B-175851, JUL 13, 1972

B-175851: Jul 13, 1972

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OF THE MINING UPON THE ENVIRONMENT WERE COMPLETED. SINCE IT WAS LEASEE'S FAILURE TO MEET CONDITION 4. AMOUNTS TO FRUSTRATION BY THE GOVERNMENT AN EXTENSION OF TIME EQUALING THE TIME NECESSARY FOR COMPLETION OF THE STUDY IS PROPER. MOWER LUMBER COMPANY WILL BE REFERRED TO HEREIN AS MOWER AND SHOULD BE CONSIDERED AS INCLUDING LINAN SMOKELESS COAL COMPANY THE SUBLESSEE OF SOME OF THE LANDS INVOLVED AND THE OPERATOR OF THE COAL MINES. THE FACTS AS STATED IN THE ACTING CHIEF'S LETTER ARE AS FOLLOWS: "IN 1936. THESE FOUR DEEDS WERE EXECUTED PURSUANT TO A SINGLE LAND PURCHASE CONTRACT AND CONSUMMATED ONE TRANSACTION. IT WAS MADE SUBJECT TO THE RULES AND REGULATIONS OF THE SECRETARY OF AGRICULTURE GOVERNING THE EXERCISE OF MINERAL RIGHTS. *** THE MINERAL RESERVATION *** IN THE DEED AND THE RECITATION OF THE SECRETARY'S REGULATIONS *** (THEREIN) ARE WORDED IDENTICALLY IN EACH OF THE FOUR DEEDS.

B-175851, JUL 13, 1972

MINERAL RIGHTS ON GOVERNMENT LANDS - EXTENSION OF LEASE CONCERNING THE PROPRIETY OF EXTENDING THE TIME PERIOD OF CERTAIN MINERAL RESERVATIONS HELD BY MOWER LUMBER COMPANY (MOWER), AS SUBLEASEE OF WEST VIRGINIA PULP & PAPER COMPANY (WVP&P), UPON LANDS OWNED BY THE UNITED STATES. WVP&P RESERVED THE MINERAL RIGHTS UPON LAND IT SOLD TO THE UNITED STATES FOR FORTY YEARS SUBJECT TO POSSIBLE FIVE YEAR EXTENSIONS, IF DURING THE LAST FIVE YEARS THEREOF LEASEE OPERATED TO COMMERCIAL ADVANTAGE AN AVERAGE OF 50 DAYS PER YEAR. IN THE DEED, LEASEE AGREED TO BE SUBJECT TO THE RULES & REGULATIONS OF THE SECRETARY OF AGRICULTURE IN ANY EXTRACTION UNDER THE RESERVATION. CONDITION 4 OF THE SECRETARY'S RULES REQUIRE MINE OPERATORS TO FILE MINE DEVELOPMENT PLANS WHICH MAKE PROVISION TO THE SATISFACTION OF THE FOREST SERVICE FOR THE PREVENTION OF WATER POLLUTION. BY STIPULATION, THE FOREST SERVICE ON JULY 14, 1970, AGREED TO ALLOW OPERATIONS IF LEASEE POSTED PERFORMANCE BOND AND OBTAINED A VALID WATER POLLUTION CONTROL PERMIT FROM THE STATE OF WEST VIRGINIA. ON JULY 31, 1970, BECAUSE OF FAILURE TO COMPLY, THE FOREST OFFICER ORDERED OPERATIONS TO CEASE. LEASEE DID NOT OBTAIN A VALID PERMIT UNTIL AUGUST 9, 1971. SEPTEMBER 2, 1971, THE FOREST SERVICE, NOT WITHSTANDING, DECLINED TO ALLOW MINE OPERATIONS ON GOVERNMENT LAND UNTIL STUDIES, PRESCRIBED BY THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, OF THE MINING UPON THE ENVIRONMENT WERE COMPLETED. SINCE IT WAS LEASEE'S FAILURE TO MEET CONDITION 4, NOTED ABOVE, THAT PREVENTED OPERATION BETWEEN JULY 30, 1970, AND AUGUST 9, 1971, NO LEGAL BASIS FOR EXTENDING THE PERIOD OF THE LEASE FOR A TIME EQUAL THERETO EXISTS. SINCE THE ORIGINAL PARTIES IN 1935 DID NOT CONTEMPLATE A LENGTHY STUDY BEFORE THE GOVERNMENT WOULD APPROVE MINING OPERATIONS, AND AS THIS, IN EFFECT, AMOUNTS TO FRUSTRATION BY THE GOVERNMENT AN EXTENSION OF TIME EQUALING THE TIME NECESSARY FOR COMPLETION OF THE STUDY IS PROPER.

TO MR. SECRETARY:

THE ACTING CHIEF, FOREST SERVICE BY LETTER DATED APRIL 27, 1972 (REFERENCE 5420), REQUESTS A DECISION AS TO WHETHER THE FOREST SERVICE MAY EXTEND A CERTAIN MINERAL RESERVATION HELD BY THE MOWER LUMBER COMPANY OF DURBIN, WEST VIRGINIA, IN NATIONAL FOREST LANDS IN THE MONONGAHELA NATIONAL FOREST. MOWER LUMBER COMPANY WILL BE REFERRED TO HEREIN AS MOWER AND SHOULD BE CONSIDERED AS INCLUDING LINAN SMOKELESS COAL COMPANY THE SUBLESSEE OF SOME OF THE LANDS INVOLVED AND THE OPERATOR OF THE COAL MINES. ON MAY 18, 1972, WE CONFERRED WITH REPRESENTATIVES OF MOWER REGARDING THIS MATTER.

THE FACTS AS STATED IN THE ACTING CHIEF'S LETTER ARE AS FOLLOWS:

"IN 1936, THE UNITED STATES BY FOUR SEPARATE DEEDS ACQUIRED SOME 59,000 ACRES OF LAND IN THE MONONGAHELA NATIONAL FOREST FROM THE WEST VIRGINIA PULP AND PAPER COMPANY. THESE FOUR DEEDS WERE EXECUTED PURSUANT TO A SINGLE LAND PURCHASE CONTRACT AND CONSUMMATED ONE TRANSACTION. IN THESE DEEDS THE COMPANY RESERVED ALL COAL, OIL, GAS AND OTHER MINERALS. THE MOWER LUMBER COMPANY NOW OWNS THIS RESERVED ESTATE.

"THE RESERVATION RUNS FOR A PERIOD OF 40 YEARS BEGINNING WITH AUGUST 16, 1935. IT WAS MADE SUBJECT TO THE RULES AND REGULATIONS OF THE SECRETARY OF AGRICULTURE GOVERNING THE EXERCISE OF MINERAL RIGHTS. *** THE MINERAL RESERVATION *** IN THE DEED AND THE RECITATION OF THE SECRETARY'S REGULATIONS *** (THEREIN) ARE WORDED IDENTICALLY IN EACH OF THE FOUR DEEDS.

"THE RESERVATION PROVIDES THAT IF AT THE TERMINATION OF THE 40-YEAR PERIOD THE MINERALS HAVE BEEN OPERATED AN AVERAGE OF 50 DAYS PER YEAR FOR THE PRECEDING 5 YEARS TO COMMERCIAL ADVANTAGE THE RIGHT TO MINE AND EXTRACT THE RESERVED MINERALS SHALL BE EXTENDED FOR A FURTHER 5-YEAR PERIOD. ADDITIONAL 5-YEAR EXTENSIONS ARE PROVIDED FOR IF THE ABOVE STATED REQUIREMENT HAS BEEN MET IN THE PRECEDING 5-YEAR PERIOD. IF THE COMPANY DOES NOT QUALIFY FOR AN EXTENSION OF ITS RESERVATION THE MINERAL ESTATE WILL VEST IN THE UNITED STATES.

"THE FIRST YEAR OF THE INITIAL 5-YEAR QUALIFYING PERIOD FOR EXTENSION WAS FROM AUGUST 16, 1970 TO AUGUST 16, 1971.

"IN 1969, THE MOWER LUMBER COMPANY ENTERED INTO LEASES UNDER WHICH SOME 3,400 ACRES OF THE RESERVED AREA WERE SUBLET TO THE LINAN SMOKELESS COAL COMPANY OF HUNTINGTON, WEST VIRGINIA, FOR THE MINING OF COAL. IN DECEMBER OF 1969 LINAN APPLIED TO THE STATE OF WEST VIRGINIA FOR A WATER POLLUTION CONTROL PERMIT AND BEGAN OPERATIONS IN AN OLD MINE, LINAN NO. 1. THE OPENING OF THIS MINE AND ALL SURFACE FACILITIES ARE LOCATED ON PRIVATELY- OWNED LANDS, BUT UNDERGROUND ACTIVITIES EXTENDED UNDER NATIONAL FOREST LAND.

"CONSISTENT WITH CONDITION NO. 4 OF THE SECRETARY'S RULES AND REGULATIONS GOVERNING THE EXERCISE OF RESERVED MINERAL RIGHTS, AS CONTAINED IN THE DEEDS OF CONVEYANCE TO THE UNITED STATES *** THE FOREST SERVICE REQUESTED THAT LINAN FILE FOR APPROVAL OPERATING PLANS FOR ITS PROPOSED MINING DEVELOPMENTS. IN MARCH OF 1970, LINAN FILED PLANS FOR THE EXISTING LINAN NO. 1 MINE AND FOR THE OPENING OF LINAN NO. 2 MINE WHICH WAS TO BE ON NATIONAL FOREST LAND.

"THE PLANS FOR MINES 1 AND 2 WERE JUDGED INADEQUATE TO PROTECT WATER QUALITY AND THE FOREST SERVICE SUBMITTED STIPULATIONS GOVERNING THE OPERATION OF THE MINES TO LINAN WHICH THE COMPANY SIGNED ON JULY 14, 1970 ***. THE STIPULATIONS PROVIDED FOR THE POSTING OF A $5,000 PERFORMANCE BOND AND OBTAINING A VALID WATER POLLUTION CONTROL PERMIT FROM THE STATE. ON JULY 30, 1970, THE STATE REFUSED THIS PERMIT. ON JULY 31, 1970, THE FOREST SUPERVISOR ORDERED THE LINAN MINE NO. 1 CLOSED BECAUSE THE COMPANY HAD NOT POSTED THE REQUIRED BOND AND A STATE PERMIT HAD NOT BEEN GRANTED ***. THE COMPANY OBEYED THIS CLOSURE ORDER.

"LINAN FILED NEW AND MODIFIED APPLICATIONS FOR WATER POLLUTION CONTROL PERMITS FOR LINAN MINES NO. 1 AND NO. 2 AND AN INITIAL APPLICATION FOR LINAN NO. 3. THESE WERE DENIED BY THE CHIEF OF THE STATE DIVISION OF WATER RESOURCES BY AN ORDER ENTERED OCTOBER 16, 1970 ***. LINAN APPEALED THIS ORDER TO THE WEST VIRGINIA STATE WATER RESOURCES BOARD WHICH REVERSED THE DECISION AND AMENDED THE ORDER TO PERMIT THE COMPANY TO OPEN LINAN MINES NO. 1, NO. 2 AND NO. 3 UNDER CERTAIN SPECIFIED CONDITIONS ***. SUBSEQUENTLY, THE CHIEF OF THE WATER RESOURCES DIVISION PETITIONED THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA, FOR A REVERSAL OF THE DECISION OF THE STATE WATER RESOURCES BOARD. THIS APPEAL WAS DISMISSED BY THE COURT ON AUGUST 9, 1971, AND CONSEQUENTLY LINAN HAD AUTHORITY FROM THE STATE TO OPEN AND OPERATE EACH OF THE THREE LINAN MINES ***.

"ON SEPTEMBER 2, 1971, THE FOREST SUPERVISOR EXECUTED THE STIPULATIONS *** THEREBY APPROVING THE OPERATING PLAN FOR LINAN MINE NO. 1. HOWEVER, THE FOREST SERVICE DECIDED THAT STUDIES PRESCRIBED BY THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (83 STAT. 853) SHOULD BE COMPLETED AND THE ENVIRONMENTAL IMPACT EVALUATED BEFORE THE PLANS FOR MINES NO. 2 AND NO. 3 ARE APPROVED. THESE NEPA STUDIES ARE UNDER WAY AT THIS TIME.

"THE PROBLEMS INCIDENT TO THE EXTRACTION OF RESERVED AND OUTSTANDING MINERALS IN THE MONONGAHELA NATIONAL FOREST ARE RECEIVING SPECIAL ATTENTION IN THE CONGRESS. IN FISCAL YEAR 1972, $300,000 WAS ADDED BY APPROPRIATIONS COMMITTEE ACTION TO THE APPROPRIATIONS FOR THE FOREST SERVICE FOR AN EVALUATION OF THE MINERALS UNDER NATIONAL FOREST LANDS IN KEY PARTS OF THE FOREST. THE ENCLOSED LETTER *** FROM MEMBERS OF THE WEST VIRGINIA CONGRESSIONAL DELEGATION TO THE CHAIRMAN OF THE INTERIOR APPROPRIATIONS SUBCOMMITTEE, HOUSE OF REPRESENTATIVES, SETS FORTH THE NATURE AND PURPOSE OF THE MINERAL EVALUATION STUDY WHICH THEY SPONSORED. IT WILL BE NOTED IN THE NEXT TO LAST PARAGRAPH OF THIS LETTER THAT THE SPONSORS BELIEVED THAT CONGRESSIONAL ACTION TO FUND THIS STUDY SHOULD SERVE AS A BASIS FOR 'FREEZING' PRE-PLANNED MINERALS EXPLOITATION IN THE FOREST UNTIL THE STUDY IS COMPLETED."

THE ACTING CHIEF ADVISES THAT MOWER DEPENDED UPON THE OPERATION OF LINAN MINES NO. 1, NO. 2 AND NO. 3, TO MEET THE REQUIREMENTS FOR EXTENSION OF ITS MINERAL RESERVATION. HE POINTS OUT THAT THE EVENTS RECITED ABOVE IN CONNECTION WITH OBTAINING WATER POLLUTION CONTROL PERMITS AND APPROVAL OF OPERATING PLANTS PREVENTED MINING FROM JULY 30, 1970, UNTIL THE FINAL COURT DECISION ON AUGUST 1, 1971. HE ADVISES THAT MINE NO. 1 CAN NOW BE OPERATED BUT THAT MINES NO. 2 AND NO. 3 ARE STILL CLOSED PENDING COMPLETION AND EVALUATION OF NEPA STUDIES AND THAT MINE NO. 1 CANNOT BE OPERATED ALONE TO COMMERCIAL ADVANTAGE SINCE COAL FROM ALL THREE MINES MUST BE MIXED TO MAKE A SALEABLE PRODUCT.

THE ACTING CHIEF STATES THAT PURSUANT TO THE PROVISIONS OF SECTION 102 OF THE NATIONAL ENVIRONMENTAL PROTECTION ACT OF 1969, PUB. L. 91 190, 83 STAT. 852, 853, IT IS INCUMBENT UPON THE FOREST SERVICE TO STUDY THE ENVIRONMENTAL IMPACT OF PLANNED MINING OPERATIONS IN THE AREA INVOLVED BEFORE APPROVING OPERATING PLANS. HE FURTHER STATES THAT IT IS THE APPARENT DESIRE OF THE CONGRESS THAT MINING OPERATIONS BE SUSPENDED UNTIL THE MINERAL EVALUATION STUDY IT HAS FUNDED IS COMPLETED. HE EXPRESSES THE VIEW THAT IT IS CLEARLY IN THE PUBLIC INTEREST TO PREVENT THE ENVIRONMENTAL DEGRADATION AND IRREPLACEABLE RESOURCE LOSSES THAT WILL RESULT FROM IMPROPER MINING ACTIVITY IN CRITICAL AREAS.

OUR DECISION IS REQUESTED AS TO WHETHER IN LIGHT OF THE FOREGOING THE FOREST SERVICE MAY EXTEND THE MINERAL RESERVATION HELD BY MOWER FOR A PERIOD OF TIME SUFFICIENT TO PERMIT THE COMPLETION OF THE STUDY FUNDED BY CONGRESS AND THE NEPA STUDIES BEING MADE BY THE FOREST SERVICE.

CONDITION 4 OF THE SECRETARY'S RULES AND REGULATIONS GOVERNING THE EXERCISE OF MINERAL RIGHTS, AS CONTAINED IN THE DEEDS OF CONVEYANCE INVOLVED HERE, PROVIDES THAT:

"4. ALL MINERS OR MINING OPERATORS SHALL MAKE PROVISION TO THE SATISFACTION OF THE FOREST OFFICER IN CHARGE FOR PREVENTING THE OBSTRUCTION, POLLUTION, OR DETERIORATION OF STREAMS, LAKES, PONDS, OR SPRINGS, BY TAILINGS, DUMPAGE, OR OTHERWISE, OR THE ESCAPE OF ANY HARMFUL OR DELETERIOUS MATERIAL OR SUBSTANCE FROM THEIR MINES OR WORKS; AND IN THE DRILLING FOR OIL AND GAS, AS WELL AS THE PUMPING, PIPING, MANUFACTURING, OR OPERATION OF OIL AND GAS WELLS, OR PLANTS FOR THE PRODUCTION OF SAME, THE OPERATORS SHALL MAKE PROVISIONS BY DITCHES, PIPES, PUMPS OR OTHER APPROVED PRACTICAL METHODS TO PREVENT THE SPREAD OR FLOW OF OIL, SALT WATER, OR OTHER DELETERIOUS MATTER OVER THE SURFACE OF THE LAND, OR INTO STREAMS, LAKES, PONDS OR SPRINGS."

IT IS CLEAR FROM THE QUOTED PROVISION THAT MINING OPERATORS WERE REQUIRED TO "MAKE PROVISION TO THE SATISFACTION OF THE FOREST OFFICER IN CHARGE" FOR PREVENTING THE POLLUTION OF LAKES, STREAMS, PONDS OR SPRINGS. THUS, UNDER THE DEED INVOLVED HERE AND WITHOUT REGARD TO THE NEPA, OR THE STUDY FUNDED BY CONGRESS, THE MINING OPERATOR WAS REQUIRED TO MAKE PROVISION TO PROTECT WATER QUALITY.

IT APPEARS FROM THE RECORD THAT IN ACCORDANCE WITH THE TERMS OF THE DEED (PARAGRAPH 4 OF PAGE 20 OF THE COPY FURNISHED US) OF CONVEYANCE MOWER (LINAN) WAS REQUESTED TO, AND DID, FILE (IN MARCH 1970) OPERATING PLANS FOR ITS PROPOSED MINING DEVELOPMENTS (MINES 1 AND 2). APPARENTLY THE PLANS FOR MINES 1 AND 2 WERE JUDGED BY THE FOREST SERVICE TO BE INADEQUATE TO PROTECT WATER QUALITY. ON JULY 14, 1970, IT WAS STIPULATED BETWEEN MOWER (LINAN) AND THE FOREST SERVICE THAT LINAN WOULD POST $5,000 PERFORMANCE BOND AND OBTAIN A VALID WATER POLLUTION CONTROL PERMIT FROM THE STATE. ON JULY 30, 1970, THE STATE REFUSED TO GRANT THE PERMIT AND ON JULY 31, 1970, THE FOREST SUPERVISOR ORDERED MINE NO. 1 CLOSED BECAUSE THE COMPANY HAD NOT POSTED THE REQUIRED BOND AND A STATE PERMIT HAD NOT BEEN GRANTED.

NEW APPLICATIONS FOR WATER POLLUTION CONTROL PERMITS WERE FILED FOR MINES NOS. 1 AND 2 AND AN INITIAL APPLICATION WAS FILED FOR MINE NO. 3. THESE APPLICATIONS WERE DENIED BY THE STATE DIVISION OF WATER RESOURCES BY ORDER DATED OCTOBER 16, 1970. THIS ORDER WAS APPEALED TO THE WEST VIRGINIA STATE WATER RESOURCES BOARD, WHICH REVERSED THE ORDER AND AMENDED THE PERMIT TO PERMIT THE COMPANY TO OPEN MINES NOS. 1, 2 AND 3. THE BOARD'S DECISION WAS APPEALED TO THE COURTS AND THE APPEAL WAS DISMISSED BY THE COURT ON AUGUST 9, 1971, SO THAT THE COMPANY HAD AUTHORITY FROM THE STATE TO OPEN AND OPERATE THE THREE MINES FROM THAT DATE.

THE ACTING CHIEF STATES THAT THE EVENTS CITED IN CONNECTION WITH OBTAINING WATER POLLUTION CONTROL PERMITS AND APPROVAL OF OPERATING PLANS PREVENTED MINING FROM JULY 30, 1970, UNTIL THE FINAL COURT DECISION ON AUGUST 9, 1971. HOWEVER, WE WOULD SEE NO LEGAL BASIS FOR EXTENDING MOWER'S MINERAL RESERVATION FOR A PERIOD OF TIME EQUAL TO THE PERIOD OF TIME JULY 30, 1970, TO AUGUST 9, 1971, SINCE IT WAS MOWER'S (LINAN'S) FAILURE TO MEET THE REQUIREMENTS OF CONDITION NO. 4 OF THE SECRETARY'S RULES AND REGULATIONS GOVERNING THE EXERCISE OF RESERVED MINERAL RIGHTS (WHICH CONDITION WAS CONTAINED IN THE DEEDS OF CONVEYANCE) THAT PREVENTED IT FROM MINING DURING SUCH PERIOD.

AS TO THE EXTENSION OF THE MINERAL RESERVATION FOR THE PERIOD OF TIME NECESSARY TO COMPLETE THE TWO STUDIES (I.E., THE NEPA STUDIES AND THE MINERAL STUDY), AFTER THE STATE COURT DECISION THE FOREST SUPERVISOR APPROVED THE OPERATING PLAN FOR MINE NO. 1, BUT THE FOREST SERVICE DECIDED THAT THE NEPA STUDIES (AND APPARENTLY THE STUDY FUNDED BY CONGRESS) SHOULD BE COMPLETED AND THE ENVIRONMENTAL IMPACT EVALUATED BEFORE THE OPERATING PLANS FOR MINES NOS. 2 AND 3 ARE APPROVED (OR PERHAPS NOT APPROVED). OTHER WORDS, IT APPEARS THAT THE FOREST SERVICE FEELS EITHER THAT IT IS REQUIRED TO, OR THAT IT IS NECESSARY (I.E. IT IS IN THE INTEREST OF THE GOVERNMENT) TO, COMPLETE THE NEPA STUDIES BEFORE ACTING ON MOWER'S PLANS AND ALSO FEELS THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO COMPLETE THE STUDY FUNDED BY THE CONGRESS BEFORE ACTING ON SUCH PLANS.

IT IS OBVIOUS THAT AT THE TIME (1936) THE DEEDS OF CONVEYANCE WERE EXECUTED AND THE PURCHASE CONTRACT (PURSUANT TO WHICH THE DEEDS WERE EXECUTED) ENTERED INTO, NEITHER PARTY THERETO CONTEMPLATED THAT THE DEPARTMENT OF AGRICULTURE WOULD DELAY ACTING ON (I.E., APPROVING OR DISAPPROVING) THE GRANTOR'S (OR ITS SUCCESSOR IN INTEREST) MINE OPERATING PLANS UNTIL THE COMPLETION OF SOMEWHAT LENGTHY STUDIES - SUCH AS INVOLVED HERE - BY THE DEPARTMENT, PARTICULARLY IN VIEW OF THE TIME ELEMENT LIMITATION IN THE MINERAL RESERVATION. IT MUST BE REMEMBERED THAT NEPA WAS NOT ENACTED UNTIL 1969 AND, OF COURSE, FUNDS FOR THE STUDY DESIRED BY THE CONGRESS WERE NOT APPROPRIATED UNTIL FISCAL YEAR 1972.

FURTHER, CONSIDERING THE TIME LIMITATION IN THE MINERAL RESERVATION, IT WOULD APPEAR THAT MOWER IS ENTITLED TO HAVE THE OPERATING PLANS SUBMITTED FOR MINES NOS. 2 AND 3, APPROVED OR DISAPPROVED BY THE FOREST SERVICE WITHIN A REASONABLE TIME, SINCE THERE IS NO PROVISION IN THE DEEDS OR PURCHASE CONTRACT ESTABLISHING A TIME FOR TAKING ACTION ON THE PLANS. CF. MERRITT-CHAPMAN & SCOTT V. UNITED STATES, 174 CT. CLS. 250 (1966); AND DALE CONSTRUCTION CO. V. UNITED STATES, 168 CT. CLS. 692 (1964). MOREOVER, IT IS AN IMPLIED CONDITION IN EVERY CONTRACT THAT NEITHER PARTY WILL DO ANYTHING TO HINDER, DELAY OR PREVENT PERFORMANCE. SEE DOLE CONSTRUCTION COMPANY CASE, SUPRA. THUS, INSOFAR AS ANY ACTS OF THE UNITED STATES OR OF THE FOREST SERVICE, IN A SOVEREIGN CAPACITY OR OTHERWISE, WILL HAVE THE EFFECT OF FRUSTRATING OR MAKING IMPOSSIBLE FOR SOME PERIOD OF TIME THE UNDERTAKING REQUIRED - FOR THE EXTENSION OF THE MINERAL RESERVATION - BY THE SUBJECT DEEDS OF THE HOLDER OF THE MINERAL RESERVATION, IT IS OUR VIEW THAT THE DUTY OF PERFORMANCE (I.E., OPERATING THE MINES) REQUIRED BY THE HOLDER OF THE MINERAL RESERVATION IS SUSPENDED DURING SUCH PERIOD OF TIME, IN THIS CASE THE TIME NECESSARY TO COMPLETE THE TWO STUDIES. IN LIGHT OF THE FOREGOING AND CONSIDERING ALL THE FACTS AND CIRCUMSTANCES WE WOULD NOT OBJECT TO THE FOREST SERVICE, IF IT DETERMINES IT IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO, EXTENDING MOWER'S MINERAL RESERVATION FOR A PERIOD OF TIME SUFFICIENT TO PERMIT COMPLETION - BY THE FOREST SERVICE OF THE STUDY FUNDED BY CONGRESS AND THE NEPA STUDIES.