B-24128, MARCH 18, 1942, 21 COMP. GEN. 873

B-24128: Mar 18, 1942

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OR OTHER MINERALS REMOVED AND SAVED FROM THE LAND BY THE GRANTOR ARE NOT RECEIPTS "FROM THE SALE OR OTHER DISPOSITION OF * * * SPONTANEOUS PRODUCTS OF THE SOIL" ON WILDLIFE REFUGES 25 PERCENT OF WHICH IS REQUIRED BY SECTION 401 OF THE ACT OF JUNE 15. TO BE DISTRIBUTED TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED. ARE RECEIPTS INURING TO THE BENEFIT OF THE UNITED STATES AND ARE FOR HANDLING ACCORDINGLY. 1942: I HAVE YOUR LETTER OF FEBRUARY 23. AS FOLLOWS: ATTENTION IS DIRECTED TO THE CLAUSE IN THE ENCLOSED PHOTOSTATIC COPY OF DEED DATED NOVEMBER 18. NOW A PART OF THE ARKANSAS NATIONAL WILDLIFE REFUGE WHICH IS ADMINISTERED BY THE FISH AND WILDLIFE SERVICE OF THIS DEPARTMENT AS FOLLOWS: "THE GRANTOR RESERVES FOR ITSELF.

B-24128, MARCH 18, 1942, 21 COMP. GEN. 873

WILDLIFE REFUGES - DISPOSITION OF OIL, ETC., ROYALTY RECEIPTS ANY MONEYS RECEIVED BY THE UNITED STATES PURSUANT TO A DEED, UNDER WHICH THE GOVERNMENT ACQUIRED LAND FOR A WILDLIFE REFUGE, PROVIDING FOR THE PAYMENT OF A ROYALTY TO THE UNITED STATES FOR ALL OIL, GAS, SULPHUR, OR OTHER MINERALS REMOVED AND SAVED FROM THE LAND BY THE GRANTOR ARE NOT RECEIPTS "FROM THE SALE OR OTHER DISPOSITION OF * * * SPONTANEOUS PRODUCTS OF THE SOIL" ON WILDLIFE REFUGES 25 PERCENT OF WHICH IS REQUIRED BY SECTION 401 OF THE ACT OF JUNE 15, 1935, TO BE DISTRIBUTED TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED, BUT ARE RECEIPTS INURING TO THE BENEFIT OF THE UNITED STATES AND ARE FOR HANDLING ACCORDINGLY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 18, 1942:

I HAVE YOUR LETTER OF FEBRUARY 23, 1942, AS FOLLOWS:

ATTENTION IS DIRECTED TO THE CLAUSE IN THE ENCLOSED PHOTOSTATIC COPY OF DEED DATED NOVEMBER 18, 1937, FROM THE SAN ANTONIO LOAN AND TRUST COMPANY TO THE UNITED STATES OF AMERICA UNDER WHICH THE GOVERNMENT ACQUIRED TITLE TO CERTAIN LANDS IN ARKANSAS AND REFUGIO COUNTIES, TEXAS, NOW A PART OF THE ARKANSAS NATIONAL WILDLIFE REFUGE WHICH IS ADMINISTERED BY THE FISH AND WILDLIFE SERVICE OF THIS DEPARTMENT AS FOLLOWS:

"THE GRANTOR RESERVES FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO PROSPECT FOR, MINE, OR REMOVE OIL, GAS, OR OTHER MINERALS FROM THE LANDS FOR A PERIOD OF THIRTY YEARS FROM THE DATE OF THIS DEED, AND AS LONG THEREAFTER AS OIL, GAS, SULPHUR, OR OTHER MINERAL IS PRODUCED FROM SAID LANDS, OR SO LONG THEREAFTER AS GRANTOR, ITS SUCCESSORS OR ASSIGNS, SHALL CONDUCT DRILLING OR REWORKING OPERATIONS THEREON WITH NO CESSATION OF MORE THAN SIXTY CONSECUTIVE DAYS UNTIL PRODUCTION RESULTS, AND IF PRODUCTION RESULTS, SO LONG AS SUCH MINERAL IS PRODUCED. THE GRANTOR RESERVES UNTIL ITSELF, ITS SUCCESSORS AND ASSIGNS, THE RIGHT OF INGRESS AND EGRESS OVER THE SAID LANDS IN PURSUANCE OF THE RESERVATIONS SET FORTH ABOVE, BUT IN THE EVENT OF OIL, GAS, OR OTHER MINERALS BEING DISCOVERED AND DEVELOPED, THE GRANTOR COVENANTS AND AGREES THAT FORTY PERCENT (40 PERCENT) OF ONE EIGHTH (1/8) ROYALTY OF ALL OIL, GAS, SULPHUR, OR OTHER MINERAL SO REMOVED AND SAVED SHALL BE PAID TO THE UNITED STATES OF AMERICA UNTIL THE TOTAL ROYALTIES SO PAID TO THE UNITED STATES SHALL EQUAL THE PURCHASE PRICE OF SAID LAND, TO WIT: FOUR HUNDRED FIFTY-FIVE THOUSAND, NINE HUNDRED SIXTY- NINE AND 80/100 DOLLARS ($455,969.80).'

A PRODUCING WELL HAS BEEN DRILLED ON THE ARKANSAS NATIONAL WILDLIFE REFUGE AND REMITTANCES REPRESENTING FORTY PERCENT OF ONE-EIGHTH OF THE ROYALTY ON OIL PRODUCED ARE BEING RECEIVED IN ACCORDANCE WITH THE FOREGOING CLAUSE. PRODUCING WELLS ARE IN OPERATION NOW AND IT IS EXPECTED THAT ADDITIONAL ONES WILL BE IN PRODUCTION IN THE NEAR FUTURE ON LANDS COMPRISING OTHER NATIONAL WILDLIFE REFUGES THE DEEDS FOR WHICH CONTAIN SIMILAR CLAUSES.

THE ACT OF JUNE 15, 1935, 49 STAT. 383, PROVIDES THAT 25 PERCENTUM OF ALL MONEY RECEIVED DURING EACH FISCAL YEAR FROM THE SALE OR OTHER DISPOSITION OF SURPLUS WILDLIFE, OR OF TIMBER, HAY, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, SHELL, SAND, OR GRAVEL, AND FROM OTHER PRIVILEGES ON REFUGES ADMINISTERED BY THE BUREAU OF BIOLOGICAL SURVEY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE (NOW THE FISH AND WILDLIFE SERVICE OF THE DEPARTMENT OF THE INTERIOR, PURSUANT TO THE REORGANIZATION ACT OF 1939 AND THE PRESIDENT'S REORGANIZATION PLANS II AND III) SHALL BE PAID TO THE COUNTY OR COUNTIES IN WHICH THE REFUGEES ARE LOCATED TO BE EXPENDED FOR THE BENEFIT OF THE PUBLIC SCHOOLS AND ROADS. MONEYS RECEIVED UNDER THE PROVISIONS OF THIS ACT ARE DEPOSITED TO THE SPECIAL FUNDS RECEIPT ACCOUNT 146019, RECEIPTS UNDER MIGRATORY BIRD CONSERVATION ACT (NAME OF REFUGE), FROM WHICH ACCOUNT THEY ARE DISTRIBUTED AT THE END OF EACH FISCAL YEAR, 75 PERCENT TO GENERAL FUND RECEIPTS AND 25 PERCENT TO COUNTIES.

IT WILL BE APPRECIATED IF YOU WILL ADVISE WHETHER PAYMENTS RECEIVED FOR ROYALTIES UNDER THE CLAUSE OF THE DEED ABOVE QUOTED SHOULD BE DEPOSITED TO 146019, RECEIPTS UNDER MIGRATORY BIRD CONSERVATION ACT (NAME OF REFUGE), AND LATER DISTRIBUTED IN ACCORDANCE WITH THE ACT OF JUNE 15, 1935. IF IT IS YOUR OPINION THAT THEY SHOULD NOT, PLEASE ADVISE THE SYMBOL AND TITLE OF THE ACCOUNT TO WHICH THEY SHOULD BE DEPOSITED. THE FUNDS WILL BE HELD IN THE SPECIAL DEPOSITS ACCOUNT PENDING RECEIPT OF YOUR REPLY.

SECTION 401, TITLE IV, OF THE ACT (49 STAT. 383) CITED IN YOUR LETTER PROVIDES AS FOLLOWS:

THAT 25 PERCENTUM OF ALL MONEY RECEIVED DURING EACH FISCAL YEAR FROM THE SALE OR OTHER DISPOSITION OF SURPLUS WILDLIFE, OR OF TIMBER, HAY, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, SHELL, SAND, OR GRAVEL, AND FROM OTHER PRIVILEGES ON REFUGES ESTABLISHED UNDER THE MIGRATORY BIRD CONSERVATION ACT OF FEBRUARY 18, 1929, OR UNDER ANY OTHER LAW, PROCLAMATION, OR EXECUTIVE ORDER, ADMINISTERED BY THE BUREAU OF BIOLOGICAL SURVEY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, SHALL BE PAID AT THE END OF SUCH YEAR BY THE SECRETARY OF THE TREASURY TO THE COUNTY OR COUNTIES IN WHICH SUCH REFUGE IS SITUATED, TO BE EXPENDED FOR THE BENEFIT OF THE PUBLIC SCHOOLS AND ROADS IN THE COUNTY OR COUNTIES IN WHICH SUCH REFUGE IS SITUATED: PROVIDED, THAT WHEN ANY SUCH REFUGE IS IN MORE THAN ONE STATE OR TERRITORY OR COUNTY OR SUBDIVISION, THE DISTRIBUTIVE SHARE TO EACH FROM THE PROCEEDS OF SUCH REFUGE SHALL BE PROPORTIONAL TO ITS AREA THEREIN: PROVIDED FURTHER, THAT THE DISPOSITION OR SALE OF SURPLUS ANIMALS, AND PRODUCTS, AND THE GRANT OF PRIVILEGES ON SAID WILDLIFE REFUGES MAY BE MADE UPON SUCH TERMS AND CONDITIONS AS THE SECRETARY OF AGRICULTURE SHALL DETERMINE TO BE FOR THE BEST INTERESTS OF GOVERNMENT OR FOR THE ADVANCEMENT OF KNOWLEDGE AND THE DISSEMINATION OF INFORMATION REGARDING THE CONSERVATION OF WILDLIFE, INCLUDING SALE IN THE OPEN MARKET, EXCHANGE FOR ANIMALS OF THE SAME OR OTHER KINDS, AND GIFTS OR LOANS TO PUBLIC OR PRIVATE INSTITUTIONS FOR EXHIBITION OR PROPAGATION: AND PROVIDED FURTHER, THAT OUT OF ANY MONEYS RECEIVED FROM THE GRANT, SALE, OR DISPOSITION OF SUCH ANIMALS, PRODUCTS, OR PRIVILEGES, OR AS A BONUS UPON THE EXCHANGE OF SUCH ANIMALS THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO PAY ANY NECESSARY EXPENSES INCURRED IN CONNECTION WITH AND FOR THE PURPOSE OF EFFECTING THE REMOVAL, GRANT, DISPOSITION, SALE, OR EXCHANGE OF SUCH ANIMALS, PRODUCTS, OR PRIVILEGES; AND IN ALL CASES SUCH EXPENDITURES SHALL BE DEDUCTED FROM THE GROSS RECEIPTS OF THE REFUGE BEFORE THE SECRETARY OF THE TREASURY SHALL DISTRIBUTE THE 25 PERCENTUM THEREOF TO THE STATES AS HEREINBEFORE PROVIDED.

SECTION 301 OF SAID ACT (49 STAT. 381) PROVIDES THAT:

* * * THE ACQUISITION OF SUCH AREAS BY THE UNITED STATES SHALL IN NO CASE BE DEFEATED BECAUSE OF RIGHTS-OF-WAY, EASEMENTS, AND RESERVATIONS WHICH FROM THEIR NATURE WILL IN THE OPINION OF THE SECRETARY OF AGRICULTURE IN NO MANNER INTERFERE WITH THE USE OF THE AREAS SO ENCUMBERED FOR THE PURPOSES OF THIS ACT; BUT SUCH RIGHTS-OF-WAY, EASEMENTS, AND RESERVATIONS RETAINED BY THE GRANTOR OR LESSOR FROM WHOM THE UNITED STATES RECEIVES TITLE UNDER THIS OR ANY OTHER ACT FOR THE ACQUISITION BY THE SECRETARY OF AGRICULTURE OF AREAS FOR WILDLIFE REFUGES SHALL BE SUBJECT TO RULES AND REGULATIONS PRESCRIBED BY THE SECRETARY OF AGRICULTURE FOR THE OCCUPATION, USE, OPERATION, PROTECTION, AND ADMINISTRATION OF SUCH AREAS AS INVIOLATE SANCTUARIES FOR MIGRATORY BIRDS OR AS REFUGES FOR WILDLIFE; AND IT SHALL BE EXPRESSED IN THE DEED OR LEASE THAT THE USE, OCCUPATION, AND OPERATION OF SUCH RIGHTS-OF-WAY,EASEMENTS, AND RESERVATIONS SHALL BE SUBORDINATE TO AND SUBJECT TO SUCH RULES AND REGULATIONS AS ARE SET OUT IN SUCH DEED OR LEASE OR, IF DEEMED NECESSARY BY THE SECRETARY OF AGRICULTURE, TO SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY HIM FROM TIME TO TIME.

IN ADDITION TO THE PARAGRAPH QUOTED IN YOUR LETTER THE DEED UNDER WHICH THE UNITED STATES ACQUIRED TITLE TO THE TRACT HERE UNDER CONSIDERATION PROVIDES:

THIS PROVISION FOR PAYMENT OF FORTY PERCENT (40 PERCENT) OF THE ONE EIGHTH (1/8) ROYALTY TO THE UNITED STATES OF AMERICA UNTIL IT EQUALS SAID SUM, SHALL APPLY TO ROYALTIES RESERVED IN THE LEASES NOW EXISTING ON SAID LAND HEREINAFTER REFERRED TO, AS WELL AS TO ANY LEASES HEREAFTER EXECUTED BY GRANTOR, ITS SUCCESSORS OR ASSIGNS, UNDER THE SAID RESERVATION HEREINABOVE SET OUT, AND THE BONUSES, RENTALS, AND THE REMAINING SIXTY PERCENT (60 PERCENT) OF THE ONE-EIGHTH (1/8) ROYALTY THEREUNDER SHALL BE PAYABLE TO GRANTOR, ITS SUCCESSORS AND ASSIGNS.

THE LAND IS NOW SUBJECT TO THE OIL AND GAS LEASES IN FAVOR OF THE CONTINENTAL OIL COMPANY, A DELAWARE CORPORATION, AS PER LEASES OF RECORD IN THE OFFICE OF THE COUNTY CLERK OF ARKANSAS COUNTY, TEXAS, PAGES 404 AND 412 OF BLOCK ONE, AND THE CONVEYANCE IS SUBJECT TO THE RIGHTS OF THE LESSEE IN SAID LEASES. EXCEPT FOR THE RIGHTS GRANTED TO THE LESSEE IN SAID LEASES, THE MINERAL RESERVATIONS MADE BY THE GRANTOR HEREIN IN FAVOR OF ITSELF, ITS SUCCESSORS AND ASSIGNS, SHALL BE SUBJECT TO THE FOLLOWING STIPULATIONS, AND ANY LEASES MADE BY GRANTOR, ITS SUCCESSORS OR ASSIGNS, AFTER THE EXPIRATION OF THE SAID LEASES TO THE CONTINENTAL OIL COMPANY SHALL CONTAIN THE FOLLOWING STIPULATIONS FOR THE PROTECTION OF THE GRANTEE.

SECTIONS 12.17 AND 12.17E, TITLE 50, CODE OF FEDERAL REGULATIONS ISSUED BY THE SECRETARY OF AGRICULTURE PURSUANT TO THE PROVISION OF SAID ACT PROVIDE, RESPECTIVELY, AS FOLLOWS:

WITHIN THE LIMITATIONS OF THE ACT OF JUNE 15, 1935 (49 STAT. 383; 16 U.S.C., SUP. 715S), THE FOLLOWING CONDITIONS AND REQUIREMENTS ARE PRESCRIBED GOVERNING THE SALE OR OTHER DISPOSITION OF WILDLIFE, INCLUDING LONG-HORNED CATTLE, WILD BURROS, AND WILD HORSES, AND HAY, TIMBER, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL THAT MAY BECOME SURPLUS TO REFUGE NEEDS OR REQUIREMENTS.

HAY, GRASS, TIMBER, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL PRODUCED ON ANY REFUGE SURPLUS TO REFUGE NEEDS AND REQUIREMENTS MAY BE SOLD BY THE CHIEF OF BUREAU, PREFERENCE BEING GIVEN TO LOCAL RESIDENTS OF THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS SITUATED, AT PREVAILING MARKET PRICES FOR SUCH PRODUCTS IN THE LOCALITY WHERE PRODUCED.

WHENEVER IN THE OPINION OF THE CHIEF OR BUREAU OF THE REGIONAL DIRECTOR IT SHALL BE ADVANTAGEOUS TO THE UNITED STATES, HE MAY, IN HIS DISCRETION, ENTER INTO COOPERATIVE AGREEMENTS WITH OFFICIALS, ORGANIZATIONS, ASSOCIATIONS, AND INDIVIDUALS FOR THE CULTIVATION OF LANDS OF THE UNITED STATES WITHIN REFUGES, WHEREBY SPECIFIED AREAS OF GRAIN, HAY, OR OTHER FEED AND COVER FOR WILDLIFE WILL BE ALLOWED TO REMAIN ON THE REFUGE IN LIEU OF FURTHER CONSIDERATION FOR SUCH AGREEMENTS OR PERMITS.

SUCH AGREEMENTS MAY PROVIDE FOR THE HARVESTING AND DELIVERY TO THE LOCAL REPRESENTATIVES OF THE BUREAU OF BIOLOGICAL SURVEY OF CERTAIN PERCENTAGES OF THE HARVESTED CROPS TO BE STORED AND USED FOR FEEDING WILDLIFE AS OCCASION MAY REQUIRE. (AS AMENDED, MAY 9, 1938, 3 F.R. 915.)

SECTION 12.51 OF THE REGULATIONS, REFERRED TO ABOVE, CONTAINS A SCHEDULE OF PRICES UNDER WHICH SURPLUS PRODUCTS OF REFUGES ADMINISTERED BY THE BUREAU OF BIOLOGICAL SURVEY MAY BE OFFERED FOR SALE BUT OIL IS NOT INCLUDED IN SAID SCHEDULE.

AS INDICATED ABOVE, THE REGULATIONS WERE AMENDED MAY 9, 1938, BY ADDING TO " REGULATION 17--- SALE OF SURPLUS ANIMALS AND PRODUCTS," AT THE END OF THE SECOND PARAGRAPH OF SUBTITLE "HAY, GRASS, TIMBER AND OTHER PRODUCTS" THE FOLLOWING PROVISION:

SUCH AGREEMENTS MAY PROVIDE FOR THE HARVESTING AND DELIVERY TO THE LOCAL REPRESENTATIVES OF THE BUREAU OF BIOLOGICAL SURVEY OF CERTAIN PERCENTAGES OF THE HARVESTED CROPS TO BE STORED AND USED FOR FEEDING WILDLIFE AS OCCASION MAY REQUIRE.

ON JUNE 30, 1940, UNDER AUTHORITY OF REORGANIZATION PLAN NO. III (54 STAT. 230), THE BUREAU OF BIOLOGICAL SURVEY WAS MERGED WITH THE BUREAU OF FISHERIES TO FORM THE FISH AND WILDLIFE SERVICE. ON DECEMBER 19, 1940, THE REGULATIONS ISSUED BY THE SECRETARY OF AGRICULTURE QUOTED ABOVE WERE SUPERSEDED BY REGULATIONS ISSUED BY THE ACTING SECRETARY OF THE INTERIOR UNDER AUTHORITY OF SECTION 10 OF THE MIGRATORY BIRD CONSERVATION ACT OF FEBRUARY 18, 1929, 45 STAT. 1224, 16 U.S.C. 715I; SECTION 84 OF THE ACT OF MARCH 4, 1909, AS AMENDED APRIL 15, 1924, 43 STAT. 98, 18 U.S.C. 145, TO PROTECT WILD ANIMALS AND BIRDS AND PROPERTY ON FEDERAL REFUGES; AND SECTION 401 OF THE ACT OF JUNE 15, 1935, SUPRA, THE ADMINISTRATION OF WHICH ACTS WAS TRANSFERRED TO THE SECRETARY OF THE INTERIOR ON JULY 1, 1939, IN ACCORDANCE WITH REORGANIZATION PLAN NO. II (53 STAT. 1431) AND UNDER AUTHORITY OTHERWISE CONFERRED UPON THE SECRETARY OF THE INTERIOR WITH RESPECT TO THE LANDS OF THE UNITED STATES THERETOFORE OR THEREAFTER SET APART OR RESERVED BY LAW, PROCLAMATION, OR EXECUTIVE ORDER, FOR THE USE OF THE DEPARTMENT OF THE INTERIOR, AND UNDER THE SUPERVISION OF THE FISH AND WILDLIFE SERVICE AS GAME REFUGES OR PRESERVES, RESERVATIONS, OR BREEDING GROUNDS FOR WATERFOWL OR OTHER MIGRATORY OR NATIVE BIRDS AND BIG GAME OR OTHER WILD ANIMALS.

THE PERTINENT REGULATIONS ISSUED BY THE ACTING SECRETARY OF THE INTERIOR REFERRED TO ABOVE ARE CONTAINED IN SECTIONS 12.7, 12.17, AND 12.17D, CODE OF FEDERAL REGULATIONS, AS FOLLOWS:

PERMITS TO GRAZE LIVESTOCK, TO HARVEST HAY OR STOCK FEED, TO REMOVE TIMBER, FIREWOOD, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, OR SHELL, SAND, EARTH, OR GRAVEL, TO OCCUPY OR CULTIVATE AREAS, TO ERECT OR OCCUPY RESIDENCES OR OTHER BUILDINGS, TO ENGAGE IN OR SOLICIT ANY BUSINESS, OR TO MAKE ANY OTHER USE OF THE REFUGE THAT THE DIRECTOR MAY FIND TO BE NOT INCONSISTENT WITH ITS OBJECTS MAY BE ISSUED BY THE DIRECTOR OR THE REGIONAL DIRECTOR OF THE REGION IN WHICH THE REFUGE IS LOCATED OR BY REFUGE MANAGERS DESIGNATED BY THE DIRECTOR UPON SUCH TERMS AND AT SUCH RATES OF CHARGE, IF ANY, AS MAY BE DETERMINED BY THE DIRECTOR OR THE REGIONAL DIRECTOR TO BE COMMENSURATE WITH THE VALUE OF THE PRIVILEGE GRANTED, HAVING DUE REGARD TO PREVAILING MARKET PRICES IN THE VICINITY.

BIRDS AND MAMMALS, INCLUDING LONG-HORNED CATTLE, WILD BURROS, AND WILD HORSES, HAY, TIMBER, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, SURPLUS TO REFUGE NEEDS AND REQUIREMENTS, OR THE DISPOSAL OF WHICH IS ESSENTIAL TO THE MAINTENANCE OF A BALANCED WILDLIFE POPULATION AND MANAGEMENT PROGRAM MAY BE SOLD OR OTHERWISE DISPOSED OF IN ACCORDANCE WITH THE FOLLOWING CONDITIONS AND REQUIREMENTS: * * *

SURPLUS HAY, GRASS, TIMBER, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL PRODUCED ON ANY REFUGE MAY BE DISPOSED OF IN ACCORDANCE WITH SECTION 12.7 HEREOF.

NOWHERE IS OIL SPECIFICALLY ENUMERATED IN THE PRODUCTS THAT MAY BE SOLD WHEN A SURPLUS EXISTS AND THE ONLY POSSIBLE INDEFINITE ENUMERATION THAT PERMITS OF AN INCLUSION OF MORE THAN ONE PRODUCT IS THE TERM "OTHER SPONTANEOUS PRODUCTS OF THE SOIL.' THEREFORE, THERE IS FOR CONSIDERATION WHETHER BY LEGISLATIVE INTENDMENT OR OTHERWISE OIL WAS INTENDED TO BE EMBRACED WITHIN SUCH CLASSIFICATION. THERE APPEARS TO BE NOTHING CONTAINED IN THE COMMITTEE REPORTS IN CONGRESS WHEN THE ACT WAS UNDER CONSIDERATION INDICATING THAT CONGRESS INTENDED THAT OIL SHOULD BE CONSIDERED AS SPONTANEOUS PRODUCT OF THE SOIL.

THE PURPOSE OF TITLE IV OF H.R. 7982, WHICH LATER WAS ENACTED AS SECTION 401, OF THE ACT OF JUNE 15, 1935, QUOTED ABOVE, IS STATED IN THE REPORT FROM THE COMMITTEE ON AGRICULTURE, HOUSE OF REPRESENTATIVES, ACCOMPANYING THE BILL, TO BE AS FOLLOWS:

THE PURPOSE OF THIS TITLE IS TO AUTHORIZE PAYMENT TO THE STATES OF 25 PERCENT OF ANY REVENUE THAT MAY BE DERIVED FROM CERTAIN WILDLIFE REFUGES AND RESERVATIONS ADMINISTERED BY THE DEPARTMENT OF AGRICULTURE. IT IS THE APPLICATION TO THESE REFUGES OF THE PLAN THAT HAS OBTAINED UNDER CONGRESSIONAL LEGISLATION FOR MANY YEARS WITH RESPECT TO PARTICIPATION OF THE VARIOUS STATES IN REVENUES FROM THE NATIONAL FORESTS, AND IS THOUGHT TO BE EQUITABLE AND FAIR TO THE STATES.

IT IS ALSO PROPOSED TO AUTHORIZE DISPOSITION OF SURPLUS ANIMALS AND PRODUCTS ON THESE RESERVATIONS OR REFUGES UPON SUCH TERMS AND CONDITIONS AS THE SECRETARY OF AGRICULTURE SHALL DETERMINE TO BE FOR THE BEST INTERESTS OF THE GOVERNMENT, INCLUDING EXCHANGES FOR OTHER WILDLIFE.

THE REPORT FROM THE SPECIAL COMMITTEE OF THE SENATE ON CONSERVATION OF WILDLIFE RESOURCES, ACCOMPANYING S. 3006, INCLUDES A STATEMENT AS TO THE PURPOSES OF TITLE IV OF SAID BILL LATER ENACTED AS SECTION 401, TITLE IV OF THE ACT OF JUNE 15, 1935, AS FOLLOWS:

UNDER PRESENT CONGRESSIONAL ENACTMENTS, THE SEVERAL STATES PARTICIPATE IN REVENUES WHICH THE FEDERAL GOVERNMENT RECEIVES FROM THE USE OF THE NATIONAL FORESTS AND SALE OF THEIR PRODUCTS. THIS TITLE PROPOSES TO APPLY THIS PRINCIPLE AND EXTEND ITS APPLICATION TO WILDLIFE REFUGES AND RESERVATIONS ESTABLISHED UNDER THE DEPARTMENT OF AGRICULTURE.

THE CARRYING CAPACITY OF ANY REFUGE IS LIMITED TO THE FOOD AND SHELTER FOUND THEREON. WHEN A SURPLUS OF WILDLIFE IS EVIDENT, PROVISION SHOULD BE MADE FOR THE DISPOSITION OF THIS SURPLUS OF WILDLIFE AND ANY OTHER PRODUCTS OF THE REFUGE. THIS TITLE GIVES AUTHORITY TO THE SECRETARY OF AGRICULTURE TO TAKE CARE OF THESE SITUATIONS UNDER SUCH TERMS AND CONDITIONS AS HE MAY DETERMINE TO BE FOR THE BEST INTERESTS OF THE GOVERNMENT, INCLUDING EXCHANGES FOR OTHER WILDLIFE.

THE WORD "SPONTANEOUS" HAS BEEN DEFINED AS PROCEEDING FROM, OR ACTING BY, INTERNAL IMPULSE, ENERGY, OR NATURAL LAW WITHOUT EXTERNAL FORCE. 58 C.J. 1305. THE WORD "PRODUCTS" HAS BEEN DEFINED AS MEANING THINGS PRODUCED ( SPILLER V. MCGEHEE, 68 S.W. (2D) 1093, 1095), AND THE WORD "SOIL" HAS BEEN DEFINED TO MEAN "THE FACE OR SURFACE OF THE EARTH OR GROUND.' 12 COURT OF CUSTOMS APPEALS 110, 112. IN THE CASE JUST CITED, THE COURT OF CUSTOMS APPEALS, IN CONSIDERING ARTICLE 2 OF THE CUBAN RECIPROCITY TREATY OF 1902, ACCORDING A DUTY DISCOUNT TO ANY "PRODUCT OF THE SOIL OR INDUSTRY OF THE REPUBLIC OF CUBA" HELD THAT SUGAR/CANE IS A PRODUCT OF THE SOIL, BUT THAT SUGAR RAW OR REFINED IS A PRODUCT OF INDUSTRY.

OIL HAS BEEN DEFINED AS A MINERAL ( MARSHALL V. MELLON, 36 A. 201); OHIO OIL CO. V. INDIANA, 177 U.S. 130; KENTUCKY COKE CO. V. KEYSTONE GAS CO., 396 FED. 320; AND WHILE IT IS ORIGINALLY A PART OF THE REALTY IT MAY BECOME PERSONALTY BY SEVERANCE. FUNK V. HALDEMAN, 53 PA. 229. UNDER THESE DEFINITIONS IT IS MANIFEST THAT OIL MAY NOT BE CONSIDERED AS AMONG THE "SPONTANEOUS PRODUCTS OF THE SOIL" WITHIN THE MEANING OF SECTION 401 OF THE MIGRATORY BIRD HUNTING STAMP ACT, QUOTED ABOVE. COMPARE 39 OP. ATTY. GEN. 39.

MOREOVER, UNDER THE DOCTRINE OF EJUSDEM GENERIS WHERE GENERAL WORDS FOLLOW THE ENUMERATION OF PARTICULAR CLASSES OF PERSONS OR THINGS, THE GENERAL WORDS WILL BE CONSTRUED AS APPLICABLE ONLY TO PERSONS OR THINGS OF THE SAME GENERAL NATURE OR CLASS AS ENUMERATED. THE PARTICULAR WORDS ARE PRESUMED TO DESCRIBE CERTAIN SPECIES, AND THE GENERAL WORDS TO BE USED FOR THE PURPOSE OF INCLUDING OTHER SPECIES OF THE SAME GENUS. THE RULE IS BASED ON THE OBVIOUS REASON THAT IF THE LAWMAKERS HAD INTENDED THE GENERAL WORDS TO BE USED IN THEIR UNRESTRICTED SENSE THEY WOULD HAVE MADE NO MENTION OF THE PARTICULAR CLASSES. THE WORDS "OTHER" OR "ANY OTHER," FOLLOWING AN ENUMERATION OF PARTICULAR CLASSES, ARE, THEREFORE, TO BE READ AS "OTHER SUCH LIKE" AND INCLUDE ONLY OTHERS OF LIKE KIND OR CHARACTER. PEOPLE V. MCKEAN, 243 P. 898, 900. SEE ALSO 20 COMP. GEN. 46, 52, WHERE IT IS STATED AS FOLLOWS:

* * * GENERAL WORDS IN A STATUTE MUST BE READ IN THE LIGHT OF THE ACT AS A WHOLE AND WITH DUE REGARD TO THE SITUATION IN WHICH THEY ARE TO BE APPLIED. UNITED STATES V. NICE, 241 U.S. 591. GENERAL EXPRESSIONS IN A STATUTE ARE TO BE RESTRAINED BY THE MORE SPECIAL AND DEFINITE INDICATIONS OF INTENTION FURNISHED BY THE CONTEXT. UNITED STATES V. JONES, 131 U.S. 1. THE OPERATION OF A STATUTE IS TO BE RESTRAINED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE IT IS EVIDENT THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT. BREWER V. BLOUGHER, 14 PET. 178; UNITED STATES V. TRANS- MISSOURI FREIGHT ASSOCIATION, 166 U.S. 290; WASHINGTON MARKET CO. V. HOFFMAN, 101 U.S. 112; MCKEE V. UNITED STATES, 164 U.S. 287. GENERAL WORDS IN A STATUTE WILL BE GIVEN A NARROWER CONSTRUCTION WHERE NECESSARY TO EFFECT THE INTENTION OF THE LEGISLATURE. PETRI V. COMMERCIAL NATIONAL BANK, 142 U.S. 644; REICHE V. SMYTHE, 13 WALL, 162; UNITED STATES V. PALMER, 3 WHEAT. 610. AND UNDER THE FAMILIAR DOCTRINE OF EJUSDEM GENERIS, UNLESS THERE IS A CLEAR MANIFESTATION TO THE CONTRARY, GENERAL WORDS NOT SPECIFIC OR LIMITED BUT FOLLOWING PARTICULAR DESCRIPTIVE WORDS ARE TO BE CONSTRUED AS APPLICABLE TO CASES OR MATTERS OF LIKE KIND WITH THOSE DESCRIBED BY THE PARTICULAR WORDS. UNITED STATES V. STEVER, 222 U.S. 167; CUTTER V. KOUNS, 110 U.S. 720; UNITED STATES V. SALEN, 235 U.S. 237; UNITED STATES V. PENNSYLVANIA RAILROAD CO., 242 U.S. 208. * * *

IN THE ACT HERE UNDER CONSIDERATION THERE WOULD HAVE BEEN NO OCCASION TO ENUMERATE THE SPECIFIC ITEMS OF SURPLUS WILDLIFE, OR OF TIMBER, HAY, AND GRASS IF THE FOLLOWING GENERAL PHRASE "OR OTHER PRODUCTS OF THE SOIL" WAS INTENDED TO COMPREHEND ALL PRODUCTS INCLUDING ALL VEGETABLE OR ANIMAL MATTER, AND ALL KINDS OF ORGANIC AND INORGANIC MATTER. ALSO, IF SUCH HAD BEEN THE INTENTION OF THE CONGRESS THERE WOULD HAVE BEEN NO NECESSITY TO INCLUDE IMMEDIATELY FOLLOWING THE PHRASE "OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL" SUCH INORGANIC PRODUCTS AS SHELL, SAND, OR GRAVEL.

FURTHERMORE, UNDER THE PROVISIONS OF THE DEED THE GOVERNMENT BECAME THE OWNER OF THE FEE OF THE LAND, BUT SAID DEED RESERVES TO THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO PROSPECT FOR, MINE, REMOVE OIL, GAS, OR OTHER MINERALS FROM THE LAND FOR A PERIOD OF 30 YEARS FROM DATE OF DEED AND AS LONG THEREAFTER AS OIL, GAS, SULPHUR, OR OTHER MINERAL IS PRODUCED FROM SAID LANDS, OR SO LONG THEREAFTER AS GRANTOR, ITS SUCCESSORS OR ASSIGNS, SHALL CONDUCT DRILLING OR RE WORKING OPERATIONS TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS, SUBJECT TO THE PAYMENT OF A ROYALTY TO THE GOVERNMENT AS PROVIDED IN THE DEED. SUCH RESERVATION IN EFFECT RESERVED TITLE TO OIL, GAS, OR OTHER MINERALS UNDER THE SURFACE IN THE GRANTOR. LUSE, ET UX. V. PARMER, 221 S.W. 1031. IN VIEW OF THIS PROVISION THE OIL IS FOR DISPOSITION AND SALE UNDER SUCH TERMS AND CONDITIONS AS DETERMINED BY THE GRANTOR AND NOT THE SECRETARY OF AGRICULTURE ( INTERIOR) AS PROVIDED IN THE ACT.

ACCORDINGLY, I HAVE TO ADVISE THAT ANY MONEYS RECEIVED BY THE UNITED STATES UNDER THE PROVISION IN THE DEED PROVIDING FOR THE PAYMENT OF A ROYALTY TO THE UNITED STATES FOR ALL OIL, GAS, SULPHUR, OR OTHER MINERALS REMOVED AND SAVED FROM THE LAND BY THE GRANTOR ARE NOT RECEIPTS THE DISPOSITION OF WHICH IS PROVIDED FOR IN SECTION 401 OF THE ACT OF JUNE 15, 1935, 49 STAT. 383, AND SHOULD NOT BE DEPOSITED TO THE CREDIT OF THE ACCOUNT "146019 RECEIPTS UNDER MIGRATORY BIRD CONSERVATION ACT" BUT ARE TO BE CONSIDERED REVENUES INURING TO THE BENEFIT OF THE UNITED STATES AND FOR HANDLING ACCORDINGLY. THEREFORE, APPROPRIATE ACTION WILL BE TAKEN TO ESTABLISH OR DESIGNATE THE NECESSARY RECEIPT ACCOUNT OR ACCOUNTS ON THE BOOKS OF THE GOVERNMENT TO WHICH SUCH FUNDS SHOULD BE CREDITED AND YOUR DEPARTMENT WILL BE ADVISED IN DUE COURSE OF THE ACTION TAKEN.