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March 2, 1962 sale. The conservation policy of February 14, 1961, will be so construed and applied.
Of course, this does not mean that every appraisal made a day, a week, or a month before the date of sale will have to be reviewed as of the date of sale. Necessarily, as a practical matter, an appraisal must precede the date of sale. Whether an appraisal needs review will depend upon such factors as the time elapsing between appraisal and the date of sale, movements in the real estate market in the vicinity, changes in land use, etc.
In this case it appears that the land in question was appraised in April 1958 at $35 per acre, a total value of $39,516.40 for the 1,129.04 acres offered for sale. The sale was held on August 28, 1958, at which time Mrs. Copeland submitted a high bid of $39,517, sixty cents over the appraised value. The report upon which the appraisal was made is not a part of the record now before the Department. In the circumstances and in view of the fact that the land is located within 20 miles of Tucson, Arizona, in an area where considerable land speculation has taken place, the case should be reviewed by the Bureau of Land Management to determine whether Mrs. Copeland's bid reflected the fair market value of the land on the date of the sale. If so, the sale should be reinstated and processed further. If not, the vacation of the sale will stand.
JOHN A. CARVER, Jr.,
BELCO PETROLEUM CORPORATION
Decided March 2, 1962
Oil and Gas Leases: Assignments-Applications and Entries: Filing
or decision to be filed within a stated period and as such comes within the provisions of the regulation relating to filings made on the next business day when the last day of the stated period falls on a day when the office is officially closed.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Belco Petroleum Corporation and Charles Getzler have appealed to the Secretary of the Interior from a decision dated August 11, 1961, of the Acting Chief, Division of Appeals, Bureau of Land Manage
ment, which affirmed decisions of the Salt Lake City land office denying approval to assignments of lands embraced in noncompetitive oil and gas leases Utah 0631 and 0645.
Each of the leases was issued for a 5-year term, effective June 1, 1951, and was thereafter duly extended for another 5-year period ending May 31, 1961.
As a result of assignments of the record title filed on September 20, 1960, approved effective October 1, 1960, Gulf Oil Corporation and Belco Petroleum Corporation each held an undivided 50 percent interest in each lease. On April 19, 1961, in the eleventh month of the tenth lease year, two sets of assignments were executed. The first assigned all the Gulf's and Belco's interest in 40 acres of each lease to Charles Getzler, while the second assigned Gulf's interest in the remaining acreage in each lease to Belco. The latter assignments were filed with the land office on April 28, 1961, and the former on May 1, 1961, which was a Monday.
The partial assignments, if proper, would have segregated each lease into two separate leases and would have resulted in the extension of the term of each lease for two years from the time the assignment became effective. Section 30(a) of the Mineral Leasing Act, as amended by the act of July 29, 1954 (30 U.S.C., 1958 ed., sec. 187a).1
In decisions dated June 7, 1961, the land office rejected the assignments to Getzler on the grounds that they had been filed when less than a month of the lease term remained, that a partial assignment filed less than a month before the expiration of the lease term cannot become effective to segregate the leases and to entitle them to an extension, and that, as a result, the leases expired on May 31, 1961. Franco-Western Oil Company et al., 65 I.D. 316,427 (1958).
The land office, then, in two other decisions of the same date, denied approval to the assignments of an undivided 50 percent interest from Gulf to Belco, holding that an assignment of an undivided interest does not serve to extend a lease and that, as a result, the leases expired on May 31, 1961. See Kirby Petroleum Company et al., 67 I.D. 404 (1960).
On appeal to the Director, the appellants contended that the last day of the eleventh month of the tenth lease year was April 30, 1961, a Sunday, that under the Departmental regulation, 43 CFR, 1960 Supp., 101.20(c), the request for approval of the assignments to Getzler filed on the following Monday, May 1, 1961, must be con
1 This provision was further amended by section 6 of the act of September 2, 1960 (30 U.S.C., 1958 ed., Supp. II, sec. 187a), to limit extensions based on partial assignments. -only to leases which are in their extended term by reason of production, actual or suspended, or the payment of compensatory royalty.
March 2, 1962
sidered to be timely filed, that the leases were therefore extended, and that, consequently, the assignment from Gulf to Belco, affecting leases whose terms had been thus extended, ought also to have been approved.
The decision of August 11, 1961, held that a partial assignment of an oil and gas lease is not a document required by law, regulation or decision to be filed within a stated period within the meaning of the regulation cited, that the requests for approval of the assignments were not filed when there was at least one month left in the lease term, and that, consequently, the land office properly denied approval to the assignments to Getzler.
In their appeal to the Secretary the appellants reassert the contentions they urged upon the Director.
The pertinent regulation, supra, reads as follows: Any document required by law, regulation or decision to be filed within a stated period, the last day of which falls on a day the land office or the Washington Office is officially closed, shall be deemed to be timely filed if it is received in the appropriate office on the next day the office is open to the public.
The section of the Mineral Leasing Act, as amended, supra, relating to partial assignments requires that "three original executed counterparts” of the assignment must be filed with the proper land of before an assignment can become effective and that, even then, it will become effective only on the first day of the lease month following a proper filing. The regulation dealing with assignments, 43 CFR, 1960 Supp., 192.140, adds nothing pertinent to the requirements of the statute. In the Franco-Western case, supra, a Departmental decision interpreting the statute, it was held that in order for a lease to become segregated through partial assignment and thus become entitled to the extension authorized for segregated leases, the partial assignment affecting it must be filed while there is still one month remaining to the lease term and that if the requirements for filing a partial assignment of a noncompetitive lease are not met before the end of the next to the last month of the lease term, the assignment cannot be approved.
In other words, a request for approval of a partial assignment must be filed no later than the last day of the eleventh month of the last year of a lease term. This interpretation of the statute by a Departmental decision seems to me to bring a partial assignment directly within the terms of the regulation as a "document required by law * * * or decision to be filed within a stated period.”
A review of the circumstances leading to the issuance of the regulation reinforces this conclusion, for it was adopted to conform the Departmental practice to the court's holding in Farrelly et al. v. McKay, C.A. No. 3037–55 (D.D.C.), decided October 11, 1955, overturning the Department's decision in John J. Farrelly et al., 62 I.D. 1 (1955), that an application for the extension of a noncompetitive lease required by statute to be filed prior to the expiration of the lease term is timely filed on the first business day following a Sunday or legal holiday on which the primary term of the lease expires. In a later case, Chester Gordon et al., 67 I.D. 1 (1960), the regulation was held to make timely a request for an extension filed on the day after a lease had expired when the last day of the lease was a half-holiday as a result of an Executive order. These decisions demonstrate that the Sunday rule is to be applied liberally and leniently in the absence of some clear indication to the contrary.
Thus it follows that the assignments to Getzler are to be considered as timely filed, as segregating the leases of which the lands they describe were a part, and as extending both assigned and retained portions of the leases for two years from May 1, 1961, the effective date of the assignments. This being so, the assignments from Gulf to Belco pertain to leases that survived their normal expiration date and, all else being regular, ought to have been approved.
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 decision of August 11, 1961, is reversed, and the cases are remanded for further proceedings consistent with this decision.
EDWARD W. FISHER,
2 See also Bette M. Snyder et al., A-28284 (June 8, 1960); Malcolm Petrie, 66 I.D. 288 .(1959).
8 In any event, these assignments were timely filed and ought to have been approved effective May 1, 1961, for the fact that, absent some reasons for extending them, they would have expired a month later on May 31, 1961, is no reason for refusing approval to an otherwise valid assignment.
March 14, 1962
APPEAL OF TRIANGLE CONSTRUCTION COMPANY
Decided March 14, 1962
Contracts: Delays of Contractor—Contracts: Notices
contract work would require the contractor to begin performance during unusually severe and unforeseeable weather, the delay by the contractor
in not commencing work during the period of such weather is excusable. Contracts: Delays of Contractor In determining the question of alleged unforeseeable and unusually severe
weather, official weather reports covering a period of ten years next preceding the year of the weather complained of are sufficient to establish an average pattern of weather for comparison purposes.
BOARD OF CONTRACT APPEALS
On February 23, 1960, the contractor appealed from the contracting officer's Findings of Fact and Decision dated August 3, 1959, which was mailed January 28, 1960. It was received by the contractor on January 29, 1960. Hence, the appeal is timely. Appellant seeks an extension of time for performance of his contract because of alleged "unusually severe weather.” A hearing in this matter was conducted at Ephrata, Washington, on March 20 and 21, 1961.
The contract described above was awarded February 5, 1959, on Standard Form 23 (Revised March 1953) and contained Standard Form 23A (March 1953). It provided for the construction of concrete lining in existing laterals W44C and W44C7 in the Columbia Basin irrigation project a few miles from Ephrata, Washington, for a total lump-sum price of $54,392.50, the work to be completed in 50 calendar days from the receipt of Notice to Proceed.
Receipt of that notice was acknowledged February 6, 1959, so that the required completion date was March 28, 1959. The contractor did not actually begin work until March 15, 1959, and the job was completed May 6, 1959. This represented a delay of 39 calendar days, for which the contractor was assessed a total of $1,560 at the rate of $40 per day prescribed in the contract.
The General Manager of appellant, Mr. J. Kenneth Riggle, testified that he visited the job site on the Saturday and Sunday prior to the opening of bids on January 22, 1959. At the time of his visit, on January 17-18, 1959, the ground was frozen and there was some snow "but not much drifted.” 1
1 Transcript, page 85 (hereinafter referred to as "Tr. -").