History of public land law development

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738 HISTORY OF PUBLIC LAND LAW DEVELOPMENT the Pickett Act.282 His opinion was based in part on the theory that this had been the construction placed on the act by the Chief Executive and the Interior Department since 1910, an interpretation which had been acquiesced in by Congress. The theory of the Midwest case was thus employed to determine the scope of the Withdrawal Act. Add to that the congressional acquiescence in the Attorney General's construction since 1941 and you have a rule that is not likely to be overturned by the Supreme Court at this late date.283 Most writers have gone along with this interpretation of the Pickett Act,284 emphasizing that it is unlikely that Congress intended that permanent withdrawals, such as military or naval reservations, should be subject to metalliferous mining locations.286 The current problem is therefore perhaps not so much the proper interpretation of the Pickett Act as the question of de- 282 It is not intended to suggest that there are no other bases for withdrawals. Congressional legislation may authorize a specific withdrawal, or withdrawals may be made to carry out the terms of certain general land-grant statutes. 183 The most recent statement appears to be in Arizona v. California, 373 U.S. 546 (1963) in which Mr. Justice Black citing the Midwest case, stated: "We can give but short shrift at this late date to the argument that the reservations either of land or water are invalid because they were originally set apart by the Executive." *** I expressed some doubt about this conclusion in 1960. See 1 American Law of Mining 80 81 (1960). Several writers assume that implied powers exist. See Parriott, Mining Rights in Public Land, 34 Tex. L. Rev. 892, 894, n.16 (1956); Palmer, Problems Arising Out of Public Land Withdrawals of the Atomic Energy Commission, 2 Rocky Mt. Min. L. Inst. 77, 81 (1956); Lowe, Withdrawals and. Similar Matters Affecting Public Lands, 4 Rocky Mt. Min. L. Inst. 55 (1958) ; Phipps, Leasing and Mineral Development of Withdrawn Public Lands, 10 Rocky Mt. Min. L. Inst. 261, 269 (1965). The Interior Department similarly follows this view. P & G Mining Co., 67 I.D. 217 (1960). 286 The distinction between the implied power and Pickett Act withdrawals is often gaid to depend upon whether the withdrawal is for & permanent or temporary purpose. termining on what basis a particular withdrawal was made. In a recent departmental case,286 a 1941 withdrawal order recited: "By virtue of the authority vested in me as President of the United States and by the Act of June 25, 1910, it is ordered that described lands be reserved and set apart ... as a refuge."287 The Interior Department observed that over a period of 3 years preceding the order, a number of Executive orders were made invoking both the implied power and the authority delegated by the Withdrawal Act. Mining locations were expressly authorized in some of these. The Department then concluded that a full exercise of Presidential authority is intended unless there is a specific provision that mining activities shall not be prohibited. This construction, of course, nullifies the spirit of the Withdrawal Act.288 Relief Legislation. As is often the case in the legislative process, controversies of short-range importance tend to postpone the solution of real problems. This was certainly true during the years from 1910 to 1920 when almost every session of Congress considered what was to be done with the withdrawn petroleum lands. It is not an exaggeration to say that the debates ranged from proposals to hand over all the public oil lands to the states, to plans for sale or leasing, or a combination of the two. Although the real problem was clear (i.e., leasing as opposed to sale), the "touchy" question in the background always was whether anything should be done for oil companies which were caught, at the time of the 1909 Taft withdrawal, in various stages of prospecting: activities which ranged anywhere from "paper locations" to actual drilling, short of discovery. JS8P & G Mining Co., 67 I.D. 217 (1960). 287 6 Fed. Reg. 1016 (1941). 288 Cf. Noel Teuscher, 62 I.D. 210 (1955) . On the effect of withdrawals on mining locations and oil and gas leasing, see 1 American Law of Mining c. vii, 299 (Martz ed. 1960).