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Show Today general legislation derived from legislation adopted in 1859 and amended as recently as 1966, provides for indemnity selections by the states.7 The latter may select "lands of equal acreage" when school sections: (1) have been occupied by preemption or homestead settlers prior to survey; (2) are included within Indian, military, or other reservations before title could pass to the state; or (3) prove to be short of acreage through survey or any natural cause. Of course, selection of indemnity land constitutes a "waiver by the State of its right to the granted or reserved sections." The states have the option to await the extinguishment of any reservation and then take the numbered sections. In other words, there is no statutory requirement that lieu selection rights must be exercised within any particular time period. Also, the Secretary of the Interior, without awaiting survey, has the duty to determine the number of unsurveyed townships within Federal reservations, and the states are entitled to select indemnity lands, section for section. The same 1966 Act permits the states to select indemnity lands from "any unappropriated, surveyed or unsurveyed public lands within the State . . ." Selections may include mineral lands or reserved mineral interests in lands previously conveyed to others, but only if the grant lands lost are also mineral. If the selected lands are on a known geologic structure of a producing oil or gas field, they will be granted only if the lost lands also are on such a structure. Even land subject to mineral lease or permit may be selected as indemnity for lost mineral lands if the selected land is not in "producing or producible status," and the state then succeeds to all the rights and obligations of the United States. In such cases, the state must select all of the land under the lease or permit, or the United States otherwise reserves the mineral interest in the lease or permit for its duration and pays over to the state 90 percent of the state's share of rents and royalties prorated according to the acreage selected by the state. The mineral status of lost grant lands must be determined upon the best evidence available at the time of application for selection. Remaining Problems Notwithstanding the progressive statutory liberalization of the states' rights to select indemnity lands, the Department of the Interior (because of a view that it must preserve the bulk of the public domain in Federal ownership) has tended to resist lieu selections when the Bureau of Land Management believes the value of the selected land exceeds the value of the lost land. 7 43 U.S.C. §§851-852b (Supp. IV, 1969). 246 It is apparent from the preceding discussion that present law affords no explicit support for an "equal value" test. Indeed, the executive branch sought to have the 1966 lieu selection amendments include a provision denying the states the right to select lands valuable for leasable minerals, unless the lost mineral lands were of equal value. Neither the House of Representatives or the Senate approved the proposal, and the Senate report rejected the suggestion as "extraneous." 8 In a 1963 opinion, the Attorney General suggested that the Secretary might use his discretion under section 7 of the Taylor Grazing Act to prevent such selections, at least until considered by Congress.9 Despite the congressional refusal to adopt the equal-value restriction, the Secretary of the Interior has approved guidelines proposed by the Director of the Bureau of Land Management for handling cases of disparity of values between selected and lost lands. Under these guidelines, values are estimated for lost lands in their "native" condition, i.e., at time of grant, and for selected lands in their "present" conditions, .i.e., at time of selection. It should be noted that these guidelines are made applicable to all indemnity selections and are not limited to those involving mineral lands. Other reasons also have contributed to the slow pace in completing the outstanding grants. Among these are disagreements on the acreages due, lack of funds for surveys, lack of mineral examinations, and administrative delays by Federal and state agencies. The difficulties involved in obtaining satisfaction of land grants primarily affect two states, Arizona and Utah. More than three-fourths of the remaining 900,000 acres of unsatisfied grants are owing to these states. Preference For State Grants Federal agencies should give preference to satisfaction of outstanding land grants over the other land management functions. There is no evidence, however, that any preference has been given by Federal agencies to the satisfaction of state land grants. Original surveys are those which permit completion of land grants, and each state director of the Bureau of Land Management establishes his own survey priorities. Normally, resurveys have been given priority over original surveys. It is understandable that those states with large amounts of public domain still inside their boundaries appear impatient with restrictive policies or practices concerning their 8 S. Rep. No. 1213, 89th Cong. 2nd Sess. (1966). 9 For the opinion of the Attorney General and those of the Department of the Interior on the same subject see Utah Indemnity Selections, 70 Interior Dec. 65 (1963). |