Wildlife Management Area * * *” Public Land Order No. 4153, 32 F.R. 2888 (February 15, 1967). The withdrawal order also provided for the issuance of leases, licenses, or permits and disposals but "only if the proposed use of the lands will not interfere with the proper management of the C. J. Strike Wildlife Management Area." Id.

The withdrawal for the wildlife management area was made in furtherance of the purposes of the Fish and Wildlife Coordination Act of March 10, 1934, as amended, 16 U.S.C. §§ 661–64 (1970), to provide equal consideration of wildlife conservation and coordination with other water-resource development programs. Under the Act (16 U.S.C. § 661):

the Secretary of the Interior is authorized (1) to provide assistance to, and cooperate with, Federal, State and public or private agencies and organizations in the development, protection, rearing, and stocking of all species of wildlife, resources thereof, and their habitat, in controlling losses of the same from disease or other causes, in minimizing damages from overabundant species, in providing public shooting and fishing areas, including easements across public lands for access thereto, and in carrying out other measures necessary to effectuate the purposes of said sections;

**

The withdrawn status of the land places it within the ambit of the word "reservation" as used in the Act of March 3, 1891.1 It is well established that there is no grant of

1 Section 20 of the Act of March 3, 1891 (43 U.S.C. § 948 (1970)) makes applicable to corporations, individuals. or associations of individuals the right-of-way provided for irrigation purposes by sections 18 and 19 of

the right-of-way under the Act of March 3, 1891, as to withdrawn lands, without prior approval of the Secretary and subject to such conditions as he may impose. Assistant Attorney General's Opinion, 33 L.D. 563 (1905); James W. McKnight et al., 13 L.D. 165 (1891).

In an early court case interpreting the Act of March 3, 1891, United States v. Rickey Land and Cattle Company, 164 F. 496, 500 (C.C.N.D.

the Act. Section 18 of the Act, as amended (43 U.S.C. § 946 (1970)) provides: "That the right of way through the public lands and reservations of the United States is hereby granted to any canal ditch company, irrigation or drainage district formed for the purpose of irrigation or drainage, and duly organized under the laws of any State or Territory, and which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles or incorporation or, if not a private corporation, a copy of the law under which the same is formed and due proof of its organization under the same, to the extent of the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side of the marginal limits thereof, and, upon presentation of satisfactory showing by the applicant, such additional right of way as the Secretary of the Interior may deem necessary for the proper operation and maintenance of said reservoirs, canals, and laterals; also the right to take from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation; and the privilege herein granted shall not be construed interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories."

Section 19 of the Act of March 3, 1891, 43 U.S.C. 947 (1970), requires the filing of a map for approval by the Secretary of the Interior. The regulations applicable to rightsof-way under the Act of March 3, 1891, 43 CFR Parts 2800 and 2870, contemplate official approval of the maps and location plans of the proposed rights-of-way before the grant under the Act may be effectual.

Cal. 1908), where improvements had been constructed, it was stated:

in order to acquire a right of way over public lands for canal and reservoir purposes under the act of which it forms a part, it is essential that the map of the location of the canal and the reservoir shall be approved by the Secretary of the Interior. Such approval is a condition precedent to the taking effect of the grant of right of way

In Rickey the lands were withdrawn for a reservoir site and the Secretary of the Interior refused to approve the maps filed by an irrigation company under the Act of March 3, 1891. The Court held that the company acquired no right or easement to the land in the absence of approval by the Secretary. Of a similar effect is United States v. Henrylyn Irr. Co. et al., 205 F. 970 (D. Colo. 1912), involving lands in a national forest reserve. The Court specifically referred to the Act of March 3, 1891, in stating at 972:

* the legislative intent is manifest that as to these reserves, created as they are for a special purpose, no occupancy nor use thereof by private parties shall be permitted save upon the exercise of a discretion by the proper departments as to whether such use will interfere with the purposes of such reserve. U.S. v. Lee, 15 N.M. 382, 110 Pac. 607.

Furthermore, in any case where prior approval is requested, the Secretary may deny approval or condition approval upon reasonable conditions. Thus, in a case not involving a withdrawal, United States ex rel Sierra Land & Water Co. v. Ickes, 84 F. 2d 228 (D.C. Cir. 1936), cert. denied, 299 U.S. 562 (1936), the Court upheld the Secre

tary of the Interior's refusal to approve a right-of-way under the Act of March 3, 1891, for a ditch and reservoir system where the State of California had refused the applicant a water right. The Court denied that there was an absolute right to the grant stating at 231:

The contention that the grant is one in praesenti, and therefore vests title in the applicant, irrespective of the approval by the Secretary of the Interior, cannot be sustained. So long as the exercise of the power of approval by the secretary is not unreasonable, or contrary to statutory mandates governing the allowance of rights of way for canals and reservoirs, the jurisdiction of the secretary to act under reasonable regulations respecting such grants cannot be controlled by the mandatory orders of the courts.

That a right of way grant in praesenti does not vest until approval of the application by the secretary has been determined by direct interpretation of the statutes under which appellant company claims its rights of way in the present

case.

In view of the foregoing discussion of the Act of March 3, 1891, and in view of the policies and requirements imposed by the Fish and Wildlife Coordination Act, it was imperative of the Bureau of Land Management officials to consult with and consider the recommendations of the Bureau of Sport Fisheries and Wildlife and the Idaho Fish and Game Department to assure conservation of the fish and wildlife together with appellant's proposed usage of the water resource before appellant's application could be approved.

The essence of appellant's objections to an alternative site for the

proposed pumping station is a disagreement as to the reasonableness of alternative sites in view of environmental and engineering considerations.

An investigative report by a Bureau of Land Management official states that the cove desired by appellants for its pumping station is the only cove on the east shore of the Bruneau arm of the reservoir. Its use for fish, wildlife, and recreational purposes has significant value. The Regional Director of the Bureau of Sport Fisheries and Wildlife indicated that the site is one of the few coves along the reservoir, and the coves contain fish spawning and rearing habitat and wildlife cover. He stated that a reduction in fish spawning area, already in short supply, would occur and young fish would be faced with a hazard at the pump intake, and cover vegetation for wildlife would be reduced if the pumping station were allowed in the cove site desired by appellant.

As indicated previously, Morrison and representatives of the State and the two Bureaus within this Department inspected the site together. His objections to the proposed alternative to the site were undoubtedly manifested at that time, but the alternative was determined to be better for the preservation of the fish and wildlife and over-all environment than locating the pumping station within the cove site. In view of the shortage of natural cove areas along the shoreline of the reservoir and the alternatives offered appellants, the denial of the application

as to the cove site is supported by reasonable grounds. Appellants have not shown clearly that the exercise of discretion in this matter is unfounded and arbitrary or capricious. As the decision was predicated upon due regard for the public interest in managing the wildlife area in light of the purposes of the Fish and Wildlife Coordination Act, it was a proper exercise of discretionary authority and is sustained. Cf. George S. Miles, Sr., 7 IBLA 372 (1972); Clear Creek Inn Corporation, 7 IBLA 200, 79 I.D. 571 (1972).

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed.

JOAN B. THOMPSON, Member.

WE CONCUR:

DOUGLAS E. HENRIQUES, Member.

MARTIN RITVO, Member.

CLARK CANYON LUMBER COMPANY

9 IBLA 347

Decided February 14, 1973

Appeal from a decision by the Dillon, Montana, District Manager, Bureau of Land Management, unilaterally terminating appellant's timber sale

contract no. 25050-TS0-05.

Affirmed.

Delegation of Authority: Generally— Timber Sales and Disposals

Upon request of the State Director, a District Manager, Bureau of Land Management, who has authority to enter into timber sale contracts also has authority to terminate such contracts when to do so would be in the best interest of the Government.

Timber Sales and Disposals

Section 1 of the Act of July 31, 1947, as amended, 30 U.S.C. § 601 (1970) gives the Secretary the power to dispose of timber on the public lands if to do so would not be detrimental to the public interest. National Environmental Policy Act of 1969: Environmental StatementsTimber Sales and Disposals

In accordance with guidelines provided by the Council on Environmental Quality, 36 F.R. 7724, detailed environmental statements are not required under section 102 (2) (c) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 (2) (c) (1970), in connection with the cancellation of a timber sale contract where it is not reasonable to anticipate a cumulatively significant adverse effect on the environment.

Rules of Practice: Hearings

In connection with Government cancellation of a timber sale contract, a request for a hearing will be denied where no facts are alleged which, if proved, would warrant granting the relief sought.

APPEARANCES: Leonard B. Netzorg,
Esq., Portland, Oregon, for appellant.

OPINION BY MR. GOSS
INTERIOR BOARD OF
LAND APPEALS

Clark Canyon Lumber Company has appealed from a decision dated August 20, 1971, by the Dillion, Montana, District Manager which unilaterally terminated appellant's

timber sale contract no. 25050TSO-05 because "this sale does not meet the criteria of the National Environmental Policy Act and its continuance is not in the best interest of the public."

In June 1970 timber in the Jones Creek watershed of the Centennial Mountain Range was advertised for sale by the Bureau of Land Management pursuant to the Act of July 31, 1947, as amended, 30 U.S.C. §§ 601-604 (1970). The timber sale contract was awarded to appellant as highest bidder, and the contract was approved on August 3, 1970. The contract area consisted of sixteen cutting units in the Jones Creek area. The The total sale price was $4,504.50 for an estimated 2145 mbf.

In July 1971, before appellant had taken any action on the contract, the Dillon District Manager informed the Montana State Director, Bureau of Land Management, that an inspection of the proposed cutting area revealed potentially serious problems which could arise from building roads and logging the area due to the proposed location of the roads and the extreme insta

bility of the soils. He recommended that consideration be given to placing the timber sale contract under suspension.

By memorandum dated August 19, 1971, the State Director advised the Dillon District Manager that because of the environmental considerations it would be in the best public interest for the Bureau of Land Management to unilaterally terminate the contract.

The State Director also received a memorandum from the Chief, Division of Resources, Bureau of Land Management, on August 23, 1971, which set forth findings and recommendations following an August 5 inspection of the contract area. He found that road construction in several places would cause stream blockage; that an earth movement phenomenon existed in the area and disturbance would accelerate it; that natural reforestation was minimal and artificial reforestation had never been done in any areas logged in the past; that mistakes in layout had been made and to log the area in view of forest management's increased concern with environmental consequences would be disastrous and not in the public interest. He added that the State Office Forester, the State Office Recreation Planner and soil and watershed staff men from the Division of Resources visited the area and concurred in the findings.

The Chief, Division of Resources, recommended termination of the subject contract and that an intensive soil survey be undertaken in the whole Centennial area with a moratorium on future timber sales pending the outcome of the study. He stated that the Dillon District Manager had been advised to proceed with the termination on August 12, 1971.

The Dillon District Manager, acting upon the request of the Montana State Director, issued his decision unilaterally canceling the timber sale contract, on August 20, 1971,

and recommending that all moneys paid by appellant be refunded.

On appeal, appellant has made the following arguments:

(1) The officer who sought to terminate the contract lacked authority to do so.

(2) The contract should be performed, and the Board should direct specific performance of the contract.

(3) The Government's evaluation of the environmental consequences of timbering the contract area was wrong and in any event, the decision to terminate the contract was invalid because the Bureau failed to follow the requirements on the National Environmental Policy Act and the guidelines issued by the Council on Environmental Quality.

(4) The contract should be amended by eliminating the cutting areas about which there is environmental concern and by substituting other areas which would insure appellant a comparable volume of timber without an increase in cost. Appellant would assent to a substitution of other areas in lieu of cutting units 4, 5, 6, 14, 15 and 16.

(5) The Government's purported termination of the contract occurred while appellant was negotiating a sale of all its assets and the Government knew that its action would cause appellant extraordinary harm.

The authority to enter into a government contract carrries with it the power to terminate the contract when it appears that such action. would be in the best interest of the Government. Cf. United States v. Corliss Steam Engine Co., 91 U.S. 321 (1875); cf. 29 Comp. Gen. 36 (1949). The decision to terminate and the propriety of the termination are matters for administrative determination. 18 Comp. Gen. 826 (1939). While the power to terminate is inherent, there is also a duty