PHOSPHATE AND OIL LANDS-SELECTIONS BY STATE OF IDAHO. INSTRUCTIONS. DEPARTMENT OF THE INTERIOR, REGISTERS AND RECEIVERS, Washington, March 22, 1913. United States Land Offices in Idaho. SIRS: Your attention is called to the attached copy of an act of Congress approved February 27, 1913 (37 Stat., 687), entitled "An act to provide for selection by the State of Idaho of phosphate and oil lands." This act permits, under certain restrictions, the selection by the State of Idaho, under its various grants, of lands which have been withdrawn or classified as phosphate or oil lands, or are valuable for phosphate or oil, if otherwise available. Selections under the provisions of this act must have noted across the face of the application the following: Application made in accordance with and subject to the provisions and reservations of the act of February 27, 1913 (Public-393). You will, upon the notation on your records of the filing of such a selection, stamp on the tract book, on the same line with the entry, and as near the descriptions as practicable, "Phosphate and oil reserved to the United States, act of February 27, 1913," and on the margin of the plat, under the heading "Phosphate and oil reserved to the United States, act of February 27, 1913," you will write the description of the land in which the phosphate or oil deposit has been reserved to the United States. If the State desires to dispute the classification, in any case, of lands classified as oil or phosphate, it may submit evidence, preferably the sworn statements of experts, that the land does not, in fact, contain oil or phosphates, together with an application for reclassification, in which event, you will transmit the application and evidence to this office. If reclassification be denied, the State may, within thirty days, apply for a hearing, at which it will be afforded an opportunity to show that the classification is improper, in which event it must assume the burden of proof. If the State should fail to apply for a hearing within the time allowed, the application to enter will be finally rejected, but this will not preclude the filing of a new application for the surface rights. The proceedings on the hearing will be conducted in accordance with the rules of practice. Very respectfully, Approved: LEWIS C. LAYLIN, FRED DENNETT, Commissioner. Assistant Secretary. [PUBLIC NO. 393.] AN ACT To provide for selection by the State of Idaho of phosphate and oil lands. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act unreserved public lands of the United States in the State of Idaho which have been withdrawn or classified as phosphate or oil lands, or are valuable for phosphates or oil, shall, if otherwise available under existing law, be subject to selection by the State of Idaho under indemnity and other land grants made to it by Congress whenever such selections shall be made with a view of obtaining or passing title, with a reservation to the United States of the phosphates and oil in such lands, and of the right to prospect for, mine, and remove the same. SEC. 2. That the State of Idaho, when applying to select lands classified as phosphate or oil lands, or valuable for phosphates or oil, with a view to securing or passing title to the same in accordance with the provisions of the indemnity and other granting acts, shall state in the application for selection that same is made in accordance with and subject to the provisions and reservations of this act. SEC. 3. That upon satisfactory proof of full compliance with the provisions of the laws under which selection is made and this act, the State shall, upon approval of the selection by the Secretary of the Interior, be entitled to have the lands certified to it, with a reservation to the United States of all the phosphates and oil in the land so certified, together with the right in the United States, or persons authorized by it, to prospect for, mine, and remove the same; but before any person not acting for the United States shall be entitled to enter upon the lands certified for the purpose of prospecting for phosphates or oil he shall furnish, subject to approval by the Secretary of the Interior, a bond or undertaking as security for the payment of all damages to the crops and improvements on said lands by reason of such prospecting for phosphates or oil. Any person who has acquired from the United States the oil or phosphate deposits in any such land, or the right to mine or remove the same, may reenter and occupy so much of the surface thereof as may be required for all purposes reasonably incident to the mining and removal of the oil or phosphate therefrom and mine and remove the oil or phosphate upon payment of the damages caused thereby to the owner thereof, or upon giving a good and sufficient bond or undertaking in an action instituted in any competent court to ascertain and fix said damages: Provided, That nothing herein contained shall be held to deny or abridge the right of the State of Idaho to present and have prompt consideration of applications to select lands, which have been classified as oil or phosphate lands, with a view to disproving such classification and securing a certificate without reservation: And provided further, That the reserved phosphate and oil deposits in approved selections under this act shall not be subject to exploration or entry, other than by the United States, except as hereinafter authorized by Congress. Approved, February 27, 1913. INSTRUCTIONS. FOREST RESERVE HOMESTEADS-SURVEY-AREA AND LENGTH. Any forest reserve homestead listed under the act of June 11, 1906, which does not exceed 160 acres in area and which may be contained in a square mile the sides of which extend in cardinal directions, will be regarded as within the provisions of said act limiting such homestead entries to "not exceeding 160 acres in area and not exceeding one mile in length." Assistant Secretary Laylin to the Commissioner of the General Land Office, March 24, 1913. The act of June 11, 1906 (34 Stat., 233), provides that the Secretary of Agriculture may, in his discretion, list and describe, by metes and bounds, lands within national forests determined by him to be chiefly valuable for agriculture, and file such lists and descriptions with the Secretary of the Interior, to the end that the lands may be opened to entry under the provisions of the homestead laws "and this act." The act further requires that upon the filing of any such list or description the Secretary of the Interior shall declare the said lands open to homestead settlement and entry in tracts not exceeding one hundred and sixty acres in area and not exceeding one mile in length. Regulations approved under said act October 16, 1909 (38 L. D., 278), give directions to United States surveyors-general as to procedure in the making and filing of surveys of such claims listed by metes and bounds descriptions, but contain no instructions as to the method of determining or limiting the extreme length of claims so listed and surveyed. In the Forest Service field programme for September, 1908, the Department of Agriculture advised its officers that the following instructions of the act of June 11, 1906, as to length of homesteads under said act had been adopted: Any tract not exceeding one hundred and sixty acres in area which may be contained in a square mile, the sides of which extend in cardinal directions, is understood to be within the meaning of the law. As shown in the accompanying illustrations of tracts which might properly be recommended for listing this makes it possible in many cases to allow an applicant a much greater amount of strictly agricultural land lying along creeks and narrow valleys than would be possible under a narrower interpretation of the term "one mile in length." These illustrations represent sections or approximate sections. Care should be exercised, however, to deny or limit applications which may involve water monopoly. In February, 1911, there was returned to your office the survey of a homestead claim in Colorado (No. 42) in the shape of an irregular parallelogram, with one line 85 chains long. The claim would be, however, contained within an area one mile square and therefore in conformity with the Forest Service instructions above quoted. Your office, however, on August 15, 1911, held that the claim was within the meaning of the act of June 11, 1906, more than one mile in length, and instructed the surveyor-general in future cases to see that no such surveys were made or approved. The Associate Forester took the matter up with your office, with the idea of obtaining, if possible, a modification of said letter and the return to the former practice. You now submit to the Department a lengthy and carefully prepared draft of letter, addressed to the Secretary of Agriculture, which proposes that in such cases a rule of measurement along some medial line of the claim be adopted, and the following is suggested: The distance between extreme end lines of a claim will not exceed 80 chains, to be measured from the mid-point of one of the end lines to the mid-point of the end line fartherest distant from said line, following, as near as may be, the center line of the claim, and not crossing any of its intervening boundaries. Any laterals or spurs may be included which do not make the limit of distance between fartherest points over 80 chains, or increase the aggregate area beyond 160 acres. It is also suggested in said letter that entries of long narrow strips of land are not in general consistent with public interests, and that when it can be done the width of such claims should not be less than 10 chains. The purpose of the legislation creating and maintaining national forests was to reserve lands valuable for their timber or for the production of timber for the public use and benefit, leaving, however, agricultural areas of the public domain, so far as possible, unreserved and subject to homestead entry. In the very nature of things, however, small areas of lands chiefly valuable for agriculture were necessarily included within the outboundaries of national forests. To permit the disposition of these areas to homesteaders where such disposal would not interfere with the proper maintenance and use of national forests, the legislation of June 11, 1906, was had, and in providing that the Secretary of Agriculture might list such lands, whether upon surveyed or unsurveyed areas, by metes and bounds, Congress recognized the fact that many of these small agricultural areas would lie in irregular form and should be disposed of in that manner. As a matter of fact, it frequently happens that such areas are in long narrow strips along the banks of streams or in coves or irregularly shaped depressions among the hills. To arbitrarily require that homesteads listed and surveyed under the provisions of this act should be in the form of squares or parallelograms, or should have parallel end lines, as is the case with mining claims, would partially defeat the purpose of the law and render it necessary, in many cases, to exclude agricultural lands and to include lands not valuable therefor. The statute does not prescribe the method of measurement to be followed in ascertaining the length, simply requiring that the claims shall not exceed " one mile in length." Any method of measurement adopted where the claims are irregular in form must necessarily be arbitrary, and it is believed that the Department has, under the law, ample discretion to adopt such a method as will best subserve the purpose and intent of the statute and the interests of the homestead claimants and the national forests in which the claims are situated. The so-called mile-square control method of determination is simple and affords ample discretion to the Secretary of Agriculture and his subordinates in selecting and listing for entry such agricultural lands, while at the same time preventing an unreasonable extension of long and narrow claims over the lands reserved. Measuring due north and south or due east and west across claims listed and surveyed within a square mile, the claims will in no instance exceed one mile in length, and this is believed to conform to the intent and requirement of the statute. You are accordingly directed in future to recognize and approve surveys of forest homesteads listed under the act of June 11, 1906, which conform to the construction given the act by the Department of Agriculture in September, 1908, and to recall any contrary instructions given by you to surveyors-general. FREE USE OF TIMBER ON NONMINERAL PUBLIC LANDS. REGULATIONS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., March 25, 1913. To settlers and residents of Colorado, Montana, Idaho, North Dakota, South Dakota, Wyoming, Nevada, Utah, Arizona, New Mexico, California, Oregon, and Washington, and to Chiefs of Field Divisions and Special Agents of the General Land Office: By the act of March 3, 1891 (26 Stat., 1093), as extended by the acts of February 13, 1893 (27 Stat., 444), July 1, 1898 (30 Stat., 618), and March 3, 1901 (31 Stat., 1436), it is provided that in the States of Colorada, Montana, Idaho, North Dakota, South Dakota, Wyoming, Nevada, Utah, Arizona, New Mexico, California, Oregon, and Washinton: In any criminal prosecution or civil action by the United States for a trespass on such public timberlands, or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timberland for use in such State or Territory by a resident |