# Appendix — Humboldt Placer Mining Co. v. Andrus > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2088%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 434 U.S. 836 ## Text In The . SUPREME COURT OF THE UNITED STATES October Term 1976 No. 76-1856 HUMBOLDT PLACER MINING COMPANY, Petitioner, Vv. CECIL ANDRUS, SECRETARY OF THE INTERIOR OF THE UNITED STATES OF AMERICA, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VOLUME I A-1 to A-63 William Braly Murray Attorney for Petitioner 1610 Standard Plaza Portland, Oregon 97204 Telephone: (503) 226-3819 INDEX TO APPENDIX VOLUME I Order denying petition for rehearing Court of Appeals for the Ninth Circuit Opinion of the United States Court of Appeals for the Ninth Circuit Case No. 74-2763, 249 F2d 622, January 6, 1977 Summary Judgment, U.S. District Court for the Eastern District of California, Civil S-2755, entered June 12, 1974. Interior Board of Land Appeals Decision December 20, 1972, 8 IBLA 407, IBLA 70-205 Decision of Francis A, Patton, Acting Chief, Office of Appeals and Hearings, June 9, 1970. VOLUME II Decision of Hearing Examiner, Rudolph M. Steiner, March 6,1969 Hearing Examiner's Rulings or: Proposed Findings, March 6, 1969 Requested Findings and Findings Adopted Administrative Procedure Act 5 uScC §557, Agency Findings Common Varieties Act, 30 USC §611l Rule 56, Federal Rules of Civil Procedure - Summary Judgment Page A-2 A-39 A-64 A-91 A-96 A-130 A-132 A-133 A-1 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HUMBOLDT PLACER MINING COMPANY, ) a corporation, and DEL DE ROSIER. )Filed Plaintiffs-Appellants, )Mar. 28, )1977 vs. ) )No. 74- SECRETARY OF THE DEPARTMENT OF THE ) 2762 INTERIOR OF THE UNITED STATES OF ) AMERICA, ) ORDER Defendant~-Appellee. ) Before: MERRILL and HUFSTEDLER, Circuit Judges, and JAMESON, District Judge The panel as constituted in the above case has voted to deny the petition for rehearing. Judge Hufstedler has voted to reject the suggestion for rehearing in banc and Judges Merrill and Jameson have recommended such rejection, The full court has been advised of the suggestion for an in banc hearing, and no judge of the court has requested a vote on the suggestion for rehearing in banc. Fed. R. App. P. 35(b). The petition for rehearing is denied and the suggestion for a eetibaring in banc is rejected. A-2 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HumBoipr PLacer Minina Company, a corpo | ration, and De. De Rosmsr, Plaintifs-Appellants, | 01, 74.0762 V8. SECRETARY OF THE DEPARTMENT OF THE InTE- | OPINION RIOR OF THE UNITED STATES OF AMERICA, Defendant-Appellee. ; [January 6, 1977] On Appeal from the United States District Court for the Eastern District of California Before: MERRILL and HUFSTEDLER, Circuit Judges, and JAMESON,® District Judge MERRILL, Circuit Judge: At issue are appellants’ rights to compensation for the seizure by the United States of appellants’ interests in certain unpat- ented placer mining claims, located on Stuart’s Fork of the Trinity River in Trinity County, California. On June 27, 1957, the United States commenced a condemnation action in the Dis- trict Court for the Northern District of California to secure title to these claims and other property for use in connection with the construction of Trinity Dam and Reservoir. Later, on March 17, 1960, the Secretary of the Interior commenced administrative proceedings to contest the validity of the claims. The jurisdic- tional propriety of these proceedings was challenged but ulti- mately upheld. Best v. Humboldt Mining Co., 371 U.S. 334 (1963). In this action appellants seek judicial review of those proceedings. *Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation. A- 3 2 Humboldt Placer Mining Con-.pany, et al. vs. Appellants’ claims were all located more than fifty years ago, but applications for patents were not made until 1954. The dis- covery originally claimed was of gold, assertedly embedded in the gravel of what is known as the Weaverville Formation on Stuart’s Fork. The appellants’ claims are northeast of the LaGrange mine, which is on the same Weaverville Formation and for many years was operated with apparent success. Before a hearing examiner of the Bureau of Land Manage- ment, appellants asserted that the claims had value not only as a gold placer but also as a gravel deposit. Under the Act of July 23, 1955, 30 U.S.C. §611, deposits of “common varieties” of gravel are declared not to be valuable mineral deposits within the meaning of the mining laws. Thus the facts present four dates having varying points of relevance: that of the patent applica- tion in 1954, that of the effective date of the common varieties act in 1955, that of the taking of the claims by the United States in 1957 and that of the filing of contest by the United States in 1960. Arguments can be advanced in support of any one of them as the critical date for ascertainment of either gold or gravel value. We resist the temptation to resolve the question. Instead, we assume for the purposes of this case that if value existed on any one date, it existed on all. The hearing examiner held that value was lacking both as to gold and as to gravel. His decision was upheld by the Interior Board of Land Appeals (IBLA). United States v. Humboldt Placer Mining Co., 8 I.B.L.A. 407 (1972). Appellants then sought judicial review and revereal of the IBLA decision. The district court granted summary judgment in favor of the Secretary and this appeal followed. We affirm. Gold In support of its contest the United States conducted a com- prehensive exploration program on the claims between 1957 and 1961.1 Four mining engineers and geologists testified before the | : H A- 4 Sec’y of the Depart. of the Interior of the U.S.of America 3 hearing examiner that as a result of this exploration program they had formed the opinion that on none of the claims had there been a valid discovery of gold of value sufficient to meet the prudent-man test. See United States v. Coleman, 390 U.S. 599, 602 (1968), citing the standards set in Castle v. Womble, 19 L.D. 455, 457 (1894): “Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means with a reasonable prospect of success in devel- oping a valuable mine.” In support of their claim of gold value, appellants submitted various reports. The hearing examiner acted well within his dis- eretion as a finder of fact in discounting these reports. Some of them were business records of the appellants, written prior to 1942. While they reflected some significant gold values, they were very general. The appellants also submitted a report by Merrill Yost which included some drill logs and contained evidence of high gold values. This evidence, however, was refuted by the appellee’s sampling conducted in the immediate vicinity of Yost’s excavations and drill holes. Moreover, Yost did not testify and subject himself to cross-examination to support his report, although he was apparently available. In weighing the evidence, the hearing examiner could reasonably have found the appel- lants’ reports to be unpersuasive. Much of appellants’ case was based on the fact that the claims were on the Weaverville Formation, the value of which had been established by the success of the LaGrange mine. Discovery must, however, be made on the claims themselves. The LaGrange prox- imitvy might indeed persuade a reasonable prospector to continue to search for valuable minerals, but he must succeed in his search before discovery occurs. Henault Mining Co. v. Tysk, 419 F.2d 766 (9th Cir.), cert. denied, 398 U.S. 750 (1970). The reason- ably prudent man we are concerned with is the miner who has made his discovery and not the prospector who is still looking. Appellants also rely on testimony by Florian Gibson, a geolo- gist, that the claims had high value placer gold deposits. As to this testimony the hearing examiner stated: “The fantastic gold values reported by Gibson were based on surface samples taken over a five hour period, as con- A-5 ms Humboldt Placer Mining Company, et al. vs. trasted with the extensive exploration program conducted by the Contestant involving several man-years. The samples were assayed by the so-called Douglas process involving the use of unidentified solutions. There is no supporting evidence of the nature of the unidentified solutions or positive evidence of the process by which the gold could be recovered. Gold values averaging one hundred dollars per cubic yard, consist- ing of either coarse or microscopic particles, would surely be identifiable by normal fire assay. The Douglas tests refiect- ing average gold values of one hundred dollars per cubic yard, and as high as two hundred dollars gold per cubic yard of material in place, are simply unworthy of belief.” Appellants criticized the exploratory work of the government as not extensive enough to establish a lack of value. They assert that the government drill holes should have been extended down to bedrock, where gold is most likely to lodge. Appellants, how- ever, mistake the burden of proof in these cases. The burden of nited States in contesting validity is to make out a prima i of lack of value. The burden then shifts to the claim- by a preponderance of evidence, that the claim is ited States v. Springer, 491 F.2d 239, 242 (9th Cir.), 419 U.S. 834 (1974); United States v. Zweifel, 508 1157 (10th Cir.), cert. denied, 423 U.S. 829, reh. U.S. 1008 (1975). The United States here undoubt- established a prima facie case. If anyone had the bur- to bedrock it was appellants in order to rebut the the government. examiner concluded that the United States had its prima facie case of lack of value and that appel- not met the burden of overcoming that case. IBLA, in cEfe ret Toe 4! ae A-6 Sec’y of the Depart. of the Interior of the U.S.of America 5 gravel occur in the claims. Substantial deposits of material suitable for fill and sub-base in highway construction and more limited deposits of recent stream gravels suitable for use as concrete aggregate do occur on the claims. However, these deposits do not constitute valuable mineral deposits unless they are shown to be marketable. There is not a shred of evidence in the record that there has ever been any demand for the subject sand and gravel deposits, or that any portion thereof has ever been removed from the claims for use in concrete aggregate or for any other purposes. The fact that there is a very limited annual market in small towns in Northern California which have other existing sources of supply, and the possibility of the future con- struction of highways and dams in the area, do not consti- tute evidence of a demand for these particular deposits. In the absence of more specific evidence that these particular sand and gravel deposits could have been removed and dis posed of-at a profit on or before July 23, 1955, it must be concluded that the same do not constitute valuable mineral deposits within the meaning of the mining laws.” marketed at a profit prior to July 23, 1955. Moreover, appel- lants have failed to establish by substantial and probative Appellants, citing Verrue v. United States, 457 F.2d 1202, 1204 (9th Cir. 1972), argue that lack of sales of gravel from the claims figures unduly in the findings of the hearing examiner and IBLA to the effect that marketability of the material had not been established. In Verrue we held that “positive evidence in the record of marketability” was not offset by evidence of the lack of sales of material and the availability of comparable mate- rial from other sources.*? Verrue does not apply here. Here there was no positive evidence of marketability to to overcome the gov ernment’s prima facie case. Further the determination of IBLA that the government had made out a prima facie case of lack of discovery was supported by testimony disparaging the quality of the gravel on the claima F t see FE A-8 Sec’y of the Depart. of the Interior of the U.S.of America 7 The first record citation is apparently an error. The second has reference to the following testimony of government witness, George Scarfe, on cross-examination: “Q Now, do you agree with this statement that: ‘Sand and gravel deposits along the Trinity River and Stuart’s Fork are being considered as sources for concrete aggregate for the Trinity and Lewiston Dams and tunnel lining, while gravels which occur upon land contained in the above Placer Mining locations are being considered as the sources to the required impervious embankment material for the Fairview Dam.’ Do you agree with this statement that the material on these claims among which are those that you examined are suitable for this particular purpose? A They said they are being considered. I agree, well, I have no reason to disagree. I hadn’t seen this report.” Finding No. 6 is to read as a paraphrase of this testimony; it is the only construction supported by the record. So construed we do not find it to conflict with the Board’s decision. See Ideal Basic Industries, Inc. v. Morton, No. 74-2298 at 5-8 (9th Cir. Sep. 28, 1976). Judgment affirmed. PERNAU-WALSH PRINTING 0O., SAN FRANCISCO 1-13-77—410 A-9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA HUMBOLDT PLACER MINING COMPANY, ) a corporation, and DEL DE ROSIER. ) Civil Plaintiffs, )S-2755 Vv. ) ) ) ) ) SECRETARY OF THE DEPARTMENT OF THE INTERIOR OF THE UNITED STATES OF AMERICA, Defendant SUMMARY JUDGMENT Defendant's Motion for Summary Judgment having been submitted to the Court on Aug- ust 30, 1973, and the Court having con- sidered the pleadings in the action, de- fendant’s Memorandum of Points and Author- ities, dated May 22, 1973, Plaintiff Hum- boldt’s Motion for Summary Judgment in Response to Defendant's Motion, filed Aug- ust 13, 1973, Defendant's Memorandum in Opposition to Plaintiff's Motion for Sum- mary Judgment and in Response to Plain- tiff’s Opposition to Defendant's Motion for Summary Judgment, filed August 28, 1973, and the certified administrative record, and having found that there is no genuine issue as to any material fact, and having concluded that defendant is entitled to judgment as a matter of law, it is hereby ORDERED, that defendant's Motion for Summary Judgment is in all respects granted, and it is further ORDERED, ADJUDGED AND DECREED that plaintiffs’ Complaint in the above entitled action be and hereby is dismissed with A-10 prejudice. Dated: [June 12, 1974] /s/ a anh P. Wilkins UNITED STATES DI JUDGE UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF LAND APPEALS 4015 Wilson Boulevard, Arlington VA 22203 UNITED STATES Vv. HUMBOLDT PLACER MINING COMPANY and DEL DE ROSIER IBLA 70-205 Decided December 20, 1972 Appeal from decision (California Con- test 10-474) of the Office of Appeals and Hearings, Bureau of Land Management, hold- ing mining claims null and void. Affirmed. Mining Claims: Discovery: Marketability~-- Mining Claims: Common Varieties of Minerals: Generally--Mining Claims: Placer Claims To satisfy the requirements for dis- covery on a placer mining claim located for common varieties of sand and gravel before July 23, 1955, it must be shown that the materials within the limits of the claim, by reason of accessibility, bona fides in development, proximinty to market, existence of present demand, and other factors, could have been extracted, removed, and marketed at a profit as of that date. A-11l IBLA 70-205 Mining Claims: Discovery: Marketability The Government may raise a presumption that the material on mining claims could not be extracted and marketed at a pro- fit by introducing evidence that the Claimant has done nothing to develop the claim, Mining Claims: Contests--Mining Claims: Discovery: Generally Government mineral examiners have no affirmative duty to search for indica- tions of a discovery on a mining claim; nor do they have a duty to go beyond examining the discovery points of a Claimant. Their function is to examine the discovery points made available by a claimant and to verify, if possible, the claimed discovery. 8 IBLA 407 Rules of Practice: Appeals: Burden of Proof--Contests and Protests: Generally Where the Government has made a prima facie showing of a lack of discovery, the burden of producing preponderating evidence of the existence of a valuable mineral desposit sufficient to support a discovery is upon claimant. Rules of Practice: Evidence The weight and creditibility of evi- dence are matters properly considered by an Administrative Law Judge in the first instance. His findings, when in accord with the preponderance of the substantial and probative evidence adduced, will not be disturbed. APPEARANCES: William B, Murray, Esq., Portland, Oregon, for the appellants; A-12 IBLA 70-205 Charles F, Lawrence, Esq., Office of the General Counsel, Department of Agriculture, San Francisco, California; Burton J. Stan- ley, Esq. Office of the Solicitor, Depart- ment of the Interior, Sacramento, Califor- nia, OPINION BY MR, FISHMAN The Humboldt Placer Mining Company and Del de Rosier have appealed from a decision dated June 9, 1970, rendered by the Office of Appeals and Hearings, Bureau of Land Management, hereinafter termed the "Bureau decision.” That decision affirmed a decis- ion of a Hearing Examiner 1/ dated March 6, 1969. which declared the placer mining Claims in issue null and void for lack of a discovery of a valuable mineral deposit on any of the claims, The Humboldt Placer Mining Company is a corporation which was organized in 1896. All of its mining claims in issue were lo- cated prior to 1920. On November 19, 1954, Humboldt filed a patent application for the claims in issue, On June 27, 1957, the United States commenced an action in the District Court to condemn certain pro- perty which included the land embraced within the claims in order to construct the Trinity River Dam and Reservoir. After obtaining a writ of possession in the District Court, the United States, on I7 The United States Civil Service Com- mission has changed the title "Hearing Examiner" to “Administrative Law Judge.” 37 F. R. 16787 (August 17, 1972). Here- inafter that official will be referred to as “Judge”. A-13 IBLA 70-205 May 15, 1958, instituted a contest pro- ceeding in the local Land Office of the Bureau seeking an administrative deter- mination of the validity of the unpatented mining claims. Humboldt thereupon brought suit to enjoin the administrative proceed- ings, contending that the proper jurisdic- tion to determine the validity of the claims was in the courts. The issue of jurisdicticn was ultimately decided by the United States Supreme Court — Best v. Humboldt Placer Mining C 371 U.S. 337 (1963), in which it was held chet the issue of the validity of the claims was to be resolved by the Department of Inter- ior. In the interim, contestees prosecuted an appeal to the Secretary of the Interior from a decision rejecting their answer to an amended complaint, and denying their motion to dismiss the complaint. The Secretary reinstated the contest proceed- ings by decision United States v. Humboldt Placer Mini ny and Del De Rosier, K-30058 (Bape) Checembor Te, 1864) The contestant, the United States, filed a second amended complaint on July 20, 1966, alleging in part as follows: a. There is not disclosed within the boundaries of the mining claims mineral materials of a variety sub- to the mining laws, sufficient in quantity, quality, and value to constitute a discovery. b. The land embraced within the Claim or claims is nonmineral in character. c. With res=-ct to the public lands in each and -il of the mining claims identified in Paragraph III of this A-14 IBLA 70-205 Second Amended Complaint, contest- ant charges separately and collec- ively that each 10-acre legal sub- division or part thereof is non- mineral in character and therefore should be excluded from the respec- tive alleged mining claims. ad. The Cademartori placer claim, as described in the location notice, embraces incontiguous tracts of land, and is therefore contrary to law. Contestees answered the second amended complaint generally denying the allega- tions contained therein, A hearing was held on November 28, 29, 30, and Decem- ber 1, 1967, and on January 8 and 9, 1968. All parties were represented by counsel at the hearing, The contested claims are located on the south side of Stuart Fork of the Trin- ity River, in Trinity County, California, upstream from the recently constructed Trinity Dam, The most significant geo- logical characteristic in the area is the Weaverville Formation with a reported depth where greatest of over 800 feet, It is an old tertiary river channel which has been bisected by streams and has been preserved by the relative uplifting of the older hard and resistant sediments around it, The tertiary gravels are un- consolidated, deeply weathered, red-col- ored clay gravels resulting from volcanic activity and reworking, and which are estimated to be approximately 35 million years old, The claims also expose some recent and present stream gravel, and some ultramafic and granitic intrusive A-15 IBLA 70-205 rocks. The bedrock series in the area are the Bragdon Formation (Mississippian), Copley Greenstone (Devonian), and Salmon Schist,. The principal issue on this appeal is whether the evidence presented at the hearing established a discovery of a valuable mineral deposit on any of the claims within the meaning of 30 U.S.C. §22 (1970). Appellants assert that the evidence supports such a discovery with respect to both gold and gravel on each claim, A discovery exists “where minerals have been found and the evidence is of such a character that a person of ordinary pru- dence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in id developing a valuable mine ***,” Castle v. Womble, 19 L. D. 455, 457 (1894); see n tates v. Coleman, 390 U.S. 599 (1968). In applying this rule to the present case, we are of the opinion that the pre- ponderance of the credible evidence fails to support a discovery on any of the claims, Six qualified geologists and engineers testified for appellee. None was called by appellants, and only one geologist testi- fied on behalf of Archibald,:a party per- mitted to intervene in the hearing.2/ 27 3. 0. Archibald was allowed to inter- vene at the hearing and assert an interest in some of the claims under a lease agree- ment. However, he did not appeal and is no longer a party to the proceedings A-16 IBLA 70-205 The assay methods used for the geologist called by Archibald were not explained. GRAVEL Common varieties of sand and gravel were withdrawn from location under the mining laws on July 23, 1955. See/30 U. S.C. §611 (1970). Consequently, to satis- fy the requirements for discovery on a placer mining claim located for common varieties of sand and gravel before July 23, 1955, it must be shown that the mater- ials within the limits of the claim, by reason of accessibility, bona fides in development, proximity to market, exis- tence of present demand, and other factors, could have been extracted, removed, and marketed at a profit as of that date. United States v. Coleman, supra, Foster v. Seaton, 271 F2d 836 (D.C. Cir. 1959); Barrows v. Hickel, 447 F2d 80 (9th Cir. 1971); United States v. Isbell Construc- tion Co., 4 IBLA 205, 79 I.D. 385 (1971). e the record discloses that gravel was an abundant commodity on the claims (Tr. 250, 344, 957), there is no evidence of any sales of gravel from the deposits. George W. Nielsen, a mining engineer em- ployed by the Bureau of Land Management and called by appellee, testified that at no time has the Weaverville Formation been mined and processed for the production of sand and gravel. (Tr 960). He further testified that the Weaverville Formation, because of weathering, is generally too dirty and too soft to make concrete aggre- gate, although it oculd be used for sub- base and fill material (Tr 961). Robert Middleton, a mining engineer called by appellee, testified that he examined the A-17 IBLA 70-205 Claims (Tr 292), and further testified that no aggregate has been produced from the claims, and that there was no evi- are on the ground of any removal. (Tr This evidence was sufficient to estab- lish a prima facie case that the gravel on the claims could not have been marketed at a profit prior to July 23, 1955. As stated in United States v. E. A. Barrows and Ester Barrows, 76 I.D. 299, 306 (1969): ***(Wjhile the fact that no sale had been made at the critical time is not controlling in itself, the fact that nothing is done toward the development of a claim after its location may raise a presumption that the market value of the minerals found therein was not - sufficient to justify the expenditure required to extract and market them, (Citing cases) Where, as in the present case, the Govern- ment has made a prima facie showing of a lack of a discovery, the burden of produc- ing preponderating evidence of the exis- tence of a valuable mineral deposit suffi- cient to support a discovery is upon claim- ants. Foster v. Seaton, supra; United States v. Wayne Winters ab fa Piedras Del Sol wining ompany, ‘ I.D. In an attempt to meet this burden, appel- lants called James R, Miller, a marketing consultant, to testify. He expressed an opinion that gravel could have been mined from the claims and removed and disposed of at a profit prior to July 23, 1955 (Tr 721). However, there is no evidence in the record that Miller was in the Trinity County Area in or prior to 1955); nor was his testimony A-18 IBLA 70-205 based upon personal knowledge. Cf. Verrue v. United States, 457 F2d 1202 )Sth Cir. 1972). He admitted that he did not examine the sand and gravel on the claims (Tr. 693, 734) and it is apparent from the record that his opinion was based upon conversations with other persons who were not called upon to testi- fy (Tr 694, 735) and literature which he studied on the market potential of sand and gravel generally in the State of Cali- fornia and the United States. Moreover, Miller qualified his opinion by condition- ing it on the ability to commercially pro- duce gold (Tr. 719, 721), and stated that he was “not prepared to say whether the amount of gold that"*s been evidenced would be a commercial operation” (Tr 721). In expressing his opinion, Miller failed to articulate whether he was re- ferring to gravels of the type which can only be used for fill and similar uses, or whether he was referring to gravels of the type which could be used to make concrete aggregate. The distinction is crucial, In determining the marketability of mater- ials on a mining claim, sand and gravel which can only be used for fill purposes or for other comparable purposes cannot be considered since such materials have never been locatable under the mining laws. See United States v. E. A. Barrows and Esther Barrows, supra, and cases cited therein. Appellants, in our view, failed to over- come the prima facie case established by the Government, Their evidence was too vague and inconclusive to establish that locatable gravels: from the claims in issue could have been extracted and marketed at a profit prior to July 23, 1955. More- over, appellants have failed to establish a A-19 IBLA 70-205 by substantial and probative evidence the existence of a demand for the gravel as of that date from these claims. United States v. William A. McCall, Sr., et al., GOLD Mining engineers and geologists conducted on behalf of the contestant, a comprehen- sive mineral examination on the claims from 1957 to 1961. Samples were taken in accordance with accepted standard proced- ures by excavating churn drill holes, auger holes, surface channels, pits and trenches. The samples were taken at points selected by contestant's engineers and at points which contestees had indicated in their patent application the existence of signif- icant mineral values, The samples were assayed in accordance with accepted stan- dard procedures, The record discloses the following data with respect to each claim : Ukiah Placer Mining Claim ee of seven channel and trench sam- ples taken from this claim contained no gold values. (Contestant's Exhibit Q). The remaining four samples contained gold val- ues ranging from .076 to 5.65 cents per cubic yard. An auger hole drilled to a depth of 25 feet revealed gold values of -142 cents per cubic yard, Covelo Placer Mining Claim ee of nine channel and trench samples taken from this claim revealed no gold values (Contestant’s Exhibit F). The re- maining six samples contained gold values ranging from .192 to 1.40 cents per cubic yard. An auger hole 25 feet in depth re- vealed gold values of.045 cents per cubic yard, A-20 IBLA 70-205 Humboldt Placer Mining Claim - Three channel samples were taken from this claim. Two of the samples contained no gold (Contestant's Exhibit 0). The third channel sample contained gold values of .549 cents per cubic yard. An auger hole drilled to a depth of 46 feet revealed gold values of .071 cents per cubic yard. The auger hole was put down on a deposi- tional contact of the Weaverville Formation on the Bragdon. White Placer Mining Claim “Three channel samples taken from present stream gravels on this claim contained gold values rangaing from .107 to .688 cents per cubic yard (Contestant’s Exhibit R). Two auger holes, drilled to depths of 17 and 57 feet, revealed respective gold values of .049 and .095 cents per cubic yard, Tanne Placer Mining Claim e contestant tok Your samples from this claim, (Contestant‘s Exhibit J.) A channel sample taken from the exposed Weaverville Formation contained .576 cents gold per cubic yard. An auger hole, 21.8 feet deep, revealed no gold values. Two churn drill holes, each 45 feet deep, re- vealed gold values of1.13 cents and .157 cents per cubic yard. Furnell Placer Mining Claim Five of the sixteen samples taken from this claim contained no gold. Six samples ranged from .3 to 1.1 cents per cubic yard. A sample from a channel cut on a slope along a road had a value of 8.3 cents per cubic yard, Four sample shafts were put down in recent gravels along Slate Creek which runs northeasterly through the claim. A sample from a shaft 2.8 feet ot bedrock in sec. 3 Ae21 IBLA 70-205 showed a cubic yard value of 17.4 cents. In sec, 2, a shaft showed the following values per cubic yard: the top 3.2 feet, 1,4 cents; the next 4.7 feet, 42.8 cents; and the last foot in cemented Weaverville bedrock, 2.1 cents. In a third shaft the values per cubic yard were: the first 6 feet, 0.5 cents, the next 1,2 feet 49 cents; and th last foot in cemented bed- rock, 2.1 cents. The sample from the fourth test shaft went down 3.4 feet through to cemented bedrock and had a value of 67 cents per cubic yard. (Contestant's Exhibits D TBLA © ngs, when in accord with the preponderance of the substantial and probative evidence adduced, will not be disturbed. Id. XIII: 4/ XVII-XVIII Contestees finall argue that the ad- ministrative action taken by the Depart- ment of the Interior in declaring the mining claims invalid amounts to an un- lawful exercise of plenary power, and a taking of property without compensation, all in violation of the Constitution and laws of the United States. Thig argument has no merit, The United States Supreme Court in Best v. Humboldt Placer Mining Co., supra, had stated that “the Department Es been granted plenary authority over the administration of public land, including mineral lands***," The Court also clearly recognized that the determination of the validity of the min- ing claims was an issue to be resolved in administrative proceedings before the Department. We are of the opinion that this issue has b een decided in accordance with due process of law. After due consideration we adopt as our own the Judge’s rulings on each of the 47 This relates to parts XVII and XVIII of appellants’ brief. All other Roman numbers deal with identical designations in appellants’ brief. Paragraphs designated XII, XIV, XV, and XVI of appellants’ brief were con- sidered under the heading of "Gold" and "Gravel". A-3 7 IBLA 70-205 proposed findings of fact submitted by appellants, Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed, /s/ Frederick Fishman ~ Frederick Fishman,Member We concur: /s/ Douglas E, Henriques Douglas E. Henriques, Member ¢2/ Joseph W. Goss osep . ss, Member DECISION OF ACTING CHIEF OFFICE OF APPEALS AND HEARINGS Mining Claims; Discovery 3413 To constitute a valid discovery on a placer mining claim it must be shown that minerals have been found within the limits of the claim in such quality and of such quantity as to warrant a man of ordinary prudence in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine; where a Claim contains deposits with negligible gold values or deposits with somewhat better gold values which are very limited in quantity, there is no suffi- cient prospect of success to warrant expenditures to that end, A-38 Office of Appeals Alleged secret solutions permitting greater extraction of gold from low- value deposits, of which no evidence was introduced by the mining claim- ants showing the nature of the solu- tions or that they have been actually used in mining operations in recover- ing greater values from low-grade deposits than can be done by conven- tional mining methods, are not suffi- cient to show that expenditures would be justified with the expectation of developing a paying mine, especially where no showing has been made that minerals of such quality exist in such quantities as to make a profitable operation reasonably possible. To satisfy the requirements of discovery on placer mining claims located for sand and gravel before July 23, 1955, it must be shown that the deposits within the limits of each claim could have been extracted, removed and mar- keted at a profit as of that date, and where the evidence shows that the limit- ed market in the area had been supplied from existing sources and there is no evidence that the claims were developed for sand and gravel, the claims are properly declared null and void. A-39 Office of Appeals June 9, 1970 UNITED STATES DEPARTMENT OF THE INTERIOR Bureau of Land Management Washington, D. C. 20240 DECISION United States, Contestant ) Contest No, 10-747 ) (Sacramento) V. ) Ukiah, Covelo, Humboldt, Humboldt Placer ) White, Tannery, Tannery Mining Company, a) No. 2, Jackson, Cademar- corporation, and ) tori, Furnell, Last Del de Rosier, ) Chance, Lewis. Enough Contestees 1/) and Faurell placer ~ mining claims, situated in secs. 5,6,and 7, T. 34 N., R. 8 W.; and secs. 1, 2 and 3, T.34 N., R. 9 W.3 and-secs. 34 and 35, T. 35 N., R. 9 W.; all in M.D.M., Trinity County. Calif. Decision Affirmed The Humboldt Placer Mining Company and Del de Rosier have appealed from a decis- ion of a Hearing examiner dated March 6, bl > al } + alana y J. O. Archibald, a sublessee of a United States v. Humboldt Placer Mining Co. essee of certain of the mining claims et al., Contest No, 10-747 (Sacramento involved, was allowed to intervene and (June 9, 1970) was representated by separate counsel at the hearing. Archibald has not filed an appeal. Accordingly, whatever rights he may have had have terminated and he is no longer designated as a party to the pro- ceeding. ge a oe oem A-40 Office of Appeals June 9. 1970 1969, which declared the above-identi- fied placer mining claims null and void for the lack of a discovery of a valuable mineral deposit on any of the claims and which rejected the mineral patent appli- cation originally filed for the claims on November 19, 1954. The record shows that in June 1957 the United States filed a condemnation action in the United States District Court for the Northern District of Cali- fornia to obtain possession of and title to certain property, including the sub<- ject placer claims, required for the con- struction of the Trinity River Dam and Reservoir in California. Thereafter, on May 15, 1958, the State Supervisor, Bureau of Land Management, filed a con- test complaint against the subject claims. The contestees contended that jurisdiction to dtermine the validity of the claims was in the courts, Ultimately this question was resolved by the United States Supreme Court which held that resort to condemna- tion in order to obtain possession of the mining claims did not preclude the United States, as titleholder, from initial ad- judication of their validity by administra- tive procedures, Best vy. Humboldt Placer : Mining Company, 371 U.S. 334 (1963). Mean- e, the contestees appealed to the Secretary of the Interior from a decision rejecting their answer to an amended com- plaint and denying their motion to dis- miss the complaint, By decision of Decem- b er 16, 1964, United States v, Humboldt Placer Mining Co and Del de sier, A<-30055 (Sipp.), the Secretary of the Interior reinstated the contest proceedings. A-41 Office of Appeals June 9, 1970 A second amended complaint was filed by the contestant on July 20, 1966, charg- ing: (a) there is not disclosed within the boundaries of the mining claims min- eral materials af a variety subject to the mining laws, sufficient in quantity, quality, and value to constitute a dis- covery; (b) the land embraced within the claim or claims is nonmineral in charac- ter; (c) with respect to the public lands in each and all of the mining claims iden- tified in Paragraph III of this Second Amended Complaint, contestant charges separately and collectively that each 10- acre legal subdivision or part thereof is nonmineral in character and therefore should be excluded from the respective alleged mining claims, and (d) the Cade- martori placer claim, as described in: the location notice, embraces incontiguous tracts of land, and is therefore con- trary to law. Contestees filed a timely answer to the second amended complaint. A hearing was held on November 28, 29, 30, and De- cember 1, 1967, and on January 8 and 9, 1968, All parties were represented by counsel at the hearing, The contested claims are on the south side of Stuart Fork of the Trinity River, in Trinity County, California, upstream from the recently constructed Trinity Dam, At the time of the hearing, por- tions of some of the claims had been inun- dated by water of Clair Engle Lake. The Tannery No, 2 was located in 1901, the Furnell was located in 1919, and the other eleven named placer claims were lo- cated in the 1890*s, Other physical features frequently eeferred to are Tannery Gulch, Slate Creek, and Smith Gulch, ieee ne ee te as ee oe eee ee ee Nh en te npr ea ee eS eo sarareetonessneyhany A-42 Office of Appeals June 9, 1970 The geology of the area is sketched on Exhibit B in various colors. It is based upon a geological reconnaissance of the general area of the claims. The most extensive geological feature is the Weaverville formation with a reported depth where greatest of over 800 feet. It is an old Tertiary river channel which has since been bisected by streams, and has been preserved by the relative up- lifting of the older hard and resistant sediments around it. The Tertiary gravels __ are unconsolidated, deeply weathered, red colored clay gravels resulting from vol<- canic activity and reworking. The claims also expose some recent and present stream gravels, and some ulta mafic and granitic intrusive rocks. The bedrock series ‘in the area are the Braqdon forma- tion (Mississippian) , Copely Greenstone (Devonian), and Salmon Schist, There has been exploratory activity in the area during the past 70 years directed primarily toward the recovery of gold from the Weaverville formation and more recent stream gravels, The minerals most frequently mentioned at the hearing were gold, and sand and gravel, The have reviewed carefully the entire record made at the hearing, the Hearing Examiner*s decision, and the appellants’ statement of reasons for their appeal. The testimony will be summarized herein only to the extent deemed necessary. The Hearing Examiner's summarization of the testimony pertaining to the exten- sive testing of the contested claims by the contestant's mineral examiners did not mention specifically the sampling that was performed on the Cademartori, Jackson A-43 Office of Appeals June 9, 1970 and Furnel’ claims, 2/ It is not to be inferred that the Hearing Examiner did not consider the testimony relating to them. The appellants contend that the Hear- ing Examiner erred by failing to give reasons for rejecting their affirmative defenses, which were set forth in their answer alleging essentially (1) that the claims were taken without just compensa- tion in violation of the Fifth Amend- ment of the Constitution; (2) that the contestees were denied trial by jury; 27 Cademartori Placer Mining Claim, The Claim embraced two incontiguous tracts, Contestees at the hearing abandoned one of the tracts, claiming that portion which comprises the N1/2NE1/4 sec. 3, and the NW1/4NW1/4NW1/4 Sec. 1, T. 34 N., R. 9 W., M.D.M. (Tr. 153, 316-317). In the retained portion of the claim three samples had been taken. A channel cut in an 8 foot bank of weathered Weaverville formation contained gold values of .8 cents per cubic yard. A pit sample from a gully in Irish Gulch revealed gold values of 1.2 cents per cubic yard. A channel sample along an old ditch showed nil, (Exhs. D-D and E-E, Tr. 460-461 and 470-471.) — Jackson Placer Mining Claim, Eight samples taken from this claim showed gold values ranging from 0.5 to 34,8 cents per cubic yard, The next highest value was 8.5 cents per cubic yard, The highest came from a test shaft put down by the mineral examiner in recent gravels in Slate Creek. (Exhs. D-D. E