IA-1346

ESTATE OF JACK FIGHTER

FORT PECK ALLOTTEE NO. 1309

Decided May 26, 1964

Indian Lands: Descent and Distribution: Wills-Rules of Practice: Generally

A petition for rehearing was properly denied for untimeliness under 25 CFR 15.17 by an Examiner of Inheritance when it was mailed by the petitioner's attorney on the last day of the 60-day period provided by the regulation but was not received by the Superintendent until after the expiration date. APPEAL FROM AN ORDER BY AN EXAMINER OF INHERITANCE

This is an appeal by Rose Archdale from an order of an Examiner of Inheritance denying appellant's petition for rehearing for lack of timeliness.

On April 26, 1963, the Examiner entered an order approving the last will and testament of Jack Fighter, deceased Fort Peck allottee No. 1309. He also found that Rose Archdale, the decedent's halfsister, who contests the approval of the will, would have been entitled to all the estate, appraised at $34,700.96, if Jack Fighter had died intestate.

The appellee is Emma Squires Beauchman, mother and guardian of Myrtle Margie Squires, whom decedent describes in his will as his daughter and who is the principal beneficiary and proponent of the will which was approved by the Examiner of Inheritance.

In the order denying appellant's petition for rehearing, the Examiner found that copies of the order approving the will were mailed to the various interested parties and their attorneys on April 26, 1963. He also determined that appellant's petition for rehearing was received by the Superintendent on June 26, 1963, and that the 60-day period allowed by 25 CFR 15.17 for filing a petition for rehearing expired at midnight June 25, 1963. Inasmuch as the petition for rehearing was not received by the Superintendent until after the 60-day period had expired, the Examiner held that it was not timely filed and therefore denied the petition.

The order denying the petition for rehearing recites as follows the advice which the Examiner gave appellant's attorney concerning the filing of a petition for rehearing:

On Friday, June 21, 1963, Mr. Hubert Massman, Attorney for the petitioner herein, contacted the examiner by long distance telephone with a request that he be allowed additional time in which to prepare and file a petition for rehearing. He had a copy of Part 15, Title 25, Code of Federal Regulations before him, and in conference by telephone the examiner and the attorney, each following the copy of said regulations at sec. 15.17 read together the following:

“REHEARING. (a) Any person aggrieved by the decision of the examiner of inheritance may, within 60 days after the date on which notice of the decision is mailed to the interested parties (or within such additional period as the Secretary, for good cause, may allow in any case), file with the Superintendent a written petition for rehearing."

At that time, Mr. Massman was advised by the examiner that the last day for filing such a petition was June 25, 1963, and that the filing must be made with the Superintendent of the appropriate Indian agency; that in the opinion of the examiner, no authority existed by which he might extend the time for filing. The attorney was instructed to make the filing on or before the end of the 60-day period, and, even though an amendment to perfect the same might later be submitted, it would be liberally considered providing the opposing counsel agreed. A space of two weeks was considered as a reasonable time for the filing, and Mr. Gallagher, attorney for the guardian ad litem did call by long distance telephone and did confirm the arrangement. (Italics added.)

On appeal, it is earnestly contended that because the petition for rehearing was mailed prior to the expiration of the 60-day period, it is timely filed within the meaning of 25 CFR 15.17 and "that facts exist showing justifiable excuse for the circumstances under which the Petition was filed."

In an affidavit in support of the appeal, appellant's attorney states that he placed the petition for rehearing in the mail prior to 5:00 p.m. on June 25, 1963, and that constitutes a timely filing under the applicable procedural statutes in both state and federal courts in Montana.

In so contending, appellant relies on certain filing provisions of the Montana Code and Montana decisions thereunder. These authorities have no applicability to the Department's procedural requirements for the determination of heirs and approval of wills under 25 CFR, Part 15. Likewise, the authorities cited by the appellant on Rule 5(b) of the Federal Rules of Civil Procedure concerning service by mail do not apply here. The procedure for determining the decedent's heirs or approving his will with respect to his restricted Indian property is governed by the regulations of the Secretary of the Interior made pursuant to sections 1 and 2 of the Act of June 25, 1910, 36 Stat. 855, 856, as amended, 25 U.S.C. §§ 372 and 373.

Although the precise problem of whether the filing specified in 25 CFR 15.17 is satisfied by mere mailing was not directly in issue in our earlier decisions on timeliness under that regulation, discussions in them clearly indicate that the filing date was considered to be the date the petition was received.1 The direction "file with the superintendent" contained in 25 CFR 15.17 in our view means quite simply

1 E.g., Estate of Sam Pierre Alexander, IA-918 (December 9, 1960); Estate of Henry Amauty, IA-879 (July 17, 1959). Cf., Uranium Exploration Company of California, 65 I.D. 365 (1958); Estates of Alex (Boney) Dizon and Kenneth A. Dixon, IA-1148 (April 28, 1961).

May 14, 1964

what it says, and there is nothing in the regulation to even suggest that this filing is accomplished until a petition has been actually delivered to the Superintendent. That mailing a petition does not constitute filing it under 25 CFR 15.17 is further illustrated by the provision for the distribution of estates in 25 CFR 15.16.

Under the latter regulation (25 CFR 15.16) the distribution of an estate may be made by the Superintendent after 60 days have elapsed from the date upon which notice of the decision is mailed to the interested parties, unless within that period a petition for rehearing is filed. Obviously a petition which has been mailed within the required period but which for some reason does not reach the Superintendent within the required period would be ineffective to stay the distribution authorized by the regulation. Therefore, it must follow that filing a petition for rehearing with the Superintendent means its actual delivery to his office rather than the mere mailing of the petition to him. This is in accord with the clear import of the regulation's language itself, our previous opinions on timeliness, and the related regulation concerning distribution of an estate.

We therefore conclude that the Examiner of Inheritance was correct in his determination that the petition was untimely and, consequently, subject to dismissal. He was also correct in his statement to the appellant's attorney and in his order denying the petition for rehearing, that he has no authority to grant extensions of time in which to file a petition for rehearing.2

And this brings us to appellant's contention that justifiable excuse exists and to the question whether good cause exists for relief from the untimely filing.

At the outset we note that the appellant's attorney was fully and accurately advised by the Examiner of Inheritance that he could not grant the extension of time requested by the attorney, and of the consequent need for the attorney to make a timely filing. In the latter regard, appellant's attorney states in an affidavit that after the order approving the will was entered, his clients informed him for the first time of the possibility that former officials of the Fort Peck Agency might be used as witnesses. He then states that difficulty in contacting one of these witnesses and securing his affidavit was the reason for delaying the mailing of the petition for rehearing. However, in his own affidavit, the attorney concedes what the Examiner recites in the portions of his order quoted above-namely, that the attorney was advised to file his petition in some form prior to June 25, 1963, with an opportunity to perfect it later when the witnesses had been reached

'Estate of Sam Pierre Alexander, supra note 1; Estate of Jeanette Halfmoon, IA-120 (May 5, 1954).

and their affidavits obtained. This the attorney failed to do, and we therefore find that good cause does not exist for relief.

Inasmuch as the petition for rehearing was not timely, and good cause does not exist to excuse its late filing, under the authority delegated to the Solicitor by the Secretary of the Interior (Sec. 210DM2.2A (3) (a), 24 F.R. 1348) and redelegated to the Associate Solicitor by the Solicitor (Solicitor's Regulation 19, 29 F.R. 6449), the appeal is hereby dismissed and the order of the Examiner of Inheritance denying the petition for rehearing is affirmed.

H. E. HYDEN, Associate Solicitor.

A-29834

SOUTHWESTERN PETROLEUM CORPORATION

Decided May 26, 1964

Oil and Gas Leases: Generally-Oil and Gas Leases: Assignments or Transfers Oil and Gas Leases: First Qualified Applicant

Although a junior offeror may have been the first qualified applicant for an oil and gas lease, if a lease was mistakenly issued to the senior offeror and it is assigned to a bona fide purchaser and the assignment is filed before the land office records show any action taken against the lease, the interests of the bona fide purchaser will be protected in accordance with the 1959 and 1960 amendments of the Mineral Leasing Act and the junior offeror's offer must be rejected.

Notice-Oil and Gas Leases: Generally-Oil and Gas Leases: Assignments or Transfers-Oil and Gas Leases: Cancellation

In considering whether an assignee of an oil and gas lease was a bona fide purchaser and entitled to protection in accordance with the bona de purchaser provisions of the Mineral Leasing Act, as amended, the basic question is whether he in good faith and for value acquired his interest without notice of a superior right to the lease; he will not be considered as having constructive or imputed notice that an offeror whose offer was junior to that for which the lease issued had a right to the lease superior to the lessee, if he acted prudently, even though an extremely cautious person might have ascertained that the junior offeror might have a right to have the voidable lease canceled.

Oil and Gas Leases: Generally-Oil and Gas Leases: Assignments or Transfers

An assignee of an oil and gas lease, if the assignment is otherwise valid, is entitled to protection in accordance with the bona fide purchaser provisions of the Mineral Leasing Act if his assignment is filed before any adverse action or protest has been made against the lease even though the assignment had not been approved before such action or protest is made.

May 26, 1964

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

The Southwestern Petroleum Corporation has appealed to the Secretary of the Interior from a decision by the Division of Appeals, Bureau of Land Management, affirming a New Mexico land office decision rejecting its oil and gas lease offer New Mexico 048299 for the reason that the lands applied for were not available for leasing as they are within oil and gas lease New Mexico 048273.

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Appellant's lease offer was pending at the time the lease was issued to J. Penrod Toles. After the lease was issued to Toles, an assignment of the lease to Ralph Lowe was executed and filed for approval. The conflict between appellant's offer and Toles' lease was discussed in a previous decision in this matter, J. Penrod Toles, 68 I.D. 285 (1961), wherein it was held that Toles' offer was in violation of departmental regulation 43 CFR, 1964 rev., 192.42 (d), now 43 CFR 3123.1(d), F.R. 4517, because it described less than 640 acres which were available for leasing when the offer was filed and that the lease was subject to cancellation since appellant rather than Toles was the first qualified applicant. However, the cancellation of Toles' lease was declared to be premature in view of the provision relating to bona fide purchasers added by the act of September 21, 1959, 73 Stat. 571, to section 27 of the Mineral Leasing Act, 41 Stat. 448, as amended,1 and amended by the act of September 2, 1960, 74 Stat. 785, 788; 30 U.S.C. § 184 (h) (2) (i) (Supp. IV, 1963),2 and the regulation promulgated pursuant to these amendatory acts, 43 CFR, 1961 Supp., 191.15(a). The decision noted that the regulation required notice of a proposed cancellation to the holder of a lease or an interest in a lease and that

1 The September 21, 1959, act provided as pertinent here as follows:

"The right of cancellation or forfeiture for violation of the provisions of this Act shall not apply so as to affect adversely the title or interest of a bona fide purchaser in any lease, option for a lease, or interest in a lease acquired in conformity with the acreage limitations of this Act from any other person, association or corporation whose holdings, or the holdings of a predecessor in title, including the original lessee of the United States, may have been canceled or forfeited, or may be subject to cancellation or forfeiture for any such violation."

2 The September 2, 1960, act provided in pertinent part as follows:

"The right to cancel or forfeit for violation of any of the provisions of this Act shall not apply so as to affect adversely the title or interest of a bona fide purchaser of any lease, interest in a lease, option to acquire a lease or an interest therein, or permit which lease, interest, option, or permit was acquired and is held by a qualified person, association, or corporation in conformity with those provisions, even though the holdings of the person, association, or corporation from which the lease, interest, option, or permit was acquired, or of his predecessor in title (including the original lessee of the United States) may have been canceled or forfeited or may be or may have been subject to cancellation or forfeiture for any such violation. If, in any such proceeding, an underlying lease, interest, option, or permit is canceled or forfeited to the Government and there are valid interests therein or valid options to acquire the lease or an interest therein which are not subject to cancellation, forfeiture, or compulsory disposition, the underlying lease, interest, option, or permit shall be sold by the Secretary to the highest responsible qualified bidder by competitive bidding under general regulations subject to all outstanding valid interests therein and valid options pertaining thereto."