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July 8, 1939

No reason is seen to change the award even if it be true, as contended, that the award to Cunningham and McIntosh is not necessary in order to permit their proper use of contiguous land, as it appears from the facts disclosed that the appellees would have equal reason for making the same contention in opposition to the award of the lands to appellant. As to the contention that the consequence of the award is to disturb existing range improvements, which is not in accordance with good range practice and does not materially benefit the awardee but does materially injure the appellant, it may be observed that whether the alleged improvement (the fence) has stood in its present position for many years or was partially put there in 1935, its establishment and maintenance was in violation of law against enclosure of public land with the land of the appellant and obstructed the use of the driveway, the fence operating to enclose public land. The prior use of the public land so enclosed was not by sufferance but in violation of law and no equities can be based upon it. The appellant cannot complain of injury in depriving him of actual possession of land to which he had no exclusive right of possession. Upon grant of the lease, the lesseès are entitled to remove the fence, and if a division fence is necessary it must be left to the parties to arrange between themselves whether the one or the other shall assume the burden of removal or share the expense thereof between them.

For the reasons stated, no sufficient ground appears to disturb the award, the decision making it is affirmed, made final, the lease will be executed and the records returned to the General Land Office.

Affirmed.

CHARGES FOR RIGHTS-OF-WAY OVER PUBLIC LANDS

Opinion, July 8, 1939

PUBLIC LANDS-RIGHTS OF WAY-OIL PIPE LINES-TRANSMISSION LINES. The Secretary may make a reasonable charge (a) for rights of way for oil pipe lines over the public land granted pursuant to section 28 of the act of February 25, 1920 (41 Stat. 437, 449), as amended, but not (b) for right of way for transmission line under section 5 (d) of the act of December 21, 1928 (45 Stat. 1057).

MARGOLD, Solicitor:

You [The Secretary of the Interior] have requested me to advise you whether you have legal authority to make a reasonable charge (a) for rights of way for oil pipe lines over the public lands of the United States, granted pursuant to section 28 of the act of February 25, 1920 (41 Stat. 437, 449), as amended, and (b) for rights of way for a transmission line under section 5 (d) of the act of December 21, 1928 (45 Stat. 1057).

Section 28 of the act of February 25, 1920, as amended by the act of August 21, 1935 (49 Stat. 674), provides:

That rights-of-way through the public lands, including the forest reserves of the United States, may be granted by the Secretary of the Interior for pipe-line purposes for the transportation of oil or natural gas to any applicant possessing the qualifications provided in section 1 of this Act, to the extent of the ground occupied by the said pipe line and twenty-five feet on each side of the same under such regulations and conditions as to survey, location, application, and use as may be prescribed by the Secretary of the Interior and upon the express condition that such pipe lines shall be constructed, operated, and maintained as common carriers and shall accept, convey, transport, or purchase without discrimination, oil or natural gas produced from Government lands in the vicinity of the pipe line in such proportionate amounts as the Secretary of the Interior may, after a full hearing with due notice thereof to the interested parties and a proper finding of facts, determine to be reasonable: Provided, That the Government shall in express terms reserve and shall provide in every lease of oil lands hereunder that the lessee, assignee, or beneficiary, if owner, or operator or owner of a controlling interest in any pipe line or of any company operating the same which may be operated accessible to the oil derived from lands under such lease, shall at reasonable rates and without discrimination accept and convey the oil of the Government or of any citizen or company not the owner of any pipe line, operating a lease or purchasing gas or oil under the provisions of this Act: Provided further, That no right-of-way shall hereafter be granted over said lands for the transportation of oil or natural gas except under and subject to the provisions, limitations, and conditions of this section. Failure to comply with the provisions of this section or the regulations and conditions prescribed by the Secretary of the Interior shall be ground for forfeiture of the grant by the United States district court for the district in which the property, or some part thereof, is located in an appropriate proceeding. The last paragraph of section 5 (d) of the act of December 21, 1928, provides:

The use is hereby authorized of such public and reserved lands of the United States as may be necessary or convenient for the construction, operation, and maintenance of main transmission lines to transmit said electrical energy.

Neither of the provisions above quoted expressly confers authority to exact compensation for the rights of way granted thereunder. In 26 Op. Atty. Gen. 421, however, it was held that the Secretary of Agriculture had authority, under the act of February 15, 1901 (31 Stat. 790), to require the payment of a reasonable charge as a condition to the granting of a permit for rights of way through the national forests for the purposes contemplated by that act, even though that act did not specifically grant such authority. The ruling was predicated upon a previous opinion by the Attorney General (25 Op. Atty. Gen. 470) which involved the same question in connection with the act of June 4, 1897 (30 Stat. 35) and in which it was concluded that the act of 1897 contained "nothing inconsistent with the making of a reasonable charge on account of the use" of the forest reserves under a permit and that the authority to condition the granting of a permit upon the payment of a charge was implied in the

July 8, 1939

discretionary power of the Secretary to grant or refuse the permit. Presumably pursuant to the above opinions of the Attorney General, the Secretary of the Interior has, through regulations (41 L. D. 454, 532), prescribed charges to be paid by permittees or grantees of rights of way under the act of February 15, 1901, supra, and the act of March 4, 1911 (36 Stat. 1253).

On the basis of the rationale in the above opinions of the Attorney General, I conclude that you are authorized to make reasonable charges for rights of way for pipe lines granted under section 28 of the act of February 25, 1920, as amended, supra. That section, like the act of February 15, 1901, vests a discretionary power in the Secretary of the Interior to grant rights of way through the public lands for pipe line purposes, and, in the exercise of that discretion, the Secretary could deny such rights of way if found incompatible with the purpose for which the public lands have been withdrawn or reserved. See 55 I. D. 211, 213. Moreover, the authority to impose a charge for the privilege of using public lands for such pipe lines may not only be implied from the discretionary authority of the Secretary to grant or deny pipe line rights of way but would also seem to come within the broad power of the Secretary to prescribe "regulations and conditions as to use" of such rights of way. And the imposition by Congress of the express condition that such pipe lines shall be operated as common carriers and shall accept and transport, without discrimination, oil or natural gas produced from Government lands in the vicinity of the pipe lines, in my opinion is not inconsistent with, and does not necessarily preclude, an authority to require the payment of a reasonable charge as a condition to the granting of such rights of way.

* * *

A contrary conclusion, however, would seem to follow with respect to the use of public lands for transmission lines under section 5 (d) of the act of December 21, 1928, supra. It will be noted that this provision does not confer discretionary authority upon the Secretary of the Interior to grant rights of way for transmission lines for energy generated at the Boulder Canyon Project but constitutes, in and of itself, a grant of authority to use public lands necessary or convenient for that purpose. While it may be assumed that the Secretary of the Interior may prescribe the procedure for locating the right of way for such transmission lines, it is my opinion that he may not derogate from the grant by conditioning the use of the public lands necessary for such transmission lines upon the payment of any charge or fee.

Approved:

HAROLD L. ICKES,

Secretary of the Interior.

SEPTEMBER 26, 1939.

MEMORANDUM TO THE COMMISSIONER OF THE GENERAL LAND OFFICE:

In your memorandum of July 28 you refer to my opinion of July 8 (57 I. D. 31) relative to the imposition by the Secretary of the Interior of charges for the use of public lands for rights of way under section 28 of the act of February 25, 1920 (41 Stat. 437, 449), as amended, and section 5 (d) of the act of December 21, 1928 (45 Stat. 1057), and inquire as to the legal authority of the Secretary to make charges for rights of way granted under the acts of March 3, 1875 (18 Stat. 482), March 3, 1891 (26 Stat. 1095), February 1, 1905 (33 Stat. 628), and November 9, 1921 (42 Stat. 212).

The acts of March 3, 1875, and March 3, 1891, are similar to section 5 (d) of the act of December 21, 1928, in that they neither vest in the Secretary of the Interior a discretionary power with respect to the granting of rights of way through the public lands nor authorize him to prescribe rules or regulations as to the use of such rights of way. I believe, therefore, that the Secretary may not require the payment of a charge or fee for the use of rights of way under those acts

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Under the act of February 1, 1905, however, rights of way for dams and reservoirs for municipal and mining purposes are granted within the forest reserves "under such rules and regulations as may be prescribed by the Secretary of the Interior." It is my opinion that under such general authority the Secretary may condition the use of such rights of way upon the payment of a reasonable charge. Moreover, section 5 of that act, which provides that "all money received from the use of any lands or resources of said forest reserves shall be covered into the Treasury of the United States * * *,” implicitly recognizes the propriety of making such a charge. See 25 Op. Atty. Gen. 470; 26 Op. Atty. Gen. 421. Section 17 of the act of November 9, 1921, provides for the appropriation and transfer to the State highway department of public lands or reservations needed for highway purposes, if, the Secretary of the department supervising the administration of such land or reservations "shall have agreed to the appropriation and transfer under conditions which he deems necessary for the adequate protection and utilization of the reserve." Inasmuch as there is no limitation as to the nature of the conditions that may be imposed, I am of the opinion that the Secretary of the Interior is authorized to require the payment of a reasonable charge as a condition to the use for highway purposes of a part of the public lands or reservations under the jurisdiction of this Department, if he should deem such a charge necessary for the adequate protection and utilization of such lands or reservations.

NATHAN R. MARGOLD, Solicitor.

EDWARD D. DUNN

Decided August 4, 1939

ATTORNEYS-FRACTICE BEFORE DEPARTMENT OF INTERIOR-NOTARIES.

A person who has notarized an application for a patent under the mining laws is disqualified to act as attorney for the claimant in proceedings before the Department.

ATTORNEYS-PRACTICE BEFORE DEPARTMENT OF INTERIOR-UNITED STATES COMMISSIONERS.

United States Commissioners are disqualified to act as attorneys or agents in any public land matter pending before the Department.

SLATTERY, Under Secretary:

On August 20, 1935, the New Park Mining Company filed an application for a patent under the mining laws. The application was notarized by the appellant, Edward D. Dunn, who was and is United States commissioner for the District of Utah. As commissioner he is authorized to administer oaths. 28 U. S. C. 525. The appellant also attempted to act as attorney for the claimant in the proceedings before the Department. By decision dated November 1, 1938, the Commissioner of the General Land Office held that he was disquali. fied to act as such attorney because he had notarized the application and because he was a United States commissioner. . We think the decision was correct.

The act of June 29, 1906 (34 Stat. 622; Tit. 4, D. C. Code, Sec. 11), provides in part, "That no notary public shall be authorized to take acknowledgments, administer oaths, certify papers, or perform any official acts in connection with matters in which he is employed as counsel, attorney, or agent, in which he may be in any way interested before any of the Departments aforesaid." While the quoted portion was attached as a proviso to a statute concerning notaries public for the District of Columbia, the Attorney General and this Department have held that it applies to all notaries, and not merely to those of the District of Columbia. 26 Op. Atty. Gen. 236; Rosetti v. Dougherty, 50 L. D. 16; Home Mining Co., 42 L. D. 526. The mandate of Congress constitutes a declaration that it is against public policy to attempt to act in the dual capacity of notary and. attorney in the same matter.

An analogous provision is found in the Rules of Civil Procedure for the District Courts of the United States. Rule 28 (c) provides that no deposition shall be taken before a person who is an attorney for any of the parties in an action. See also, to same effect, 28 U. S. C. 639.

In harmony with the public policy thus declared by Congress, the first sentence of paragraph 10 of Circular 433 of the General Land Office, 44 L. D. 350, 352, provides:

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