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-
~
> ee
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.
%
3a
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.