Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4)(a), Departmental Manual; 24 F.R. 1348), the decision of the acting Director of the Bureau of Land Management is affirmed. EDMUND T. FRITZ, Deputy Solicitor. A-28334 FREDERICK J. ZILLIG v. VERNON M. MILBURN Decided April 13, 1960 Applications and Entries: Relinquishment-Homesteads (Ordinary): Relinquishment Rules of Practice: Private Contests-Contests and Protests Where a relinquishment of a homestead entry and an affidavit of contest against the same entry are filed simultaneously, the latter must be dismissed because the relinquishment takes effect immediately, extinguishes the entry, and leaves the contest nothing upon which to act. Applications and Entries: Relinquishment-Homesteads (Ordinary): Re quishment-Rules of Practice: Private Contests-Contests and Protests Where a relinquishment of an entry is filed after an affidavit of contest has been filed against the same entry but before the entryman has been given actual or constructive notice of the contest, it is to be conclusively presumed that the relinquishment was caused by the contest unless it can be shown that the affidavit of contest was not good and sufficient, that the contest charge was not true, that the contestant was not a qualified applicant, or that the land is not subject to the contestant's application. Applications and Entries: Relinquishment-Homesteads (Ordinary): Relinquishment A telegram filed in the land office stating that the entryman relinquishes his entry is a "written relinquishment" within the meaning of the section 1 of the act of May 14, 1880. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Frederick J. Zillig has appealed to the Secretary of the Interior from a decision dated November 19, 1959, of the Acting Director of the Bureau of Land Management which affirmed the rejection by the manager of the Boise land office of his private contest against reclamation homestead entry, Idaho 08931, of Vernon M. Milburn. Milburn's homestead entry was allowed on January 28, 1958. On May 20, 1958, the manager extended to January 28, 1959, the time within which the entryman was required to establish residence on his entry (43 U.S.C., 1958 ed., sec. 169). On January 28, 1958, Milburn sent a telegram to the project superintendent, United States Bureau of Reclamation, Burley, Idaho, which stated: April 13, 1960 Please be advised that by my own free will I hereby relinquish my right to a farm unit under public notice No. 48 Minidoka Project to US Bureau of Reclamation. Letter confirming this follows. Upon receipt of the telegram the project superintendent telephoned the manager and informed him of the relinquishment. On the same day he mailed the telegram to the Boise land office. It arrived the following morning and was stamped as having been received at 10 a.m., January 29, 1959. At exactly the same time Zillig and two other persons filed contest complaints against the entry. On February 5, 1959, the land office received a letter from the entryman restating the language of his telegram. This letter, too, had been sent to the project superintendent and by him to the land office. In a decision dated March 24, 1959, the manager summarily dismissed all the contests on the ground that it was established by departmental decisions that where a relinquishment and contest are filed simultaneously, the entry expires at the same time the affidavit of contest is filed, so that the latter finds no entry to contest. Upon appeal, the Acting Director held that the act of May 14, 1880, as amended (43 U.S.C., 1958 ed., sec. 185), gives a preference right only to a contestant who has procured the cancellation of the entry; that the contestants had not procured the cancellation of the entry; and that the contests were properly dismissed because none of the contestants had earned a statutory preference right by procuring the cancellation of the entry. Of the three contestants, Zillig alone appealed to the Secretary. The other two, by failing to appeal, are deemed to have acquiesced in the decision of the Acting Director and have lost whatever rights their contest affidavits gave them. Charles D. Edmonson et al., 61 I.D. 355 (1954). In his appeal, Zillig contends that the entry was not relinquished until February 5, 1959, when the letter from the entryman was received at the land office, that the relinquishment was filed because the entryman had learned that the contest was to be filed, that the contest was filed before the entry was relinquished, and that it was, therefore, error to dismiss the contest. The act of May 14, 1880, supra, which gives a successful contestant a preference right of entry, provides: * In all cases where any person has contested, paid the land-office fees, and procured the cancellation of any ** homestead * * * entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands: ***. [21 Stat. 141.] The Acting Director held that there was no evidence that Zillig's contest had procured the cancellation of the entry and that he could not therefore avail himself of the right granted by the statute. The Acting Director's ruling is concerned with the situation where a relinquishment is filed after a contest has been filed, which is not the case here. Even so, the Acting Director's ruling is not in accord with previous rulings of the Department. After the passage of the act of May 14, 1880, the Department considered many cases involving the rights of a contestant where a relinquishment was filed after a contest had been brought. After a series of decisions in which several aspects of the problem were considered,1 the Commissioner of the General Land Office, with the approval of the Assistant Secretary, in Circular 225, dated April 1, 1913 (43 L.D. 71), set out the rules to be followed in adjudicating such conflicts in the future. Upon codification of the departmental regulations, the circular appeared in the regulations as sections 220.1–220.6 of 43 CFR, Part 220. The paragraph pertinent to the facts in this appeal read as follows: (a) Where a good and sufficient affidavit of contest has been filed against an entry and no notice of contest has issued on such affidavit, or, if issued, there is no evidence of service of such notice upon the contestee, if the entry should be relinquished the manager will immediately note the cancellation of the entry upon the records of his office. In such cases for purposes of administration a presumption will obtain that the contest induced the relinquishment and the manager will at once so notify the contestant and that he will be allowed to make entry accordingly. If the relinquishment is accompanied by the application of another than the contestant, the manager will at once advise the applicant of the pending contest and of the presumptive preference right thereunder, and that should the contestant in the exercise of such right make timely application for the land, showing himself duly qualified, said right can only be avoided on a showing that the contest charge was not true, or that the contestant is not a qualified applicant, or that the land is not subject to his application. Should the contestant apply for the lands, showing himself duly qualified, within the preference-right period, and the intervening applicant file request for a hearing, with his corroborated affidavit as to the facts above stated in avoidance of a preference right in the contestant, within 20 days after the filing of the contestant's application, hearing will be had, after at least 30 days' notice to all interested parties, upon the issues thus presented, the intervening applicant having the burden of proof. The contestant must pay all costs of the testimony as to the truth or falsity of the contest charge, and upon any other issue each party must pay the cost of taking the direct examination of his own witnesses and the cross-examination on his behalf of other witnesses. 43 CFR, 1954 ed., 220.3(a). This paragraph makes it clear that where a relinquishment is filed after a contest has been filed, it is to be conclusively presumed that the relinquishment was caused by the contest unless it can be shown that the affidavit of contest was not "good and sufficient," or that the contest charge was not true, or that the contestant was not a qualified applicant, or that the land is not subject to his application. In other words, if a contest has been filed before the relinquishment, the former cannot be dismissed solely on the ground that it did not induce the latter. 1 Crook v. Carroll, 37 L.D. 513 (1909); Stock v. Herman et al., 39 L.D. 165 (1910); Instructions, 39 L.D. 217 (1910); Smith v. Woodford, 41 L.D. 606 (1913). April 14, 1960 Green v. Rochelle; Villnave, Intervener, 55 I.D. 105 (1934); Day v. Cutshall, 48 L.D. 365 (1921). Part 220 was revoked by Circular 1950 (21 F.R. 1860) as part of the revision of the Department's regulations on practice, and the regulations which originated in Circular 225, supra, were omitted in the revision. However, the fact that there is no longer a regulation dealing with conflicts between contests and relinquishments does not mean that the rules the Department worked out in its decisions over so long a period and adhered to for over 40 years are no longer to be followed. They represent a fair and reasonable solution to what was once a common problem and although the occasions for applying them have declined, their soundness has not. Therefore, Zillig's appeal should not have been disposed of on the ground that his contest had not induced the filing of Milburn's relinquishment and the cancellation of his entry. However, the manager's rejection of Zillig's affidavit of contest should have been affirmed for the reasons stated in his decision. As the manager pointed out, it is well established that where a relinquishment is filed simultaneously with a contest, the relinquishment takes effect immediately, extinguishes the entry, and leaves the contest nothing upon which to act. Weatherspoon v. Doyle et al., 42 L.D. 117 (1913); Giltner v. Huestis et al. 14 L.D. 144 (1892); Lee v. Goodmanson, 4 L.D. 363 (1886). The appellant contends that the telegram was an insufficient relinquishment. The statute requires only that the homesteader shall file a "written relinquishment" (sec. 1 of act of May 14, 1880, as amended; 43 U.S.C., 1958 ed., sec. 202). A telegram is a "written document" (Snyder & Blankfard Co. v. Farmers Bank of Tifton, 16 A. 2d 837, 840 (Md. 1940)) and it is filed when received at the land office (Earl C. Hartley et al., 65 I.D. 12 (1958)). Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision of the Acting Director is affirmed, as modified. EDMUND T. FRITZ, A-28202 BLANCHE W. SWEENEY Decided April 14, 1960 Oil and Gas Leases: Applications-Oil and Gas Leases: Lands Subject to An oil and gas lease offer is properly rejected where the land applied for is covered by outstanding leases even though such leases may have been improperly extended. Administrative Practice A decision of a land office manager is presumed to be operative during the entire day on which it is rendered and fractions or parts of days are not considered in determining the effective time of such a decision since the hour of day the decision is rendered is not noted or made a matter of record. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Blanche W. Sweeney has appealed to the Secretary of the Interior from a decision of June 16, 1959, by the Acting Director of the Bureau of Land Management affirming a decision of August 18, 1958, by the manager of the Cheyenne land office rejecting Mrs. Sweeney's oil and gas lease offer, Wyoming 067796, covering 1,920 acres of land in Carbon County, Wyoming (30 U.S.C., 1958 ed., sec. 226). The appellant's offer, filed on August 1, 1958, was rejected because all of the lands applied for were covered by outstanding oil and gas leases. The outstanding leases had their origin in leases Cheyenne 073217 and 073217(B) and Wyoming 032751, the terms of which would have expired on July 31, 1958. As a result of partial assignments of undivided record title interests in each of the three leases, filed on July 28 and 29, 1958, all of the leases were extended by the manager for a 2-year term from August 1, 1958, and so long thereafter as oil or gas is produced in paying quantities pursuant to section 30(a) of the Mineral Leasing Act, as amended (30 U.S.C., 1958 ed.. sec. 187a).2 The Acting Director's decision agreed with the appellant's contention that the leases were improperly extended for the reason that the assignments of July 28 and July 29, 1958, did not segregate the leases since less than a full interest in a portion of the land covered by the leases was assigned. However, the Acting Director held that even though the extension of these leases was improper, the fact that outstanding leases covered the land and when the appellant's offer was filed required the rejection of the offer (R. M. Young, Jr., Mary R. Sivley, A-27640 (January 30, 1959), and cases there cited). The partial assignment of Cheyenne 073217 (D) from 073217(B) (see footnote 2) was approved and both leases were continued by a 1 The leases were listed as Cheyenne 073217, Cheyenne 073217(B), Cheyenne 073217 (C), and Wyoming 032751 (A). 2 Wyoming 032751(A) was created by an assignment filed July 28, 1958, of all the assignor's undivided interest in part of the land included in Wyoming 032751. Cheyenne 073217 (C) was created by an assignment filed July 28, 1958, of all the assignor's undivided interest in part of the land included in Cheyenne 073217. Cheyenne 073217(B) had been created by an assignment from Cheyenne 073217 (A), effective June 1, 1956. On July 29, 1958, an assignment was filed of an undivided interest in part of the land in Cheyenne 073217 (B) and the assigned interest was designated as Cheyenne 073217(D). The manager's decision of August 18, 1958, thus should have listed 073217 (D) as being in conflict with appellant's offer as well as 073217(B). |