requirements, involves 43 C.F.R. 192.141(3)(f), which states that 'Unless the lease account is in good standing as to the area covered by the assignment when the assignment and bonds are filed, or is placed in good standing before the assignment is reached for action the lease will be cancelled as provided in paragraph 192.161.' This objection is subject to the same defect that the first one (supra) is; while the lease account was in good standing at the time the assignment in question was filed, this does not change the fact that no rental was paid and the assignment was subsequently voided.
The final objection by the plaintiff attacks the fact that the Secretary stated that the rental due date was November 1, 1959, when, in fact, this date was a Sunday and under 30 U.S.C. § 188 and 43 C.F.R. 192.171, when the due date is a Sunday, payment will be allowed on the next business day. This argument, the Court feels, misses the entire point of the Secretary's holding and the Clem Daneau case upon which it is based. These decisions clearly hold that the original lease expired on its own terms on October 31, 1959, since there was no valid assignment extending it. The assignment was void. The fact that the rental could have been paid on November 2 makes no difference at all in light of the fact that it was not paid. As the assignment was void and the lease itself expired on October 31, the Secretary's holding appears entirely in accord with sound reason.
As to the effect of a partial assignment, the holding of the Clem Daneau case is especially relevant where it states as follows:
'The appellant argues that the Department should construe the filing of a partial assignment under the pertinent regulation, 43 CRF 192.144(b), as having the same segregative effect as the filing of an application for a single extension of a lease in its primary term, since, he contends, a partial assignment of a lease is in effect an application for a 2-year extension of the assigned part of the lease. 'As previously stated, the general rule was that land * * * became available for further leasing immediately upon the expiration of its primary or extended term in the absence of a regulation of the Department providing otherwise. Therefore, had the appellant, or some other person, filed an oil and gas lease offer for the land * * * on October 1, 1958 (November 1, 1959 would be the parallel date in the present case), there would have been no valid reason for rejecting the offer. * * * The only action which could have been taken would have been to accept the application and suspend action upon it until final action was taken on the application for a partial assignment of (the original lease).'
The Secretary's interpretation of the regulation, even if it were in question in this case, would be 'of controlling weight unless it is plainly erroneous or inconsistent with the regulation.' Wright v. Paine, 110 U.S.App.D.C. 100, 289 F.2d 766, 768 (1961); Bowles v. Seminole Rock & Sand Co., (1945) 325 U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700. Title 5 U.S.C. § 1009, in discussing the scope of review, states that the reviewing court shall 'hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence * * *, or (6) unwarranted by the facts * * *.'
In the recent case of Safarik v. Udall, 1962, 113 U.S.App.D.C. 68, 304 F.2d 944, at page 950, the Court said:
'It is obvious that the Secretary of the Interior, in carrying out his functions in the administration and management of the public lands, must be accorded a wide area of discretion and it is a well-recognized rule that administrative action taken by him will not be disturbed by a court unless it is clearly wrong (citing McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780, 784, c.d. 358 U.S. 835, 79 S. Ct. 57, 3 L. Ed. 2d 71).'
The Court grants the defendant's motion for summary judgment, and, of course, denies the plaintiff's motion for summary judgment.
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