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In all, the legislative history regarding the directors to be named by the President supports the view that they, like the others, will occupy private posts and not be officers of the United States.

Finally, it might be noted that to consider the incorporators and appointed directors as public officers would be to deem them within the scope of Article II, section 4 of the Constitution which makes "all civil Officers of the United States" subject to impeachment. I believe it most unlikely that in authorizing the establishment of the unique communications satellite corporation, Congress, without affirmatively labelling these incorporators and directors as Government officials, intended that they be subject to impeachment. In other words, I believe that the congressional silence as to their status, when considered together with the provisions of Article II, section 4, lends support to my view that neither the incorporators nor the three directors are, by virtue of their appointments to these posts, officers of the United States.

Respectfully,

ROBERT F. KENNEDY.

Railroad Company and termed them "government directors." The statute specifically required that at least one of them be on each committee of the company and that they report to the Secretary of the Interior concerning the company's operations.

ELIGIBILITY OF CERTAIN PUBLIC LANDS FOR SELECTION BY UTAH AS INDEMNITY FOR LOST SCHOOL LANDS

Although grants by the United States are ordinarily construed strictly against the grantees, congressional enactments designed to aid the public schools of the States are to be construed liberally. Public lands within the boundaries of a State which are under lease for the extraction of potash are not in a "producible status” within the meaning of that term in section 2276(a)(3) of the Revised Statutes, as amended (43 U.S.C. 852(a)(3)), and, therefore, are not ineligible for selection by the State as indemnity for lost school lands under section 2275 R.S., as amended (43 U.S.C. 851), until the mineral has been or can be extracted in commercial quantities. FEBRUARY 7, 1963.

THE SECRETARY OF INTERIOR.

MY DEAR MR. SECRETARY: In accordance with your request of December 18, 1962, I have examined Opinion M-36645 of your Solicitor, relating to certain applications filed by the State of Utah for indemnity selections of public land within its boundaries which is under mineral lease to a private firm for the extraction of potash. It appears that the lessee is presently engaged in constructing a mine and anticipates its completion and the commencement of production in the summer or fall of this year. In the light of indications that the lessee will spend a total of more than $30,000,000 to bring the mine into production, it is clear that the potash deposits are estimated to have a great value. The State of Utah submitted the first of the applications for indemnity selection on June 7, 1961, some months after the lessee, following favorable exploratory operations and analysis, had commenced the excavation of a mining shaft.

Section 2275 of the Revised Statutes (43 U.S.C. 851) permits States to select public lands as indemnity for school lands originally reserved to them but lost by the subsequent preemption of homesteaders, inclusion within Federal reservations or other disposition. However, section 2276 (a) (3)

of the Revised Statutes (43 U.S.C. 852(a) (3) Supp. III 1961) limits selections by providing that

"Land subject to a mineral lease or permit may be selected, if none of the land subject to that lease or permit is in a producing or producible status ***." [Italics added.] The question considered in Opinion M-36645 is whether the lands sought by the State of Utah are in a "producible status" within the meaning of this statute.

Opinion M-36626 issued in your Department on September 8, 1961, held that mere knowledge that land under lease or permit contains valuable mineral deposits does not render it in a "producible status." Opinion M-36645 of your Solicitor expresses the view that this conclusion is incorrect and adopts a standard less favorable to the States. It advances the view that the phrase "lands in a producible status" includes "any mineral lands which are subject to lease or permit and which are known, at the time of selection, to contain a valuable and accessible deposit of mineral in such quantity and of such quality as to warrant the expenditure of funds for its extraction and production." Using this standard, your Solicitor has concluded in his opinion that the applications filed by Utah must be denied because the lands which are sought have been in a "producible status" at all times since a date prior to the filing of the first application.

It is my view that the earlier of the two opinions reaches the correct result and that the land sought by Utah is not ineligible for indemnity selections under section 2276 (a) (3) of the Revised Statutes.

It has long been congressional policy to grant States entering the Union in which there is public land certain sections in each township of such land for the support of their public schools.1 However, title does not pass to the States until the granted lands have been surveyed, with the result that in the meantime they may be appropriated under the Federal land laws by private persons or the Government itself. In order to make up for the lands thus lost to the States, Congress enacted section 2275 of the Revised Statutes, giving a

'In the case of Utah, Congress set aside sections 2, 16, 32, and 36 in each township. Act of May 3, 1902, c. 683, 32 Stat. 188, 43 U.S.C. 853.

State the right to select other public lands of equal acreage within its boundaries as indemnity.

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Originally, mineral lands were excluded both from grants in place to the States and from State indemnity selection." However, the act of January 25, 1927, expanded existing grants in place for the support of public schools to include some sections of mineral land. Not included were lands of this character which were under mineral lease or permit at the time of survey. Amendments to this statute later removed this limitation so that grants in place now extend to school sections, whether or not mineral in character, which have been made subject either to mineral leases or applications therefor. It was not until 1958 that Congress enacted legislation making it possible for the States to receive mineral lands by indemnity selection. It is this legislation under which Utah has filed the applications which are now in question and which must be construed in considering whether those applications should be granted.

The legislation enacted in 1958 amended section 2276 of the Revised Statutes (43 U.S.C. 852) to allow a State to make indemnity selections from any unappropriated, surveyed public lands within the State, subject to the following réstrictions:

1. No lands mineral in character may be selected except to the extent that the selection is being made as indemnity for lost mineral lands.

2. No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is being made as indemnity for lost lands on such a structure; and

* See United States v. Sweet, 245 U.S. 563 (1918).

'C. 57, 44 Stat. 1026, 43 U.S.C. 870.

'Act of April 22, 1954, c. 169, 68 Stat. 57; act of July 11, 1956, c. 572, 70 Stat. 529; 43 U.S.C. 870.

"Act of August 27, 1958, P.L. 85-771, 72 Stat. 928, 43 U.S.C. 852(a). R.S. 2276 was further amended by the act of September 14, 1960, P.L. 86-786, 74 Stat. 1024, 43 U.S.C. 852(a), in particulars which need not be noted here.

3. Land subject to a mineral lease or permit may be selected only if none of such land is in a "producing or producible status."

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As introduced, the bill which amended section 2276 did not contain these restrictions. They made their way into the legislation upon the recommendation of the Department of the Interior (hereinafter referred to as "Interior"). Interior originally recommended that what is now the third restriction exclude only lands subject to a mineral lease or permit which are in a producing status. Thereafter it took the position that

"[This] language ** is not sufficiently restrictive since it would permit a State to select land subject to a mineral lease when none of the land subject to that lease was in a producing status. Presumably, this would permit the selection of leased land on which there is a well capable of production, but on which production has been suspended. It is, therefore, suggested that the words 'producing status' * * * be re

'Where land subject to a mineral lease or permit is selected, the State succeeds to the rights and obligations of the United States thereunder and the lessee or permittee is left in the same position as if the selection had not been made (act of August 27, 1958, as amended, n. 5 supra). Rents and royalties paid to the United States under leases for potash mining are distributed as follows: 371⁄2 percent is paid to the State in which the land is located, for expenditure on roads or for the support of public educational institutions; 521⁄2 percent is credited to the reclamation fund in the Treasury, a fund devoted to the development of water for the reclamation of arid land in the western States; and 10 percent remains in the Treasury (sec. 5, act of February 7, 1927, c. 66, 44 Stat. 1058, 30 U.S.C. 285, and act of February 25, 1920, c. 85, 41 Stat. 450, as amended, 30 U.S.C. 191). A State generally administers leased indemnity lands which it has selected and receives all revenues accruing after selection to be used for the benefit of its public schools. However, in cases where a portion of land under a lease is not available for selection, the United States continues to administer all the land under the lease and retains 10 percent of the revenues allocable to the State, the remainder of 90 percent going to the State for its schools (2276 (a) (4) R.S. 43 U.S.C. 852(a)(4)). It appears that a number of Utah's applications here are for partial selections.

7 S. 2517, 85th Cong.

8 Letter from Interior to Senate Committee on Interior and Insular Affairs, dated February 27, 1958, S. Rept. 1735, 85th Cong., 2d sess., pp. 4, 6.

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