B-143921, DECEMBER 15, 1960, 40 COMP. GEN. 369

B-143921: Dec 15, 1960

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DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - REIMBURSEMENT - NORMAL AGENCY FUNCTION DISTINGUISHED WORK PERFORMED BY THE DEPARTMENT OF THE INTERIOR FOR OTHER GOVERNMENT AGENCIES IN CONNECTION WITH THE ACQUISITION OR ELIMINATION OF OUTSTANDING UNPATENTED MINING CLAIMS ON LANDS IN THE PUBLIC DOMAIN TO BE WITHDRAWN FOR THE USE OF OTHER GOVERNMENT AGENCIES IS NOT A NORMAL FUNCTION OF THE DEPARTMENT FOR WHICH FUNDS ARE REQUESTED BY. HOWEVER COSTS OF CONDUCTING THE HEARING AND RENDERING THE DECISIONS ARE NOT FOR REIMBURSEMENT SINCE THE HEARING AND DECISION FUNCTIONS ARE PROPERLY THE RESPONSIBILITY OF THE DEPARTMENT OF THE INTERIOR. IS EXPERIENCING DIFFICULTY IN ACQUIRING OR ELIMINATING OUTSTANDING UNPATENTED MINING CLAIMS ON PUBLIC DOMAIN WHICH HAS BEEN WITHDRAWN OR IS IN THE PROCESS OF BEING WITHDRAWN FOR DEFENSE PURPOSES.

B-143921, DECEMBER 15, 1960, 40 COMP. GEN. 369

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - REIMBURSEMENT - NORMAL AGENCY FUNCTION DISTINGUISHED WORK PERFORMED BY THE DEPARTMENT OF THE INTERIOR FOR OTHER GOVERNMENT AGENCIES IN CONNECTION WITH THE ACQUISITION OR ELIMINATION OF OUTSTANDING UNPATENTED MINING CLAIMS ON LANDS IN THE PUBLIC DOMAIN TO BE WITHDRAWN FOR THE USE OF OTHER GOVERNMENT AGENCIES IS NOT A NORMAL FUNCTION OF THE DEPARTMENT FOR WHICH FUNDS ARE REQUESTED BY, OR APPROPRIATED TO, SO AS TO PRECLUDE THE TRANSFER OF OTHER AGENCY FUNDS TO REIMBURSE THE DEPARTMENT OF THE INTERIOR FOR SUCH WORK; THEREFORE, AGENCY FUNDS MAY BE USED TO REIMBURSE THE DEPARTMENT FOR WORK IN DETERMINING THE VALIDITY OR INVALIDITY OF UNPATENTED MINING CLAIMS ON PUBLIC DOMAIN LAND, HOWEVER COSTS OF CONDUCTING THE HEARING AND RENDERING THE DECISIONS ARE NOT FOR REIMBURSEMENT SINCE THE HEARING AND DECISION FUNCTIONS ARE PROPERLY THE RESPONSIBILITY OF THE DEPARTMENT OF THE INTERIOR.

TO THE SECRETARY OF ARMY, DECEMBER 15, 1960:

THE ASSISTANT SECRETARY OF THE ARMY ( MANPOWER, PERSONNEL AND RESERVE FORCES) BY LETTER DATED SEPTEMBER 6, 1960, ADVISES THAT THE CHIEF OF ENGINEERS, AS REAL ESTATE AGENT FOR THE ARMY AND AIR FORCE, IS EXPERIENCING DIFFICULTY IN ACQUIRING OR ELIMINATING OUTSTANDING UNPATENTED MINING CLAIMS ON PUBLIC DOMAIN WHICH HAS BEEN WITHDRAWN OR IS IN THE PROCESS OF BEING WITHDRAWN FOR DEFENSE PURPOSES.

THE ASSISTANT SECRETARY'S LETTER IS IN PART AS FOLLOWS:

ALL WITHDRAWALS OF PUBLIC DOMAIN FOR MILITARY PURPOSES ARE ISSUED SUBJECT TO VALID OUTSTANDING RIGHTS. IN ATTEMPTING TO ELIMINATE RECORDED OUTSTANDING MINING CLAIMS, IT IS NECESSARY TO DETERMINE WHETHER THE CLAIMS ARE VALID AND MUST BE ACQUIRED, OR WHETHER THEY ARE INVALID AND MAY BE IGNORED. THERE ARE IN EXCESS OF 1000 UNPATENTED MINING CLAIMS INVOLVED IN CURRENT WITHDRAWALS.

THE DEPARTMENT OF THE INTERIOR IS CHARGED WITH THE VALIDATION AND ISSUANCE OF PATENTS TO MINING CLAIMS (30 U.S.C. 29-37). THE BUREAU OF LAND MANAGEMENT OF THAT DEPARTMENT HAS ADVISED THE CHIEF OF ENGINEERS THAT WHILE ITS BUDGET PROVIDES FOR NORMAL PROCESSING OF VALIDATION AND ISSUANCE OF PATENTS ON MINING CLAIMS, IT IS UNABLE TO UNDERTAKE THE PROCESSING OF VALIDATION OR INVALIDATION PROCEEDINGS IN EXCESS OF ITS NORMAL WORK LOAD. IT HAS ADVISED THAT IT WILL DO THE NECESSARY WORK IF IT IS GIVEN ADVANCE NOTICE, AND IS REIMBURSED FOR THE EXTRA WORK INVOLVED. IT HAS ALSO STATED THAT THE ADMINISTERING AGENCY, AND NOT THE BUREAU OF LAND MANAGEMENT, SHOULD BUDGET FOR THIS PURPOSE.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION OF OCTOBER 5, 1936, 16 COMP. GEN. 333, WHEREIN HE STATES THAT WE HELD THAT FUNDS MAY NOT BE TRANSFERRED TO ANOTHER DEPARTMENT OF THE GOVERNMENT TO PERFORM WORK WHICH IS A NORMAL FUNCTION OF THAT DEPARTMENT. HE ADVISES THAT SINCE THE BUREAU OF LAND MANAGEMENT HAS TAKEN THE POSITION THAT VALIDATION PROCEEDINGS WITH RESPECT TO MINING CLAIMS ON MILITARY PROJECTS ARE NOT A PART OF THE NORMAL WORK OF THE BUREAU OF LAND MANAGEMENT, YOUR DEPARTMENT IS AT AN IMPASSE IN ITS EFFORTS TO ACQUIRE CLEAR TITLE, AND TO REIMBURSE THOSE WHOSE MINING CLAIMS ARE VALID. IN VIEW OF THIS SITUATION THE ASSISTANT SECRETARY REQUESTS A DECISION WHETHER THE DEPARTMENT OF THE INTERIOR (BUREAU OF LAND MANAGEMENT) MAY BE REIMBURSED FOR EXPENSES FOR THE PERFORMANCE OF WORK THAT IT ALONE CAN ACCOMPLISH, BUT WHICH IS IN EXCESS OF ITS NORMAL WORKLOAD, AND FOR WHICH IT HAS NOT BUDGETED. HE ADVISES THAT FUNDS ARE AVAILABLE TO THE CHIEF OF ENGINEERS FOR THE REIMBURSEMENT FROM FUNDS UTILIZED FOR EXPENSES IN THE ACQUISITION OF LAND.

SECTIONS 29 TO 37, TITLE 30, U.S.C. BY THEIR TERMS, CONFER UPON THE DEPARTMENT OF THE INTERIOR JURISDICTION OVER MINING LOCATIONS ONLY IF AND WHEN THE OWNERS APPLY FOR A PATENT TO THEIR LOCATIONS. THERE IS NOTHING IN THE CITED SECTIONS RELATING TO THE VALIDATION OR INVALIDATION OF UNPATENTED MINING CLAIMS. THE AUTHORITY OF THE DEPARTMENT TO HEAR AND DETERMINE QUESTIONS INVOLVING THE VALIDITY OF UNPATENTED MINING LOCATIONS WAS SPELLED OUT, HOWEVER, IN CAMERON V. UNITED STATES, 252 U.S. 450, AS BEING UNDER THE GENERAL AUTHORITY OF THE DEPARTMENT.

THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE DEPARTMENT OF THE INTERIOR, IN A LETTER COMMENTING ON THE MATTER, ADVISES THAT THERE ARE THREE DISTINCT STEPS TO BE TAKEN IN DECLARING A MINING CLAIM INVALID, NAMELY:

1. EXAMINATION OF THE CLAIM ITSELF AND ASSEMBLING OF THE EVIDENCE TO SUPPORT THE CLAIM OF INVALIDITY.

2. THE PRESENTATION OF THE EVIDENCE AND THE CROSS-EXAMINATION OF WITNESSES FOR THE MINING CLAIMANT.

3. HEARING OF THE EVIDENCE AND THE RENDERING OF THE DECISION.

WE ARE FURTHER ADVISED THAT:

IN DEALING WITH OTHER AGENCIES THE BUREAU OF LAND MANAGEMENT OF THIS DEPARTMENT HAS TAKEN THE POSITION THAT STEPS ONE AND TWO ABOVE ARE THE RESPONSIBILITY OF THE AGENCY ADMINISTERING THE LANDS AND CONSEQUENTLY THE BUREAU DOES NOT REQUEST FUNDS FOR THIS PURPOSE. STEP THREE ADMITTEDLY IS THE RESPONSIBILITY OF THE BUREAU OF LAND MANAGEMENT AND IT INCLUDES FUNDS FOR THIS PURPOSE IN ITS BUDGET REQUESTS.

THE ADMINISTRATIVE ASSISTANT SECRETARY POINTS OUT THAT IT HAS BEEN THE PRACTICE, AT LEAST WITH RESPECT TO NATIONAL FORESTS, FOR THE DEPARTMENT OF THE INTERIOR TO HEAR THE CASES, BUT FOR THE AGENCY HAVING JURISDICTION OVER THE LANDS TO INITIATE AND PROSECUTE THE ACTION. HIS LETTER FURTHER INDICATES THAT WHEN AGENCIES OF THE DEPARTMENT AND OTHER GOVERNMENT AGENCIES FIND IT NECESSARY TO ELIMINATE INVALID MINING LOCATIONS ON LANDS UNDER THEIR JURISDICTION, THEY HAVE UTILIZED THE SERVICES OF THE EXPERTS OF THE BUREAU OF LAND MANAGEMENT ON A REIMBURSABLE BASIS. THE ADMINISTRATIVE ASSISTANT SECRETARY STATES THAT THE REASON FOR THIS IS THAT THE NECESSITY FOR AND THE AMOUNT OF SUCH WORK IS UNPREDICTABLE AND IS NOT SUSCEPTIBLE OF MEASUREMENT SUFFICIENTLY IN ADVANCE TO ENABLE THE DEPARTMENT TO INCLUDE THE ESTIMATES IN ITS BUDGET.

IT IS POINTED OUT IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT ORDERS WITHDRAWING LANDS FROM THE PUBLIC DOMAIN FOR THE USE OF GOVERNMENT AGENCIES PROVIDE THAT THE WITHDRAWALS SHALL BE " SUBJECT TO VALID EXISTING RIGHTS * * *.' THE DEPARTMENT OF THE INTERIOR TAKES THE POSITION THAT HAVING ACCEPTED LANDS SUBJECT TO EXISTING RIGHTS IT IS THE RESPONSIBILITY OF THE ACQUIRING AGENCY TO TAKE THE STEPS NECESSARY TO ACQUIRE OR ELIMINATE THOSE RIGHTS EITHER BY PURCHASE, IF THEY ARE VALID, OR BY HAVING THEM DECLARED INVALID.

IN CONNECTION WITH THE DEPARTMENT'S POSITION, YOUR ATTENTION IS DIRECTED TO THE ACT OF JULY 23, 1955, PUBLIC LAW 167, 69 STAT. 367, 30 U.S.C. 601, WHICH AMENDS THE MINING LAWS TO PROVIDE FOR MULTIPLE USE OF THE SURFACE OF THE SAME TRACTS OF PUBLIC LANDS. IN THE DETERMINATION OF SURFACE RIGHTS SECTION 5 OF THAT ACT, 30 U.S.C. 613, PLACES WITH THE AGENCY ADMINISTERING THE LANDS THE RESPONSIBILITY FOR THE EXAMINATION OF THE LANDS AND THE PAYMENT OF THE PUBLICATION NOTICES WITH THE AGENCY ADMINISTERING THE LANDS ALTHOUGH DIRECTING THE SECRETARY OF THE INTERIOR TO PUBLISH THE NOTICES. SECTION 5 ALSO PROVIDES FOR HEARINGS BY THE DEPARTMENT OF THE INTERIOR UNDER CERTAIN CIRCUMSTANCES, THE COST OF WHICH (THE HEARINGS) WOULD BE BORNE BY THE DEPARTMENT OF THE INTERIOR. THIS WOULD TEND TO SUBSTANTIATE THE POSITION OF THE DEPARTMENT CONCERNING ITS RESPONSIBILITY IN CONNECTION WITH THE VALIDATION OR INVALIDATION OF UNPATENTED MINING LOCATIONS ON LANDS WITHDRAWN FROM THE PUBLIC DOMAIN AND ADMINISTERED BY FEDERAL AGENCIES OTHER THAN THE DEPARTMENT OF THE INTERIOR.

ALSO, WE NOTE THAT THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, IN CONNECTION WITH ITS FISCAL YEAR 1959 APPROPRIATION ACT REQUESTED FUNDS TO REIMBURSE THE BUREAU OF LAND MANAGEMENT FOR EXAMINING AND DETERMINING THE VALIDITY OF MINING CLAIMS LOCATED ON LANDS ADMINISTERED BY THE BUREAU OF INDIAN AFFAIRS. THE LEGISLATIVE HISTORY OF THAT APPROPRIATION INDICATES THAT THE REQUESTED FUNDS WERE APPROPRIATED BY THE CONGRESS (SEE PAGES 303-305, HOUSE HEARINGS ON 1959 APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR AND PAGE 309 OF THE SENATE HEARINGS ON THE SAME APPROPRIATION AS WELL AS PAGE 4 OF H.1REPT. NO. 1346, 85TH CONGRESS).

FURTHER, IN CONNECTION WITH ITS FISCAL YEAR 1958 APPROPRIATIONS, THE BUREAU OF LAND MANAGEMENT REQUESTED $22,220,000 FOR MANAGEMENT OF LANDS AND RESOURCES, $1,752,000 OF WHICH WAS REQUESTED FOR FIELD EXAMINATION AND CLASSIFICATION. THE JUSTIFICATION IN SUPPORT OF SUCH REQUESTS CONTAINS THE FOLLOWING (SEE PAGE 303, SENATE HEARINGS ON 1958 APPROPRIATIONS FOR THE DEPARTMENT OF THE NTERIOR):

IN AREAS WITHDRAWN FOR USE OF OTHER AGENCIES, EXAMINATIONS ARE MADE TO DETERMINE JUST COMPENSATION FOR VALID CLAIMS TO BE ACQUIRED BY GOVERNMENT AGENCIES OR TO FORM A BASIS FOR GOVERNMENT CONTESTS TO NULLIFY INVALID CLAIMS. THIS PHASE OF THE ACTIVITY IS REIMBURSABLE FROM OTHER AGENCIES BUT RESULTS IN HEARINGS AT THE EXPENSE OF THE BUREAU. (ITALICS SUPPLIED.)

WE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT INVOLVED TO INDICATE THAT THE CONGRESS HAD ANY OBJECTION TO THE BUREAU OF LAND MANAGEMENT BEING REIMBURSED BY THE GOVERNMENT AGENCIES ADMINISTERING THE LAND FOR THE COST INVOLVED IN DETERMINING THE VALIDITY OF UNPATENTED MINING CLAIMS, OTHER THAN THE COSTS OF CONDUCTING THE HEARINGS.

IN 16 COMP. GEN. 333 (REFERRED TO IN THE ADMINISTRATION ASSISTANT SECRETARY'S LETTER) WE STATED THAT THE LEGAL EXPENSES INVOLVED THERE APPEARED TO BE NORMAL ADMINISTRATIVE EXPENSES FOR WHICH FUNDS WERE APPROPRIATED ANNUALLY TO THE DEPARTMENT OF JUSTICE. THE SAME CIRCUMSTANCES ARE NOT PRESENT IN THE INSTANT CASE, SINCE FROM WHAT IS STATED ABOVE, IT IS OBVIOUS THE FUNDS ARE NOT REQUESTED BY, OR APPROPRIATED TO, THE DEPARTMENT OF THE INTERIOR TO CONDUCT EXAMINATIONS TO DETERMINE JUST COMPENSATION FOR VALID MINING CLAIMS TO BE ACQUIRED BY OTHER GOVERNMENT AGENCIES OR TO FORM A BASIS FOR THE GOVERNMENT TO NULLIFY INVALID CLAIMS IN CONNECTION WITH LANDS WITHDRAWN FROM THE PUBLIC DOMAIN AND PLACED UNDER THE ADMINISTRATION OF SUCH AGENCIES.

IN LIGHT OF THE FOREGOING, IT IS OUR VIEW THAT THE FUNDS OF AN AGENCY ADMINISTERING LANDS WITHDRAWN FROM THE PUBLIC DOMAIN MAY BE USED TO REIMBURSE THE DEPARTMENT OF THE INTERIOR FOR SERVICES (STEPS 1 AND 2 SET FORTH ABOVE) INCIDENT TO DETERMINING THE VALIDITY OR INVALIDITY OF UNPATENTED MINING CLAIMS LOCATED ON SUCH LANDS, OTHER THAN THE HEARING (STEP 3) COSTS, WHICH COSTS MUST BE BORNE BY THE DEPARTMENT OF THE INTERIOR.