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courts. Boesche v. Udall, D.C. Cir., No. 16238, November 16, 1961 (decision reinstated en banc June 15, 1962). See also J. Penrod Toles, 68 I.D. 285, 288 (1961).

The existence or nonexistence of an agency relationship between Gonsales and the person who prepared and filed his offer or Gonsales' entitlement to a lease in response to the filing of his offer, New Mexico 042700, was not at issue or determined in the New Mexico lawsuit. The court found only that the plaintiff, Lyons, was not entitled to any relief against Gonsales and his son because of misconduct of Gonsales or his son in the filing of oil and gas lease offer New Mexico 042700 and that Lyons had come into court with unclean hands. The court did not consider whether the son acted as Gonsales' agent or whether he met the requirements of the Department's regulations in preparing and filing the offer.

There remains the final point that Quintana was not Gonsales' agent. The pertinent regulation provided:

(e) Each offer, when first filed, shall be accompanied by:

(4) If the offer is signed by an attorney in fact or agent, or if any attorney in fact or agent has been authorized to act on behalf of the offeror with respect to the offer or lease, separate statements over the signatures of the attorney in fact or agent and the offeror stating whether or not there is any agreement or understanding between them, or with any other person, either verbal or written by which the attorney in factor agent or such other person has received, or is to receive, any interest in the lease when issued * * (43 CFR 192.42.)

The appellant does not deny that he did not file the required statement, but insists that there was no necessity for so doing.

After a careful review of the records in both appeals, I have concluded that the record amply supports the Director's holding that Quintana was authorized to act as an agent for his father in filing offer New Mexico 042700.

The details of the relationship between Quintana and Gonsales are set out in depositions taken from them on July 22, 1958, in connection with the litigation referred to above. Quintana testified that he is Gonsales' son, that he is a petroleum geologist, that he does geological work for his father, that he receives a substantial amount of money from his father for his work, that he files applications mostly for his father but sometimes for himself and sometimes for his mother, and that he checks the records in the land office daily. Gonsales testified that he generally signs offers after they are prepared, but that he sometimes does sign offers in blank, that he gives his son signed checks made out to the Bureau of Land Management with amount left blank, that December 28, 1962 his son has authority to fill in the amount, that if he were out of town on the day the application was filled out it could have been signed in blank, that his son had authority to file an application “blind” for the land covered by the lease "anytime anything comes up." Gonsales could not recall whether he had signed New Mexico 042700 in blank, but Quintana stated that his father had signed the application in his presence.

In another case decided today involving a comparable situation it was held that a person who selects the land to be applied for, fills in the land description on a signed oil and gas lease offer, and files the offer is the agent of the offeror. Eugenia Bate, 69 I.D. 230 (A-28519).

Since Quintana performed or was authorized to perform the same functions as the person held to be an agent in the Bate case, it is my conclusion that he was properly held to be an agent within the meaning of the pertinent regulation. Thus he was obligated to file the required statement with the offer and, in its absence, the offer earned no priority until it was filed. Eugenia Bate, supra.

It follows that Gonsales' offer had not earned priority over the junior offer filed by Southern California Petroleum Corporation et al. The Department is under a mandatory duty to issue to them, as the first qualified applicant to file for land available for leasing, a lease for the lands in conflict, if a lease is to be issued to anyone. J. Penrod Toles, supra. A noncompetitive lease issued erroneously to a senior applicant after a proper junior application offer has been filed must be canceled. Boesche v. Udall, supra; J. Penrod Toles, supra.

In A-28887 is appears that Gonsales' offer, New Mexico 070510, was filed at 10:00 a.m. on August 18, 1959, and that Western Oil Field's conflicting offer, New Mexico 070521, was filed at 10:03 a.m. the same day. A lease was issued to Gonsales effective February 1, 1960.

The Acting Appeals Officer found that Western had submitted no substantial probative evidence that the same business operating arrangement between Gonsales and Quintana that the Director had found existed for New Mexico 042700, filed some 18 months earlier, pertained to New Mexico 070510 and that the evidence showed no more than an accommodation filing by one person for another. He also held that there was no requirement that an oil and gas lease be filed no later than 10 days after it was signed. The manager rejected Western's offer and the Acting Appeals Officer affirmed his action. Western appeals on the ground that Gonsales' offer earned no priority because it was filed more than 10 days after and in fact more than 4 months after it was signed and because Quintana, who witnessed the offer, was an agent of Gonsales and thus there should have been filed the statement required by the regulation.

Western contends that the agency relationship was established prior to the filing of New Mexico 070510, that it was a general agency in connection with filing lease offers, and that the facts show that the agency existed after filing. In support of the latter contention, it points out that Quintana signed as "agent” in requesting an examination of the case record of New Mexico 070510 on December 14, 1959. It also has submitted a copy of a letter to it dated September 26, 1959, signed by Quintana offering the acreage covered by New Mexico 070510 at $100 per acre plus a 5 percent overriding royalty.

The regulation requires a statement in all cases in which an agent has been authorized to act on behalf of the offeror with respect to the offer or lease, whether or not the agent has an interest in the offer. We have found that Quintana was an agent for Gonsales as to New Mexico 042700. The testimony given by them in their depositions established not only an agency relationship for that offer, but an agency relationship which had existed for sometime in the past and which was still subsisting, at least, on July 22, 1958, the date of the depositions. Gonsales has offered no evidence that the nature of his arrangements with Quintana was in any way modified. That it was not is borne out by the fact that in December 1959, Quintana signed a request to examine the case record in New Mexico 070510 as "agent" and, even more strikingly, that in September of that year, a little over a month after the offer was filed, Quintana signed the proposal to sell the offer to Western.

It is my conclusion that Quintana was an agent of Gonsales, that Gonsales signed offers and checks in blank, that Quintana was authorized to complete the offers and checks and file them when he deemed it opportune, and that Quintana had authority to act with respect to New Mexico 070510, both before and after it was filed. Accordingly, he was an agent within the purport of the regulation and the statement required in such circumstances had to be filed before the offer could earn priority. Thus, the reasons given for holding New Mexico 042700 for cancellation are equally pertinent here. It follows that New Mexico 070510 is to be canceled and a lease issued on New Mexico 070521, all else being regular.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the Acting Director's decision of September 22, 1960, is affirmed, and the Acting Appeals Officer's decision of March 14, 1961, is reversed and the case remanded for further proceedings consistent herewith.

EDWARD W. FISHER,

Deputy Solicitor.

INDEX-DIGEST

Note.-See the front of this volume for tables.

Page

72

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ADMINISTRATIVE PRACTICE
1. A finding by the Geological Survey that land in Alaska is prospec-

tively valuable for oil and gas need not be published in the
Federal Register under the provisions of section 5(a) of the

Federal Register Act_
2. A decision directed to an individual requiring him to perform certain

acts or suffer cancellation of his entry need not be published

under the provisions of section 5(a) of the Federal Register Act.
ADMINISTRATIVE PROCEDURE ACT

HEARINGS
1. A hearing on the question of whether a reduction is grazing privileges

under a license permitting use of the Federal range was made
in accordance with the range code is subject to the provisions of
the Administrative Procedure Act, and in determining whether
a licensee's appeal from a decision reducing grazing privileges
should be dismissed, the whole record must be considered, and
not merely the licensee's testimony and papers in support of

his appeal.-
AGENCY
1. A person who selects the land to be applied for, fills in the land

description on a previously signed oil and gas lease offer, and files
the offer is the agent of the offeror and the offer to earn priority
must be accompanied by the statement required by the pertinent

regulation, 43 CFR 192.42(e) (4)----
2. Where an oil and gas lease offer is filed by a person pursuant to a

written agreement under which he is empowered to act as an
attorney in fact for the offeror, the offer to earn priority must be
accompanied by the statement required by the pertinent regula-
tion, 43 CFR 192.42(e) (4), even though the party's offer is pre-
pared in a manner not specifically provided for in the agreement-

241

95

230

230

Pago

231

236

71

AGENCY-Continued
3. The Department's regulation, 43 CFR 192.42(e) (4), requiring state-

ment of interest to be filed where an agent or attorney in fact
has been authorized to act with respect to an offer is applicable
to a situation where the agent's authority to act ceases with the

filing of the offer -
4. A noncompetitive oil and gas lease erroneously issued pursuant to

an offer filed by one acting as an agent for the offeror without an
accompanying statement of any possible interest of the agent in
the offer or the prospective lease, as required by regulation 43

CFR 192.42(e) (4), is properly held for cancellation---
ALASKA

HOMESTEADS
1. Where a regulation is amended to remove the requirement that entry-

men on or claimants of lands which are determined to be prospec-
tively valuable for oil or gas after entry but before the entry or
claim has been perfected must file a waiver of rights to the oil
and gas for which the land has been found prospectively valuable
and to substitute a different procedure in such cases, the provi-
sions of the amended regulation will be applied to claimants and
entrymen who have appealed to the Secretary from the demand
made under the former regulation that they file a waiver, if
there are no adverse rights or if the interest of the United States

will not be prejudiced thereby ---
2. Before the amendment of 43 CFR 102.22 on December 12, 1961, where

land covered by a homestead entry or application was found to
be prospectively valuable for oil and gas at any time prior to the
submission of satisfactory final proof, it was proper to require
the entryman to consent to the imposition of a reservation of the
oil and gas to the United States, or apply for a reclassification

of the land.---
3. The act of March 8, 1922, was an extension to the territory of Alaska

of the principles of the earlier surface homestead acts which did

not apply to Alaska ---
4. Where prior to the amendment of 43 CFR 102.22 on December 12,

1961, lands in a homestead entry in Kenai Peninsula, Alaska,
were classified by the Geological Survey as prospectively valuable
for oil and gas before the entryman had completed requirements
for earning patent under the homestead laws, the entryman was
properly required to file a mineral waiver and consent to patent-
ing of the land with a reservation to the United States of the oil
and gas deposits in the land together with the right to prospect
for, mine, and remove the reserved minerals in accordance with
the act of March 8, 1922, as amended, if the lands were not

subject to patenting under the act of September 14, 1960----
LAND GRANTS AND SELECTIONS
5. An application to select land under the community purposes grant

of subsection 6(a) of the Alaska Statehood Act is properly
rejected for failure to include a minimum of 5,760 acres in the
selection, subject to the opportunity afforded to the State to show
that the selected land is isolated from other tracts open to
selection

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72

72

190

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