MEMORANDUM OF DECISION

I. INTRODUCTION

This matter is before the court on the motion of certain defendants to dismiss for failure to state a claim upon which relief can be granted, and on the counter-motion of plaintiff United States for summary judgment in its favor. The defendants joined in the motion to dismiss are as follows: Union Oil Company of California; Magma Power Company; Thermal Power Company; Alex C. Beigel; Helen V. Dillingham; Frances W. Vought; Louis W. Pellegrini; lone J. Ottoboni; Patricia Ottoboni; Louis Ottoboni; James Ottoboni; Emma Ottoboni; Albert Ottoboni; Peter Mazzanti; Mrs. Louis Ottoboni Johnson; Ceasar Gianecchini; John Giampaoli; Uva Giampaoli; Elmer Ferrari; and David Ferrari.

The case arises from a complaint filed herein on October 13, 1972, by which the United States seeks a declaration of its ownership rights in the geothermal steam and associated geothermal resources presently being produced by certain defendants under leases from other defendants. The United States also seeks injunctive relief and damages in the amount of the reasonable rental value of such leased lands for geothermal steam and associated geothermal resources and of the reasonable royalty of the geothermal steam and associated geothermal resources produced therefrom in accordance with the provisions of the Geothermal Steam Act of 1970, 30 U.S.C. § 1001 et seq. The leased lands in. question, all of which lie in Sonoma County, California, were granted to defendants’ predecessors in interest by patents issued under the Stock Raising Homestead Act of 1916, 43 U.S.C. § 291 et seq. [hereinafter sometimes called the “Act”], and thereafter devolved to certain of the defendants by mesne conveyances.

The claim of the United States is based upon the following language in § 9 of the Stock Raising Homestead Act ( 43 U.S.C. § 299 ):

It is the position of the United States that the reservation of “all the coal and other minerals” contained in § 9 and in the patents granted thereunder to defendants’ predecessors in interest severed the subsurface estate in its entirety from the surface estate, reserving the former to the United States and granting only the latter, thus reserving to the United States the right to “prospect for, mine, and remove” geothermal steam and associated geothermal resources.

Because of uncertainty over whether a mineral reservation such as that cited above encompassed geothermal resources. Congress included § 21(b) in the Geothermal Steam Act of 1970 (30 U.S. C. § 1020(b)) to test its title thereto:

The instant case is such an “appropriate proceeding.”

II. DISCUSSION

The central issue here concerns the meaning and scope of the mineral reservation in the Stock Raising Homestead Act and in the patents granted thereunder. In order to properly construe such reservation, the intent of Congress at the time of the enactment of the Act and under the circumstances then present must be ascertained. See Moor v. County of Alameda, 411 U.S. 693, 709 , 93 S.Ct. 1785 , 36 L.Ed.2d 596 (1973); United States v. Stewart, 311 U.S. 60, 69 , 61 S.Ct. 102 , 85 L.Ed. 40 (1940). Although the clear meaning of statutory language is not to be ignored, “ ‘ [w] ords are inexact tools at best,’ . and hence it is essential that we place the words of a statute in their proper context by resort to the legislative history.” Tidewater Oil Co. v. United States, 409 U.S. 151, 157 , 93 S.Ct. 408, 413 , 34 L.Ed.2d 375 (1972).

Such intent may be gleaned from several factors, including pertinent committee reports, statements from its sponsors, floor debates, the act’s title, successive drafts, and the general purpose of the legislation.

In addition, it is the accepted rule of construction that when a grant of land is made by a public body, such as the United States, the language of such grant (and of any reservations therein), if ambiguous, is to be construed strictly against the grantee and broadly in favor of the public body. This rule is the reverse of the normal rule of construction which requires strict construction against the draftsman of the instrument in question (generally the grantor) .

The Stock Raising Homestead Act grew from Congressional desire to give homesteaders title to substantial-sized tracts of land in the semi-arid states of the West where they could raise livestock and engage in agriculture, thus promoting the settlement and prosperity of such states.

In 1914, a forerunner of the Act was submitted to the House of Representatives, 63d Cong., as H.R. 9582. This bill contained a section reserving to the United States “all the minerals and coal in the lands so entered.” 52 Cong.Rec. 3987 (63d Cong., 3d Sess., 1915). The bill was submitted to the Department of the Interior for comment. The Department, through the First Assistant Secretary, commented on H.R. 9582 and on related bill H.R. 6637 and submitted the draft of a proposed revised bill. This substitute, which became H.R. 15799, provided for a reservation “of all the coal and other minerals.” Id. at 3988.

Representative Raker of California made the following remarks on H.R. 15799:

This bill passed the House, but was not, however, passed by the Senate. Representative Taylor of Colorado explained why as he introduced an identical bill to the next session of Congress:

In debate, Representative Moore of Pennsylvania asked whether the mineral reservation clause in § 10 of the proposed act covered the Government’s interest in oil lands. Representatives Moore and Ferris of Oklahoma then engaged in the following colloquy:

In attempting to ascertain the intent of Congress with respect to the mineral reservation contained in the Act, several points become clear. First, it is evident from the debates, reports and other legislative history that provision for the reservation of minerals played a minor role in Congressional consideration of the Act. Second, it was the intent of Congress that the homesteader receive title to land granted to him by patent under the Act, and that the full mineral estate, including all substances definable as minerals, bé reserved to the United States. Third, Congress did not intend to reserve geothermal steam and associated geothermal resources because such fluids would not have come within the definitions of “minerals” in force and usage at that time.

The United States argues that patents granted under the Act established two separate estates: the surface estate, which passed to the patentee, and the subsurface (mineral) estate which was reserved to the United States. In support of this position the United States points to certain language in the Act. Section 2 ( 43 U.S.C. § 292 ) provides in part cited:

Section 9 ( 43 U.S.C. § 299 ) provides in part cited:

The United States also cites certain legislative history in support of its position, as well as the case of Skeen v. Lynch, 48 F.2d 1044 (10th Cir. 1931), cert. den., 284 U.S. 633 , 52 S.Ct. 17 , 76 L.Ed. 539 (1931). These scattered authorities do not, however, mandate the result sought here by the Government.

Patents under the Act do not grant only the surface estate nor do they reserve the entirety of the subsurface estate. The reservation contained in § 9 speaks of “coal and other minerals”; Congress could have reserved “the subsurface estate” if that is what it desired, but it did not so desire and therefore did not do so. The language quoted above from § 9 merely provides for a right of reentry necessary for the mining and removal of coal and other minerals reserved by the United States. The language quoted from § 2 does not say that land will not be patented; rather it defines such lands by reason of the expected activity to be carried on upon the surface thereof.

Despite the gratuitous references to surface entry which appear in the. legislative history of the Act, there is also commentary which supports the position of the defendants here that what passed under an Act patent was fee title, and not just the surface estate with a reservation of the subsurface.

When the predecessor of the Act was proposed before the 63d Congress, Representative Fergusson of New Mexico made the following comment:

And thus did Representative Raker indicate his belief that the homesteader would be entitled to keep any water he might find in the land granted to him. 52 Cong.Rec.App. 521 supra.

Revealing here is the following colloquy between Representative Ferris and Representative Mondell of Wyoming:

Skeen v. Lynch, supra, relied upon by the United States, was a quiet title action brought against the Government under the Stock Raising Homestead Act. The plaintiff there contended that he owned the water, oil and gas in and under land patented to him pursuant to the Act and that such was not retained by the United States by its reservation of “coal and other minerals.” The court concluded, 48 F.2d at 1046 :

With evidence of a contrary legislative intent such as that cited hereinabove, however, the conclusion reached by the Skeen court leaves considerable room for doubt. A more recent case, State ex rel. State Highway Commission v. Trujillo, 82 N.M. 694 , 487 P.2d 122 (N.M.1971), gives greater credence to the expressed intent of Congress and therefore limits Skeen , a result with which this court is in agreement.

Trujillo involved an appeal in a condemnation case in which it had been determined below that road building material from certain landowners’ property belonged to the Government under the reservation contained in the Stock Raising Homestead Act and the patents granted thereunder and that as a consequence the Government need not have reimbursed the landowners for taking such material (there a substance called monzonite).

The trial court had held that the mineral reservation severed the surface estate from the mineral or subsurface estate and that the patents had reserved all subsurface rights to the Government.

On appeal, the Supreme Court of New Mexico disagreed, holding that the reservation of “coal and the other minerals” was not intended to include rock, such as monzonite. The court discussed and distinguished Skeen , finding the “two estate” analysis used there unnecessary. The court said at 125:

Other cases support the conclusion that the patents granted here conveyed title to the land and not just use of the surface. Cf. Schwab v. Beam, 86 F. 41, 43 (C.C.1898); Mortenson v. Financial Growth, Inc., 23 Utah 2d 54 , 456 P.2d 181, 183 (1969).

The Government’s next argument is that geothermal steam and associated geothermal resources were reserved to the United States because they are “minerals” within the meaning of the mineral reservation in § 9 of the Act and the patents granted thereunder.

Webster’s Third International Dictionary (1965) defines “geothermal” as “of or relating to the heat of the earth’s interior.” Section 2(c) of the Geothermal Steam Act of 1970 ( 30 U.S.C. § 1001 (c)) provides the following definitions :

“Geothermal energy” has been defined most succinctly as “the natural heat of the earth which can be extracted in the form of hot water and/or water vapor (steam).” State of Calif., The Resources Agency, Energy in California 38 (Jan. 1973).

Geothermal manifestations have been noted by man since the first century B.C. The first commercial development, however, did not occur until 1818, when the geothermal steam of the Larderello area in Italy was used to provide heat in order to concentrate the boric acid which was found in solution in the boiling waters. Geothermal energy was not applied to electrical power until 1904, when Prince Conti of Larderello succeeded in operating a geothermal steam-driven dynamo which lighted five electric lamps. By the late 1930’s the Larderello fumarole area, consisting roughly of 100 sq. miles, was producing almost 100,000 kw. of electric power.

Despite the Italian successes, little attention was paid to geothermal development elsewhere except for the use of steam and hot water in geyser areas in Iceland and in parts of the Soviet Union. In 1950 a major geothermal project was launched in New Zealand.

In the United States, geothermal steam was not generally regarded as suitable for commercial development until quite recently. What geothermal exploration has occurred has been concentrated in the West, most notably California. The first commercial geothermal power plant in California became operative in 1960 at The Geysers in Sonoma County. As of 1971, geothermal fluids were being used to heat buildings and even whole cities in such places as the United States, the Soviet Union, Iceland, Hungary, Japan and New Zealand.

Virtually all the literature on the nature and development of geothermal resources in the United States dates from after World War II. Indeed, the parties have cited no literature in existence at the time when the Stock Raising Homestead Act was presented, debated or passed which would indicate an awareness on the part of Congress that such resources had to be accounted for. It is hardly surprising, then, that the legislative history of the Stock Raising Act includes no references to geothermal phenomena nor that any mention thereof appears in the reservation of § 9.

Since it is clear that Congress expressed no intent on the question of whether “other minerals” in § 9 of the Act included geothermal steam and associated geothermal resources, the Government must press the contention that the main constituent of geothermal energy, namely superheated water (or steam) was a “mineral” within the contemplation of Congress and the meaning of the mineral reservation in § 9. Such a construction will not hold water: the authorities are convincing that water was not considered a mineral when § 9 was enacted, nor is water considered a mineral today.

The word “mineral” is used in many senses and does not have a single definite meaning. Bumpus v. United States, 325 F.2d 264 , 266 (10th Cir. 1963). In its broadest sense “mineral” encompasses that vast realm of everything other than animal or vegetable. A dictionary current at the time of the enactment of the Act defined “mineral” broadly enough to include water.

It is not this general meaning that is controlling, however, for the word mineral is necessarily subject to interpretation by reason of its context and particular usage. Thus the following approach has been adopted:

See also Thomas v. Markham & Brown, Inc., 353 F.Supp. 498, 501 (E.D.Ark. 1973); Mack Oil Company v. Laurence, 389 P.2d 955, 961 (Okl.1964).

The strong weight of the authority is that water was not considered to be a mineral, within the test just stated, either when the Stock Raising Homestead Act was enacted or when the subject patents were granted thereunder.

One contemporaneous authority defined mineral as follows:

In its listing of minerals, Lindley does not include water. 3 Lindley at 2740-2741.

A review of the United States Geological Survey’s annual Mineral Resources of the United States for both metals and non-metals for the years 1913, 1914 and 1916 (published respectively in 1914, 1917 and 1919) shows no listing for water, salt water, steam or geothermal resources. There is a similar absence of listings in G. English, Descriptive List of the New Minerals 1892-1938 (1939), a book which updated Dana’s System of Mineralogy (6th ed. 1892). And the only listing in Eakle, Minerals of California (State Mining Bureau. Bull. No. 67, 1914) is for water in the form of mineral springs. Id. at 63.

A strong line of authority supports the view that today water is still not considered a mineral. See Mack Oil Company v. Laurence, supra, 389 P.2d at 961 (reservation of “all the minerals” held not to include subterranean waters) ; Fleming Foundation v. Texaco, supra, 337 S.W.2d at 847 (reservation of interest “in all of oil, gas and other minerals in, under and that may be produced from the lands conveyed” held not to include subsurface water”; Vogel v. Cobb, 193 Okl. 64 , 141 P.2d 276, 280 (1943) (conveyance of “ ‘oil, petroleum, gas, coal, asphalt and all other minerals of every kind or character in and under and that may be produced from’ said real property” and conveyance of all “oil, gas and other minerals in and under and that may be produced from” said land held not to include water under “other minerals”); Stephen Hays Estate v. Togliatti, 85 Utah 137 , 38 P.2d 1066, 1068 (1934) (exception of “all minerals on or in the land conveyed” held not to include water containing copper in solution); 54 Am.Jur.2d “Mines and Minerals” § 9; Palache, Berman, Frondel, Dana’s System of Mineralogy (7th ed. rewritten 1951) (no listing for water, salt water, steam, or geothermal steam). But see Note “Acquisition of Geothermal Rights” 1 Idaho L.Rev. 49, 56-57 (1964).

The matter is summarized in 1 Williams & Meyers, Oil and Gas Law § 219.-6 (1972):

The conclusions reached above are strengthened by reference to interpretations of the Act and the mineral reservation therein by the Department of the Interior, the agency charged with administration of the Act.

It is evident that since 1961 the Department of the Interior has held and disseminated the opinion that geothermal steam and associated geothermal resources are not minerals. In 1961 the Acting Solicitor of the Department of the Interior wrote a memorandum to the Director of the Bureau of Land Management expressing the view that the Department lacked authority to dispose of geothermal steam contained in public lands under the Materials Act of 1947. Dept, of Int. Mem. M-36625 (Aug. 28, 1961).

With specific reference to mineral reservations under the Stock Raising Homestead Act, in 1965 the Office of the Solicitor expressed the view in two opinion letters that geothermal steam is merely superheated water, that water has not been treated as a mineral in public land laws, and that as a result mineral reservations under the Act do not include geothermal steam. The let ter to Mrs. H. S. Gilmore of Sacramento recited that,

The second letter, to Mr. Walter P. Capaccioli of South San Francisco, concluded that,

For full text of these letters see Appendix A hereto.

The letter to Mr. Capaccioli referred to land owned by the Ottobonis, who are named as defendants in the instant action.

The same interpretation was given in a letter dated February 16, 1966, from the Department’s Associate Solicitor for Public Lands to counsel for defendant Magma Power Company.

The Department of the Interior continued to adhere to the above opinions in a letter from the Assistant Secretary of the Interior to Congressman Wayne N. Aspinall, Chairman of the Committee on Interior and Insular Affairs of the House of Representatives, dated August 31, 1970, and cited in 3 Code Cong. & Admin.News p. 5121 (91st Cong., 2d Sess., 1970).

In addition, the Department of the Interior has taken the position in letters to members of Congress that geothermal steam is not locatable. It appears from the language of § 9 of the Act that Congress was concerned with reserving locatable minerals only, and since geothermal resources are not locatable within the meaning of the mining laws, they were not reserved.

The foregoing consistent expressions from the Department of the Interior must be given that weight due an agency’s interpretations of its governing laws. As recently stated by the Supreme Court in Investment Co. Institute v. Camp, 401 U.S. 617, 626-627 , 91 S.Ct. 1091, 1097 , 28 L.Ed.2d 367 (1971):

This rule applies with equal force to interpretations expressed by the Department of the Interior. See Udall v. Tallman, 380 U.S. 1, 4, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965); Knowles v. Butz, 358 F.Supp. 228, 231 (N.D.Cal.1973).

Here, the above interpretations not only strike this court as eminently reasonable, but well within the weight of authority on the issues presented thereunder. The interpretations of the Department are supported by the pertinent provisions of the Act and are not contrary to the expressed (or interpreted) intent of Congress. Accordingly, this court will accord such interpretation the “due deference” and “great weight” called for by the cases.

In view of the foregoing, this' court need not reach the question of whether the facts here give rise to a claim of estoppel against the Government within the narrow ambit of that doctrine as expressed in such cases as Manloading & Management Assoc. Inc. v. United States, 461 F.2d 1299, 1303 , 198 Ct.Cl. 628 (1972) and United States v. Georgia-Pacific Company, 421 F.2d 92 , 95 passim (9th Cir. 1970).

III. CONCLUSION

For the reasons given above, defendants’ motion to dismiss for failure to state a claim upon which relief can be founded is hereby granted, and plain tiff’s motion for summary judgment in its favor is hereby denied. It is so ordered.

APPENDIX A

The two letters reproduced below are cited in 3 U.S.Code Cong. & Admin. News pp. 5126-5128 (91st Cong., 2d Sess., 1970.)

. The basis for such uncertainty is discussed hereinafter; it is summarized in House Report No. 91-1544 on Public Law 91-581, the Geothermal Steam Act of 1970. 3 U.S. Code Cong. & Admin.News p. 5113 at pp. 5115, 5119 (91st Cong., 2d Sess., 1970) : One reason for the lack of development of the geothermal steam potential of the United States can be directly attributed to the absence of reliable statutory authority to permit its development on public lands. The Department of the Interior has taken the position that it lacks authority to dispose of this resource on lands under its jurisdiction. * * * ;J: Hs sfs >[s sfc In order to obtain an authoritative judicial determination of the ownership of geothermal resources in lands the surface of which has passed from Federal ownership with a reservation of minerals to the United States, a new section 20(b) was adopted by the committee. This directs the Attorney General to initiate an appropriate proceeding to quiet the title of the United States to such resources if and when development of such resources occurs or is imminent. The committee is aware that the Department of the Interior has expressed the view that geothermal steam is not subject to the mineral reservation of the Stockraising Homestead Act of December 29, 1916. The committee is also aware that a contrary view has been expressed. As the opinion of the Department is not a conclusive determination of the legal question, it was the sense of the committee that an early judicial determination of this question (upon which the committee takes no position) is necessary. * * * . United States v. St. Paul M. & M. Ry. Co., 247 U.S. 310, 318 , 38 S.Ct. 525 , 62 L.Ed. 1130 (1918). . Woodwork Manufacturers v. NLRB, 386 U.S. 612, 640 , 87 S.Ct. 1250 , 18 L.Ed.2d 357 (1967). . United States v. San Francisco, 310 U.S. 16 , 22 n. 10, 60 S.Ct. 749 , 84 L.Ed. 1050 (1940) ; United States v. Hendler, 225 F.2d 106, 109 (10th Cir. 1955). . Brown v. Glick Bros. Lumber Co., 52 F. Supp. 913, 916 (S.D.Cal.1943), rev’d on other grounds, 146 F.2d 566 (9th Cir. 1945). . Bowles v. Goebel, 58 F.Supp. 686, 688 (D.C.N.D.1945), aff’d, 151 F.2d 671 (8th Cir. 1945). . United States v. Shirey, 359 U.S. 255, 260-261 , 79 S.Ct. 746 , 3 L.Ed.2d 789 (1959). . See United States v. Union Pacific R. Co., 353 U.S. 112, 116 , 77 S.Ct. 685 , 1 L.Ed.2d 693 (1957) ; Oregon Short Line Railroad Company v. Murray City, 2 Utah 2d 427 , 277 P.2d 798, 802 (Utah 1954) ; 3 Sutherland on Statutory Construction § 6402 (3d ed. 1943) ; 1 Lindley on Mines § 96 (3d ed. 1914). . See 3 Sutherland § 6503. . Tliis history of the development of geothermal energy is taken primarily from J. Brooks, Jr., “Legal Problems of the Geothermal Industry,” 6 Nat. Resources J. 511 passim (1966) and sources cited therein. . 3 U.S.Code Cong. & Admin.News p. 5115 (91st Cong., 2d Sess., 1970). . State of Calif., The Resources Agency, The Economic Potential of Geothermal Resources in California: a Report of the Findings and Recommendations in Response to Senate Resolution 331 (1970) at 11 (Jan. 1971). . E. g., the selected bibliography in id., footnote 12, lists 28 items, of which one is dated 1942, one 1944, and the remainder 1960 or later. One earlier source is N. II. Darton, “Geothermal Data of the United States” (U.S. Geological Survey Bull. No. 701, 1920). . The fact that geothermal steam or associated geothermal resources were not known at the time does not, of course, prevent their reservation to the United States under § 9 of the Stock Raising Homestead Act if they otherwise qualify as “minerals” within the intendment of that provision. See Rowe v. Chesapeake Mineral Co., 156 F.2d 752, 755 (6th Cir. 1946), cert. den., 329 U.S. 776 , 67 S.Ct. 190 , 91 L.Ed. 667 (1946) ; New Mexico and Arizona Land Company v. Elkins, 137 F.Supp. 767, 771-773 (D.N.M. 1956) ; Cain v. Neumann, 316 S.W.2d 915, 922 (Tex.Civ.App.1958) ; 1 American Law of Mining § 3.23 (1972). But see State of Wyoming v. Udall, 379 F.2d 635, 638 (10th Cir. 1967), cert. den., 389 U.S. 985 , 88 S.Ct. 470 , 19 L.Ed.2d 479 (1967) ; Ahne v. Reinhart and Donovan Company, 240 Ark. 691 , 401 S.W.2d 565, 569 (Ark.1966). . But see Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326 , 87 N.E. 504 passim (N. Y.1909), and cases cited therein.