Petition for Writ of Certiorari — Snyder v. Hickel

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. . “ia ve oe . of UIICe- supreme Court, US

LIBRARY. ie ae

SUPREME COURT. 1) & soo at MAY 13 S69

L.. JORN F. DAVIS. CLERY

a z — Se ns

+ . -\ De THE

| Supreme Court of the United States

OCTOBER TERM, adil G69

ae

RutTH SNYDER, ET AL., Petitioners,

V. ‘

Wa ter J. HicKEL, Secretary of Interior, Respondent.

__ PETITION FOR WRIT OF CERTIORARI TO THE

‘UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

Toanont & PucH

—s << By Bae 0. Toaont

. Wuuiam K. Strona

JoHN P. Frank

MicHaeL J. LAVELLE

® 114 West Adams Street |

Phoenix, Arizona 85003

Counsel for Petitioners

2s,

>

Press or Byron S. ADAMS Privtrnc, Inc., WASHINGTON, D. C.

SS,

bY: INDEX @ |

% : } : e es | | _ Page

Opinion. Below MTC Tie, tee eee i

Jarisdjbtion Ps es retre. Sin aweiage e

/ Question Presented ines ers ress eiecvaveve

Statute Involved -............005. whee e waneaeees 2

‘Statement _ = ero re re z , : es ee aoe

A. The Claim and the Inferior "Dipastepict re.

NI Fie ds his oa Son end ees rn ss anens =

\B. The Distriet Court ieee eesee ea Pye ed were oe

..The Court of Appeals eT PES sbvesnee 5

Rea ons for Granting ~~ Writ ..... Me beeees sega «+6

Oodeliinest hg ine Sree CAN ere pare ene ee ee 3 12

Apprenprx A—Opinion of Tenth'Circuit and Opinion on ©

Rehearing En Banc ........ ewhweday kan sins la

AppenpIx B—Opinion of District Court Netreene eau 4a

Appenprix C—Opinion on Appeal to the ecm ad of

NN oo Peay evackehcaes4endeet Pio vdiaa ee ees 16a

Apprenpix D—Opinion = Appeal to the Solicitor for.

Land Appeals ....... SRE OP re, ee TONE 23a

_ APPENDIX E—Opinion of Hearing Examiner ......... 37a

* Appenprx: F—The Mineral Location Act of 1872, 41

Stat. 497, 30 U.8.0. § 22 oc.ccecpsesecceecereN .. 50a.

Fr Indek Continued

CITATIONS

Cases: : ‘ Page

. Adams v. United. States, 318 F. od 861 (9th Cir. 1963).. 8

‘Best v. Humboldt Mining Co., 371 US. 334, 83 S.Ct. 379,

os, BR, ae Se RAR openness Svea rescence 8

Cameron v. United States, 959 US. 450, 40 S. Ct. 410,

OE Dic: ts SCOR, 5 os oh nme oe wens Week obevesaee 5,8

Castle v. Womble, 19 L.D. 455 (1894 ENE Py eg 8

Converse v. Udall, 399 F.2d 616 (9th Cir. 1968), cert.

denied, No. 746, Oct. Term 1968, 89 S. Ct. 635

ee Re Ere peer 6, 8, 9, 10, 11, 12

Foster v. Seaton, 271 F.2d 836 (D.C. Cir. 1959) bees 8°

. United States v. "Black, “64 LD. fo eee 8

United States v. Coleman, 390 U.S. 599, 88 S. Ct. 1327,

..20.L. Hd. 2d 170 (1968) ........... 2, 5, 6, 7, 8, 9, 11, 12.

United States.v. Smith,.66 ID. 169 (1959) a eenes 8

United States v. Heirs of Stack; A-28157 aac 8

United States v. Strauss,.59 I.D. 129 awed ae,

bwin AND p Ruues: ae ; |

28 U.S.C. § 1254(1) ...... picepaaecwes Ais Manes 2

The Mineral Location Act of 1872,.41 Stat. 437, 30.

WR Oe ines as 2

MISCELLANEOUS: , | ° me

“1 Amer. Law of Mining § 4.62 (1967) ............03% 8

Gower Federal Service—Mining, Transmittal 56 (i968) 10

oer

-

INTHE .\ °

_ Bapeeme Court uf the United States

eo OctoBER TERM, 1968

No.

. Ruta Snyper, ET AL:, Petitioners, -

v.

WaAtter J. Hicket, Secretary of Interior, Respondent.

r)

e

PETITION FOR WRIT OF CERTIORARI TO THE |

"UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

This is 4 petition tor a writ of coesiorad’ to review

the judgment. of the- United States Court of Appeals

for the Tenth Circuit entered in this case on May 24, . |

1068, rehearing denied February 12, 1969.

t OPINION BELOW

' The opinion of the Court of Appeals ind the opinion

on rehearing are not oe reported and are attached as

Appendix A. The same is true of the opinion of the

district judge, which is attached | as Appendix B.

“ée

vO s “ay

2 , = fee

JURISDICTION si

‘The original opinion of the Court of eeciigs as ,

» noted above, was: filed on May 24,1968. A rehearing |

* en bane was authorized, and after argument the matter

was redecided on February 12, 1969. The jurisdiction

of this-Court is invoked ‘under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the ‘‘marketability test?’ applies to mining

claims’ for valuable metallic minerals; and if sg,

whether the test requires immediate commercial feasi- “»

bility, and how and when “‘marketability”’ is’ to. be »

determined. ;

STATUTE INVOLV .

The Act of May 10, 1872, 17 Stat. 91, 30 U.S.C.

§ 22 (App. F) provides in §1 that citizens may enter

and explore the public domain and, if they find ‘‘valu-

able mineral deposits,’’ may obtain title in designated

ways. ? age

STATEMENT |

This case arises from a mining claim. The Secre-

tary of Interior in substance held the claim invalid, a

decision which was reversed by the Federal District

- Court: While the matter was pending in the Court

of Appeals, this Court decided United States v. Cole-

-man, 390 U.S. 599, 88 S. Ct. 1327, 20 L. Edy 2d 170

(1968), hereafter referred to as Coleman. ~The Court -

’ of egg? epic summarily reversed the District

Court, on the assumption that this was required by

Coleman. 1A petition for rehearing en bane was al-

lowed, but after the rehearing, the Court stood on its

earlier decision without an independent. opinion.

;

;

: - 3

A. The Claim‘and the Interior Department Procepdings

On July 10, 1941, petitioners’ predecessor, an in-

dependent prospector whose widow is the lead peti-

* tioner here, located a Colorado mining claim for valu- -

able minerals, and on September 16, 1941, filed an

. appropriate location notice (T. 4). The tand was ‘at

least subjeet to location, for vanadium-uranium pur-:

poses. In recognition .of its obvious value for’ this

purpose, in 1948: the Government withdrew from min- ‘

eral location a large tract, of which this was a part,

for mineral exploitation by the Atomic Energy Com-

mission. That withdrawal was subject to valid existing «

rights.” In 1958, the petitioners produced and sold to.:

the Commission ‘a substantial quantity of these ores

from their claim (T. 250-55). : . ;

In order pro] erly to be paid ‘by the Atomnte Energy

Commission for the minerals develaped and produced,

petitioners needed a certificate of title from the Bureau

of Land Management. This the Bureau refused, in-

stead challenging the validity of their claim.

The matter was heard in the Interior Departmenit i in

1961, with the Government as contestant. Two expert

witnesses appeared for the Government and testified

that no ‘‘discovery’’ had been made prior to the date

of withdrawal.

This entire matter diniiide upon the standard of dis. >

covery applied by these two experts, and upori the basis

of their testimony, since the Government had no other

witnesses. The substance of their testimony, as later

summarized by the District Court, was that in order to

make a. ‘discovery within the contemplation of the .

statute, there must “he a discovery of minerals of

sufficient ‘commercial value to justify ing them.

4

»

wake an expectation of profit. ” The Panes is ; filly

quoted in the opinion of the Disffict Court, App: B,

infra; the standard they applied was that the claim

. was not valid until actual production of ore,was in

hand. The Seerétary of Interior affirmed the negative

staff conclusion without ever coming to grips with

the question of whether the proper standard had been

applied by the Government witnesses, and the claim was

thus disallowed.* '

Assuming that the standard. of sniseeabiilie- used

by the experts is correct, this mine was located in 1941

and the withdrawal was made in 1948. The Govern- .

ment witnesses used a standard of marketability based

‘on analysis of costs of production, which in turn was

‘based gt $20 a.ton. This cost figure was bas&d on a

1951-61 schedule (T. 215). The Government did not

hh to have any cost information for the pre- °

withdrawal period, ’and instead, the witness used his

. current knowledge and information (T. 115, 159, 161).

<3 “a

B. The District Gourt ° 6 ¢

The District Court reversed the Interior Department |

and allowed the claim. It found, first, that the expert

witnesses on which the Governffent relied were not

‘ qualified. We put this aside on the assumption that

this kind of particular judgment is not sufficiently sub- -

‘stantial to bring here on certiorari.

; *A hardypoint in this case is that the Interior. Department

: opinions did not focus on the standard of discovery actually ap-

plied by the only Government witnesses. The major Interior

opinion assumes the prudent man test and does not allude fo the -

experts’ testimony:in this regard. Judge Chilson at tlie District

Court cut through the froth on top to the substance of the evidence. |

Appendices 'G, D, and E are the opinions of the Secretary, the

Solicitor, and the Hearing Officer, nn:

. But the District Court also rested its decision on two

other, completely independent grounds. As to the

largest question in the case, it held that the Depart-

ment was erroneously requiring a showing of immedi-

ate commercial value. The Court reached this con-

ciusion by piercing\the opinions to the actual evidence

in the case for the purpose of determining whether

any evidence at all sustained the result. It concluded

that since the witnesses applied the wrong standard

for their conclusions, there was no such evidence. It

thought. that the -proper ‘test was that of such cases

as Cameron.v. United States, 252 U.S. 450, 40 S. Ct.

410, 64 L. Ed. 659 (1920), on which it relied. By

this test, the question was whether the discovery must

be such as would justify a person of ordinary prudence

in the further expenditur¢ of his time and means in

an effort to develop a paying mine.

Finally, the District Court found that if the test

_ were, as the experts believed, a test of immediate mar-

ketability, then-the expert opinjon must be based on

marketability as of the time of the discovery or the

withdrawal, which, in this case would be from 1941 to

1948. The experts had based their opinions heavily

on post-1948 data.

The District Court concluded, ‘‘that the opinions

of the witnesses, based as they were on information,

facts and factors not shown to have been available to

the Claimants at the time of the location of their claims,

are without probative value.’

°

C. The Court of Appeals

- While the matter was pending in the Court of Ap-

peals, this Court decided Coleman. The Court of

— thereupon summarily reversed the instant

=

6

case on the ground that Coleman required it:* It held

that by virtue of Coleman, the standard of discovery

applied by the Interior Department must be approved

and that no valid objection could be made to the experts

or their opinions. See App.-A, wmfra. On petition

for rehearing en banc, the Court did hear the matter

en bane, but then stood upon its earlier decision with-

out elaboration.

REASONS FOR GRANTING THE WRIT

Coleman unquestionably opens an important new

chapter. in the mining law of the United States, but

contrary to the dreary conclusion of the court below,

that decision did not junk the established norms of

mining discovery. The question of the proper standard

is truly important; it affects claims by the thousand

every year. Moreover, the decision below is squarely

-in conflict with another post-Coleman case, Converse

v. Udall, 399 F.2d 616 (9th Cir. 1968), cert. denied, ©

No. 746, Oct. Term 1968, 89 S. Ct. 635 (1969), here-—

after referred to. -as Converse.

Coleman resulted from a mining claim on some 720

acres, essentially for building stone. The Interior

Department contended that this was not a ‘‘valuable,

mineral deposit’’ because it could not be marketed

‘at a profit—it applied what is called the ‘‘present mar-

ketability test.”” This Court in that case, which in- —

volved non-metallic minerals exclusively, held that in

that kind of a case the marketability ,test is a ‘‘logical

' complement to the ‘prudent man test,’ ’’ which is the

identical test which was applied by the District Court -

in the instant case. That test, as both the District

Court said in thé instant case and this Court said in

Coleman, is whether, ‘‘a person @f,ordinary prudence

| 7

would be justified in the further expenditure of his

labor and means, with a reasonable prospect of suc-

cess, in developing a valuable mine... .’’

1. The decision below conflicts with Coleman, no

matter how Coleman is interpreted. This Court made

marketability a complement to the prudent man test;

but the experts here made-the ‘‘complement’”’ the entire

test and junked the heart of the thing.

2. The decision below grossly overextends Coleman

by making it apply to. the metallic minerals of high

value. Coleman gave the appearance, at least, of be-

ing a phony claim. An applicant had made a stone

claim in the vicinity of Los Angeles, was not using ~

it as a mine at all or making any effort to develop

it, and had built a splendid home on it. As this Court |

saw it, Coleman was indeed a very non-commercial

mine. © |

- But the instant ease involves uranium. This Court

expressly recognized in Coleman that the valuable

mineral case would come along, and it said:

‘*. . . the prudent-man test-and the marketa-

bility test are not distinct standards but are com-

plementary in that the latter is a refinement of

the former. While it is true that the marketability

test is usually the critical factor in cases involving

non-metallic minerals of widespread occurrence,

this is accounted for by the perfectly natural rea-

son that precious metals which are in small supply

and for which there is a great demand, sell at a

' price so high as to leave little room to doubt that -

they can be extracted and marketed at a profit.”’ .

* 390 U.S. at 603. 3 * ihe ea

a

It was no accident that this ‘Court noted the: dis-

tinction between the common and the metalli¢ minerals.

g /

The prudent man test, and not the marketability test,

does apply to the metallic deposit cases. Adams Vv.

United States, 318 F.2d 861 (9th Cir. 1963); United

States v. Smith, 66 I.D. 169 (1959); see also Best v.

Humboldt Mining Co., 371 U.S. 334, 83 S.. Ct. 379,

9 L. Ed. 2d 350 (1963); Cameron v. United States,

252 U.S. 450, 40 S. Ct. 410, 64 L. Ed. 659 (1920);

_ Castle v. Womble, 19 L.D. 455 (1894); all applying

the prudent man test to rare minerals. :The Interior

Department developed the marketability test as a spe-

_. cial limitation, or peculiar and specialized extension,

- for the common mineral eases. Foster v. Seaton, 271

F.2d 836, 838 (1959) (sand and gravel) ; United States

v. Strauss, 59 I.D. 129 (1945) (gypsum and building

stone); United States v. Black, 64 I.D. 93 (1957).

(building stone). See generally 1 Amer. Law of Min-

ing § 4.62 (1967), and United States v. Heirs of Stack,

A-28157 (1960). Foster.v: Seaton, 271 F.2d 836 (D.C,. ‘

Cir. 1959), the leading case, does apparently provide

for a narrower test of discovery only in cases of the

common minerals, where there is gros. oe likely to

‘be misappropriation of lands for other’ purposes.

If the new test is to be applied to an obviously

precious mineral like uranium, this Court ought to

say So. 7

3. The decision below conflicts with Converse, supra.

This is the other major post-Coleman holding. In that

case, the Ninth Circuit did disagree’ somewhat with

the position we have taken in the immediately pre-

ceding paragraph. It did hold that the Coleman stand- -

ard applies at least to a degree in the metallic cases,

but only to a degree. :

Specifically, the Ninth Circuit standard of the rele-

vance of marketability in the valuable mineral cases

$

i

9

conflicts directly with that applied here| In a valuable

metals case, the Ninth Circuit held ‘‘that there need

not be a full showing of marketability, such as the .

Secretary required in Coleman,_supra.”” (Emphasis

added.) The Court in Converse continued: —

‘When the claimed discovery is of a lode or vein

bearing one or more of the metals listed in 30

U.S.C. § 23,* the fact finder, in applying the pru-

dent man test, may consider evidence as to the

cost of extraction and -transportation as bearing

. on whether a person of ordinary prudence would

be justified in the further expenditure of his labor

and medns. But this does not mean that the locator

must prove that?he will in fact develop a profitable

Mine.” 399 F,2d at 622. ane

Here is a direct conflict. The Ninth Circuit holds

that as to a mineral like this, there need not. be a

«full showimg of marketability,”’ while the Interior

Department in the present case looked for nothing but

such a full showing.’ The Ninth Circuit said that the

locator need not prove a profitable mine, while this

was the only test of the Interior experts. According

to the Interior witness, there could be no location until

‘the locator ‘“‘was reasonably assured of developing a

paying mine.’’ ry

If is no accident that the cases do not square, be-

cause the government simultaneously gave the two

courts different advice. In this case at the Tenth Cir-

cuit, the government asserted that, ‘‘[t]he basic error

to all of appellee’s contentions is the assertion that .

entirely different rules apply as to metallie and non-

metallic minerals and that Coleman has no bearing

*This statute predates our own generation’s recognition of

uranium as having special value, but the principle is the same.

ely

son cases relating to metallic minerals.’’ Government’s

' Reply to Petition for Rehearing at p. 2. This is.

denounced as a supposed distinction. But in the Ninth

Circuit, in Converse two months earlier, the govern-

ment said “‘[a]ppellant argues that the marketability

rule does not apply to minerals having intrinsic value -

since they are obviously saleable. This is, of course,

true if the mineral is there in sufficient quantity and

quality.”” Government’s Supplemental Brief at-p. 3.

The present ‘marketability standard. will hopelessly

chill mining exploration, and as*between the hard line

taken in the Tenth Circuit and the more sensitive

approach of the Ninth, it is genuinely important that

the latter prevail. The test used to determine -the -

validity of mining claims in this country affects 48 mil-

lion acres of “public land excluding the vast acreages

in *Alaska.* The low-grade deposits of copper ore

near Butte, Montana, and in the Salt Lake Valley in

Utah would never have been valid claims if the present

marketability adjunct to the prudent man test had

been applied in the early 1900’s, and yet these deposits

are economic; and so with Avtona and Nevada as well.

The same may be said of many other mineral deposits.

At a’minimum, the relation of present marketability

to the reasonableness of future marketability should

be an adjunct to the .prudent. man test.**

° Speech by Edward Weinberg, Solicitor of Department of

Interior, given Sept. 13, 1968, as reported in Gower Federal

Service-Mining, Transmittal 56 (1968).

** We take the facts and conclusion of the preceding paragraph

from an article by W. J. Forman and R. G. Dwyer, soon to be

published in the Natural Resources Journal. An immense amount

of contemporary mining in the’West is of materials which were

of future potential at the time of their discovery.

f

11 sd a/

The instant case is the genuine sini of thd’ ‘in-.

dividual entrepreneur, the prospector who sta es a

claim. The test as applied here-knocks this man “out:

of the business unless he finds all of Sutter’s gold at

the first crack. Such consequence on hundreds or

. thousands of claims should not be allowed withou a

direct word from this Court.

4. The conflict of the Cireuits is pitiniinnty acu

on the narrower but real question of the evidence whic

may be used to determine marketability assuming

_ that this is to ‘be the test. As. we noted above, the

experts for the Government based their opinion: of .

marketability on various cost calculations. AH these <—

- were in turn based on records’ and information’ drawn

from.the rising inflationary period of the 1950’s, and.

- the witnesses had not even a claim to factual knowledge |

as to such items as costs in the 1940’s.

The absence of any evidence icthinwiviey to. the

relevant period was one of the. independent grounds

on which the District Court reversed_the Interior De-

partment. The Court of Appeals in i summary re-

versal not merely overextended fhe decision of this

Court as to the standard of discovery, but aso at-

tributed to Coleman some bearing on the testimony of

' the experts, saying ‘the Supreme Court now makes :‘

it plain to us that in the case at bar . ... the govern- |

ment witnesses. were competent to testify. as experts

re The fact is that Coleman does notin the

r emotest way relate in any manner to expert testimony.

The word “exper ”» and the word “‘witness”’ do not

even appear in the Coleman case.

' Converse, 399 F.2d at 622, expressly discusses the

matter of time and holds that when the issue is dis-

~

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covery as of a particular time, ‘‘it was proper to limit

the inquiry as to what had then been found.’’. It holds

that later evidence may not. ke considered. Surely if

' later evidence of commercial production is excluded

(as in the instant case the clearly valuable 1958 de-

velopments are put out of account) then the same must

apply to later cost information. The District Court

was exactly in accord with Converse on this point and

the Court of Appeals conflicted with Converse by its

reversal,

CONCLUSiON

~ Iti is’ /reapecttlly submitted that the petition for a

writ of certiorari should be granted. ~

‘~.

~

ToGNonil & PUGH

By Hate C. ToGNnont :

Wi11aM K. Strone

Joun P. ‘Frank

‘MICHAEL J. LAVELLE ;

114 West Adams Street

Phoenix, Arizona 85003

Counsel for Petitioners

May, 1969

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a eS APPENDIX A :

UN ITED STATES COURT OF APPEALS

-

TENTH CIRCUIT

May Term, 1968 |

r No. 9671-

‘

.

Stewart L. Upatu, Secretary of the Department of the

Interior ofthe United States of America, Appellant,

Ve %

Rut Snyper, Administratrix of the Estate of C.F. Snyper,

Deceased, J. F. Auuison, Mariryn Sirron, Adminis-

tratrix of the Estate of Max SItTon, Deceased, and

-' F. A. Srrron, Danita : o ——

?

en From the United States District Court ie 7 ra

_ District of Colorado

George R. Hyde (J. Edward Williams, Acting Assistant

Attorney General of the United States, Lawrence M.

Henry, United States, Attorney for the District- of

Colorado, Richard T. Spriggs, Assistant United States —

Attorney, and Roger P. Marquis, Attorney, Department —

of J ustice, with him on the.brief) for Appellant.

Hale C. Tg¢gnoni (Robert L. Tognoni with him on the brief )

for Alppellees.

7 Before Lewis and Hi, Cireuit J udges, and CHRISTENSEN,

_ District Judge. 3

Per Curiam.

, ——_$_

a~ > :

. | ¢ 2a

Opinion

Administrative catia, colnithated ina decision of

' the Secretary of the Interior: that the appellees” unpat-

ented- lode mining ¢laims were null and void for lack of

discovery of a valuable deposit! as of March 30, 1948 when

these lands were withdrawn and reserved for the use of

the Atomic Energy Commission subject only to, valid exist-

ing rights.? No question: was or is raised concerning the

validity of the withdrawal 6Srder.

The trial court upon a; review of the administrative

ord set aside the decisign of the Hearing Officerof the

ureau of Land } Management declaring#the claims in ques-

tion to ba invalid, as confirmed by therDistrict Director of

~~the Bureaw and by the Assist nt Solicitor of Land Ap- .

peals acting for the Secretary,\of the hiterior, on the °

. + grounds that the Secretary appfied an erroneous test of

_ mineral discovery, that witneggg! forthe government had

been incompetent to testify a&’¥xperts on the questiox- of

discovery and that the evidence was insufficient to support

the administrative determination.

We reverse on the authority of United States v. Cole-

man, « U.S. , decided April 22, 1968. The appellant

before us relied upon. the opinion below4in, Coleman, 363

F 2.190 (9 Cir. 1966). The trial court, adopted reasoning

similar to that of the.Ninth Circuit. Cf. companion deci-

sion, Garula v. Udall, 268 BW. Supp. 910 (D.C. Colo. 1967),

today reversed, F2 (10 Cir. 1968). The Supreme

Court now makes it plain to us that imthe case at bar

the Secretary applied the approved standard in determin-

ing that for want of a valuable mineral deposit no discoy-

ery had been made by appellant at the time the land in |

question was validly*withdrawn ; that the administrative

detérmination*was binding upon the court if supported by

,

1 Act of May 10, 1872, 17 Stat. 91, 30 U.S.C. § 22.

* Public Land Order No. 459, Mar. 25, 1948, 13 Fed. Rég. 1763.

%

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substantial evidence on the whole_record; that the govern-

_ment witnesses were competent to testify as experts with

reference to the pr rudent man test, and that the Secretary’s

decision was supported by substantial evidence on the whole

record and was not clearly oe \

Of no determinative concern inAhis case are refinements’

of evidentiary problems concerning the extent to which

resort may be had to technological aids. and inférences in

the modern context on the basic issue of mineral discovery

‘as now defined by the,Supreme Cou Nor do we find

it necessary to decide-whether, as contended by the Secre-

tary, there g a more limited judicial review of his deci-

sions in th e of case than ae one accepted by the

trial court applied here.

On Rehearing

George R. Hyde (Clyde O. Martz, Assistant itiae

General, Lawrence M. Henry, United States Attorney,

Richard T. Spriggs, Assistant United States Attorney,

and Roger P. Marquis were: with him on the brief) for

Appellant.

John. P. Frank of Lewis Roca Beauchamp & Linton (Hale

C. Tognoni of Tognoni & Pugh, and Robert L. i acs

- were with him on the brief), for Appellees.

‘En Banc."

Per Cunnm.

This case having been reargued before the ont sitting

en banc on petition for rehearing we hold appellees’ con-

tentions to be without merit and adhere to the original

opinion of the court filed herein. :

- 1 Breitenstein, Circuit Judge, deeming: himself disqualified, did

not participate.

‘\ ae 4a

\. appenprx B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

xe Civil Action No..66-0-131

Rutn Swyper, Administratrix of the Estate of C. F.

Snyder, Deceased, J.-F: ALLIson, Marityn Sirrton,

Aaministratrix of fie Estate of Max Sirton, Deceased,

and F. A. Sirton, Plaintiffs,

» ne ‘ y

a

~ Vv.

ie Pcs . .

Stewart L. Upatz,; Secretary of the—Department of the

Interior of the United States of America, Defendant.

Messrs, Tognoni & Pugh, Hale C. Tognoni, Esq., Attor-

neys at Law, 610 First National Bank Building, Phoenix,

Arizona; and Robert L. Tognoni, Attorney at Law, 5570

South Broadway, Littleton, Colorado, for the Plaintiffs;

Lawrence M. Henry, United States"Xttorney, Richard T.

Spriggs, Assistant United States Attorney, 323 United

States Court House, Denver, Colorado, and Thomas L.

McKevitt, Attorney, United States Department of J ustice,

Washington, D. C., for the Defendant.

Memorandum Opinion and Order

Cuitson, District Judge.

This matter came on to be heard before the Court on the

20th day of February, 1967. The Court heard the argu-

ments of counsel and has considered the briefs filed by the

parties and is fully advised. Ante —

This is an action to set aside a decision that the Master

Deluxe and the Deluxe mining claims are invalid.

On July 10, 1941, C. F. and C. A. Snyder located the

Master Deluxe and Deluxe mining claims on public lands

in the Slick Rock area of San Miquel County, Colorado.

- The claims are located in Sections 22 and 27, T. 44.N., R.

19 W., N. M. P. M. ¥

da

e On March 30, 1948, by Publié Land Order 459, the lands

upon which the claims were located were withdrawn from

mineral entry subject to valid existing rights. No steps

‘were taken by the Government at that time to question the

validity of the claims.

In 1958 and 1959, some 2;500 tons of vanadium and

uranium ore were produced from~the claims (Tr. 255).

In 1960, the Bureau of Land Management of the Depart-

ment of Interior (hereafter referred to as B. L. M.) insti-

tuted proceedings to have the claims declared invalid on -

the ground that there had been no discovery of minerals

on the claims prior to the withdrawal of March 30, 1948.

Following prescribed procedure, a hearing was had be-

ae M. Hearing Officer, who declared the claims

invalid. Upon to the Director of B. L. M. and

further appeal to the’ Secretary 6 ior, the decision

of the Hearing Officer was affirmed. :

The sole ground for contest of the claims is B. L. M.’s

assertion that there was ‘‘na discovery’’ prior to the

March 30, 1948 withdrawal of the land from mineral entry.

The parties agree the burden of proof-is upon B. L. M. to

make a prima facie case of ‘‘no discovery.’’

The matter is now before the Court to review the records

made before the Hearing Officer to determine whether or |

not there is substantial evidence making a prima facie

case in support of the Secretary’s decision affirming the

Hearing Officer’s determination that there was no discov-

ery. Pan American Petroleum y. Udall, 352 F. 2d 32 (10th

Cir. 1965); Dredge Corporation v. Penny, 338 F. 2d 456

~ (9th Cir. 1964).

‘ Before discussing the evidenée, it becomes important to

define ‘‘discovery.’’ The applicable statute, 30 U.S.C. § 23,

provides: ‘‘.,. no location of a mining claim shall be made

until the discovery of the vein or lode...” (Emphasis

supplied.) hs

| 6a

Although the statute does not define the word ‘‘discov-

ery’’, it is now well established that a discovery required

by the statute consists of:

1. The discovery of nyinerals within the boundaries

of the mining claim; and

2. The discovery must be such as would justify a

person of ordinary prudence in the further expendi-

ture of, his time and means in an effort to develop a

paying mine (Cameron v. U. S., 252 US. 450; Chris-

man v. Miller, 197 US. 313). _

We have reviewed the evidence to détermine whether

or not B. L. M. sustained its burden of proof.

The following facts are not in dispute: The claims were

located on July 10, 1941 and Location Certificates were

recorded in the public records of San Miguel County in

September 1941; at the time of location there was a dis-

covery of vanadium-uranium mineral; from 1944 until

1958, the annual assessment workzyas done or the required

notice in lieu of assessment work was filed. (See abstract

in file.) at the time of the examination of the claims by

B. L. M. in 1959 and 1960, there was mineral in place,

principally vanadium-uranium; of the samples taken by

B. L. M. and assayed, most were of low grade, but one was

of ore grade (Tr. pgs. 56, 57, 204 and 212); in 1958, Sitton

acquired/a one-half interest in the claims and after some:

exploratory drilling, sunk a shaft to an ore body approxi-

mately 200 feet below the sufface from which some 2,500°

tons of uranium-vanadium ore were produced (Tr. pgs.

250, 251 and 255). >

At the hearing, B. L. M. called two of its sina

(Spengler and McIntosh) to prove a prima facie case of

no discovery. Both testified. as expert witnesses that ‘al-

though there was a discovery of mineral on the surface. of

the claims, in their opinion the mineral discovery did not

constitute a discovery sufficient to support a valid mining

: sy

claim and gave their reasons for their opinions in consid-

erable detail.

After careful consideration, we conclude the testimony

of Spengler and McIntosh is without probative value for

the following reasons:

1. The witnesses were not qualified to. give opinion

testimony as to what a man of ordinary prudence

would or would not have done in 1941 with regard to

the expenditure of time and means in an effort to

dévelop a paying mine on these claims.

2. Even if Spengler and McIntosh had the qualifica-

tion td testify as experts, their. expert testimony has

no probative value because they based their opinions

of ‘‘no discovery’’ on information available to the

witnesses at the time of the hearing in May 1961 and

not on the information available to a person of .ordi-

nary prudence in 1941 when the minerals were discov-

“ -ered-and the claims were located.

3.°That the witnesses Spengler and McIntosh, in

arriving at their opinions of ‘‘no discovery’’ included

a requirement of discovery not required by the Su-—

preme Court in Cameron, supra, namely, that the ‘‘dis-

covery’’ must be a discovery of minerals of sufficient

commercial value to justify ‘mining them with an ex-

pectation of profit.

x

I. GoverNMENT’s WItTNEsSES’LACKED QvALIFICATIONS

4

3 To Give OPINION

‘*An expert witness will be deemed qualified if, and

only if, he possesses special skill or knowledge with

respect to the matter involved so superior to that of

men in general as to make his formation of a judg-

ment a fact of probative value.’’ 32 C.J.S. § 457

pg. 98. set

_ Exhibit 38 sets forth the qualifications of Spengler. He .

graduated in June of 1955 from the City College of New

[oe

¥

.

-

8a

York with a Bachelor of Science Degree; July 1955 to Sep-

tember 1955, helper on a diamond core drill; September

1955 to February 1957, geologist with the Atomic Energy

Commission; February 1957 to present, employed by

B. L. M. as Evaluation Engineer.

Exhibit 40 gives the qualification of McIntosh. He grad-

uated in June 1941 from the Ohio State University with a

Bachelor’s Degree in engineering and mining; June 1939 to

October 1939, worked in a coal mine in Kentucky’; June

1940 to October 1940, a laborer in gypsum exploration;

June 1941 to October 1941, a laboratory worker; June

1942 to October 1942, prospecting in Nova Scotia; October

1942 to March 1944, metallurgist in beneficiating mag-

nacite ores; March 1944 to September 1946, military serv-

ice; September 1946 to July 4948, research engineer on

beneficiating of ores by flotation; July 1948 to Devember

1949, laborer, panner of gold, placer prospecting, rod-man,

gold cleanup man and assayer in Fairbanks, Alaska; Feb-

ruary 1950 to March 1952, flotation research, dolomite

_ prospect driling, prospecting open-pit layout; April $952

to Decembdr 1953, geodetic computer and surveying for

U.S. Geological Survey; September 1953 to February 1955, °

metallurgist beneficiating maganese. ores by flotation ;

March 1955 to March 1957, metallurgist beneficiating gold,

silver, lead, zine ores by flotation: March 1957 to present,

employed by B. L: M. as Evaluation Engineer,,

The prudent man rule, as applied to discovery of mining

claims, necessarily means a prospector of ordinary pru-

dence who is attempting to locate deposits of minerals

which would justify the expenditure of time and effort to

develop a paying mine. The standards to be applied in

determining what a prudent prospector would or would

not do'are not those of a trained engineer or geologist and

are not even necessarily determined by the prudence of a

skilled miner. Chrisman v. Miller, 197 U.S. 313 at 323.

There is nothing in the background and experience of

either ia or McIntosh which would give them any

wn

Ps

ae

‘op

9a

special knowledge offwhat a prospector of ordinary pru-

dence would or would not do in attempting to develop a

vanadium or uranium mine on the Colorado Rlateau in

1941.

Neither of them had any experience in prospecting for

or in the development of vanadium and uranium claims in

the Colorado Plateau area or elsewhere. Perhaps Speng-

ler had expertise as to what a trained geologist would or -

would not have done in the circumstances and perhaps

McIntosh had expertise to testify as to what a trained

mining engineer would or would not have done, but the evi-

dence discloses no foundation for their opinion testimony

_as to what a prospector of prudence would or would not

do. Because of lack of qualifications, the opinions of

Spengler and McIntosh are without probative value and in

the absence of their opinions, there:is no evidence to sus-

tain the Government’s burden of proof. p

II. GovERNMENT’s. WitNEssEs Basep THEIR OPINions on In-

FORMATION AVAILABLE TO THEM IN 1961. anpD Nort on

INFORMATION AVAILABLE TO A PERson OF _ PRUDENCE IN

1941.

_ + In support of their solitons, Spengler and McIntosh

testified to the geology of the area, the size, shape and

location of mineral deposits in the Colorado Plateau; the

nature and extent of surface mineralization of the claims

in question; the samples taken and their assay valués; the

costs of mining; the market values of vanadium and

uranium and the market for these minerals.

_ All of these areas of inquiry were pertinent and mate-

rial as they are matters which a prudent prospector might

‘well take into account in determining whether or not a

mineral discovery justified the expenditure of time and

means in an effort to develop a paying mine. However,

these areas of inquiry were pertinent and material only

to the extent that it was shown that the mformatien testi-

& -

10a

fied to was available to a’ prudent prospector at “the time

the plaintiffs locatéd their claims. Information not avail-

able to a prudent prospector at that time is entirely im-

material in determining what a prudent prospector would-»»

or would not have done. Even a casual reat ing_ of the ,

record discloses that the witnesses based thet opinions.

not on information available to the claimants as prudent .

prespectors in 1941 but upon information available in 1961...

to’ these witnesses after careful research and study. . “

Some of the more extreme examples of this are tabulated

below: |

1. Exhibit 4, a U.S.G.S. Quadrangle geologic ma

was admitted in evidence to show the geology of mp

area and was used by the witnesses in giving their

opinions on what a prudent prospector would or would

not do. This map was published in 1950 (Tr. pgs. 13

and 14).

2. Exhibit 5, a U. S. GS. map was admitted into evi-

dence and used in connection with testymony. It was

published in 1948 (Tr. pgs. 14 and 15).

3. Exhibit 20, a U.S.G.S. paper or the “Geology and

' [line illegible]

into evidence as part of the basis for the. conclusion

of the witnesses that there was no discovery in 1941.

This document was published im 1958 (Tr. pg. 101)*

4. The witnesses testified to three theories of the

‘US.G.S. as to ore placement. Which of these theories

is correct has not yet been resolved (Tr. pg. 27).

There was no showing that these theories had been

published or were otherwise available to a prudent

prospector in the year 1941. The purpose of this

testimony was, ‘‘We contend that certainly one of the

“things he (a prudent person) would have to take into

consideration is, how did these ore bodies, if there

are any, get here, and is there any connection between

what might be at the surface and what might be at

lla

the depth.’’ (Tr. pg. 30) The witness McIntosh also

testified to these theories (Tr. pg. 195). Nowhere in.

the entire transcript is there any evidence or indi

tion that these theories had been made known to the

public in the year 1941 or at any other time.

5. Use of a Geiger counter in appraisal of surface

mineralization (Tr. pgs. 42 and 43). There is no testi-

mony that a Geiger counter was available as a pros-

pecting tool in 1941. In fact, the evidence indicates

it was not (Tr. pg. 244).

6. Use of Atomic Energy Commission buying guide

to establish the price of uranium and vanadium ores:

with the ultimate objective of showing the absence of

valuable deposits on the claims (Tr. pgs. 112, 113 and

215). The Atomic Energy Commission was-not estab-

lished until April 1946 and the buying ‘guide was not

issued until April 1948 and covered the period from

1951 to 1961 (C.F.R. Title 10, Part 60 and Tr. pg. 215).

7. Both witnesses testified as to the costs of mining

for the purpose of showing that a prudent prospector,

because of these costs, .weuld not expend time and

. effort in attempting to develop.a paying mine. This

testimony was based on a Bureaw of Mines publica-

tion issued in 1959 based on “‘recent costs’’ (Tr. pgs.

115, 159 and 161).

8. Reliance on publications and articles in support —

of the opinion that there was no connection between

surface mineralization. and the deposit which, was

mined in 1958 (Tr. pgs: 178 and 179). The publica-~

tions relied upon: are listed at pages 180 and 184 of

the transcript. Of the approximate 13 publications

mentioned, four were published prior to 1941, one in

1947 and the eight remaining publications were pub-

lished from 1952 to 1959. All of this material was

- considered in arriving at the opinion that a prudent |

' prospector would not be justified in expending time

bc

12a

and effort i in attempting to develop a paying mine in

1941 (Tr. p. 183). :

9. Use of market price established by Atomic fii

Commission for uranium and vanadium in the 4 years

1951 to 1961 (Tr. pg. 215) to support opinion that‘ a

prudent prospector could not expect to develop a pay- |

ing mine in 1941. ,

: Claimants, by repeated objections, sought to have the

testimony directed towards facts. and information which

may have been available -to a prudent prospector at the.

- time the claims were located but to no avail.

We conclude that the opinions of the witnesess, bas¢d —

as they were on information, facts and factors not shown

to have been available to the Claimants at the time of the

location of their claime,. are without ee value.

’ ad

III. Wirxesses? Opixioxs WERE BasED ON AN ERRONEOUS

LecaL THEORY

‘‘It has frequently been stated that discovery in order.

to be valid need not be of ore in commercial quantities

or of quantity and quality which will yield a profit.’’ e

(American Law of Mining, Vol. I, § 4.26, pg. 642).

‘If the miner were required to demonstrate commer-

_ cial. value at the time he makes his initial ‘discovery,

the intent of the mining laws would be. totally frus-

trated; and the. value requirement contained in the

pradant man test thus seems to represent a reason-

able tempering of the’ statutory value requirement to

the very real problems facing the discoverer and lo-

cator who goes upon the ground to stake his claim.’’

(American Law'of Mining, Vol. I, § 4.26, pg. 643).

‘Although the Land Department still recognizes the

. prudent man test and has stated that it is not necessary

to show values which will demonstrate. that a ‘claim

eae

¢

13a «=

_can be worked at a profit or that‘it is more probable

than not that a. profitable mine operation can be

brought about,’ at least in cases involving minerals

having intrinsic value, the recent decisions of the- Land

Departniént indicate that it has adopted a very strict

view of discovery, and is quite close to requiring a

Eveaiire of commercial value even in cases not involv-°

common Varieties of mineral.’? (American Law of

Mi ing, Vol. I, — pg. 645). :

Consideration of the icstiinbny of the witnesses Spengler

and McIntosh reveals that their opinions of ‘‘no discovery’”’

are based on the premise that the minerals discovered

were not of commercial value and therefore the discovery

is not sufficient to sustain a valid mining claim.

The witness McIntosh testified that the minerals dis-

covered by the claimants deserved ‘‘some more exploratory

work, but they do not deserve the commencing of nining

operations:”’ (Tr; pg. 212)..

‘He testified further:

‘“Q. Now, let’s a8Sume for the moment, Mr. Mc-

Intosh, that all of the workings that havé been placed

on these claims since 1948 are not used. Based upon

just thé: shoes that are-on the surface which you

have examingd,’ would any expenditure be justified

for further-exploration based upon these showings?

‘A, Yes, it would.

“Q. Whyt \:s/ | aoe

‘‘A, Because there is a meager showing of urahium

and vanadium “present, and it’s barely possible that

it could lead to something Worth while:

_ Q. Now, I would then ask you the,same question,

whether an expenditure would be justified. for develop- .

ment of mining operations’ to’ mine any of these shows |

of minerals which, we are talking about? |

‘A. No, it definitely would not be justified.” (Tr.

* pgs. va and 221) (Emphasis added).

.

2

l4a

He testified further: es

‘‘A. The locators located their mining claim in © ;

1941. They produced no ore before the 1950’s. And

the claim was stilln the exploration stage. And in

‘the 1950’s several lessee¥ or several] sublessees- went

on the claims, but they prodyged no ore, either. The

claims were still in the exploration period. Thesé

lessees og sublessees did explofation work, consisting,

,of drilling a hole.. About 1958 the present operators.

of thé claim went on to the claims and found an ore

body which they are now mining. To me, the date

' that ‘this last group went on the claims, sunk their

- holes and.found ore, was the date the claims passed

~~

from the exploratory state to the development and

~ production stage.”’ (Tr. PB. 226) (Emphasis added).

\

It is apparent ‘feene this esti that the sitinees Me-

Intosh did not recognize a discovery until after all explora-

tion work was done and actual production of commercial

ore had commenced.

j

y .

‘To the same effect is the testimony of the witness:

-

. discovery, ‘you would have to

‘*Q. Now, then; as T get it from your. testimony, it

would be your opinion that in grder to make a valid

tive a pit that practi-

cally went to ore that was commercially marketable ;

is that correct? wie

‘*A. The pit which the bateinah relies-upon for his

discovery must show an indication of mineralization,

such that the claimant has the reasonable prospect of

developing a paying mine from this show. The claim-

ant, as I have testified previously, would base - his

opinion upon the extent of his mineralization and its

geologic habit, uponageologic inference, upon similar

shows of miferal in the vicinity, and if he had such a

“showing of minerals that he was reasonably assured

<

lda

of developing a paying mine from this show of min- —

eral, he would be justified in staking a mining claim.’’

(Tr. pg. 138) (Emphasis added).

Although the test used by the witnesses may be in ac-

- cord with B. L. M. policy, it goes far beyond the require-

ments of Camgron, supra, and their opinions of ‘‘no dis-

covery’’, being based on an erroneous test, are without

probative Value. , Pe .

For the reasons assigned, te Cour concludes that

B. L. M. did ke a prima facie cae of ‘‘no discovery”’

and tiiat the d of the Hearing Officer and its affirm-

ance by the Assistant Director of B. L. M.*and by the

Solicitor, acting for the Secretary of Interior, should be

set aside.

| Ir Is THererore ; ADJUDGED aND Decreep that

the decision of the Hearing Officer entered on June 15, 1962

_ in Colorado Contest No. 236—United States v. C. F.-

Snyder, et al., declaring the Deluxe and the Master De-

Iuxe Lede Mining Claims, heretofore described, invalid

and the decision of the Assistant Director of B.-L. M. and

the decision of the Assistant Solicitor of Land Appeals,

acting for the Secfetary of Interior, affirming the decision

of the Hearing Offiéer upon appeal, are hereby set aside.

Ewrekep this 18th day of April, 1967.

By THE Court:

Hatrietp J. Cutison II

l6a

. APPENDIX C

Opinion on Appeal to the Secretary of the Interior

‘UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

WASHINGTON, D. ©.

rd

March’13, 1964

‘Decision

UNITED vie 4 or AMERICA, Contestant-Appellee

Vv. ae

C. F. Snyper, J. F. ALLISON; Max Srrron; and |

F. A. Strron, Contestee-Appellants .

Involving the Deluxe and Master Deluxe lode mining

claims situated within secs. 22 and 27, T..44 N., R. 19 W.,

N. MJ) P. M. (Lower San Miguel Mining Distriet—San

Miguel County, Colorado). fs

Decision AFFIRMED a4

The above-named Contestee-Appellants have. appealed

from the decision of the Hearing Examiner dated June 15,

1962, declaring’ invalid the above-identified mining claims.

The basis for the decision was that no discovery of a valu-

able mineral had been made on the claims within the mean-

ing of the United States mining laws prior to the effective

date of Public Land Ordér No. 459 which withdrew the

lands embraced by the claims from mineral entry as of

March 30, 1948. )

Contestees filed an answer in the form of a general de-

nial of the allegations contained in the complaint. A hear-

ing was held at Denver, Colorado, on May 16 and 17, 1961. ;

The issue framed by the Examiner was whether the De-

luxe and Master Deluxe lode mining claims wh valid

‘

e he . 17a,

existing tlaims on March 30, 1948, and thus within the-

exceptions proviso of Public Land Order 459.

' From the evidence adduced, the Examiner found that

the Deluxe and Master Deluxe mining claims were located

on July 10, 1941, for the mining of uranium and v adium;.-

‘and that the Contestant had presented vulhisensl evidence

to constitute a prima facie case that no valid discovery of

minerals had been made on fhese claims prior to March

30, 1948. He further found that the'evidence presented by

_ the Contestees was insufficient to establish that the two

mining claims were valid existing claims on March 30, 1948, |

the effective date of Public Land Order 459, and therefore,

did not come under the exception of the withdrawal pro-

vision of the Order.

On appeal, the (Siaiteitiiein contend, in substance, that the

Contestant’s evidence was insufficient to support the find-

ings and conclusions contained in the Examiner’s decision.

However, they acknowledge that the burden of the Con-

testant was only to present a prima facie case, and that the

burden then shifted to’ the contestee to prove a discovery

prior to March 30, 1948, sufficient to establish the validity

of the two claims by a preponderance of affirmative, sub-

stantive and probative eevidence. Contestees submit in

their appeal brief a detailed analysis of the testimony and

exhibits in their appeal brief a detailed analysis of the

testimony and exhibits presented at the hearing, but com-

plain of surprise in the tenor of the evidence presented

by the Contestant which they assert was based on theory.

With their appeal the contestees filed a motion .to remand

the case for further hearing or the taking of additional

evidence to refute the Contestant’s evidence. The motion

is supported by the affidavits of several mining engineers,

a geologist and miners who are familiar with the Deluxe

and Master Deluxe mining claims and/or the area in - hich

these Claims are located. %

18a

The Contestant filed an answer alleging, in substance,

that the Contestees have failed to show any error ig the

hearing or in the Examiner’s decision. They have Failed

to indicate any newly discovered evidence or present any

_other reason which would serve as a basis for a rehearing.

Moreover, the Contestant requests a determination of the

Examiner’s refusal {o permit a witness for the Contestant

to testify as to the substance of a conversation had with

one of the Contestees.

The basic issue presented for consideration in this ap-

~ peal is whethér or not the Contestees established by a

’ preponderance of the evidence that a valid discovery was

made on the Deluxéand Master Deluxe mining claims

_ prior to March 30, 1948. The Examiner found that the

evidence of discoyery was insufficient to invoke the excep-

tion of the withdrawal order, and declared the claims in-

valid. ar

Upon careful examination of the entire record including

the extensive briefs, affidavits and arguments urged by the

parties, we have concluded that the Examiner’s decision is

correct.

In this connection, we feel it is appropriate to discuss

briefly the principles relative to a discovery under the

mining laws and as they pertain to the facts in this case.

The Contestees contend that indications of minerals were

found on the two claims during 1941 and 1944, in sufficient

quantities to warrant a prudent man to.expend time and

money in further - exploration with a reasonable expecta-

tion of developing a paying mine. They direct attention |

to the eatablishmestt ' ‘in 1958 of a working mine on the

‘ Master Deluxe claim from which 770 tons of ore were |

removed.in 1959. Under normal circumstances these facts

would be sufficient to establish the existence’ of a valid

discovery even though there was a lapse of considerable

time between the indicated mineralization and the estab-

. .

19a

lishment of the mine. But, as in this case, where an inter-

vening event (issuance of Public Land Order 459) required

that the elements ofa discovery be completed before the

intervention of such event, subsequent mining activities |

are immaterial to the actual discovery. Moreover, the mine

is not located at: the points indicated as the place of the

jfmed discoveries, and there was evidence offered by the

=. Contestees that additional exploratory work was not done

until 1958.

The . Department and the ,Courts have consistently held

that mere indications, however strong, are not sufficient to

®

satisfy the requirements of the mining laws as one of the |

‘essential conditions to the making of a valid discovery. Cf.

Nevada Sierra Oil Company v. Home Oil Company, 98 Fed.

673, 675; also see United eiahed v. Frank J. Miller, 59 I.D.

446 (1947).

_ There is a material difference between a discoverer being

willing to spend-his time and money in exploiting the

ground and being justified in doing so. The former is a

- question to be answered by the miner himself; the latter

would be a question for determination at a hearing based

on the evidence presented. Cf. Burke v. McDonald, 2 Idaho

1022, 3 Idaho 296, 29 Pac. 98, 101.

The Examiner found from the evidence presented rela-

tive to the indication of minerals that a prudent man would

not be justified in making further expenditures of time and

money prior to the withdrawal in 1948. As the Examiner

-is the trier of the facts, he is in a much better position to

determine the weight to be given testimony than can be

determined from the record on appeal. Accordingly, his

determinations will not be disturbed unless they are clearly

. Be.

shown to be against the greater weight of the evidence, -

profound error is apparent in his judgment or it is de-

termined that he has acted in an arbitrary and capricious

manner. These elements are not apparent in this case nor

are they alleged.

-

~

i

20a

The Contestees had the burden of proof to show by a

' preponderance of evidence that a valid discoyery of min-

erals had been made before March 30, 1948, an the failure

to present their case in its best light ean not b&attributed

to the Contestant or the manner in which it established its

: prima { facie case. The Contestees now allege surprise and

_ have submitted additional showings, in the form of affi-

. davits, relevant to the quality ef the mineralization.and the

geology of the area in which these claims are situated.

' The Contestant has objected to the consideration of this

newly offered evidence in processing the appeal. Since the

- mining contests are governed by the Administrative Pro-

cedure Act (5 U.S.C., 1958. ed., 1001 et seq.) a hearing on

all the disputed issues of fact is held before a Hearing

Examiner with both Contestant and Contestee entitled to-

present all relevant testimony and other evidence that they —

may desire, subject to cross examination. Under section 7

of the Act (5 U.S.C., 1958 ed., 1006), the transcript of the

hearing constitutes the exelusive record for the decision,

and the appeal decision must be rendered upon the basis

of the evidence adduced at the hearing in which all par-

ties had equal opportunity to present evidence pertinent

to their position. Accordingly, there can be no question

that the-evidence submitted with the appeal, in this case

in’ support: of the motion to remand, if. considered at all,

ean only: be examined to determine if it is of such a eub- .

- stanitive value or was not available at the time of the hear-

»_ing to. warrant remanding the case for a new hearing.

’ Under no circumstances can it be considered as a basis for ©

any reversal of ‘the Hearing Examiner’s decision on the

substantive merits of the case. Cf. United States v. Basil’

Capp, et-aux., A-27744 (December 12, 1958). It is therefore

concluded on the basis of a careful study of all the evidence

and testimony in the record and the additional evidence sub-

mitted on appeal that no’ substantial grounds have been

presented which would warrant remanding the case for a

_ = - —_

21a

further hearing. Accordingly, the motion to remand is

denied.

We now turn to:the Contestant’s request for a determina-

tion of the Examiner’s refusal to.consider or rule on its

offer of proof relative to statements made by one of the

Contestees (Max Sitten) to witnesses (Ralph R. Spengler

and James McIntosh) for the Contestant. The Depart-

ment’s rules of preetwe (43 CFR 221.74(b)) provide in

pertinent part that: )

‘“(b) Objections t to evidence will be viiol upon by the

Examiner. Such rulings will be considered, but need |

not be separately ruled upon, ‘by the Director in con- —

nection with his decision. eae t

However, in the iemhibiones presented, it is appropri-.

ate that consideration be given this matter. It appears that »

statements made by the Contestee may have been material. .

to the issue raised in ¢his case, but the Examiner refused

to accept the tendered evidence beeause the Contestant had

made no attempt to secure the testimony of the Contestee

by subpoena or by deposition. Generally, admissions made

by a party are considered competent; not as testimony but

because they are inconsistent with the position taken by

the party who made them. However, admissions bind; only -

the party by whom made or to whom attributable; theres

fore, thé Examiner could have accepted the testimony of |

the witness insofar as it affected the interest of Max Sit-

ton. The admissions would have been immaterial and in-

competent evidence as they concerned the rights of the

other Contestees because of its hearsay connotations. The

Examiner had to use his diseretion in excluding ‘or accept-

ing the testimony for what it was worth. Héjchose to

exclude it. As a result, it was incumbent upon the Con-

testant to show injury to its position, but this has not been

done, nor is there any indication that the final outcome of |

the hearing would have been different, » Accordingly, the

22a cs

exclusion of such testimony is not considered to be preju-

dicial ‘error. Cf. Buhl v. Kavanagh, 118 Fed. 2nd 315.

No issue is raised concerning the Examiner’s rulings on

the findings-of fact and conclusions of law; therefore, no

_ determination is required by this decision.

No error being apparent on: the face of the record, the

Hearing Examiner’s decision is ‘affirmed. °.

Pee

The Contestees are allowed the right of further appeal

to the Secretary of the Interior in accordance with the

_régulations in 43 CFR Part 221, as amended. See enclosed”’

Form 4-1365. If an appeal is taken, it must be filed with

the Director, Bureau of Land Management, Washington,

D. C. 20240 and the filing fee will be $10. In taking an

appeal there must be strict compliance wi the regulations.

If an appeal is filed, the appellants will have the burden of —

proving wherein the decision appealed from is in error.

23a

APPENDIX D

"Opinion on Appeal to the Solicitdr for Land Appeals

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY’

WASHINGTON, D. c. 20240

| Decided May 26, 1965

pie aes -- A-80292

; Unitep States

p pao 1

| C.F. Swyper, et al. 7

Colorado Contest No. 236.

Lode mining claims

i a : declared null. and -void.

Affirmed

APPEAL Faow THE BurREAU OF LAND Manacement

C. F. Snyder, J. F’. Allison, Max titten, and F. A. Sitton

have- ‘appealed to the Secretary of the Interior from a de-

- cision. of the Assistant Director, Bureau of Land Manage- ~

ment, dated March 13, 1964, which affirmed a decision -of

a hearing examiner, dated June 15, 1962, declaring invalid

- the DeLuxe and Master DeLuxe leihe mining claims, situ-

ated in secs. 22 and 27, T. 44 N., R. 19 W., N.M.P.M. (Lower

San Miguel Mining District, ‘San Miguel County, Colo-

rado). The basis for the decision was that no discovery of

a valuable mineral deposit had beep made on the claims

ere the meaning of the United St&tes mining laws prior

the effective date of Public Land Order No. 459, 13

F.R. 1763, which withdrew the lands embraced by the claims

from mineral entry as of March 30, 1948, and reserved them

for the use of the Atomic Energy. Comminsion.

‘ 6

e. ,

4 “es >

re

ars pe! Se

€ o |

10, 1941,

A hearing was held at Denver, Colorado, on May 16 and

17, 1961. According to location certificates introduced at,

the hearing, the claims involved were located September

_ apparent being vanadium. The issue framed by the ex-

aminer was whether the claims involveg were valid exist-

ing claims on March 30, 1948, and thus within the provision

of Publi¢e Land Order 459 which excepted from -the with-

- . drawal ‘‘vdlid existing rights.’”’ To be valid claims-as of

- that date, there must have ‘been a discovery of a valuable

mineral deposit within meaning of the mining laws on the

claims as of that date. _ ,

Appéllants’ submitted on appeal to the Director six afii-

miners familiar with the ¥rea, allegedly contravening the

_davits by professional a engineers, a‘ geologist, and

‘Government’s testimony

to support their request for a. further aie eas The As-

hese affidavits were submitted

‘sistant Director denied the request. —

On appeal to the Secretary, the appellants repeat several

contentions made below. They contend, inter alia, that the

~ novel geological theory. presented by the Government; they

contend that since they were not professional geologists

case should be remanded for the taking of further testimony

because they were allegedly surprised at the hearing by a

“they were not then able to refute the Government’s testi-

mony. The appellants also repeat their contention that the

law of discovery was not properly applied in this case.

They contend further that the Government did not make

out a prima facie case of abserice of discovery—that the

Government’ s case was based upon unproved geological

theory and information derived after 1955, which was thus

not available to, a miner in 1941 or’ 1948. '

Siny i .

They contend ‘that when the contestant in a mining case

makes out a prima facie case the burden of going forward

e

ow

;

C.F. and C. A. Snyder, the discovery mineral _

35a

i ° $ 2

‘ shifts to the contestee but the burden of proof. remains .

upon the contestant to prove absence of discovery. a

¢

The last contention is contrary to well established law. 3

Foster v. Seaton, 271_F. 2d 836 (D.C. Cir. 1959), states ~ >

at pages 837-838: : B

‘“Appellants’ fhird allegation of error is that the

Secretary failed to hold the Government.to the stand-

ard of proof required by the Administrative Procedure

Act, which states that ‘the proponent of a rule or order

shall have the burden of proof.’ .60 Stat. 241 (1946),

5 U.S.C.A. § 1006. The Secretary ruled that, when the

Government contests a mining claim, it bears only. the

- burden of. going forward with sufficient evidence to

_ establish a prima facie case, and that the burden then

‘shifts to the claimant to show by a preponderance of

the evidence that his claim is valid: -The short answer .-

to appellants’ objection is that they;-and not the Gov-. me

by

ernment, are the true proponents of a rule or order ;** "* ,

namely, a ruling that they have cot plied with the ap-

plicable mining laws. One who has lockted 4 claim

upon: the public domain has, prior to the discovery of

valuable minerals, only ‘taken the initial steps in seek-

-ing a gratuity from the Government.’ * * * Until he

has fully met the statutary requirements, title to the

land remains in the United States. * ® * Were the

rule otherwise, anyone could enter upon the public

domain and ultimately obtain title unless the Govern.

ment undertook the.affirmative burden of proving that

no valuable deposit existed. . We do not think that

Congress.-ititended to place this burden on the Secre-

tary.’’ Tar Pie pdt.

‘

©

See also. United States 'v. Kelly Shannon et al. 70 LD.

136 (1963) ; United States v. Robert G. and Orpha B. Me-

Millan, A-29456 (July 26, 1963): |

s

. |

* 26a

As to the rule of discovery, the correct rule was applied

in this. case as set forth by the hearing examiner in his

decision :

‘*The time-honored test to, be applied in determining

whether a discovery has been achieved on a lode claim

is that set forth by the Department in Jefferson-Mon-

tana Copper Mines Company, 41 L.D. 320 (1912):

‘¢¢1, There must be a vein or lode of quartz or other

rock in place. ' ty

‘¢*2. The quartz or other rock in place must carry

gold or some other valuable mineral deposit. «

‘* «3. The two ‘preceding elements, wheri taken to-

gether, must be such as to warrant a prudent man in ~-

~sthe expenditure of his time and money in an effort to

develop a paying mine.

‘« «Tt is clear that ‘many-factors may enter into the

third element: the size of the vein as far. as disclosed,

the quality and quantity of mineral-it Carries, its prox-

imity to working mines and location in an establjshed

mining district, the geologic gonditions, the fact that

similar veins in the~particular locality have been ex-

plored with su@cess, and she r like facts, would all be

considered by a prudent man in determining whether

the vein or lode he has disdvered warrants a ‘further

» expenditure or not.’ a

“‘In other ‘words, to constitute’ adequate discoyery

‘under the mining laws it must* be conclusively estab- «

lished by competent evidence that a mineral deposit

has been actually found arid physically uncovered —

within the limits of each mining claim located, and that

the situation and formation of the mineral so found

and uncovered are such'as to justify & prudent man in

the further expenditure of time and money, with a

reasonable prospect of success, in developing a valu-

able mine.”’ °

e

27a zo

See also Castle v. Womble, 19 L.D. 455 (1894); Chrisman

v. Miller, 197 U.S. 313. (1905); Cameron v. United States,

252°U.S. 450 (1920) ; Best v. Humboldt Placer Mining Com-

_ pany, 371 US. 334 (1963); and Mulkern v. Hammitt, 326

F, 2d 896 (9th Cir. 1964). be

~_-— /

A showing of isolated bits of material, not connected with

or leading to substantial values, does not constitute a dis-

covery. United’ States v. Frank J. Miller, 59 LD. 446

(1947) ; United States v. Richard L. and Nellie V. Effen-

beck, A-29113 (Januaty 15, 1963). Nor is it sufficient to

constitute a discovery that thé mineral showings. indicate

only that more exploratory work is warranted. Vnited

States v. Clyde R. Altman and Charles M. Russell, 68 1.D.

- 235 (1961). Nor may a discovery be based upon geological

inference since geological inference, no _matter how strong,

- cannot be substituted for discovery and the showing of

mineralization on nearby claims cannot serve to establish

discovery. Cf, H, Leslie Parker et al., 54 I.D. 165 (1933) ;

United States v. John R. and Pearl S. Dodson, A-27905

(July 31, 1959). Further, the mere hope or expectation,

based upon.a general belief, that. values will increase at.

depth is not sufficient to validate a claim. ‘United States

v. Duvall and Russell, 65 1.D. 458 (1958). - =

Particularly applicable to this case is the long-established

rule of the Department, stated in the case of Rough Rider

_ and Other Lbde Claims, 41 L.D. 242 (1911), as follows

(syllabus): \.

“The exposure of substantially valueless deposits

on the-surface of a lode mining claim, in themselves

insuseéptible of practical development, but which taken ae

in connection with other Astablished geological and

mineralogical conditions in the district lead to the hope

or belief that a yaluable mineral deposit exists within

the claim, does not constitute a discovery of a vein or

lode within the meaning of the law nor afford a valid

basis for a lode ‘location.’

—V,

28a

¢

In subsequent consideration of the Rough Rider case, the

Department held that since the Department had for years

allowed mining locations to be made in the area and to

go to patent on the basis of the showings held to be inade-

quate in the Rough Rider decision, it would not give the

ruling quoted a retroactive effect. Rough Riderdnd Other

Lode Mining Claims, 42 L.D. 584 (1913). However, the

rule has been applied to all claims located after the date

of the first Rough Rider decision. Gonzales v. Stewart, 46

L.D. 85, 88 (1917) ; United States v. Bunker Hill and Sulli-

van Mining and Concentrating Company, 48 L.D.. 598

(1922) ; United States v. Arizona Manganese Corporation,

United States v. Chapin Exploration Company, 57 I.D. 558

(1942) ; United States v. Wallace A. Schwartz et al., A-7673 ~

(June 20, 1933); Emil Marks et al., A-7671 (November 11,

1933); Ellen T. Gasson, A-9897 (November 11, 1933). |

Upon a careful review of the evidence, I am of the opinion

that the Government clearly made out a prima facie case

that there was no discovery here within the requirements —

of the mining laws on the date of the withdrawal or, prior

thereto and that the Government’s case was not success-

fully refuted by the appellants.

The evidence at the hearing shows that the we claims

in quéstion are located on the Morrison formation which

- consists of the Brushy Basin member and the Salt Wash

member, the latter immediately underlying the Brushy _

Basin member. (Apparently the term ‘‘ Morrison forma-:

tion’’ is used also to refer only to the Salt‘\Wash member >

(Tr. 257)). The Brushy Basin member is exposed on the

surface of the claims. (Tr. 22.) ~The principal minerals

in the area are uranium and vanadium which are mainly

found in the Salt/Wash member, although they are also

found in the Br shy Basin member. The mimeérals occur

in the Salt- Wash member in tabular-shaped ore bodies or

rolls which rarel} e&ceed 20 feet i in thickness. ( Tr. 23-24,

100, 196-197.)

29a

a

There .is no evidence that prior to the effective date of

Public Land Order 459 any holes were drilled or shafts

sunk on the claims to the Salt Wash member (Tr. 276).

The first holes were drilled in 1958, approximately 10 years

later, and in 1959 and 1960 (Tr. 249). Uranium ore was .

Struck at a depth of 201 feet in the Salfé Wash member

(Tr. 251) and approximately 2500 tons of ore have been *

removed (Tr. 255). | v4 %

Ralph $pengler, a geologist and mining engineer, testi-

fied for she Government that the took four samples from

ce points on the claims, two from each claim, and that

only one sample pow te ore grade; material. He said it

was a high grade saffiple which was not representative of

the entire radioactivity outcrop that he sampled. (Tr. 57.)

He corftluded: .

“*My opinion is that a person of ordinary prudence

would not be justified in the further expenditure of

his time and money with a reasonable prospect of de-

/ veloping a paying mine.on these claims. I base this

opinion upon the evidence that I have observed on the

surface of the claims. I base it upon the assays that I

have taken; upon the size of this mineralization, which

I believe has no appreciable extent, and I base this

opinion upon my knowledge of the occurrence of ura-

nium in the Morrison formation, of its characteristics,

of its relation to various geological ‘structures.* * *,’’

(Tr. 122.) .

James MelIntosh, also a mining engineer testifying for

the Government, took two samples which he had assayed.

He said that the assay signified-to him that .

; :

‘«* * * the.material I sampled is low grade uranium-

vanadium bearing material, and * * * the places I

sampled deserve of some more exploratory work, but

hey donot deserve thé commencing of mining opera-

ns:’? (Tr212.): «*.”

30a

He concurred in Spengler’s conclusion stated above (Tr.

222). |

The appellants do not appear to contend seriously that —

their alleged discovery is based upon their surface ex-

plorations; rather they attempt to link their surface’ find-

ings with their subsequent discovery in the Salt Wash

‘member in 1958, over ten years subsequent to the with-

drawal of the land from mineral entry. }

This ‘is the critical issue in this ‘ease,-whether the min-

eralizdtion found in the surface of the claims in the Brushy

Basin member as of the effective date of the withdrawal

may be considered as a discovery of the minerél deposits

found 10 years later at depth’in the Salt Wash member.

Appellants contend, in effect, that thet surface findings

constitute such a discovery because ‘they are indicators of

and part of the greater values at depth.

At“the hearing, F, A. Sitton was the only one to testify

for the appellants on this issue. He testified that he had

engaged in mining since 1937, that he had mined from the

Morrison formation in the area, that in four different

groups of claims on which he found mineralization in. the

surface Brushy Basin formationhe also found paying ore

in the ‘‘Morrison’’ (Salt Wash) formation below. On the

basis of this experience he stated that there is a definite

relationship between the two. (Tr. 242-247, 247 is incor-

rectly paginated 248.) ) eed

Sitton, hgwever, did not testify that there was any physi-

cal connection between the surface mineralization and the

ore body found below. In fact, in describing his experience —

in striking ore in the Salt Wash member in the four groups’

of claims where he first found surface mineralization in

the Brushy Basin member, he testified that he found noth-

ing of interest between the surface mineralization and the

ore body at depth. The only indication of mineralization

below that he relied on was.the fact that in each instance he

~~,

3la

was drilling in a ‘‘soft”’ formation. (Tr. 258-265.) When

asked whether the material in the soft formation was dis-

tinguishable from the surrounding material, he simply said

that it was ‘‘softer’’; that he had not paid any attention

to or noticed whether it differed in any other way, such

as color; that he did not particularly know whether the

material was soft until it was drilled (Tr. 259). In other

words, he fouind no vein, lode, fissure, or other geological :

structure connecting the surfacg mineralization with the

ore deposits| below. They woe completely disconnected.

The six affidavits introduced by. the appellants in support

of a new hearing also do not, establish that there is any

gelogic relation between the Brushy Basin and Salt Wash

formations. The affidavit of Elbert E. Léwis states that

he is familiar with eleven mines in the Colorado Plateau

Region which have produced vanadium and uranium and

have reported production from the Brushy Basin, and that

~-many of these ‘‘began from outcrops with similar surfacé

mineralization to that found on the DeLuxe claims.’’ This

affidavit posits no relation at all between the Brushy Basin

and Salt Wash formation. It indicates only other possible

mineralization in the Brushy Basin. The affidavit of ER. V.

Reinhardt merely indicates that both formations contain.

mineralized areas. The affidavit of Blair Burwell states

that/there exists confusion as to where the Brushy Basin

ends and the Salt Wash begins but that the occurrence of

a mineralized conglomerate on the Brughy Basin is evidence

_ of mineralization in the Salt Wash. Burwell’s affidavit,

although attempting to establish a connéction between those

two formations, has not pointed to any definitive factual

evidence establishing such connection. The affidavit of Ws

Everett Haldane stated that other claims with which he

was familiar had commercial production from the Brushy

Basin. The affidavit of Max L. Sitton contains nothifig

establishing a relationship between the formations. Tho

affidavit of F. A. Sitton states that on a number of claims

32a - Ie,

where he has found-surface mineralization on the Brushy °

Basin, he has then faund further commercial mineraliza-_.

tion in the Salt Wash But, again as at the hearing, he

has not established any definite physical or — link-

~ age between the two.

‘The testimony of the Government witness clearly stated

that there was no relation. Spengler testified,

~ “*T seé no relatiqn between slight shows of minerali-

zation in the Brushy Basin member, and any hope of

finding ore in the Salt Wash member.’’ (Tr. 122.)

In response to the question asked. of Spengler whether

in his study of the mining activity in-the:Uravan Mineral

Belt which includes this claim, he had ‘‘discovered any

references to any mines which follow directly through a

vein or some other similar path, mineralization from the

Brushy Basin member of the Morrison formation to the

Salt Wash member of the Morrison - formation in this .

. areat”’ ‘Spengler responded,

“T know of no such mines which _— from the

__. Brushy Basin member into the Salt Wash member in

this” area.’’ (Tr.-99.)

. Spengler reaffirmed several times his opinion ‘that. no

connection existed (Tr. 132, 148, 166, 172- sain 179-184).

He stated,.

‘*T found no publications written connecting the Salt

‘Wash with the Brushy Basin.’’ (Tr. 185.)

McIntosh,_the other Government witness, agreed that

‘there was no con ion (Tr. 214). : nee

On the Jasis’ of this testimony the Government’s wit-

nesses and the absence of countervailing evidence by the

appellants, I conclude that no physical or geological con-

nection has been shown to exist between the. surface min-

33a

_ eralization in the claims and the mineral deposits found 10

"years later to exist at depth in. the claims. The fact that.

experience in the area might have indicated that ore bodies

at. depth might be found where surface mineralization

existed does not satisfy the requirement of a discovery.

The situation here is precisely that ruled on in the Rough

Rider case, supra. "Wnt Shy s

In this ¢onnection, only brief note need be taken off ap|

pellants’ claim that they were surprised by the testimony

of the‘Government witnesses as to the geological theories

concerning the manner in which the vanadium and uranium

deposits may have.been formed: in the area. While the.

theories were advanced for the purpose of showing lack of

connection between the mineralization in the Salt Wash

“ member and that in the Brushy Basin, they were admitted -

‘to be unproved (Tr. 31-32). Disregarding them completely,

as we have done up to now, we have ample evidence of lack

of connection upon which to base a decision here. There is

~~ no’ necessity, therefore, to examine the theories advanced.

This leaves for consideration only the belated ‘efforts

made in the affidavits submitted to. the Director to show

. that the mineralization existing prior to the withdrawal on —

e surface of the claims was sufficient te constitute a dis- .

Sf covery. At-the hearing no serious attempt was made by

appellants to claim that their surface findings were suffi-.

cient to constitute a discovery. .F. A. Sitton did testify that

he examined the discovery cuts on. the’ claims in 1944 and

that in his opinion they showed mineralization that-would

' have caused a reasonably prudent person to proceed further

: (Tr. 21). However, he sampled only one claim, the De-

luxe; the sample assayed at 1.85 percent vanadium ore

(Tr. 251-253). . Despite this testimony as to value in 1944,

Sitton did not attempt tolease the claims at that time be-

- eause he did not have a drill rig that would go over 18 to

20. feet. He waited until 1958, 14° years later, before he

bought a half-interest and leased a half-interest in the :

®

Les 5

claims and then he drilled his first hole 01 feet deep -

“to find the ore body in the Salt Wash member.’ Thereafter _ .

-~he drilled: another 46 holes to depths varying from 50 to

230 feet. (Tr. 249-251.) These delayed acts are scarcely

indicative of a belief in 1944 that a valuable mine could

be developed out of the surface mineralization found on,

the claims at that time. = vo mo aye

a discovery of a valuable deposit in the surface cuts prior

to the withdrawal in 1958. |

At the hearing there was evidence that in the 1940’s

vanadium ore had to average 1.25 pereent vanadium pent- :

oxide to be sold (Tr.°255). - There ‘vas’ alSo indication that ~

the lowest grade ef uranium ore that could be sold was .10

=)

percent uranium oxide (Tr. 113). While this was ques- -

7 tioned by the contestees (Tr. 117), they offered’no evidence

that uranium ore of a lower grade was salable. Of the six .

samples taketi by the Government witnesses only one, de-

seribed by. Spengler as not representative, assayed over

92 percent vanadium pentoxide and .097 percent uranium

oxide. The others were much lower (Contestants’ Exhibits”

1Jt is interesting and significant ‘to note that according to the

abstract of title furnished with the contestees’ answer to the contest

complaint, the lease to Sitton, executed September 8, 1958, pro-

vided that within 20 days from that date lessee was required to —

start a drilling program and drill no less than 3000 feet and to start

a mining: operation within 30 days after completion of drilling

‘‘providing Lessee shall discover on leases property an ore body

of commercidl grade and quantity’ [sic]that is amenable to

treatment.”’ ;

%

9

~~

=

¥

35a -

- 17 and 37). “An assay certificate submitted, by the con-

&

testees' showed two samplés from the claims assaying .05

and .09 percent uranium oxide and .07 and .81 percent

vanadium pentoxide (Contestees’ Exhibit D). eee

Looking at the affidavits submitted on appeal to the Di-

rector, we find that -Lewis sampled an outcrop on the De-

luxe claim which assayed at .04 and:.105 percent uranium

{ oxide and .41 and ,96 percent vanadium pentoxide. Rein-

tay f

2f> as

Bh cee _.,

sd y

. -

‘hardt cut three samples which showed .062, .014, and .021

Fe

we

percent uranium oxide and 61, .29, and .35 percent yana;

dium pentoxide. Haldane took a grab sample on the De-

luxe claim which ran .66 percent vanadium pentoxide. The

other affiants did not sample. However, F. A. Sitton at-

tached a statement of the ore sold from the Deluxe claim,

_ presumably from the Salt Wash deposit; in the period

1959-1962. This statement showed that the ore averaged

1.59 percent vanadium pentoxide,and .2178 percent uranium

oxide, far. higher percentages than those shown by ‘the

surface samples taken by the affiants and the Government

*- witnesses.

In short, the great preponderance of the evidence, includ-

ing that submitted by the contestees, is that the mineraliza-

tion found on the surface of the claims, even as of this late

date, is of such a low grade as to have no commercial value.

In th\s connection, it is to be noted that, except possibly

for the \affidavit of Reinhardt, no evidence has been sub- .

mitted at any time as to the possible or probable size of

the vein, lode, or deposit claimed to have been discovered

. on the surface of the claims. (See Tr. 96, 98.) Thus, even

a high grade sample of an isolated bit of material would

be meaningless in itself without a showing of the probable

size of the deposit from which the sample was taken. Rein-

hardt’s affidavit refers 4o sampling a 200-foot outcrop

which had evidence throughout-of vanadium minerals and

in two places of ore-grade mineral. However, he sampled

the two points with the negligible results listed above.

36a

_ix. ‘Thus, although the affiants expressed their opinion that

a prudent man would have been justified in 1941 or. 1948 in

spending time and money. on the claims with the reasonable

expectation of developing a paying mine, not, one stated

his belief that the mineralization found on the: surface in

the Brushy Basin member constituted in itself a discovery

of a valuable deposit... Rather the affiaitts were saying no

more than that the mineralization. found warranted a pru-,

dent man in proceeding further to find a valuable deposit

which could reasonably be inferred to exist at depth but

which had not yet been reached when the withdrasval be- ~

came effective on March 30, 1948.

To summarize, the only—valuable mineral depostt shown

_ to exist on the claims is the deposit found by drilling in

1958 to exist at a depth of 201 feet in the Salt Wash for-

deposit extends to the surface and was uncovered on March

30, 1948. : :

Accordingly, it must be concluded-that no discovery of

a valuable mineral deposit has-been shown to have been ~ .

made as of March 30, 1948, and no showing has been

made that-a further hearing would be preductive of evi-

dence that such a discovery has been made. ° te

Therefore, pursuant to the authority delegated to the

Solicitor by the Secretary of the Interior (210 DM :2.2A

(4) (a); 24 F.R. 1348), the Assistant Director’s decision is

affirmed.: os he,

as Ernest F. Hom

tie Ernest F. Hom

Assistant Solicitor

Land Appeals.

f

— _——,

ti

mation. There is no evidenee that any portion of this . ’,

sa |

APPENDIX E-

Opinion of Hearing Examiner

UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

Office of Hearing Examiners

924 Boston Building

Salt Lake City 11,"Utah = *

June 15, 1962

=

DEcIsIon —

Unirep States or America, Contestant .

Vv.

C. F. Syyper, J. F. ‘Auuison, Max Sirron, and F. A. Srrron,

a ee Ber es eat | Contestees

°

~ « CoLoravo 236

Involving the DeLuxe -and Master DeLuxe lode mining

Claims situated within sections 22 and 27, T. 44 N., R. 19

W., N.M.P.M. (Lower San Miguel Mining District—San

Miguel County), Colorado. — 2

Mintne Ciaims DecharEep InvaL

{ This is an adversary proceeding under the provisions of

Part 221, Title 43, Code of Federal Regulations; by com-

plaint of September 22, 1960, the United States alleged

the invalidity of the above-identified mining claims on the

following grounds: :

-—

-“‘(a) No discovery of a valuable mineral sufficient.to

support a mining claim was made within the limits of

either of the above described claims prior to the effec-

tive date of Public Land Order No. 459 which withdrew

sections 22 and 27, T. 44 N., R. 19 W., of the NM.P.M., —

from mineral entry, which order is dated March 25,

1948, was filed with the Federal Register at 8:45 a.m.

~ ei

38a |

on March 30, 1948 and wag published in the Federal

Register on March 31, 1948 in Volume 13, at Page 1763.

**(b) No discovery of a valuable minerdl sufficient

to support a mining claim was made on that portion of &

thé Master DeLuxe Mining Claim which is located in ~

* the W% of section 22, and in the N% of section 27,

T. 44 N., R. 19.W., of the N.M.P.M., since this area

was restored to mineral entry by Public Land Order -

698 which was dated February 12, 1951; was filed with -

the Federal Register .on February 15, 1951 at 8:47

/a.m. ; and was published in the Federal Register -on

February 16, 1951, in Volume 16, at Page 1638.

‘‘(c) That the discovery, if any, within the bound-

_ aries. of the Master DeLuxé Mining ©laim falls within

_ the boundaries of the DeLuxe —e Claim which is

a prior location.’’ :

Timely : answer in the form of a general denial was made

in behalf of the contestees.

r 7

Pursuant td notice of March 1, 1961, a~hearing in this

proceeding was held May 16 and 17, 1961, in Room 41-C,

New Custom House, ‘19th and Stout Streets, Denver, Cglo-

rado, before the undersigned hearing éxaminer.

The United States was represented by Mr. John R. Little,

® Attorney, Office of the Regional Solicitor, U. S. Department

of the Interior, Denver, Colorado; Messrs. Ralph G. Speng-

ler and James F. McIntosh, valuation engineers (mining),

Bureau of Land Management, testified in behalf of the

United States. ae :

The contestees were represented by Mr. Dan Milenski,

attorney at law, of Milenski and Parga, Cortez, Colorado;

- Messrs. C. F. Snyder and F. A. Sitton testified in behalf

of the contestees.

~

Z

‘

39a

2

The exhibits introduced by, the itil are described in

_ Appendix ‘‘B’’,

¢

is, AOE

The parties have filed briefs and proposed findings of

fact and conclusions of law; the hearing examiner’s rulings |

on the proposed findings of fact and conclusions of law are

set out in Appendices ‘‘C’’ and ‘‘D’’,

I

Shortly after the commencement df the hearing, the par-

ties presented a stipulation of agreement coneerning cer-

tain of the matters involved in this proceeding; the matters

agreed to are set out in Appendix ‘‘A’’. Under paragraph

_--1(6) of the stipulation, contestees admit that, as alleged in

' part (b) of the complaint, no separate discoveries have

been made within that portion of the Master DeLuxe min-

ing claim located i in the W14 of section ‘22 and the N14 of

section 27, T. 44 N., R. 19,W., N.M.P.M., Colorado; in view

thereof, allegation (b) of the complaint i is hereby held to

be ‘sustained.

Tm |

’ According to the respective location certificates (exhibits

A and B), the DeLuxe and Master DeLuxe lode mining _

claims involved in this proceeding were located September

10, 1941, by C. F. and C. A. Snyder for lands within sec-

tions 22 ard 27, T. 44 N., R. 19 W., N.M. P. M., Colorado; ?

the discovery mineral: hes been identified. as vinadions.

1In a letter dated November 18, 1959, and addressed to the

Bureau of. Land Management, contestee C, F. Snyder recites -that

on ‘‘July 8, 1941, Mr. C. A. Snyder and myself located the Deluxe

‘Mining Claim. On the morning of July 10, 1941, I personally

located the Master Deluxe Claim and on the evening of July 10,

1941, C. A. Snyder relocated the Deluxe Mining Claim and he

had both notices recorded.’’ (Exhibit 3) ;

. oo

| 40a

©

On March 30, 1948, under, the provisions of Public Land

Order 459, 2 all of said sections 22 and 27, subject to valid

. existing rights, were withdrawn from all forms of appro- —

priation under the public land laws, including the mining

_laws, but not the mineral leasing laws, and reserved for

the use of the United States Atomic Energy. Commission.*

Thus,. if the two mining “claims involved i in this proceed-

ing had been validated by discovery: prior to March 30,

1948, and were existing as valid mining claims on that date,

the provisions of Public Land Order 459 would not apply

thereto and the area covered by the claims would remain

‘unaffected by the withdrawal order.

On the other hand, if, as contended by the United States,

these two mining claims had not been validated by dis--

covery prior to March 30, 1948, both claims were invalid:

on that date and the lands covered thereby were thereupon

effectively withdrawn under the provisions of Public Land

Order: 459 for the purposes stated ‘therein. -- - fo

The primary issue in this proceeding, therefore, is ~~

whether the DeLuxe and the Master DeLuxe. lode mining

claims were valid existing claims on March 30, 1948, and

thus within the exceptions proviso of Public Land Order

459.

IV

With respect to the issue set out above, it is well setjled

that the location of a mining claim is not valid unless and

2 Exhibit 1; Public Land Order 459 is dated March 25; 1948,

but did not become effective.to withdraw the land until March 30,

1948, the date the order was filed with the Federal Register (44

Uz. S. C., sees. 301-307). ; : ‘

8 Public Land Order 459 was revoked to the’ extent of the wt

' section 22 and all of section 27 by Public Land Order 698 of

February 12, 1951, said revocation being effective the Both day

thereafter.

EE. aie | Pak a ko es

| until there has been a discovery of valuable mineral within

the limits of the claim located. ‘

In defining discovery, the ‘courts pe" the Department

have repeatedly held that the requirements of the United

States’ mining laws concerning. discovery have not been °

met until minerals have been discovered and the evidence

is sufficient to jastify a person of ordinary prudence in

making an;expenditure of labor and money, with a reason-

able prospect of success, in developing a valuable mine.®

Under the foregoing definition of’ discovery; ‘it is not

~ necessary that there be an actual disclosure of commercial

ore at the discovery point ; however; the showing required

to validate a mining location must establish the fact ® that |

there has been discovered a mineral-bearing vein or lode

‘<nossessing in and of itself a dyhcrauaa or prospective value

for mining purposes.’’* i

~~

____ he _time-honored—test— wie applied in determining

_ whether a discovery has been achieved on a lode claim is

—— y 4 Revised Statute 2320 (30 U.S.C.A., sec. 23) provides that ‘‘no

location of a mining claim shall be made until the discovery of .

a vein or lode within the limits of the claimed located.’’ :

5 Castle v. Womble, 19 L.D. 455 (1894); Chrisman v. ‘Miller,

\ 197 U.S. 313, 322 (1905) ; Cameron v. United States, 252 U.S. 450,

459 (1920) ; United States v. Wilmer D. Everett, et al., A-27010,

Supp. (October 17, 1955); United States y. John Giulio, A-27842

(February 6, 1959).

_______—-Phe recital of a mineral discovery in a recorded notice of loca-

tion of a mining claim is not evidence of the discovery ; the general

rule is that such a recital is merely an er parte, self-serving

declaration on the part of the locator, and the discovery must be

proved by other evidence. Rejterated by the Department in the

case of Starks v. Mackey, et aJ., 60 I.D. 309, 311 (1949), a

Cole v. Ralph, 252 U.S. 286, 303 (1920); United States v. C.

Strauss, 58 I.D. 567, 571 (1948). a

* East Tintic Consolidated Mining Claim, 40 L.D. 271 (1911).

- e % ‘

° . &

- =.

>

ae,

that set forth by the Department in Jeff erson-Montana

Copper Mines Company, 41 L.D. 320 (1912) :

‘1: There must’be a vein or lode of quartz or other

rock in place.

“2. The quartz or other vouk in place must carry

gold or some other valuable mineral deposit.

3 3, The two preceding ~denapha, when taken to-

gether, must be such as to warrant a prduent man in

the expenditure of his time and money in an effort to

develop a paying mine. . Les

“Tt j is clear that many factors may enter into the third

~ element: the size of the vein as far as disclosed, the

quality and quantity of mineral it carries, its proximity

to working mines and locations in an established mining

district, the geologic conditions, .the fact that ‘similar

| veins in the particular locality have been explored with

success, and other like facts, would. all be considered by

a prudent'man in determining whether the vein or Tode

he has discovered warrants a further expenditure or

not.’’ :

In other words, to constitute adequate discovery under

the mining laws it must be conclusivelf established by com-—

petent evidence that a mineral deposit has been actually

found and physically uncovered within the limits of each

__ mining claim-leeated, and that the situation and formation

- - of the mineral so found and uncovered are such as to justify

a prudent man in the further expenditure of time and

money, with a reasonable prospect of success, in developing

a valuable mine.

The foregoing principles, however, must be considered

in the light of the provisions of Public Land Order 459

which is involved in this proceeding, i.e., in addition to

the validation of these two lode mining claims by the fact -

\ |

2

2 Sb,

8

of. discovery, such Galidation must ‘ot only be shown to

have been effected prior to March 30, 1948, the effective

date of Public Land Order 459, but < “they must also be.

shown to have been existing , as valid mining claims on that

. date.

‘ei 3

Accerding to the evidence presented in behalf of, the

' United States, thé two mining claims involved in this pro-

ceeding were examined on July 14 and 16, 1959, and from

April 26 to April 29, 1960,’ by valuation engineer Ralph G.

Spengler. In his first examination on July 14, 1959, Mr.

Spengler was accompanied by contestee C.. F. Snyder; the

- . mining claims and the geelogy thereof were examined and

samples and photographs were taken; during the 1960 ex-

amination, Mr: Spengler was accompanied by valuation

engineer see ge McIntosh, at which time the claims were

surveyed and mapped, and: additional samples and paot-

es sl were taken. =—s_—- Serena |

These two mining claims are situated immediately east

of the top of Horse Range Mesa and are within what has

been termed the Uravan Mineral Belt; the claims are en-

tirely within the Brushy Basin member of the Morrison

formation; the Brushy Basin member contrasts with the

Salt Wash member immediately underneath in that it con-

~ tains more mudstone and fewer sandstone layers; outcrops

in the Brushy Basin member are concealed in portions by

- overlying debris. : .

The principal minerals in the-area of the Horse Range

Mesa are uranium and vanadium and are found mainly in

~ tabular-shaped ore. bodies in the Salt Wash member, al-

‘though there are occurrences 6f uranium and vanadium

mineralization in the Brushy Basin member ; the ore bodies

in the area range from. several inches: to several feet in

.thickness generally, very rarely exceeding twenty feet:

these are tabular, irregular, curved ore bodies generally

oe ‘

‘

&

da

following the bedding ‘of the sandstones; they do not-

abruptly \pr vertically extend into other formations, but are

mainly confined to the lenses ofthe Salt Wash formation ©

within one stratum. {Tr. 24-25)

After referring to the guides ‘established by the U. s.

Geological Survey for the location of areas favorable to

mineralization (Tr:.24-26) and giving a description of the

_ geology of the general area: (Tr. 38-39), witness Spengler

testified in detail with respect to, his examination of the

claims in company with contestee C. F. Snyder, the latter —

pointing out the places in each of the claims which he be-

lieved contained deposits of vanadium; contestee Snyder

indicated to witness Spengler that the samples taken were

. representative of the material showing on the surface of

the claims. (Tr. 40-51) :

Concerning the sigiificance of the assy , ‘tondlie of tlie

samples listed in exhibit 17, witness Spengler testified :

“The first sample, No. 1D, indicates to me that it is

the uranium mineralization. It is below the acceptable

grade that. will be. accepted by the Atomic Energy

Commission.

3

‘Sample 2D is approximately ore grade material. -

However, I must point out this is a high-grade sample.

It is the best material show ing” It is not, in my opin- _

ion, representative of the entire radioactivity outcrop

which I sampled. :

‘Sample 3 MD, which is on the Master Deluxe claim, .

is not even ore grade and could not even be considered

low grade.. It shows mineralization.

‘<The same with sample 4 MD, which shows minerali-® ay

zation but cannot be considered ore grade * * * for

either uranium or vanadium.”’ (Tr. 56-57)

Based upon his examination of these two mining claims,

witness Spengler testified that in his opinion a person of

G

4%

45a

ordinary prudence would not be justified in fhe further

expenditure of his time and money with’‘a reasonable pros-

pect of developing a paying mite on these claims; his opin-

ioft is based upon evidence he has observed on the surface

of the claims, upon assayy of samples that he has taken,

- upon his belief thathe mineralization has no appreciable

extent, and upon his knowledge of the occurrence of ura-

nium in the Morrison formation, its characteristics and its

relation to various geological structures; also, because he

sées no relation between slight shows of “mineralization °

in the Brushy Basin member and the hope of finding ore

-in the’Salt Wash member. (Tr. 122) ~

om. & |

Mr. James McIntosh, also a valuation engineer.for the

Bureau of Land Management; testified that he examined

these two claims with Mr. Spengler from April 26 to 29,

4

“1960; he corroborated Mr. Spengler’s testimony in sub-

stance. Mr. McIntosh further testified that he ‘‘found no

‘ economic mineralization in the claims,’’ and neither did he

_observe any geelogic indication such ‘as faulting o¥ leaching -

which would be indicative of economic mineralization (Tr.

206) ; he found a few points of slight radioactivity along ,

the conglomerate region (exhibit 6) ybut not sufficiently en-

couraging to justify sampling. Based‘upon his knowledge

of the geological conditions in the area and of his exami-

-nation of the areas of mineralization to which he had

previously testified, witness McIntosh testified that in his

opinion the showings of mineralization he noted are sub-

stantially in the same condition they would have been in

1948 or the preceding years. (Tr. 213)

‘Based upon his examination of these two mining claims,

the geology of the area and the assay results of samples

taken, witness McIntosh testified that in his opinion a

- prudent man would not be justified in expending more time

and effort with the reasonable expectation of developing *

pa)

¥?

a paying mine.

.

/

46a

VII

Contestee C. F. Snyder was called by the United, States as

an adversé witness; he testified he was familiar wifh the

conditions on these two claims-at the time -of: Public Land —

Order 459 of March 25,'1948; he corroborated | ‘prior testi-”

mony by. others to the effect ‘that there has been develop-

ment” ‘and exploration, work done on the claims) since 1948,

such as drill holes and sinking of a shaft; ‘he also-admitted.

that, aside from these more recent improvements the con-

ditions on these two claims at. the time of the examination

by Government engineers are substantially the same as

they were at the time of Public Lang Order 459 of March

- 25, 1948. : 3

yu, .

Viewed in the light of the prerequisites for discovery as

set out hereinabove, I find that the foregoing presentation

by the United a haes alone, and disregarding

ont

any evidence to the rary—is sufficient to Gonstitute a

prima facie® ease in hea of the allegation that -a dis-

covery of a valuable mineral had not been made. within the

limits of either of-these two mining claims ‘prior to. March

30, 1948, the effective date of'| Public Land Order 459,

\ on

, fe Dar ee

In support of contestee’s contention as to the validity

of these two mining claims, Mr.’ F. A. Sitton, a contestee,

‘testified he has been engaged in. the occipation-of miging .

since 1937, first as to uranium ‘‘and then vanadium and

- uranium with a little manganese”’ (Tr. 241-242); hé is

familiar with the area represented by exhibit 4, having

8 When the Government contests the validity of a mining claim,

it bears only the burden of going forwArd with sufficient evidenes

to establish a prima facie’ case; thé’burden then shifts to the

mining claimant to show by’a ‘preponderance of the evidence that

his mining claim is valid, Foster v., vy ste ‘271 Fa 2d 836, 838

(D.C, Cire. 1959). . ‘ rg

5 Re

tw

&y

fa | 47a aegeerce mae 2 a

mined the Hadinah group of mining eplaio approximately

three miles south of the two mining claims. involved here-;

while mining in the Brushy Basin formation, they ‘‘drilled —

below and immediately picked up our “targest body of,

carnotite’’ they had evér found (T'r. 243); in the four prop-

erties which lie operated in the Brushy Basin, ‘he ‘‘found :

the Morrison directly below’’® (Tr. 246); in each instance’ ©

of mineralization in the Brushy Basin formation, he found

ore in the Morrison formation below.

Mr. Sitton further testified he- exanbict these two mining |

claims in 1944, as well as the discoveries thereon ; in his

opjnion, the discovery lode in both of these. mining cla?ms

showed a ‘‘mineralization that would have caused a reason-

-. ably prudent person, as defined herein; to have proceeded

further’’ (Tr. 251) ; assay reports of samples taken the

3 first of which was made in 1944, disclosed ‘‘1.85 péreent

vanadium”’ on the DeLuxe mining claim, but these reports

of assay are not available-for presentation in evidence _

(Tr. 253-254) ; the witness purchased a one-half interest in’

phe DELUXE wed § claim in August.or September ‘of 1958,

~ and then started:

rifling operations,

Contestee Cc. A. Spyder testified he was one of the lo-

cators of these two mining claims; he found ‘‘cropping of

ore in this Brushy Basin'formation”? (Tr. 269) ; at the time

‘v. he lacated these. a he believed he had a discovery

_. upon which he ¢ould.‘ ‘sp nd meney and work out a success-

ful operation’? or he “¢wouldn’t have located’ the claims .

(Tr..275) ; however, he did not ‘present any probative evi-

dence concerning the actual circumstances” of the claimed

discovery of minetal ‘prior to March ‘30, 1948, within each"

of these two claims. a a

a i

¥

9 At Tr. 957, the witness admitted the term ‘“Morrison’’ to mean

‘Salt. Wash. ig etn ; ;

10 The factors to be cpnsidered are defined ™~ the Department in

the J efferson-Monfana Copper Mines case (page 5 hereinabove).

g 7 :

ae

é

| 48a

Upon cross-examination, Mr. Snyder admitted that, with

the exception of a minor amount, he did not do any actual

mining prior to about 1948, but he did do assessment work.

(Tr4275) - | | : "

js

xX

Upon consideration of contestees prese tation in the

light of the issue and of the prerequisites for discovery as

- contemplated by the United States ‘mining Laws, I find the —

. 7 os a»

evidence is insuffic

‘ent to. establish that the two mining

claims involved in this proceeding were valid existing —

claims on March 30, 1948, the effective date of Public Land

Order 459.

Accordingly, 1 further find that thgse two mining cl#ms

wére not valid existing claims under the mining laws on

March 30, 1948, and, therefore, did not come under the ex-

ception of the withdrawal provision of Public Land Order

459 effective on that date. It follows that on March 30,

1948, the respective areas covered by the two mining claims

involved in this proceeding were effectively withdrawn on

that date by Public Land Order 459 from all forms of

appropriation under the public land, laws, including the

mining laws but not the mineral leasing laws, and reserved

for the use’ of the U. S. Atomic Energy Commission.

In view of the foregoing, the DeLvxe and the MastTER

Dexvxe lode mining claims must be and they are hereby

declared.to be invalid. No need, therefore, appears to con-

sider the merits of the allegation (c) of the complaint.

XI

- This decision becqmes final 30 days from its receipt un-

less an appeal to the Director, Bureau of Land. Manage-.

ment, is filed. If an appeal is taken, there ninst be strict

compliance with the regulations in 43 CFR, Part 221. (See.

enclosed Form 41364.)

lev dee me

eens:

49a, \ ‘

If-an appeal is taken by the contestees, the amount of the

filing fee will be $5.00 for each claim included in the ap-”

peal (a total of $10.00 if both claims are included in an

appeal) and the adverse party to be notified is: Office of —

the Regional Solicitor, U. S. Department of the Interior,

Room 21, Building 53, Denver _Federal Center, Denver

25, Colorado. i:

JosePH G. Conrace

Joseph G. Conrace

Hearing Examiner

Enclosure - |

Jf

Attachments: 4

Appendices ‘‘A”’ thru ‘*B”’

Distribution;

By Certifidd Mail

Mr. Dan Milenski, Attorney for contestees

c/o Milenski and Parga, Attorneys at Law °

P. O. Box 895, Cortez, Colorado | it,

Messrs. Welborn & Dufford, Attorneys at Law ..

*1700 Broadway, Denver 2, Colorado

Regional Solicitor, Denver 25, Colorado (2) «

By Regular Mail ‘

Standard Distribution °

eet:

©

50a

APPENDIX F

The Mineral Location Act of 1872, 4t Stat. 437, 30

US.C. § 22: | : ;

§ 22. Lands open to purchase by citizens ;

~

Except as otherwise provided, all valuable mineral de-

posits in lands belonging to the United Statgs, both sur-

veyed and unsurveyed, shall be free and :open to explora-

tion and purchase, and the lands in which they are found

to occupation and purchase, by citizens of the United

States and those who have declared their intention to be- _

come such, under regulations prescribed by law, and ac-

cording to the local customs or rules of -minors in the sev-

eral mining ‘districts, so far as the same ‘are applicable and

not inconsistent with the laws of the United States.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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