The opinion
CHAMBERS, Circuit Judge
(dissenting) :
The majority notes that both the prudent man test and the marketability test would have been satisfied under the circumstances that existed at the time of the administrative hearing. It then recognizes the Secretary’s determination that these conditions did not exist until 1960.
What changed between 1955 and 1960 ? The quantity and quality of material on the Barrows’ claim surely has not changed. Accessibility and proximity to market are substantially the same (the claim is and was located one-half mile from a major town in the market area and on the major public road in the area).
The market demand has changed. It increased five fold, while available material decreased due to the increased demand. This demand was created by the completion of Big Bear Lake, a vast recreation area in close proximity to the Los Angeles area. Lakes of this size are not planned and created overnight. A prudent man would have known of the lake and would have foreseen the almost certain increase in market demand for construction material occasioned by the lake. No speculation is involved.
Thus, I dissent.