B-129022, OCT. 5, 1956

B-129022: Oct 5, 1956

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO LETTER OF AUGUST 20. TO SMALL TRACT APPLICANTS WHOSE APPLICATIONS HAVE BEEN REJECTED. AS FOLLOWS: "EVERY APPLICATION ON FORM 4-776 MUST BE ACCOMPANIED BY A FILING FEE OF $10 * * * ALL FILING FEES WILL BE RETAINED BY THE GOVERNMENT.'. IT IS REPORTED THAT SUBSEQUENT TO MARCH 11. THE REVERSE SIDE OF WHICH CONTAINED THE FOLLOWING STATEMENT: "THIS OFFER MUST BE ACCOMPANIED BY A FILING FEE OF $10 WHICH WILL BE RETAINED BY THE UNITED STATES EXCEPT WHERE THE OFFER TO LEASE IS NOT ACCEPTED FOR ANY REASON AND IF ITEM 2 (B) IS CHECKED NO TRACT IS ALLOCATED THEREUNDER BY THE MANAGER.'. IT IS STATED IN THE LETTER THAT THE PHOENIX. IT IS ALSO REPORTED THAT IN SUBMITTING THE APPLICATION ON FORM 4- 776.

B-129022, OCT. 5, 1956

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF AUGUST 20, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, CONCERNING THE REFUND OF FILING FEES BY THE BUREAU OF LAND MANAGEMENT, TO SMALL TRACT APPLICANTS WHOSE APPLICATIONS HAVE BEEN REJECTED.

SECTION 257.8 OF TITLE 43 OF THE CODE OF FEDERAL REGULATIONS, WHICH BECAME EFFECTIVE MARCH 11, 1955, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"EVERY APPLICATION ON FORM 4-776 MUST BE ACCOMPANIED BY A FILING FEE OF $10 * * * ALL FILING FEES WILL BE RETAINED BY THE GOVERNMENT.'

IT IS REPORTED THAT SUBSEQUENT TO MARCH 11, 1955, SOME ARIZONA SMALL TRACT APPLICANTS FILED THEIR APPLICATION ON AN OUTDATED ISSUE OF FORM 4- 776, APPLICATION FOR SMALL TRACT, THE REVERSE SIDE OF WHICH CONTAINED THE FOLLOWING STATEMENT:

"THIS OFFER MUST BE ACCOMPANIED BY A FILING FEE OF $10 WHICH WILL BE RETAINED BY THE UNITED STATES EXCEPT WHERE THE OFFER TO LEASE IS NOT ACCEPTED FOR ANY REASON AND IF ITEM 2 (B) IS CHECKED NO TRACT IS ALLOCATED THEREUNDER BY THE MANAGER.'

IT IS STATED IN THE LETTER THAT THE PHOENIX, ARIZONA, LAND OFFICE TOOK STEPS TO ADVISE THE PUBLIC OF THE CHANGED REGULATIONS REGARDING THE RETENTION OF THE FILING FEES ON AND AFTER MARCH 11, 1955, BY MEANS OF A SIGN WITH LETTERS ONE INCH HIGH, POSTED IN A CONSPICUOUS PLACE IN THE LAND OFFICE. IT IS ALSO REPORTED THAT IN SUBMITTING THE APPLICATION ON FORM 4- 776, EACH OF THE APPLICANTS AGREED TO THE FOLLOWING, WHICH WAS PRINTED ON THE APPLICATION FORM:

"MR. ---------- HEREBY OFFERS TO LEASE FOR HIS OWN USE AND BENEFIT, UNDER THE SMALL TRACT ACT OF JUNE 1, 1938 (52 STAT. 609, 43 U.S.C., SEC. 682A) AS AMENDED, AND SUBJECT TO THE REGULATIONS THEREUNDER, ONE TRACT OF PUBLIC LAND NOT TO EXCEED FIVE ACRES AS DESCRIBED IN ITEM 2 .....;,

IN VIEW OF THE FOREGOING, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTS A DECISION AS TO WHETHER REFUNDS MAY BE AUTHORIZED TO THOSE PERSONS WHO FILED SMALL TRACT APPLICATIONS ON OUTDATED FORMS AFTER MARCH 11, 1955.

IT APPEARS THAT THE APPLICATIONS WERE, IN FACT, OFFERS TO LEASE. WHILE THE APPLICANTS OFFERED TO LEASE THE LAND SUBJECT TO THE PROVISIONS OF THE SMALL TRACT ACT OF JUNE 1, 1938, AS AMENDED, 43 U.S.C. 682 (A), AND THE REGULATIONS ISSUED THEREUNDER, AND THE REGULATIONS IN EFFECT AT THE TIME PROVIDED FOR RETENTION OF THE FILING FEE BY THE GOVERNMENT, IT APPEARS THAT THE OFFERS TO LEASE ,SUBJECT TO THE REGULATIONS" WERE CONDITIONED OR QUALIFIED BY THE STATEMENT ON THE BACK THEREOF PROVIDING FOR THE RETURN OF THE FILING FEE IN THE EVENT THE OFFER TO LEASE WAS REJECTED. THUS, IT APPEARS THAT THE APPLICANTS, IN EFFECT, AGREED TO BE SUBJECT TO ALL THE REGULATIONS SAVE THE ONE WHICH IN EFFECT PROVIDED FOR RETENTION OF THE FILING FEE BY THE GOVERNMENT, WHETHER THE OFFER TO LEASE WAS ACCEPTED OR REJECTED. SINCE THESE REGULATIONS AT THE TIME THE APPLICATIONS WERE FILED PROVIDED FOR RETENTION OF THE FILING FEE, EVEN THOUGH THE OFFER TO LEASE WAS NOT ACCEPTED, IT APPEARS THAT THE BUREAU OF LAND MANAGEMENT SHOULD NOT HAVE ACCEPTED THE APPLICATIONS IN QUESTION NOR CONSIDERED SUCH APPLICATIONS AS FILED, SO AS TO BE ELIGIBLE FOR SUBSEQUENT CONSIDERATION ON THEIR MERITS; BUT, INSTEAD SHOULD HAVE RETURNED THEM TO THE APPLICANT OFFEROR.

ALTHOUGH NOT SPECIFICALLY APPLICABLE IN THE INSTANT MATTER IT IS NOTED THAT 43 C.F.R. 257.6 (E) PROVIDES THAT APPLICATIONS "ON FORM 4 776 WILL NOT BE ACCEPTED, WILL NOT BE CONSIDERED AS FILED, AND WILL BE RETURNED TO THE APPLICANT" UNDER CERTAIN CIRCUMSTANCES OR CONDITIONS SET FORTH IN THE CITED SECTION. (NOTE ALSO 43 C.F.R. 257.6 (D) ). WE HAVE BEEN INFORMALLY ADVISED BY YOUR DEPARTMENT THAT, WHERE APPLICATIONS ARE NOT ACCEPTED BECAUSE OF THE PROVISIONS OF THESE SECTIONS, THE $10 FILING FEE IS RETURNED TO THE APPLICANT. WHEN THE PROVISIONS OF SECTIONS 257.6 (D) AND (E) ARE CONSIDERED TOGETHER WITH THE ADMINISTRATIVE PRACTICE OF RETURNING THE $10 FILING FEE WHERE THE APPLICATIONS ARE RETURNED UNDER SUCH SECTIONS, IT APPEARS THAT THE REGULATIONS PROVIDING FOR RETENTION OF ALL FILING FEES IS MEANT TO APPLY ONLY IN THOSE CASES WHERE IT IS PROPER TO RETAIN THE APPLICATION OR OFFER TO LEASE FOR FILING AND SUBSEQUENT CONSIDERATION ON THE MERITS, THE APPLICATION ON ITS FACE BEING IN CONFORMITY WITH THE REGULATIONS.

IN THE INSTANT CASE, THE APPLICATIONS OFFERING TO LEASE THE LANDS DID NOT, ON THEIR FACE, CONFORM TO THE REGULATIONS, IN VIEW OF THE STATEMENT THEREON CONTRARY TO THE REGULATIONS. WHILE IT MAY BE THAT A SIGN WAS POSTED IN A CONSPICUOUS PLACE CONCERNING THE RETENTION OF THE FILING FEE, THERE IS NOTHING OF RECORD TO INDICATE THAT ANY OF THE APPLICANTS WHO HAVE REQUESTED REFUND ACTUALLY SAW THE SIGN. IN ANY EVENT, EVEN IF THE SIGN HAD BEEN NOTICED, AN APPLICANT COULD HAVE MADE RETURN OF THE FILING FEE A CONDITION OF HIS OFFER, IN WHICH EVENT, AS INDICATED ABOVE, THE APPLICATION SHOULD HAVE BEEN RETURNED TO THE APPLICANT WITH THE ADVICE THAT IT COULD NOT BE ACCEPTED OR CONSIDERED AS FILED IN VIEW OF THE CONDITION THEREON. IT APPEARS THAT IF THIS HAD BEEN DONE, THE FILING FEE WOULD ALSO HAVE BEEN RETURNED TO THE OFFEROR AS IN CASES WITHIN THE PURVIEW OF 43 C.F.R. 257.6 (D) AND (E).

IN VIEW OF WHAT HAS BEEN STATED ABOVE, YOUR DEPARTMENT MAY--- IN ACCORDANCE WITH THE PROVISIONS OF GENERAL REGULATION NO. 116, SUPPLEMENT NO. 1, PARAGRAPH 6 (G), ISSUED AUGUST 30, 1955--- AUTHORIZE REFUND OF THE FILING FEE TO THOSE PERSONS WHO FILED SMALL TRACT APPLICATIONS ON OUTDATED FORMS ON OR AFTER MARCH 11, 1955, WHICH WERE REJECTED, AND WHO HAVE FILED CLAIMS FOR REFUND OF SUCH FEE. IT IS PRESUMED THAT THOSE APPLICANTS WHOSE APPLICATIONS WERE REJECTED AND WHO HAVE NOT FILED, OR DO NOT FILE, CLAIMS FOR REFUND OF THE FILING FEE WERE AWARE OF THE CHANGED REGULATION AND DO NOT EXPECT RETURN OF SUCH FEE IN ANY EVENT.