and assumption and no way proved, if the adoption by the Department of the more plausible and probable theory would run counter to the conclusion of eminent scientists on a highly technical question, and subject a mining claimant to the probable loss of all benefits from his explorations and development at large cost made on the faith of an opposing theory, the Department will adopt the latter theory in disposing of the case. 54-183

The act of June 13, 1933 (48 Stat. 139; 16 U.S.C. 447), which extended to lands in the Death Valley National Monument the laws known as the "mining laws of the United States," did not extend thereto the provisions of the Mineral Leasing Act of 1920. The issuance of leases and prospecting permits for sodium is discretionary with the Secretary of the Interior. 58-21 The issuance of leases and prospecting permits for sodium is discretionary with the Secretary of the Interior. 60-21

II. LEASES

Salt water was pumped from Salton Sea into solar vats upon adjoining lands and there evaporated, leaving sodium chloride in commercial quantities. Held, that such lands could properly be embraced in a prospecting permit and a lease under sections 23 and 24 of the Leasing Act of Feb. 25, 1920, as amended by the act of Dec. 11, 1928 (45 Stat. 1019). 55-95

Instructions of Aug. 9, 1935, amending sodium regulations. Cir. No. 1194 (52 L.D. 651), modified. Cir. No. 1364. 55-319

A petition for reinstatement of a sodiumlease application will not be granted where the applicant is not entitled as a matter of law or equity to the issuance of a lease without competitive bidding and reinstatement of the application would therefore serve no useful purpose.

59-365

No preference lease is to be issued if it appears that further prospecting will be necessary to determine the presence of sodium in workable quantity and quality in the land. 59-397

III. PERMITS

Instructions of June 4, 1935, modifying oil shale withdrawal to allow sodium prospecting permits and leases. Cir. No. 1220, June 9, 1930 (53 I.D. 127), modified.

55-280

An application for a sodium permit must be rejected where the lands applied for are known to contain valuable deposits of sodium borates. 59-204

Where, because of prior disposals, a reasonably compact area of contiguous land cannot be obtained, the inclusion of incontiguous tracts will be deemed in compliance with the requirement of section 23 of the Mineral Leasing Act of Feb. 25, 1920, that the lands be "in reasonably compact form," provided the tracts are within an area of 6 miles square. 59-287

The priority of simultaneously filed permit applications is to be determined by a public drawing. 59-397

While section 24 of the Mineral Leasing Act of Feb. 25, 1920, as amended (41 Stat. 437, 447; 30 U.S.C. 262), grants to a permittee a preference right to a lease, upon a showing of a valuable discovery, there is no statute providing for preference rights in the issuance of sodium prospecting permits. 59-397

Where public land has been withdrawn from all forms of appropriation under the public-land laws, including the mining and mineral leasing laws, it is proper to reject an application for a sodium prospecting permit even though the land was withdrawn after the application was filed.

60-1

SOIL AND MOISTURE CONSERVATION

The Soil Erosion Service of the United States has authority to enter into an agreement with a State administrative institution for the supplying of material needed in connection with the checking of soil erosion. 54-408

Floods, pests, etc., have long been considered national problems, and Congress has frequently authorized work on private lands for their control. The inclusion of soil and coastal erosion prevention in the same paragraph-section 202 (b) (National Industrial Recovery Act)-with flood control work indicates that Congress viewed soil erosion and floods as similar problems. 54-439

From an early date the importance of maintaining a vegetative cover has been recognized as necessary to flood control. There can be no reasonable doubt that section 202(b) (National Industrial Recovery

Act) authorizes measures necessary to maintain a vegetative cover on private lands for purposes of flood control. 54-439

The fact that benefits will inure to private farms as the result of the prevention of soil erosion and other work of the Federal Soil Erosion Service affords no basis for confining its operation to public lands, for the evidence clearly indicates that Congress intended no such limitation. 54-439

The Federal Soil Erosion Service, a national administrative agency created under authority of section 202, Article II, of the National Industrial Recovery Act (48 Stat. 195, 201), received an allotment of Public Works funds by resolution dated July 17, 1933, such resolution specifically authorizing soil erosion projects on privately owned lands, and this allotment was followed by another which did not specify whether it was to be used on private lands, but referred to the resolution of July 17, 1933, and designated the work to be done with the additional allotment as "certain additional projects." Held, That both allotments could be employed on erosion projects on privately owned lands. 54-439 The work of the Federal Soil Erosion Service is in conformity with the practice of the Department of Agriculture since the time of that Department's establishment.

of the pollution of our public streams is the depositing of erosional debris. 54-440

The scheme of construction and financing of projects on private lands set forth in the cooperative agreements is authorized by the National Industrial Recovery Act, section 203 (a), conferring authority upon the President *** through the Administrator, *** to construct, finance, or aid in the construction or financing of any public works project included in the program prepared pursuant to section 202. 54-440

Cooperative agreement between landowners, etc., to hold harmless in case of damage to their land (soil erosion project). 54-542

In addition to the authority given the Secretary of Agriculture by the Soil Conservation and Domestic Allotment Act, which authority, so far as lands under the jurisdiction of the Secretary of the Interior are concerned, has now been transferred to the latter by Reorganization Plan No. IV, the Secretary of the Interior has similar authority under section 2 of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269, as amended, 43 U.S.C. ch. 8A), to carry on soil and moisture conservation activities for the benefit of lands that are subject to the provisions of that act, and broad authority to carry on such activities on other lands under his jurisdiction. Under these several sources of authority the Secretary of the Interior may determine the lands under his jurisdiction that are in need of soil and moisture conservation work, and may initiate and carry on such work, regardless of whether the work is to be done on private or public lands, so long as the work benefits lands under his jurisdiction. 57-382

The authority of the Secretary of Agriculture, under the Soil Conservation and Domestic Allotment Act of Apr. 27, 1935 (49 Stat. 163, as amended, 16 U.S.C. ch. 3B), to carry on soil and moisture conservation activities was almost plenary, in that he could carry on such activities on any land regardless of ownership, subject only to the condition that proper safeguards to protect the work and to preserve the beneficial effect of the operations were insured and, in the case of lands owned by the United States, subject to

the condition that the activities to be performed thereon should be conducted in cooperation with the agency having jurisdiction thereover. Also, there is nothing in the act which indicates that each project thereunder must be confined entirely either to private lands or public lands, or that any single project must benefit solely either private lands or public lands.

57-382

Reorganization Plan No. IV does not nullify the authority vested in the Secretary of the Interior by section 601 of the Economy Act of June 30, 1932 (47 Stat. 417, 31 U.S.C. 686), to place orders with the Soil Conservation Service of the Department of Agriculture for the performance of soil and moisture conservation work on a reimbursable basis on lands under the jurisdiction of the Department of the Interior. 57-383

The Secretary of the Interior has power, pursuant to section 6 of Reorganization Plan No. IV (54 Stat. 1234) and the act of Apr. 27, 1935, as amended (49 Stat. 163; 16 U.S.C. 590a-590q), to perform soil and moisture conservation measures on federally owned or controlled lands under the jurisdiction of this Department and on any other lands, with the consent of the owners, where the primary purpose is the protection and benefit of federally owned or controlled lands under the jurisdiction of this Department. The fact that resultant benefits flow to privately owned lands is immaterial. The Secretary of the Interior is authorized to conduct preventive measures, including, but not limited to, engineering operations, methods of cultivation, the growing of vegetation and changes in the use of land. He may also perform measures designed to secure the preservation and improvement of soil fertility, the promotion of the economic use and conservation of land, the diminution of exploitation and wasteful and unscientific use of national soil resources, the prevention of floods and siltation of reservoirs and the improvement of irrigation and land drainage. 58-449

When it is determined that such operations as the leveling of land, construction of farm ditches, and establishment of cover crops on public lands within an irrigation district are reasonably calculated

to control and prevent erosion, authority is vested in the Secretary by the Soil and Moisture Conservation Act of 1935 (49 Stat. 163) and section 6 of Reorganization Plan No. IV (54 Stat. 1234) to conduct such operations. 59-299

This Department cannot properly conduct soil and moisture conservation activities on lands under its jurisdiction where the primary purpose of such operations is to benefit privately owned lands. 60-436

This Department may conduct soil and moisture conservation activities on lands under its jurisdiction for the purpose of protecting reservoirs, irrigation works, or other related watershed improvements under the jurisdiction of this Department.

60-436

Neither the Interior Department nor the Department of Agriculture may delegate to the other Department its responsibility under the Soil Conservation and Domestic Allotment Act (16 U.S.C., 1946 ed., 590) as modified by Reorganization Plan No. IV (54 Stat. 1234) for the performance of soil and moisture conservation activities.

60-437

The Soil Conservation Service of the Department of Agriculture is authorized to perform soil and moisture conservation work on lands owned or controlled by the United States, including lands under the jurisdiction of this Department, where the primary purpose of such work is the conservation of privately owned lands.

60-437

The Departments of the Interior and Agriculture may agree to assist and cooperate with each other in carrying out their respective functions in the field of soil and moisture conservation; and either Department may place with the other, under the Economy Act, orders for the performance of soil and moisture conservation work falling within the scope of the requesting Department's responsibility.

60-437

This Department does not have authority to conduct soil and moisture conservation activities on lands under its jurisdiction for the purpose of protecting federally constructed reservoirs, irrigation works, and other related improvements which are under the jurisdiction of Federal agencies other than this Department. 60-437

No right of additional entry under sections 2306 and 2307 of the Revised Statutes inures to the minor children of a soldier who never made a homestead entry and whose widow had remarried prior to and was the wife of another at the date of adoption of the Revised Statutes, notwithstanding the fact that such widow, during her widowhood and prior to the adoption of the Revised Statutes, may have made a homestead entry for less than 160 acres of land. 54-1

Under the provisions of section 2307 of the Revised Statutes, the minor children of the soldier are disqualified to make a soldier's additional entry if the soldier's widow remarried prior to June 22, 1874, the date of the adoption of the Revised Statutes, even though prior thereto and after the death of the soldier she had made an original homestead entry of less than 160 54-3

acres.

The Department of the Interior will not return papers filed in support of a claim of soldiers' additional right under section 2306, Revised Statutes, where the claim is found to be invalid, since such papers, if returned, could afford opportunity for fraudulent barter and sale and useless harassment of the Government. 55-107

The act of Apr. 13, 1926 (44 Stat. 243), entitled "an Act to authorize departure from the rectangular system of surveys of homestead claims in Alaska and for other purposes," is applicable only to homesteads requiring settlement and residence for the periods required by the homestead law and is not applicable to the location of soldiers' additional scrip. 56-235

A soldier's additional homestead right under section 2306, Revised Statutes, is a property right and is subject to assignment.

60-266

An application to enter a tract of public land under the soldiers' additional homestead law, filed after the withdrawal of the land from entry, is not entitled to receive favorable consideration upon the

basis of a showing by the applicant of occupancy and use of the land prior to the date of the withdrawal. 60-406

The pendency of an application for a soldier's additional homestead entry does not cause the land covered by the application to be excepted from the operation of a withdrawal, where the requirements for publication and posting of notice of the application have not been complied with prior to the withdrawal. 60-411

There is no requirement which restricts the right of entry under the soldiers' additional homestead law to persons who indicate an intention to devote the lands applied for to farming or homestead purposes. 61-35

Where the report of a field examination indicates that a tract of land is suitable for agricultural use, and there is no contradictory evidence in the record, the land should be regarded as agricultural land for the purpose of entry under the soldiers' additional homestead law.

II. CLASSIFICATION

61-35

As the public lands in Arizona have been withdrawn, reserved, and appropriated to the uses of the Taylor Grazing Act and of the Executive orders designated in section 7 of that act, no such land is subject to entry in satisfaction of soldiers' additional homestead rights until it has been classified under section 7 as suitable, and made available, for disposal under the homestead laws. 60-266

There is no requirement which restricts the right of entry under the soldiers' additional homestead law to persons who indicate an intention to devote the lands applied for to farming or homestead

are his heirs under the laws of the State of his domicile at the time of his death. 52-153 Each of the heirs entitled to the exercise of a soldier's additional right may separately locate or assign his share of the right. 52-153 An application for soldiers' additional entry for a tract in Alaska embracing both sides of a meandered body of water cannot be favorably considered under section 11 of the regulations (Cir. No. 491) relating to applications for unsurveyed public lands in Alaska. 56-235

Land must be "subject to entry under the homestead laws of the United States" before it can be successfully sought under section 2306, Revised Statutes. Land subject to homestead entry includes land presently tillable and land which can be rendered suitable in a broad sense for some farming use, but not land which is unsuitable for an agricultural use. 60-266

Land must be "unappropriated" if it is to be obtained under section 2306, Revised Statutes. 60-266

Only such lands as are available for an original homestead entry under section 2304, Revised Statutes, may be made the subject of a soldier's additional homestead entry under section 2306, Revised Statutes. 60-266

A "valid settlement" sufficient to except a tract of land from a withdrawal order is a settlement made under the authority of some statute. The occupancy and use of public land by a trespasser is not such a settlement. 60-406 Rights under the soldiers' additional homestead law do not attach to a particular tract of land until an application is made under the law to enter the tract, and then only if the tract applied for is subject to entry when the application is filed.

SOUTHWESTERN POWER

ADMINISTRATION

60-406

The establishment of Southwestern Power Administration by the Secretary of the Interior to perform functions under section 5 of the Flood Control Act of Dec. 22, 1944 (58 Stat. 887, 890; 16 U.S.C. 825s) was authorized by section 161, Revised Statutes (5 U.S.C. 22). Appropriations

This Department has repeatedly decided that it is without jurisdiction to determine the question as to the right to water, that being a matter solely within the province of the State courts. Silver Lake Power & Irrigation Company v. City of Los Angeles (37 L.D. 152, 153) and cases there cited; and the remedy of the owner of such a water right lies in recourse thereto. 54-144

To enforce the right to possession of public lands, resort must be had to the local courts, the Land Department not possessing the instrumentalities necessary to effect this object. 55-468

The United States cannot be deprived of its title to public lands by a decision of a State court, particularly where the United States is not a party to the suit in the State court.

STATE EXCHANGES

I. Generally... II. Effect of Application.--III. Lands Subject to.--

I. GENERALLY

59-416

Page

424

426

426

Instructions of Apr. 1, 1933, exchange of lands in New Mexico under Act of June 15, 1926 (Cir. No. 1295). 54-200

Section 8 of the Taylor Grazing Act (48 Stat. 1269, 1272) authorizes such exchanges of State lands for public lands as will benefit the public interests in control of grazing on the public range under said act. Determination of whether such interests will be benefited by a proposed exchange is to be made by the Secretary of the Interior.

55-9

Regulations of Feb. 8, 1935, governing gifts of land and filing of applications for