On August 13, 1923, Executive Order No. 3893, issued "under the authority of section 1 of the Act of July 5, 1884," directed that certain military reservations therein described, including the Molate Island Reservation, "having become useless for military purposes be and are hereby placed under the control of the Secretary of the Interior for disposition as provided in the above Act or as may be otherwise provided by law."

On October 7, 1923, Arthur B. Riehl and Louis H. Eilkin perfected a location under the mining laws, based on discoveries of manganese in vein formation, covering 5.783 acre sof Molate Island's total area of about 6.774 acres. This location was based upon adequate discovery and was made in compliance with all requirements of the mining laws.

Under date of November 12, 1923, the Acting Secretary of Commerce wrote a letter to the Secretary of the Interior referring to Executive Order No. 3893, of August 13, 1923, and requesting the Secretary of the Interior to secure an Executive Order reserving Molate Island for lighthouse purposes. On November 7, 1924, Executive Order No. 4099 directed that Molate Island be "withdrawn under the provisions of the Act of June 25, 1910, (36 Stat. 847), as amended by the Act of August 24, 1912, (37 Stat. 497), for the use of the Department of Commerce for lighthouse purposes."

Although plans for the use of the island by the Department of Commerce for lighthouse purposes were said to have been made at an earlier date, possession of the island was not taken by the Department of Commerce under the licenses granted by the Secretary of War, and no use was made thereof, until some time in 1925, when a fog signal, occupying an area of about twenty-five square feet, was erected on the extreme southern portion of the island.

On February 7, 1927, an application was made to the Secretary of the Interior for a patent based upon the Riehl and Eilkin location of October 7, 1923. The Commissioner of the General Land Office has found this application to be regular in all respects and sufficient to warrant the issue of the final certificate. Whether or not you are required to issue this patent is the question which you have submitted.

The Act of July 5, 1884, c. 214, 23 Stat. 103 (U. S. C., Title 43, Secs. 1071-1074), provides in part:

66 * * * That whenever, in the opinion of the President of the United States, the lands, or any portion of them, included within the limits of any military reservation heretofore or hereafter declared, have become or shall become useless for military purposes, he shall cause the same or so much thereof as he may designate, to be placed under the control of the Secretary of the Interior for disposition as hereinafter provided, *

*

"SEC. 5. Whenever any lands containing valuable mineral deposits shall be vacated by the reduction or abandonment of any military reservation under the provisions of this act, the same shall be disposed of exclusively under the mineral land laws of the United States."

Executive Order No. 3893, of August 13, 1923, which terminated the Molate Island Military Reservation and placed the island under control of the Secretary of the Interior, was issued under the authority of the Act of July 5, 1884. Under Section 5 of that Act the island, which contained "valuable mineral deposits," then became subject to disposition "exclusively under the mineral land laws." It was while the island was occupying this status that the location of October 7, 1923, was perfected.

When the location of a mining claim is perfected under the law it has the effect of a grant by the United States of the right of present and exclusive possession. Wilbur v. Krushnic, 280 U. S. 306, 316–317. This right, if validly maintained, entitles the owner in due course to a patent. The location in the instant case appears to have been made and maintained in full compliance with the mining laws. It necessarily follows that the claimants Riehl and Eilkin are entitled to the patent they are seeking unless, notwithstanding Executive Order No. 3893, the licenses granted to the Department of Commerce by the Secretary of War, prior to the date of that order, had the effect of reserving the island for lighthouse purposes so as to preclude appropriation thereof under the mineral land laws. I am clearly of the opinion that the licenses to the Department of Commerce did not have that effect.

Some confusion exists as to whether the President or an executive department has power to transfer from one executive department to another public lands which have been reserved for the use of an executive department and thereby withdrawn from the operation of the Public Land Laws. See 28 Op. 143; 32 Op. 488, 490; 33 Op. 436. I assume that the President immediately after making the Executive order of August 13, 1923, terminating the reservation of Molate Island for military purposes and placing it under the control of the Secretary of the Interior under the Act of July 5, 1884, could have made another Executive order, before any intervening rights attached, setting the island apart as a reservation for use by the Department of Commerce for lighthouse purposes, and a plausible argument may be made that the President could have accomplished the same result in substance by an order transferring the reservation from the War Department to the Department of Commerce. 33 Op. 436. It may also be assumed, for the purpose of this opinion, that the act of the Secretary of War in granting a revocable license to the Commerce Department was authorized or directed by the President. See Wilcox v. Jackson, 13 Pet. 498, 512; United States v. Midwest Oil Company, 236 U. S. 459; Chicago, etc., Railway Company v. United States, 244 U. S. 351, 357. But with all these assumptions the fact remains that the granting of a revocable license by the Secretary of War to the Department of Commerce was not intended to and did not amount to a transfer of the reservation from one Department to another, and was not intended as and was not equivalent to a presidential order terminating the military reservation, followed immediately by another presidential order reserving the Island to the Department of Commerce.

I know of no general statute authorizing the Secretary of War to grant such licenses, but it has long been the practice to grant them, and the long-continued exercise of this power with the tacit assent of Congress justifies the conclusion that the power exists, but such licenses are not definite or permanent relinquishments of the property. They are mere permits for the use of the property so long as the Secretary of War does not require them for military purposes. They

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are not intended to give and do not give the licensee any rights to the use of the property after the War Department itself has lost the right to use it for military purposes. Clearly the Secretary of War had no power by granting a revocable license to the Department of Commerce to prevent the President from terminating the military reservation and restoring the land to the public domain as was done by the Executive order of August 13, 1923.

It is my opinion that upon the issuance of Executive Order No. 3893 of August 13, 1923, the licenses from the Secretary of War to the Department of Commerce were automatically terminated. It follows that the location of October 7, 1923, having been duly made at a time when the island was not reserved for lighthouse purposes or for any other public purposes, was a valid and effective location under the mineral land laws. The location having been duly made and maintained, I can find no legal basis for denying to the claimants a patent.

Neither Executive Order No. 4099, of November 7, 1924, which purported to reserve Molate Island" for the use of the Department of Commerce for lighthouse purposes," nor the occupation of a small portion of the island by the Department of Commerce in 1925, operated to divest the claimants of any rights in that part of the island covered by the location which had accrued prior to that time. See Wilbur v. Krushnic, 280 U. S. 306; Clipper Mining Co. v. Eli Mining & Land Co., 194 U. S. 220, 226-227; 17 Op. 230.

Respectfully,

WILLIAM D. MITCHELL

To the SECRETARY OF THE INTERIOR.

REVOCATION OF AN ERRONEOUS REAPPRAISAL OF LAND WITHIN FORT PECK (MONTANA) INDIAN RESERVATION

A final certificate was issued to one Alexander Miller pursuant to his entry on land situate in the Fort Peck (Montana) Indian Reservation. The land had been appraised at $6.00 per acre and payment therefor was made in accordance with such appraisement. Thereafter the land was reappraised at $3.50 per acre and Miller was allowed a refund on that basis. Before the patent issued, it was discovered that the reappraisal had been secured by fraud and a second reappraisal was made establishing the fact that the land was worth $6.00 per acre. Held, that the second reappraisal was within the lawful authority of the Secretary of the Interior and that the entryman Miller may lawfully be required to pay for the land at $6.00 per acre.

DEPARTMENT OF JUSTICE,

December 30, 1931.

SIR: I have the honor to acknowledge receipt of your letters of October 22 and November 12, 1931, together with enclosures, in which you request my opinion as to whether you have the right to collect from one Alexander Miller a sum additional to the amount that the latter has already paid in return for a final certificate issued to him pursuant to his entry on land situate in the Fort Peck (Montana) Indian Reservation.

The entry was made under the Act of May 30, 1908 (35 Stat. 558), and was allowed on March 22, 1916. Final proof was made on September 15, 1920; but the final certificate was withheld until payment of the deferred installments of the purchase price. The land was originally appraised at $6.00 per acre, and the entry and final proof were made on that basis. On December 24, 1925, Miller applied for a reappraisal. On October 25, 1928, he paid the last installment of the amount due on the basis of the original appraisal; but on November 10, 1928, the Department approved a recommendation of the Commissioner of Indian Affairs that the land be reappraised under the Act of June 6, 1912 (37 Stat. 125). Upon reappraisal its value was fixed at $3.50 an acre. On this basis, Miller was entitled to a refund, which was made, and the final certificate issued on December 6, 1928.