D. 228-232.)

Market value a factor in justifying mining claim.-D. L. Underwood et al appealed from decision of the Commissioner of the General Land Office holding Toid their placer mining claim for valuable deposits of sand and gravel and other minerals located November 11, 1933, in section 31, T. 29 N., R. 31 E., Willamette meridian, Washington, on the grounds that sand and gravel were not of such quality as to make them commercially valuable and that there was no definite market value for them. The Department, noting that at the time the claim was located the Columbia Basin Commission had contracted with the United States for preliminary work in connection with the Grand Coulee Dam, held that the land was nonmineral in character, and that the claimant had not shown a definite market value for sand and gravel from the claim, and that a prospective demand, due to construction of the Grand Coulee Dam, was too uncertain and speculative to warrant the condusion that the deposit was valuable. (Decision A-19293, dated Mar. 23, 1936, by First Assistant Secretary.) A motion for rehearing was denied July 8 1936.

16. Railroad rights of way.—No such right is acquired by virtue of an application for right of way for a railroad under the act of March 3, 1875 (18 Stat. 482), before the approval thereof, and prior to the construction of the nad, as will prevent the Secretary of the Interior withdrawing the lands vered thereby for use as a reservoir under the act of June 17, 1902 (32 Stat. 388). (Op. Asst. Atty. Gen. 32 L. D. 597.)

17. Reservoirs for domestic purposes. -The Secretary of the Interior has no authority under this act to withdraw lands for reservoir sites with a view to the use of the waters impounded therein for domestic purposes. (Op. Asst. Atty. Gen. 33 L. D. 415.)

18. Reservoir lands.—Under this act the Secretary of the Interior had authority to withdraw from public entry lands constituting a reservoir site sought to be appropriated by a water and power company. (Verde Water & Porrer Co. v. Salt River Valley Water Users' Ass'n (1921), 197 Pac. 227; 22 Ariz. 305; certiorari denied (1921), 42 S. Ct. 53, 257 U. S. 643, 66 L. Ed. 412.)

The laws of the United States in reference to the disposition of public lands of the United States are paramount and exclusive, and a water and power company could not acquire an easement on lands of a reservoir site, withdrawn from entry by the Secretary of the Interior, by virtue of any compliance with Civil Code (Ariz.), 1913, paragraphs 5337, 5338. (Idem.)

Order of the Secretary of the Interior of July 27, 1903, withdrawing from entry a reservoir site never having been set aside, no valid claim to the lands

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embraced in such order could be initiated by a water and power company in the presence of such withdrawal, and notices of appropriation, posted subsequently by the company, were unavailable for any such purpose. (Idem.)

19. Location of scrip and subsequent first form withdrawal.--The location of Valentine scrip upon unsurveyed public land in conformity with the law and departmental regulations is such an appropriation of the land as cannot be defeated by a subsequent reclamation withdrawal, notwithstanding the selecLion had not been adjusted to an official survey, and the selector cannot thereafter be deprived of his rights thus acquired except in the manner prescribed by the reclamation act. (Edward F. Smith et al., 51 L. D. 454.)

20. Uses to which withdrawn lands may be put.-The reclamation act authorizes the withdrawal of public lands from entry to provide pasture for Government animals used in carrying on operations under the act. (Departmental decision, March 21, 1910, Lower Yellowstone.)

Removal of gravel from first-form lands is unauthorized, as it contemplates a diminution in the freehold estate. (Departmental decision, July 21, 1916, Huntley.)

The removal of sand and gravel for private purposes from land withdrawn under the first form is authorized, provided the privilege is granted under competitive conditions and on terms adequately protecting the rights of the United States. (Departmental decision April 13, 1929, Boulder Canyon project.)

The removal of surface rock on first-form lands may be permitted when such removal makes available for use of the service of the better class of rock in the interior of the deposit. (Departmental decision, January 25, 1917, Rattlesnake Hill, Truckee-Carson.)

The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing, the revenue going into the reclamation fund. (Clyde v. Cummings (1909), 35 Utah, 461; 101 Pac. 106.)

On February 3, 1928, the Commissioner, Bureau of Reciamation, recommended to the Secretary of the Interior the adoption of a policy of permitting the water users on the projects transferred to them for operation, to lease for grazing and agricultural purposes, all withdrawn or acquired lands where such lease would not interfere with the purposes for which withdrawn or acquired, the water users to make the leases, collect the charges, and handle all details in connection with such transactions. The recommendation was returned to the bureau without approval by First Assistant Secretary E. C. Finney under date of February 21, 1928, with the statement that such procedure would be illegal.

Under the provisions of the reclamation act the Secretary of the Interior has full authority to purchase any lands that may be necessary for reservoir purposes, to arrange for the prices and terms of purchase, and to allow the vendor to retain possession until the land may be actually needed by the Government, where by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. (Departmental decision, 32 L. D. 416; but note decisions which follow.)

The Secretary of the Interior has authority to make temporary leases of Jands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the reclamation act where use under the proposer lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. (Departmental decision, 34 L. D. 480.)

Temporary leases for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes in reclamation projects during such periods as may elapse between the acquisition of title and the actual use of the same for reservoirs and canals. (Departmental decision, 39 L. D. 525.)

All such leases should state the purpose for which the lands were acquired and that such purpose will not in any manner be interfered with or delayed by the lease: should specifically provide for the immediate, or speedy, termination of the lease in event it is desired to utilize the land or any part thereof for reclamation works, or in event the work of reclamation is found to be hindered or delayed by reason thereof; and should be limited to one year, but may contain provision for renewal for the succeeding year in event the lands should not sooner be needed for reclamation purposes. (Idem.)

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