under locations made prior thereto upon payment of $1.25 per acre and proof of transfer to the State or abandonment of the claims did not ipso facto withdraw lands so claimed from the operation of the mining laws, including rights of relocation, but did enable the State to initiate a right which would defeat attempts at subsequent location or relocation. 53-195 One obtaining patent to public land with oil and gas reservation to the United States, properly impressed in strict accordance with the status and condition of the land at the date his entry is approved for patenting, cannot, after acceptance of the patent, be allowed to exchange the patent for one without such reservation on the ground that the land was restored from a petroleum reserve between the dates of the approval for, and issuance of patent.

53-479

The water rights acquired and safeguarded by section 2339, Revised Statutes, are distinct from any right in the land itself, and the existence of such rights is no bar to acquisition of the land under subsequent homestead entries or locations, but all patents granted or homesteads allowed are subject to any vested accrued rights that may have been acquired under or recognized by this section. 54-144

Requirement of an oil and gas waiver where, due to mistake of 1.5 percent in computing the sale price of land, patent has not issued after 110 years from the date of the issuance of the cash receipt. An entryman who has done everything which is necessary to entitle him to receive a patent for public lands has, even before patent is actually issued by the General Land Office, a complete equitable estate in the land which he can sell and convey, mortgage or lease.

57-232

The Secretary of the Interior has authority to insert in patents issued under the Recreation Act a provision barring racial discrimination in the use of the land.

60-477

Where a statute places upon this Department the mandatory duty of conveying lands to persons who meet certain requirements prescribed in the legislation, the Department cannot impose upon such persons additional requirements or con

vey to them rights less than those provided for by Congress. 60-477

The Secretary of the Interior has authority to insert in a patent issued as a result of a public sale under the second proviso of section 2455, Rev. Stat., as amended, a reservation of a right-of-way for driving sheep across the land patented and of overnight stopover privileges for such sheep. 61-175

V. SUITS TO CANCEL

It has not been authoritatively settled that a suit to cancel a list of lands certified to a State, if not brought within six years from the date of certification, or within six years from the date of discovery of fraud, would be barred by section 8 of the act of Mar. 3, 1891 (26 Stat. 1099), but this statute has been referred to by the Supreme Court as showing the purpose of Congress to uphold titles arising under certification or patent after the lapse of a certain time, and it has been frequently held that certification of lists pursuant to similar grants is of the same effect as a patent. 54-475

Suit for cancellation of a patent will not be advised by the Department of the Interior merely because the patent was issued inadvertently; but it must appear that some interest of the Federal Government or some person to whom it is under obligation has suffered by such inadvertent action. 54-475

Land patented under a grant to a railroad company is not subject to location under the mining law, and where more than six years have elapsed from the date of patent, the patent is immune from attack by the United States in the absence of fraud in its procurement, and a locator under the mining law of part of such land who also holds the title of the railroad will not be permitted to reconvey such title to the United States for the purpose of having such part included in a mineral patent to his location. 56-67

The act of Mar. 3, 1891 (26 Stat. 1095, 1099), limiting to six years the time within which actions may be brought by the United States to annul patents does not apply to actions by the United States to protect the right of occupancy of Indians.

56-396

If no suit attacking a patent has been brought within 6 years after its issuance, subsequently discovered fraud is the only ground for attacking the patent after the expiration of the 6-year period. 60-240

A mistake in the issuance of a patent may justify a recommendation by this Department that the Attorney General start suit to cancel the patent. 61-397

Suit would generally be recommended where (1) the Government has an interest in the remedy by reason of its interest in the land; (2) the interest of some party to whom the Government is under obligation has suffered by issue of the patent; (3) the duty of the Government to the people so requires; or (4) significant equitable considerations are involved.

61-397

Where the mistake in the issuing of a patent was to issue it without having afforded to a conflicting applicant an opportunity to appeal under the Rules of Practice of this Department from an adverse classification of the land embraced by his application, insufficient grounds exist for seeking judicial annulment of the patent. 61-397

PHOSPHATE LEASES AND PERMITS

Regulations (Phosphate Leases) of Aug. 9, 1935, amending sections 7 to 10, inclusive, of Cir. No. 696 (47 L.D. 513). 55-317

PITTMAN ACT

Regulations of Apr. 8, 1927, irrigation of arid lands in Nevada under acts of Oct. 22, 1919, and Sept. 22, 1922 (41 Stat. 293). (Cir. No. 666, revised.) 52-67

An application for repayment of fees tendered with an application for a water exploration permit filed after the permit application was rejected, but before adverse decision had been declared final, does not amount to a voluntary withdrawal or relinquishment of the application for permit so as to bar repayment of the fees. John J. Kotkin (49 L.D. 344), and J. G. Hofmann (53 I.D. 254). 53-654

Instructions of June 1, 1932, irrigation of arid lands in Nevada; filing fee under act of Oct. 22, 1919 (41 Stat. 293). 53-656

The words "authorized and directed" in section 1 of the act of Oct. 2, 1917 (40 Stat. 297), are not to be construed as mandatory, but the same discretionary authority is conferred upon the Secretary of the Interior thereby to issue permits as that conferred upon him by section 13 of the act of Feb. 25, 1920. 52-44

Where the Geological Survey has reported that lands have a prospective value for oil and gas, the department may, in the exercise of its discretionary authority, reject an application for a potassium permit under the act of Oct. 2, 1917 (40 Stat. 297), if the right to select a one-fourth part for patent is not waived. 52-44

The department may issue a potassium permit under the act of Oct. 2, 1917 (40 Stat. 297), carrying a preference right to a lessee upon discovery for not to exceed one-fourth the area covered by the permit, with a provision that the permittee waive his right to a patent. 52-45

The provision in the act of Oct. 2, 1917 (40 Stat. 297), authorizing the Secretary of the Interior to permit the use of public land for a camp site, and other purposes connected with the proper development and use of potash deposits covered by a permit or lease issued pursuant to that act, is merely a statutory privilege within the discretion of that officer to grant or deny, and does not vest in a permittee or

lessee any right to demand a permit for such use. 52-733

The act of Feb. 7, 1927 (44 Stat. 1057), which repealed the act of Oct. 2, 1917 (40 Stat. 297), did not continue the provision contained in the earlier act which authorized the Secretary of the Interior to permit the use of public land for camp site and other purposes in connection with the development of potash deposits, and consequently authority to grant a permit for such use to a holder of a potash permit or lease under the original act ceased upon the date of its repeal. 52-734

A potash prospecting permit issued for a period of two years expires, in the absence of statutory provision for extension of time, at the close of the second anniversary of the date on which it was issued.

54-142

entitled to take out more water than was turned in, less seepage and evaporation losses. 52-634

The use of the beds of natural water courses for the conveyance of water appropriated in accordance with State laws is generally sanctioned so long as there is no interference with the rights of others.

52-634

The primary "public interest" in contracts for the reimbursement of the United States for its investment in the project required by subsection (b) of section 4 of the Boulder Canyon Project Act is in soundness of the contractor, and the rights of certain States or municipalities to be preferred in the award of contracts is subordinate to that public interest. 53-1

The discretionary authority of the Secretary of the Interior under the Boulder Canyon Project Act (45 Stat. 1057) is to be controlled by the public interest, which requires conservation and utilization of the navigation and water resources of the region, the financial security of the United States, and equality of access to Boulder Dam power by areas comprising the region in proportion to the needs of the applicants, provided that their plans for its utilization and conservation are equally well adapted. 53-2

That portion of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), which provides for general and uniform regulations, contemplates that one of the primary responsibilities of the Secretary of the Interior shall be the fixing of financial requirements and rigid examination of the financial status of competing bidders, whether municipalities or privately owned public utilities. 53-3

The legislative history of the Raker Act clearly shows that the purpose of section 6 thereof was to prevent the water or power developed on the Hetch Hetchy Project from ever falling into the hands of a private corporation or monopoly. From the facts it appears that the power developed on the Hetch Hetchy Project has fallen into the hands of just such a corporation or monopoly. 55-322

The provision in section 14 of the act of Dec. 21, 1908 (45 Stat. 1057), that "claims of the United States arising out of any contract authorized by this act shall

have priority over all others" entitles the United States thereto only so long as the net proceeds from power development are in the hands of the irrigation district. 56-116 The discretionary authority of the Secretary to delegate the function of marketing electric power from reclamation projects is not affected by the act of May 26, 1926 (44 Stat. 657), defining the scope of the position of the Commissioner of Reclamation, or by the act of Dec. 19, 1941 (55 Stat. 842), expressly authorizing the Secretary to delegate his powers and duties under the reclamation laws to specified officials of the Bureau of Reclamation.

States for its investment in the project required by subsection (b) of section 4 of the Boulder Canyon Project Act is in soundness of the contractor, and the rights of certain States or municipalities to be preferred in the award of contracts are subordinate to that public interest. 53-1 The term "public interest" as used in subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) in conjunction with section 7 of the Federal Water Power Act (41 Stat. 1063) has reference to the Government's responsibility, financial and otherwise, to all the people of the United States for the greatest good to be derived from the project and excludes confinement of the benefits of Boulder Dam power to one locality out of the many that comprise the "region" capable of service. 53-1

The discretionary authority of the Secre tary of the Interior under the Boulder Canyon Project Act (45 Stat. 1057) is to be controlled by the public interest which requires conservation and utilization of the navigation and water resources of the region, the financial security of the United States, and equality of access to Boulder Dam power by areas comprising the region in proportion to the needs of the applicants, provided that their plans for its utilization and conservation are equally well adapted. 53-2

That portion of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), which provides for general and uniform regulations, contemplates that one of the primary responsibilities of the Secretary of the Interior shall be the fixing of financial requirements and rigid examination of the financial status of competing bidders, whether municipalities or privately owned public utilities.

53-3

The proviso to subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), which permits a State or political subdivision thereof from foreclosure of its right to file an application because of nonauthorization of or failure to market a bond issue, until the expiration of a reasonable time therefor, does not preclude the Secretary of the Interior from determining what is a reasonable time or of granting an application to an

The provision in section 14 of the act of Dec. 21, 1908 (45 Stat. 1057), that "claims of the United States arising out of any contract authorized by this act, shall have priority over all others" entitles the United States thereto only so long as the net proceeds from power development are in the hands of the irrigation district. 56-116

Section 7 of the Boulder Canyon Project Act (act of Dec. 21, 1908, 45 Stat. 1057) provides that the net proceeds from any power development on the All-American Canal shall be paid into the canal fund until the equivalent of operation, maintenance, and construction costs shall have been paid. The PWA and REA proposed making loans for the construction of power systems, on condition that the gross revenue of such systems be applied to the operation and maintenance costs and payment of bonds securing the loans. Held, That the United States is entitled to the net proceeds from the power system after deductions have been made for operation and maintenance costs, for payment of principal and interest of the bonds, and for the one-year reserves for such payments as authorized in the above-mentioned loan agreements. 56-116

The provisions of the repayment contracts between the United States and the Flathead irrigation district, the Jocko Valley irrigation district, and the Mission irrigation district, which limit construction costs to specified amounts per acre but include power development costs as part of the construction costs of the Flathead irrigation project, are in harmony in this respect with the acts of Congress in accordance with which the project was built.

Neither the language of the Flathead project legislation nor its legislative or departmental history reveals any intention to segregate power construction costs from irrigation construction costs, so far as the repayment contract requirements of the legislation are concerned.

The approval of the repayment contracts by the Department constitutes a practical contemporaneous construction of the requirements of the legislation.

Power development has always been an integral part of the irrigation project system.

The term "construction costs," as employed in the Flathead project legislation, includes all construction costs.

To exclude power costs from construction costs would, in effect, make the former a deferred obligation, but the only such obligation specifically deferred is the excess cost of the Camas division of the project. The fact that the legislation provides that the power construction costs are to be liquidated first from the net power revenues is of no significance, since various other obligations were also to be liquidated from these revenues, including irrigation construction costs.

The lien provisions of the legislation apply to power as well as irrigation construction costs and are not contingent on lack of power revenue.

The directions in the legislation for the issuance of a public notice refer to "the total unpaid construction costs."

The maintenance of a separate bookkeeping account for power is also of no significance, since power revenues are set aside for certain purposes.

The fact that the power development is capable of continuous expansion only demonstrates the desirability of limiting the power costs.

Repayment contract requirements of irrigation legislation should be strictly construed to insure the reimbursement of the Government.

Since the cost limitations on the Flathead and Mission Valley divisions of the project have already been exceeded, no further construction may be undertaken without securing supplemental repayment contracts with these districts. 59-30

III. PARTICULAR PROJECTS The term "public interest" as used in subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), in conjunction with section 7 of the Federal Water Power Act (41 Stat. 1063), has reference to the Government's responsibility, financial and otherwise, to all the people of the United States for the greatest good to be derived from the project and excludes confinement of the benefits of Boulder Dam