erals is retained by the Government. Solicitor White Opinion, M-36142 (October 29, 1952), in re lands of Ute Indian Tribe.

12. -Mining claims

Unpatented mining claims were subject to order of the Secretary of the Interior pursuant to this section withdrawing certain land except any tract "title" to which had passed out of the United States, from public entry, and therefore the mining claims were not subject to relocation on alleged default by locators after the withdrawal order. Walkeng Mining Co. v. Covey, 352 P. 2d 768 (Ariz. 1960).

A mining claim as to which the claimant was in default in the performance of annual assessment work at the date of a withdrawal for the construction of irrigation works under the Reclamation Act does not except the land from the force and effect of the withdrawal. E. C. Kinney, 44 L.D. 580 (1916).

A mineral location founded on actual discovery of a valuable deposit of mineral within the limits of the claim, and maintained in accordance with the mining laws and local regulations, excepts the land from the operation of a withdrawal under this Act. Instructions, 32 L.D. 387 (1904). 13. Settlers and entrymen

By the mere filing of an application to enter under the homestead law, upon which action is suspended, and tender of the necessary fees, the applicant acquires no vested right to or interest in the land applied for, nor does such application have the effect to segregate the land from the public domain, so as to prevent a withdrawal thereof for reclamation purposes. John J. Maney, 35 L.D. 250 (1906); Charles G. Carlisle, 35 L.D. 649 (1907). Decision modified; see 48 L.D. 153; C.L. 1013, June 15, 1921.

The Reclamation Act contains no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in the Act of June 27, 1906, 34 Stat. 519, or other statute of the United States, and such settler has no right which he can oppose to the taking of the land for such purpose. United States v. Hanson, 167 Fed. 881, 93 C.C.A. 371 (Wash. 1909).

An application to make soldiers' additional entry, although filed prior to the passage of the act and pending at the date of an order withdrawing the lands covered thereby under the provisions of said act, is not effective to except the lands from such

267-067-72-vol. I- 6

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withdrawal. Nancy C. Yaple, 34 L.D. 311 (1905).

Even though approved by the Commissioner of the General Land Office, an application to make soldiers' additional entry will not, prior to the allowance of entry thereon, prevent a withdrawal of the land covered thereby. Charles A. Guernsey, 34 L.D. 560 (1906).

Order withdrawing land from entry under this section did not relieve entryman from the duty of claiming land and complying with Homestead Law as to residence and cultivation prior to amendment of 1912, where the land officials made a public announcement that the withdrawals of lands were not permanent, but were for the purpose of enabling preliminary investigations to be made as to the feasibility of irrigation project. Bowen v. Hickey, 200 Pac. 46, 53 Cal. App. 250 (1921), cert. denied. 257 U.S. 656.

By a successful contest against a desertland entry the contestant does not acquire such a preference right of entry as will, prior to its exercise, except the land from the operation of a withdrawal made under this Act. Emma H. Pike, 32 L.D. 395 (1902.)

The regulations of 1909 purporting to extinguish a statutory preference right of entry to lands covered by a reclamation withdrawal are without force and effect. Wells v. Fisher, 47 L.D. 288 (1919).

Where homestead or desert-land entries are included within first-form reclamation withdrawals, they should not be suspended, but allowed to proceed to final proof, certificate, and patent, and the land, if thereafter needed by the United States for reclamation purposes, reacquired by purchase or condemnation. Instructions, 43 L.D. 374 (1914), overruling Op. Asst. Atty. Gen., 34 L.D. 421, and Agnes C. Pieper, 35 L.D. 459 (1907).

Upon the cancellation of a homestead entry covering lands embraced within a subsequent withdrawal made under the Act, the withdrawal becomes effective as to such lands without further order. Cornelius J. MacNamara, 33 L.D. 520 (1905).

No such rights are acquired by settlement upon lands embraced in the entry of another as will attach upon cancellation of such entry, where at that time the lands are withdrawn for use in connection with an irrigation project; nor is there any authority for purchase by the Government of the settler's claim or of the improvements placed upon the land by him. George Anderson, 34 L.D. 478 (1906).

Where lands subject to an existing homestead entry are withdrawn under the

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Reclamation Act, the withdrawal becomes effective as to such land without any further order as soon as the existing entry is canceled, and the land is thereafter no longer subject to homestead entry while remaining so withdrawn. James F. Rapp, A25284, 60 I.D. 217 (1948).

Where land in a desert-land entry is withdrawn under the Reclamation Act and the entry is subsequently canceled, the withdrawal becomes effective as to such land upon the cancellation of the entry. George B. Willoughby, 60 I.D. 363 (1949).

14. Contests

Contests will be allowed of entries embracing lands within a reclamation withdrawal even though the successful contestant's preferred right of entry may be futile unless and until the withdrawal is revoked. Instructions, 41 L.D. 171 (1912).

A protest by one claiming under a placer location against a conflicting desert-land entry, will be allowed, even though the land was withdrawn under this section, in order to clear the record of one of the antagonistic claims. New Castle Co. v. Zanganella, 38 L.D. 314 (1909), overruling Fairchild v. Eby, 37 L.D. 362 (1908).

A first form withdrawal is effective as to unentered public lands notwithstanding the fact that the lands previously were approved by the Secretary as being subject to the Smith Act. McDonald, 69 I.D. 181 (1962), overruling Bill Fults, 61 I.D. 437 (1954), in re desert land entries within Imperial Irrigation District.

Where assessments were levied by an irrigation district under the Smith Act of August 11, 1916, against unpatented land in an existing desert-land entry, the irrigation district can enforce the lien arising from such assessment by a sale of the land in accordance with the provisions of the act, despite the cancellation of the entry and the withdrawal of the land under the Reclamation Act during the intervening period, because the right of the district to enforce its lien by sale of the lands is a "valid existing right" not affected by the withdrawal. The purchaser of the land at such a sale may obtain a patent to the land only if he submits proof of the reclamation and irrigation of the land, as required by the Reclamation Act, and pays to the United States the amounts required under that act. George B. Willoughby, 60 I.D. 363 (1949).

16. Water rights

There is no authority to make such executive withdrawal of public lands in a State as will reserve the waters of a stream flowing

over the same from appropriation under the laws of the State, or will in any manner interfere with its laws relating to the control, appropriation, use, or distribution of water. Op. Asst. Atty. Gen. 32 L.D. 254 (1903). But cf. Arizona v. California, 373 U.S. 546, 595-601 (1963).

17. -School lands

Lands reserved for school purposes to the State of Arizona, even after survey, were subject to reclamation withdrawal under section 3 of this Act if withdrawn at the time of the admission of the Territory of Arizona to statehood. Assistant Secretary Davidson Opinion, 59 I.D. 280 (1946). 18. Selected lands

Where the affidavit as to the character and condition of the land accompanying an application to make selection under the exchange provisions of the Act of June 4, 1897, 30 Stat. 36, is executed before the selector acting as notary public, such affidavit is void, and the application can therefore have no effect to except the lands covered thereby from a subsequent withdrawal embracing the same in accordance with the provisions of section 3 of this Act. Peter M. Collins, 33 L.D. 350 (1904).

A first-form withdrawal under the Reclamation Act does not defeat the equitable title of the selector acquired under an indemnity school selection if the selection was legal and completed prior to withdrawal. State of California and Overland Trust & Realty Company, 48 L.D. 614 (1921).

The location of Valentine scrip upon unsurveyed public land in conformity with the law and departmental regulations is such an appropriation of the land as cannot be defeated by a subsequent reclamation withdrawal, notwithstanding the selection had not been adjusted to an official survey, and the selector cannot thereafter be deprived of his rights thus acquired except in the manner prescribed by the Reclamation Act. Edward F. Smith, et al., 51 L.D. 454 (1926).

19. Timber and stone laws

A withdrawal of lands under this Act will defeat a prior application to purchase the same under the timber and stone laws where, at the date of withdrawal, the applicant had acquired no vested right to the lands embraced in his application. Board of Control, Canal No. 3, State of Colorado v. Torrence, 32 L.D. 472 (1904).

20. Railroad rights-of-way

No such right is acquired by virtue of an application for right-of-way for a railroad under the Act of March 3, 1875, 18 Stat.

482, before the approval thereof, and prior to the construction of the road, as will prevent the Secretary of the Interior from withdrawing the lands covered thereby for use as a reservoir under the Reclamation Act. Op. Asst. Atty. Gen., 32 L.D. 597 (1904).

The Southern Pacific Company in 1916 filed a general map of the station grounds at Mohawk, Ariz., adjoining its right-ofway and in 1936 filed for approval a map giving the exact location points. In 1929 the Bureau withdrew the land under a first form reclamation withdrawal for the Gila project. The General Land Office, as a condition precedent to approval of the map, requested that a stipulation be signed making certain reservations to the United States. The First Assistant Secretary in decision A-20886, of July 24, 1937, held that the execution of the stipulation could not lawfully be required since the station grounds were private property at the time of the reclamation withdrawal and were not affected thereby. The station grounds were held to be subject to the provisions of the act of August 30, 1890, 26 Stat. 391, making reservations for ditch and canal rights-of-way.

26. Withdrawn lands-Generally

Withdrawals made by the Secretary of the Interior under the first form, of lands which are required for irrigation works have the force of legislative withdrawals and are effective to withdraw from other disposition all lands within the designated limits to which a right has not vested. Instructions, 32 L.D. 387 (1904).

Reclamation withdrawn lands are "reserved lands" and therefore are not subject to Executive Order No. 6910 of November 26, 1934, and Executive Order No. 6964 of February 5, 1935. G.L.O. Circular No. 1351, 55 I.D. 247 (1935).

The State of Utah appealed from decision of the General Land Office, dated January 14, 1930, that the rights of the State of Utah did not attach to certain land in sec. 16, T. 3 S., R. 25 E., S. L. M., because of a phosphate reserve. The Department ruled that inasmuch as the lands were embraced in a reclamation withdrawal and later a phosphate reserve, they were not subject to section 6 of the Utah Enabling Act (granting, with other land, all sections 16 to the state, unless in a reservation) and would not be until the reservations, including the reclamation withdrawal, were extinguished and the lands restored to and become a part of the public domain. Decision of Assistant Secretary, April 18, 1931.

Accretions to withdrawn land became part of that land and subject to the with

43

drawal. Solicitor Barry Opinion 72 I.D. 409, 411 (1965), in re Palo Verde Valley color of title claims. Accord: Beaver v. United States, 350 F. 2d 4 (9th Cir. 1965), cert. denied 383 U.S. 937 (1966); Myrtle White, 56 I.D. 300 (1938).

Public lands on the east side of the Colorado River which were withdrawn for reclamation purposes remain subject to the withdrawal after artificial cuts in the river channel place them on the west side of the river. This follows from the rule of law that where the channel of a river changes by avulsion, title to the avulsed land is not lost by the former owner. Solicitor Barry Opinion, 72 I.D. 409 (1965), in re Palo Verde Valley color of title claims.

Land included in a reclamation withdrawal is subject to disposition under the Recreation and Public Purposes Act, 43 U.S.C. § 869 et seq. Carl F. Murray and Clinton D. Coker, A-28188, 67 I.D. 132 (1960).

27. -Settlement and entry (other than under Reclamation Act)

Withdrawal from entry of public lands required for irrigation works, under this section, is absolute, and, until its restoration to entry, land so withdrawn is not subject to entry, and no right thereto can be initiated by any settler thereon. Donley v. West, 189 Pac. 1052 (Cal. App. 1920), reversed on rehearing on other grounds, 193 Pac. 519, 49 Cal. App. 796 (1920), error dismissed, 260 U.S. 697 (1922); Donley v. Van Horn, 193 Pac. 514, 49 Cal. App. 383 (1920), cert. dismissed, 258 U.S. 634, error dismissed, 260 U.S. 697.

Occupancy by private individual of public lands during time order of withdrawal from entry under this section is in force constitutes trespass, and occupant's improvements are made at his own risk. Capron v. Van Horn, 258 Pac. 77, 201 Cal. 486 (1927).

No rights accrue from an alleged settlement on lands covered by a first-form withdrawal under section 3 of the Reclamation Act. Noah Kesterson, A-21260 (February 2, 1939).

A homestead application cannot be allowed on land covered by a first-form reclamation withdrawal at the time of entry. John Dondero, A-25582 (November 29, 1949).

An application to make homestead entry for land embraced within a first form withdrawal should not be allowed nor received and suspended to await the possible restoration of the lands to entry, but should be rejected. Ernest Woodcock, 38 L.D. 349 (1909).

Lands withdrawn from entry, except un

44

der the homestead laws, in accordance with this act, are not, during the continuance of such withdrawal, subject to entry under the desert land laws. James Page, 32 L.D. 536 (1904).

By the provision that lands susceptible of irrigation under a project shall be withdrawn "from entry, except under the homestead laws", Congress intended to inhibit any mode of private appropriation of such lands except by such entry under the homestead laws as requires settlement, actual residence, improvement, and cultivation; hence such lands are not subject to soldiers' additional entry under section 2306, Revised Statutes. Cornelius J. MacNamara, 33 L.D. 520 (1905); William M. Woodridge, 33 L.D. 525 (1905); Mary C. Sands, 34 L.D. 653 (1906).

Withdrawals under the first clause are not subject to location for mining purposes, being reserved for Government use, while lands withdrawn under the second clause are disposed of only for homesteads, and as all lands open to homestead entry are subject to mining location, lands withdrawn under the second clause are so subject. Loney v. Scott, 112 Pac. 172, 57 Or. 378 (1910).

Lands valuable for mineral deposits and embraced within a withdrawal of lands susceptible of irrigation by means of a reclamation project are not thereby taken out of the operation of the mining laws, but continue open to exploration and purchase under such laws. Instructions, 35 L.D. 216 (1906).

Lands covered by a first-form reclamation withdrawal are not open to mining locations where they have not been opened to mineral entry by the Secretary of the Interior. Harry A. Schultz, et al., A-26917, 61 I.D. 259 (1953).

Neither the Atomic Energy Act of 1946, as amended, 42 U.S.C. §§ 2011, et seq., nor the Mining Claims Restoration Act of 1955, 30 U.S.C. § 621, et seq., open reclamation withdrawn land to location under the mining laws. A. W. Kimball, et al., A-27526, 65 I.D. 166 (1958).

Where lands which are subject to a reclamation withdrawal appear to be of greater value for business purposes than for mineral development, an application to restore the lands to location and entry under the mining laws will be denied. Arthur G. Klinger, A-26195 (June 27, 1951).

Lands dedicated for public park purposes under section 3 of the Gila Project Act of July 30, 1947, subject to a mineral reservation to the United States, remain subject to the reclamation withdrawal, and the

Department may properly decline, under the Act of April 23, 1932, to open them to mineral location. M. W. Bobo, et al., A26613 (July 13, 1953).

A petition for the restoration to mineral entry of land withdrawn for reclamation purposes under section 3 of the Reclamation Act and subsequently also withdrawn by Presidential Executive Order as part of the Imperial National Wildlife Refuge, is properly denied when mining operations would interfere with the purposes of the refuge, even though the Bureau of Reclamation has no objection to such restoration, and even though the Executive Order cites the Act of June 25, 1910, which extends the mining laws to lands withdrawn thereunder. The President has inherent authority to withdraw public lands for public purposes apart from the statutory authority vested in him by the 1910 Act. P&G Mining Company, A-27829, 67 I.D. 217 (1960).

29. -Mineral leasing

Withdrawals under the second form do not affect coal lands. Albert M. Crafts, 36 L.D. 138 (1907), overruling John Hopkins, 32 L.D. 560 (1904).

The Secretary of the Interior has discretionary authority under section 13 of the Mineral Leasing Act of February 25, 1920, to deny an application for oil and gas prospecting permit embracing lands within a reclamation withdrawal, which, though owned by the United States, have been dedicated to purposes authorized by law, if the permit may not be granted except at the risk of serious impairment or perhaps complete loss of their use for the purpose to which dedicated. Martin Wolfe, 49 L.D. 625 (1923).

Public lands withdrawn for a reservoir site, which cannot be restored to the public domain without damage to the project, or which have, because of improvements placed thereon, become lands that may be sold only for the benefit of the reclamation fund, are not subject to the operation of the Mineral Leasing Act of February 25, 1920. J. D. Mell, Inc., 50 L.D. 308 (1924). 30. Selection

Land withdrawn under this section cannot be selected as lieu land by the State of California under the Act of May 2, 1914, 38 Stat. 372, granting the right to select "vacant" and "unreserved" land in lieu of certain school lands. Donley v. Van Horn, 193 Pac. 514, 49 Cal. App. 383 (1920), cert. dismissed, 258 U.S. 634, error dismissed, 260 U.S. 697.

Lands withdrawn under the second form are not subject to selection under the ex

change provisions of the Act of June 4, 1897, 30 Stat. 26. Santa Fe Pacific R.R. Co., 33 L.D. 360 (1904).

Public land which is included in a first form reclamation withdrawal is not open. to selection and disposal under the private exchange provisions of section 8 of the Taylor Grazing Act. Perley M. Lewis, A26748 (June 9, 1954).

31. -Leases and permits

The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing, the revenue going into the reclamation fund. Clyde v. Cummings, 101 Pac. 106, 35 Utah 461 (1909).

The Secretary of the Interior has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the Reclamation Act where use under the proposed lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. Op. Asst. Atty. Gen., 34 L.D. 480 (1906).

Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advis able, first form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service as the conditions may arise. Reclamation decision, March 23, 1917.

On July 8, 1933, the Secretary of the Interior approved the leasing of lands until they were needed regardless of the form in which they were withdrawn.

Leases for grazing lands should be awarded to the high bidder, even if the previous lessee of the land is low. Decision of First Assistant Secretary, January 30, 1934.

The Secretary of the Interior has authority to lease first and second form withdrawn lands without advertisement, and to prescribe method of determining the lease value by such plan as he deems expedient and for the best interests of the United States and the project. Solicitor Opinion, M-27790 (December 18, 1934).

Both the National Park Service and the Bureau of Reclamation, in administering their respective areas withdrawn under the first form in connection with the Boulder Canyon project, may grant leases for land and permits to engage in business activities to private individuals without advertising for proposals or securing competitive bids.

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Solicitor Margold Opinion, M-28694 (October 13, 1936).

When a lease of grazing lands is canceled for failure to pay the agreed rental but the lessor still continues occupancy and later submits a bid for a new lease upon the same land, accompanied by a deposit of the first year's rent under the new lease, it is proper to apply such deposit against the indebtedness to the United States arising out of the old lease. Dec. Comp. Gen., A-58113 (December 3, 1934).

If land under first form reclamation withdrawal is leased under the Recreation and Public Purposes Act, 43 U.S.C. § 869 et seq., the Secretary may require, as a condition of the lease, that the lessee pay the annual water charges for the lands involved on account of the reclamation project. Memorandum of Associate Solicitor Soller, in re Worland Saddle Club application, Hanover Bluff Unit, Missouri River Basin Project, September 24, 1957.

All leases of lands withdrawn for reclamation purposes should be made under subsection I of the Act of December 5, 1924, as Congress by that subsection recognized the authority of the Secretary of the Interior to lease such lands. First Assistant Secretary Opinion, M-29482 (October 8, 1937).

On February 3, 1928, the Commissioner, Bureau of Reclamation, recommended to the Secretary of the Interior the adoption of a policy of permitting the water users on the projects transferred to them for operation, to lease for grazing and agricultural purposes, all withdrawn or acquired lands where such lease would not interfere with the purposes for which withdrawn or acquired, the water users to make the leases, collect the charges, and handle all details in connection with such transactions. The recommendation was returned to the bureau without approval by First Assistant Secretary E. C. Finney under date of February 21, 1928, with the statement that such procedure would be illegal.

A withdrawal under the Reclamation Act will not bar the allowance of an application for right-of-way for private irrigation canal under the Act of March 3, 1891, over the withdrawn lands, where the allowance of the application will not interfere with the use of the lands by the United States in connection with the administration of the reclamation act and where the water proposed to be conveyed over such right-of-way has not been appropriated and is not claimed by the United States. Boughner v. Magenheimer, et al., 42 L.D. 595 (1913).

The Under Secretary on December 10, 1938, held that the Federal Water Power