24

THE RECLAMATION ACT

(B) FIRST-FORM WITHDRAWALS

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 v. 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no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in the act of June 27, 1906 (34 Stat 519), or other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

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 no 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 section 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 void 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 conclusion that the deposit was valuable. (Decision A-19293, dated Mar. 23, 1936, by First Assistant Secretary.) A motion for rehearing was denied July 8 1336.

16. Railroad rights of way. No such right is acquired by virtue of an plication 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 read, as will prevent the Secretary of the Interior withdrawing the lands ntered thereby for use as a reservoir under the act of June 17, 1902 (32 Stat. 358). (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 & Power 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 88508-37-3

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 selection 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 Reclamation, 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 lands 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 proposed 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.)

Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, first-form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as the conditions may arise. (Reclamation decision, March 23, 1917.)

See Departmental regulations, May 7, 1917, for leasing lands withdrawn under the first form. (46 L. D. 108; C. L. 660.)

See 14 Comptroller's Decision, 285, which touches right of Reclamation Service (Bureau of Reclamation) to lease lands of Uintah Indian Reservation. See note 14 under this section, and notes under section 7 of the reclamation act.

Leases for grazing lands should be awarded to the high bidder, even if the previous lessee of the land is low. (Decision of First Assistant Secretary of the Interior, dated January 30, 1934.)

Lease of withdrawn lands.-The Secretary of the Interior has authority to lease first and second form withdrawn lands without advertisement, and to prescribe method of determining the lease value by such plan as he deems expedient and for the best interests of the United States and the project. M-27790 of the Solicitor, December 18, 1934.)

(Decision

Grazing lease, deposit by bidder, set-off. When a lease of grazing lands is canceled for failure to pay the agreed rental but the lessor still continues occupancy and later submits a bid for a new lease upon the same land, accompanied by a deposit of the first year's rent under the new lease, it is proper to apply such deposit against the indebtedness to the United States arising out of the old lease. (Comptroller General's decision A-58113, December 3, 1934.)

The President's power to withdraw public lands for public purposes is derived from nonstatutory and statutory sources, and the exercise of this withdrawal power requires the concomitant power to regulate the lands for the purposes for which the withdrawn lands are reserved. (Decision of the Solicitor, January 25, 1934. 54 L. D. 353.)

21. Indemnity school selection. A first-form withdrawal under the reclamation act does not defeat the equitable title of the selector acquired under an indemnity school selection if the selection was legal and completed prior to withdrawal. (State of California and Overland Trust and Realty Company (on petition). 48 L. D. 614.)

Court decisions cited: Payne v. Central Pacific Ry. Co. (255 U. S. 228); Payne v. State of New Mexico (255 U. S. 367); State of Wyoming v. Uni.ed States (255 U. S. 489).

Miscellaneous.-See Wells v. Fisher (47 L. D. 288, 294).

(C) SECOND-FORM WITHDRAWALS

22. Entries not permitted-Desert-land entries.-Lands withdrawn from entry, except under the homestead laws, in accordance with this act, are not, during the continuance of such withdrawal, subject to entry under the desert-land laws. (James Page, 32 L. D. 536.)

Additional entries.-The right of additional homestead entry granted by section 6 of the act of March 2, 1889 (25 Stat. 854), can not be exercised upon lands within a reclamation project. (Gjerluf Hanson, 40 L. D. 234.) An entry of lands subject to the provisions of the reclamation act will not be allowed as additional to a prior entry subject only to the provisions of the general homestead law. (Charles O. Hanna, 36 L. D. 449.)

See note 39 under this section.

Soldiers' additional entries. By the provision that lands susceptible of irrigation under a project shall be withdrawn "from entry, except under the homestead laws", Congress intended to inhibit any mode of private appropriation of such lands except by such entry under the homestead laws as requires settlement, actual residence, improvement, and cultivation; hence such lands are not subject to soldiers' additional entry under section 2306, Revised Statutes. (Cornelius J. McNamara, 33 L. D. 520; William M. Wooldridge, 33 L. D. 525; Mary C. Sands, 34 L. D. 653.)

An application to make soldiers' additional entry, although filed prior to the passage of the act and pending at the date of an order withdrawing the

lands covered thereby under the provisions of said act, is not effective to except the lands from such withdrawal. (Nancy C. Yaple, 34 L. D. 311.)

Even though approved by the Commissioner of the General Land Office, an application to make soldiers' additional entry will not, prior to the allowance of entry thereon, prevent a withdrawal of the land covered thereby. (Charles A. Guernsey, 34 L. D. 560.)

Exchange selections.-Lands withdrawn under the second form are not subject to selection under the exchange provisions of act of June 4, 1897 (30 Stat. 36). (Santa Fe Pacific R. R. Co., 33 L. D. 360.)

Entry under trust deed to water-users' association.-A homesteader whose entry is within the irrigable area of an irrigation project, but not subject to the restrictions, limitations, and conditions of the act, can not under the law, prior to the acquisition of title to the land, enter into an agreement to convey to a water-users' association any portion of the land embraced in his entry, to be held in trust and sold for the benefit of the homesteader to persons competent to make entry of such lands. (Op. Asst. Atty. Gen., March 29, 1906, 34 L. D. 532.)

See note 39 under this section.

23. Mineral lands.-Lands valuable for mineral deposits and embraced within a withdrawal of lands susceptible of irrigation by means of a reclamation project are not thereby taken out of the operation of the mining laws, but continue open to exploration and purchase under such laws. (Secretary's instructions of October 6, 1906, 35 L. D. 216; Loney v. Scott, 57 Or. 378, 112 Pac. 172.)

Withdrawals under the second form do not affect coal lands. (Albert M. Crafts, 36 L. D. 138, overruling John Hopkins, 32 L. D. 560.)

24. Railroad rights of way.-Homesteaders without patents, but lawfully in possession of lands withdrawn for irrigation under a reclamation project, may grant rights of way over their settlements to a railroad company, and approval of the Secretary of the Interior is not required. (Minidoka & S. W. R. R. Co. v. United States, 235 U. S. 211; 59 L. Ed. 200; 35 Sup. Ct. 46, reversing 190 Fed. 491 and affirming 176 Fed. 762.) In this case the court said: "It has always been the policy of the Government to encourage the building of railroads in the Western States, and many land grants have been made by it to aid in their construction. Congress has also provided a means by which these companies having any such grants could acquire rights of way over any portion of the public land by filing a map of definite location and securing its approval by the Secretary of the Interior. (18 Stat. 482, ch. 152.) This law, however, by its very terms, applies only to 'public lands,' and hence can not be construed to empower the Secretary to authorize the building of roads across land which had been segregated from the public domain by the entry and possession of homesteaders or preemptors. (Bardon v. Northern P. R. Co., 145 U. S. 538; 36 L. Ed. 809; 12 Sup. Ct. 856; United States v. Buchanan, 232 U. S. 76; 58 L. D. 514; 34 Sup. Ct. 237, and cases cited.) On the other hand, settlers without patent were not in a position to make deeds to right of way, not only because they had no title, but also because they were prohibited from alienating such lands before final proof. (R. S. sec. 2291.)"

(See Minidoka & S. W. R. Co. v. Weymouth, 19 Idaho 234, 113 Pac. 455.) 25. Farm-unit plats. Where the Secretary of the Interior by approval of farm-unit plats under the provisions of the act of June 17, 1902 (32 Stat. 388), heretofore or hereafter given, has determined, or may determine, that the lands designated thereon are irrigable, the filing of such plats in the office of the Commissioner of the General Land Office and in the local land offices shall be regarded as equivalent to an order withdrawing such lands under the second form under said act, and as an order changing to the second form any withdrawal of the first form then effective as to any such tracts. (Department decision, July 13, 1908; 37 L. D. 27.)

26. Second withdrawal after revocation of first.-All entries of lands withdrawn under the act are subject to the conditions imposed by this section, and a revocation of the withdrawal operates to remove those conditions and leaves the entries in the same situation as entries made prior to the withdrawal, and such conditions can not, by force of a second withdrawal, be reimposed upon such of the entries made during the period of the first withdrawal as had not been perfected at the date of the second withdrawal. (Op. Asst. Atty. Gen., 34 L. D. 445.)