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that you may have all before you. I do, however, register my protest against any action of your department which would attempt to standardize that which Congress has not standardized, and to apply that standardization to all cases of discovery.

It is well known to geologists that these shale beds exist under certain geological conditions and that successive beds, separated often by leaner material, exist, and that the lower beds, unexposed to the elements or to the effect of evaporation, contain more oil to the ton than of those that are originally discovered at or near the surface. An outcrop of oil shale is universally less rich in oil content than the beds that are not exposed to the elements. If a citizen of the United States in good faith has discovered shale, and in connection with the geological conditions reasonably believes from that discovery that he will sometime reap a profit from the lower beds of shale, it seems to me there is no reason for requiring any certain amount of oil in this or that discovery. He takes his own chances, spends his own money and time and energy, acts upon the advice of such scientists as he may employ for that purpose. If he makes a mistake, the mistake is his.

Another reason why no arbitrary standard should now be applied is the fact that it is impossible for your department, or for any other department, to determine what amount of oil to the ton in any given oil shale is to be commercially valuable. How are you going to mine it? Will it be by tunnels? By shafts? Or by the caving in process? How is it going to be extracted? On the lines of the old Scotch treatment, or by some new process which the energy and enterprise of men may yet find?

I do not believe that an arbitrary standard is ever justifiable in such cases. If it is adopted, however, it should be adopted only after processes of mining and treatment have been tested in commercial enterprise and become standardized.

There is much more than can be said against the adoption by your department of an arbitrary rule of this character. It is questionable as to whether the courts will sustain such an action. The Supreme Court of the United States has always required, when the question of classification has come before it, a reasonable classification based on facts.

Knowing that is your intention to administer this great trust which is developed upon you in fairness both to the Government and to the citizens of the West, who protest against putting them in cold storage for some future generation, and believing that you will consider all these matters before you arrive at a conclusion, I have the honor to sign myself, Your obedient servant,

TYSON S. DINES. (Whereupon at 12 o'clock noon, the committee recessed until Thursday, February 6, 1931, at 10 o'clock, a. m.)

OIL SHALE LANDS

FRIDAY, FEBRUARY 6, 1931

UNITED STATES SENATE,
COMMITTEE ON PUBLIC LANDS AND SURVEYS,

Washington, D. C. The committee met, pursuant to the recess, at 10 o'clock a. m., in the committee room, Capitol, Senator Gerald P. Nye presiding.

Present: Senators Nye (chairman), Glenn, Walsh of Montana, and Bratton.

Present also: Hon. Ray Lyman Wilbur, Secretary, Department of the Interior; Hon. Edward C. Finney, Solicitor, Department of the Interior; Northcutt Ely, Executive Assistant to the Secretary of the Interior; U. E. Goerner, Esq., Assistant Law Examiner, General Land Office; Mr. Ralph S. Kelley.

The CHAIRMAN. The committee will be in order.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPART

MENT OF THE INTERIOR-Continued Mr. FINNEY. I would like to ask the permission of the committee to make a statement which relates to my testimony on Tuesday. If I may read the statement, you can then decide whether you will allow me to put it in the record. [Reading :]

FEBRUARY 5, 1931. To the Chairman and Members of the Senate Committee on Public Lands.

GENTLEMEN: The New York World whose published charges form the basis of the investigations you are conducting, in a news article published Wednesday, contained the following headlines :

“ First Oil Charge of Kelley Upheld. Finney Admits Change of Policy on Valuable Shale Lands."

This statement is false.

There was no change of policy with respect to shale lands as a result of the general public hearing held by Secretary Work, December 1, 1926. I did not state or admit that there had been a change of policy. No ruling or decision was made at the hearing or as a result of the hearing. The subsequent decision in the Freeman-Summers case rendered September 30, 1927, was based upon the evidence submitted in that particular case at the original and supplemental hearings. It was not a change of policy, but was a decision based upon the evidence and the law as presented in that case. As I stated at the hearing of December 1, 1926, and as I stated to your committee on Tuesday, each case was to be considered and disposed of upon its own facts and evidence.

The New York World also states that I admitted that the decision of 1927 virtually established an entirely new definition of oil discovery on the western shale lands. I made no such admission as the record will show. On the contrary I specifically stated the same rule had been and is applied to copper, coal, phosphates, etc. The article also refers to said hearing as an ex parte showing. I stated, as your records will show, that this was an open hearing on the general question of what constituted discovery. That it was not a contest between the parties or between the Government and parties, but was a hearing at which anyone might voluntarily appear and express his views and that the departmental officials in accordance with the usual custom in such cases, simply listened, asked questions, and filed the record for such use as might be deemed proper.

There are other misstatements in the article. It is stated that Senator Phipps wrote a letter to Secretary Wilbur with respect to the rehearing in the Freeman case. Secretary Wilbur was not in office at that time. The letter was written to Secretary Work, and I so stated. The article also says that Finney said that Senator Kendrick, Republican, Wyoming, had argued for a more liberal administration of the oil-shale claims. I did not say Senator Kendrick was a Republican. The purpose of the World in characterizing him as a Republican, I think, is obvious. It appears that this paper is distorting my evidence for the purpose of prejudicing the case and making the public believe its purchased charges are being sustained.

I ask that this statement be made a part of the record.

Senator Walsh of Montana. I see no objection to putting it in the record.

The CHAIRMAN. It will be made part of the record.

Mr. FINNEY. I have the affidavits that you requested me to bring up, filed in connection with the various motions. (The affidavits referred to by Mr. Finney read as follows:)

DEPARTMENT OF THE INTERIOR,

Washington, February 4, 1931. I hereby certify that the annexed copy of letter, filed under Denver 032575, formerly Glenwood Springs 018827, is a true and literal exemplification of the original on file in this office.

In witness whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

Thos. C. HAVELL, Assistant Commissioner of the General Land Office,

WASHINGTON, D. C., February 25, 1925.

A-6957 and 6957 (a)-J. D. Freeman and Standard Shales Products Co. v.

George L. Summers, Glenwood Springs 018825

Honorable SECRETARY OF THE INTERIOR,

SIR: With our letter of January 26, 1925, we filed in the above-described consolidated case petitions for rehearing and for a new trial, at which a proper presentation might be made of the facts in the case.

We then requested that opportunity be afforded the mineral applicants for furnishing affidavits showing that if a new trial were ordered before the local land office, material evidence could be adduced in support of the validity of the placer claims involved.

We also called attention to the fact that these claims have been recently made the subject of field examination by a mineral examiner of the General Land Office, and requested that the results of his personal and disinterested field investigation be considered in connection with this case.

Owing to the fact that field operations are necessarily suspended in the vicinity involved, owing to climatic conditions, difficulty has been encountered in locating men whose affidavits were desired. However, we have received and present herefith the following affidavits, and are expecting to receive additional affidavits, to wit:

1. Affidavit of J. D. Freeman, explicitly showing disclosure of commercially valuable shale deposits upon land involved, and full performance of annual labor upon the placer claims.

2. Affidavit of E. H. Walker of similar import. It will be noted that this affiant participated as an employee of the Survey Division of the General Land Office, in making resurvey of this township.

3. Affidavit of Joe Worthington of similar import. 4. Affidavit of H. K. Savage as to presence of snow in the vicinity involved. If, prior to action by the department upon the pending petitions, additional affidavits are received, they will be promptly filed. However, we do not feel warranted in now requesting further delay for the purpose of securing additional affidavits. The mineral claimants have simply done the best they could under existing circumstances. Very respectfully,

CONSAUL & HELTMAN, Attorneys for J. D. Freeman and Standards Shales Products Co.

DEPARTMENT OF THE INTERIOR,

Washington, February 4, 1931. I hereby certify that the annexed copy of affidavit, filed under Denver 032575, formerly Glenwood Springs 018827, is a true and literal exemplification of the original on file in this office.

In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

Thos. C. HAVELL, Assistant Commissioner of the General Land Office. (Before the Department of the Interior, A-6597–J. D. Freeman, placer claim

ant, v. George L. Summers, homestead entryman, involving Glenwood Springs, 018825 and 018827)

AFFIDAVIT OF J. D. FREEMAN

STATE OF COLORADO,

City and County of Denver, 88:
J. D. Freeman, being duly sworn, on oath deposes and states:

That he is the party plaintiff named in the above-entitled proceeding and makes this affidavit in support of his petition for rehearing and new trial,

That deponent is personally familiar with the lands and premises involved in said contest, having had charge of all the work and development performed on said lands, and having personally examined all of said lands and all openings and excavations thereon.

That by decision of December 20, 1924, the Secretary of the Interior held and decided in favor of the above-named homestead claimant on the ground that deponent had not shown and proved a valid discovery of mineral on each of the claims in controversy and had not shown that he had maintained his annual assessment work on each of said claims since February 25, 1920, for those years during which assessment work was required.

That in the event opportunity is given deponent to submit further evidence and testimony, he can and will submit a conclusive showing that there exist, disclosed and open to examination and sampling, on each of the placer claims in conflict with said homestead, deposits of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton, and in fact will show that situated on this homestead, disclosed and open for sampling, are deposits of oil shale not less than 4 feet in thickness and carrying an oil content of more than 20 gallons per ton; that evidence of these facts was not submitted in detail at the hearing heretofore held for the reasons: (a) Deponent at said hearing submitted his evidence and proofs on the theory and belief, on the advice of his counsel, that proof that the land was mineral in character, and proof of the existence of certain oil-shale strata thereon, together with proof that the known geological conditions in the section of country involved indicated with certainty the existence of valuable oil-shale deposits underlying the land, whether or not the latter were actually disclosed, was sufficient proof of legal and valid discovery, and (b) that for a long time prior to said hearing, said homesteader, Summers, patrolled the land covered by his homestead, armed with a rifle, and warned this deponent, his employees and associates, against taking any samples or making any excavations within the area of said homestead, as a result of which deponent and his employees were prevented from making excavations, or from doing a thorough sampling of the lands in conflict, in preparation for the said hearing, and deponent was therefore compelled to rely on his general knowledge of the character of the lands and the shale deposits thereon, together with a few samples that had been taken some years before.

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