Homesteads (Ordinary): Second Entry Where an application for what appears to be an original homestead entry is allowed to an entryman who should have filed for a second entry for which he was qualified and who later satisfies the requirements for a second entry, the entry remains in effect as of the day it was allowed and his obligations under the homestead law are measured from that date. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Mrs. Edna V. Frank has appealed to the Secretary of the Interior from a decision of the Director of the Bureau of Land Management dated October 13, 1959, which affirmed a decision of a hearing examiner dated January 15, 1958, canceling her homestead entry, Fairbanks 010891, for lack of residence. Mrs. Frank's entry was allowed on March 19, 1954, as an original homestead entry pursuant to section 2289 of the Revised Statutes (43 U.S.C., 1958 ed., sec. 161). Subsequently, it was learned that she had made a previous homestead entry, Anchorage 012907, which had been allowed on March 30, 1949. She had in fact abandoned this entry before she applied at the Fairbanks land office. However, at the request of the Fairbanks land office she filed a formal relinquishment of the Anchorage entry and a second application for the Fairbanks homestead pursuant to the act of September 5, 1914 (43 U.S.C., 1958 ed., sec. 182). This was allowed as a second entry on August 31, 1955. Later, she was granted an extension of six months terminating on August 31, 1956, to establish residence on the entry. Countryman brought a contest on February 6, 1957, charging that Mrs. Frank had not satisfied the homestead laws and regulations relating to establishment and maintenance of residence upon the land and improvement and cultivation of the land comprising the entry. Mrs. Frank denied the charges and a hearing was held on August 20, 1957, at which both parties to the contest were represented by counsel and submitted testimony in their own behalf. The contestant's evidence as to residence was indefinite and sketchy, but the contestee testified freely as to the dates when she went to and left her homestead entry and there is no reason to discredit any of her testimony. The hearing examiner considered that Mrs. Frank's homestead application was allowed as a second entry on August 31, 1955, and used that date as the one from which to measure her obligation to comply with the requirements of the homestead law. He held that whether her residence was established in August of 1955 or August of 1956 she had not maintained residence on the entry in accordance with the statutory requirement and declared the entry null and void. In view of this finding he did not consider lack of cultivation or the effectiveness of the allowance of the second entry on August 31, July 19, 1960 On appeal the Director held that Mrs. Frank's entry on March 19, 1954, was valid as a second entry; that the allowance of the second entry on August 31, 1955, was of no effect since the March 19, 1954, entry was subsisting; and, consequently, that her compliance with the requirements of the homestead law must be measured from March 19, 1954. He then found that the entrywoman had not maintained her residence on the entry for the period required by law and held that her entry was properly canceled. Upon appeal to the Secretary, Mrs. Frank contends she has in good faith attempted to comply with the residence and other requirements of the homestead law. She does not, however, point out in what way the Director's decision is incorrect. As the decision held, the fact that her homestead entry was allowed on March 19, 1954, after she had abandoned but before she relinquished her first (Anchorage) entry did not disqualify her from making a second entry. See William H. Archer, 41 L.D. 336 (1912); Arouni v. Vance, 48 L.D. 543, 545 (1922). Therefore, the allowance of her application on March 19, 1954, was proper and her obligations under the homestead law began on that date. The fact that at that time she did not make the showing required by the act of September 5, 1914 (supra), as to the circumstances of her loss of her first entry and that she did not make such showing until September 27, 1954, did not authorize the manager to recompute the date on which her entry began.1 As the Director stated, Mrs. Frank's testimony demonstrated that she had not lived on the entry for 5 months in any of the first three entry years, a period ending on March 19, 1957. The homestead law requires that an entryman establish residence on his entry not later than one year from the date the entry is allowed (43 U.S.C., 1958 ed., sec. 169) and that he live on it for not less than 7 months for 3 years (43 U.S.C., 1958 ed., secs. 164, 231).2 Thus it is clear that the appellant has not complied with the residence requirements of the homestead law and could not comply with them within the statutory life of the entry. Accordingly, the Director correctly held that the entry was properly canceled. 1 Mrs. Frank apparently did not think the date would be changed. In her appeal she describes how high waters prevented her return to the entry in the spring of 1955 and states that this would have resulted in her relinquishment of the entry at the end of 1955 "if we had not received the belated Notice of Allowance dated August 31, 1955. Provided with this unexpected second chance to obtain a farm, I renewed by efforts to fulfill the requirements." In a letter dated March 31, 1959, to the manager she made the same statement. 2 In certain circumstances, the annual residence may be reduced to 6 months for 4 years or 5 months for 5 years. Id. 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 Director of the Bureau of Land Management is affirmed. Oil and Gas Leases: Discretion to Lease Oil and Gas Leases: Future and Fractional Interest Leases In the exercise of his judgment on how the public interest will be best served, the Secretary of the Interior may properly determine that a fractional mineral interest in acquired land may be leased for oil and gas purposes to an offeror who does not own any operating rights in the fractional mineral interest not owned by the United States but who holds all of the operating rights in adjoining land by virtue of a lease from the United States. Oil and Gas Leases: Generally-Notice A junior offeror for an oil and gas lease is not entitled as a matter of right to notice of actions taken on a prior offer. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Sun Oil Company has appealed to the Secretary of the Interior from a decision of the Acting Director of the Bureau of Land Management dated December 29, 1959, which affirmed a decision of the Eastern States land office dated April 20, 1959, rejecting its oil and gas lease offer, BLM-A 034451, for certain land in the De Soto National Forest in Mississippi, filed June 26, 1953, under the Mineral Leasing Act for Acquired Lands (30 U.S.C., 1958 ed., secs. 351–359). The offer was rejected because the land had been leased to Henry S. Morgan in response to his prior offer, BLM-A 031058, filed on April 8, 1952. The Mineral Leasing Act for Acquired Lands provides, in section 3, that mineral deposits within lands acquired by the United States may be leased by the Secretary of the Interior under the same conditions as contained in the leasing provisions of the mineral leasing laws "subject to the provisions hereof." Section 5 authorizes leasing of fractional interests in mineral deposits when "in the judgment of the Secretary, the public interest will be best served thereby * * *” It is thus discretionary with the Secretary whether to lease fractional interests at all. See Solicitor's opinion, 60 I.D. 238 (1948); Solicitor's opinion, 60 I.D. 441 (1950). The only requirement imposed by the July 22, 1960 statute is that when the Secretary leases a fractional interest, he must find that it is in the public interest to do so. Departmental regulation 43 CFR 200.7 (d) requires an offeror for a fractional interest lease to file a statement showing whether he owns the entire operating rights to the fractional mineral interest not owned by the United States in the land covered by his offer and, if he does not, the extent of his ownership in the operating rights and the names of other persons who own operating rights. The regulation continues with this statement of policy: * * * Ordinarily, the issuance of a lease to one who, upon such issuance, would own less than a majority interest of the operating rights in any such tract, will not be regarded as in the public interest, and an offer leading to such result will be rejected. It is upon this statutory and regulatory foundation that the appellant contends that the Secretary of the Interior had a mandatory duty to disregard the Morgan offer which was filed first because it showed that the offeror owned none of the operating rights to the fractional interest not owned by the United States and to award the lease in response to the appellant's subsequently filed offer which showed that it owned all but one quarter of the operating rights in the outstanding mineral interest and, if awarded the lease, would then own seven-eighths of all operating rights in the leased land. The appellant recognizes that the Department has previously held that the requirement in the regulation that a prospective lessee be able to show a majority working interest in the entire mineral deposit is qualified by the word “ordinarily" so that it may properly be disregarded in a case of drainage or in a case of a binding agreement between a prospective lessee and the holder of a non-Federal fractional mineral interest. Solicitor's opinion, M-36570 (August 10, 1959). Nevertheless, it denies that it is proper for the Secretary to hold that it is in the public interest to issue a lease for a 50 percent fractional interest to an offeror who owns no part of the remaining 50 percent interest when there is pending a junior offer for the Government's 50 percent interest by an offeror who owns three-quarters of the remaining 50 percent interest. The fact is that even in the circumstances described, the regulation does not make it mandatory that the lease be issued to the junior offeror. Ordinarily, it will be, but not necessarily in all cases. It may be assumed that the ordinary rule will be followed unless the circumstances in a particular case make it apparent that it will be equally or more in the public interest not to follow the rule. In this case, the land in controversy consists of five separate tracts (three of which are cornering), comprising a total of 480.93 acres. These tracts are interspersed in an almost solid block of other land, comprising 1282.08 acres, in which the United States owns 100 percent of the minerals. These 1282.08 acres are included in Morgan's lease along with the 480.93 acres, making a total of 1763.01 acres in a single block. Morgan thus has a lease for all the Government's oil and gas rights in the block. It seems apparent that having unified development of the Government's oil and gas rights in the entire block is more in the public interest than permitting divergent ownership of the rights. Certainly there is no showing by the appellant that would warrant cancellation of the Morgan lease in these circumstances. The appellant by reference to its earlier briefs complains that it was not, as an adverse party, notified of actions taken on the Morgan application. As a junior applicant, it was not entitled as a matter of right to such notice. Dorothy Bassie et al., 59 I.D. 235 (1946); Mary C. Hagood et al., A-23687 (October 9, 1943). 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. GEORGE W. ABBOTT, The Solicitor. BY: EDMUND T. FRITZ, BERT AND PAUL SMITH A-28376 Decided July 25, 1960 Grazing Permits and Licenses: Appeals An appeal to a hearing examiner from a decision of a district manager under the Federal Range Code for Grazing Districts is properly dismissed where the appeal is not filed within 30 days after receipt of notice of the district manager's decision. Grazing Permits and Licenses: Appeals An appeal to a hearing examiner from a decision of a district manager dismissing a request for a dependent property survey is properly dismissed where the issues raised have been previously adjudicated in a proceeding involving the same privileges, the same parties, and the same property. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Bert and Paul Smith have appealed to the Secretary of the Interior from a decision of the Acting Director, Bureau of Land Management, dated December 29, 1959, which affirmed a decision of a hearing examiner, dated August 13, 1959, granting a motion of the Acting State Supervisor for Nevada that an appeal from a decision of the district manager, dated May 15, 1959, be dismissed. The motion was based |