rought to his attention upon cross-examination and his explanations are principally to the effect that further and later investigations and research had led him to change his views in some respects; that there was at the time the words in the bulletin were employed a lack of fitting technical terminology applicable to oil shale deposits; that in the sense of certain words such as strata," "beds" as he now understands them though possibly not in the sense that they were employed, the statements in those publications are in harmony with his present views.

Of course, if new facts are revealed in the testimony relevant to the issues as a result of more extensive and reliable research as to the character and extent of the shale deposits in question persuasively pointing to error in the conclusions heretofore accepted and are in themselves adequate basis to justify the inferences that contestants now urge the department to accept, the department may do so if the objection urged by the contestee, that this is an injection of a new issue, not even suggested in contestants' pleadings and of which contestee had no notice and was not called upon to meet, may be put aside. Passing the objection last mentioned, brief reference will be made to the evidence offered in support of the contention that the Green River formation on the land in question is one integral and homogeneous deposit all valuable for its oil shale. The evidence heretofore introduced by contestants, contestee. corroborated by the later testimony offered by the Government, is to the effect that beds of sandstone are numerous and interbedded with lean shales on the surface of the claims and of considerable thickness at various stratigraphic intervals, predominating on the J. D. Nos. 2, 3, and 5. Evidence of the examination of rock exposed in assessment holes on or about the claims, specimens of which were identified and pronounced sandstone at the hearing, furnishes confirmatory evidence of the fact. Mr. Winchester, who spent all or part of a day upon the land, states as his opinion that the sandstone beds are but thin parting less than a foot in thickness; that the shales of the formation are more or less impregnated with sand and some horizons more sandy than others, and the characterization of a deposit as sandstone or shale or sandy shale is a question largely of relative proportions. He stated that he saw no pure sandstone on the land but would not say it was not there, and that he did not examine certain assessment holes on the land to which his attention was called. Wood admits observation of sandstone, but paid no regard to its thickness, and Carroll stated he did not see any sandstone on the land, and it was his opinion that a layman would call the deposit on top of the formation shale, because it can be identified with the naked eye as part of the Green River formation and everything he had seen tested in that neighborhood yielded oil.

These statements as to topmost deposit, however, rest upon what appears to be casual and distant observation. In support of the assumption that sandstones on the land will yield oil instances were cited of oil to the extent of 30 to 50 gallons per ton being obtained from an 8-inch bed, known as the sandstone marker disclosed elsewhere and lying 50 feet above the base of the mahogany bed at a lower horizon than the surface of the land in question. There is nothing but geologic inference opposing affirmative facts to show that the sandstone on the land will yield oil, and nothing in this negative expert testimony to cast a doubt on the correctness of characterization of such beds as sandstone by other witnesses who did so.

Relative to the conclusion that there is no distinct and separate beds of shale, no definite cleavage planes, and that this is but surface phenomena disappearing away from the weathered surface in the area of the Green River formation heretofore defined, Mr. Winchester expressed disagreement with the geologist that had previously testified in the case, and with the view to the contrary effect in Bulletin No. 25 of the Colorado Geological Survey, entitled "Oil shales of Colorado," by R. D. George, and with the views of another geologist, Crosswell. He stated he had changed his ideas in respect to this feature of the deposit since the matter for Bulletin No. 729 had been prepared; that he now knows which was not known at that time, that "the beds at the outcrop are defined by weathering and do not represent themselves as beds as we get back from the weathered surface," and it becomes a massive unit and the bands and distinct bedding can not be found, but the sandstone markers and partings persist as such. Elsewhere in the record he states, "As we go under ground, as I have already testified, the partings of the shale which we are mining appears to be much more homogeneous and uniform than in the surface exposures at many places."

When asked to specify where these phenomena occur, he mentions as being actually in two tunnels on Parachute Creek, one about 15 feet deep and another driven for himself on Piceance Creek 8 feet deep where this change was observed, "and there are innumerable artificially created faces of the Green River formation over the various and sundry claims of oil shale over in the western part of Colorado which give us a very concrete example of the disappearance of distinct beds as you progress into fresh material as distinguished from the weathered surface." He was asked, "Now is not a fact that from visual examination of a fresh cut 8 or 10 feet in the outcrop that you can still see exposed distinctive difference in the characteristics of the different portions, as to color and to composition, with the naked eye?" and answered, "In some cases, yes." The above substantially embodies the particnlar facts offered in support of the conclusion. They appear too limited to warrant the broad generalization that all the shales of the Green River formation is one stratum, one bed. But whether under cover, there are distinct and discernible demarcations between vertical sections of the formations, whether they pass one into the other by imperceptible gradations, it is not disputed that there is a wide range in richness of oil content and differences in the hardness and brittleness through various stratigraphic sections, which are important factors for discrimination from the standpoint of the miner. In Bulletin No. 729 there are a number of tables of stratigraphic sections of the formation here in question, giving vertical thicknesses of beds in the column in feet and inches, the estimated or ascertained oil yield of some, some characterized as sand, some merely as lean or hard shale and the like, to some of which Mr. Winchester's attention was called.

The question occurs which is not satisfactorily answered, Why, if the entire mass is the same in structure and composition should it exhibit such diversity of aspect and properties when exposed to practically the same atmospheric conditions? Crediting the soundness of the theory that the entire Green River formation had a common genesis, determined by the presence of fossil insects therein throughout and other geologic criteria, yet from the standpoint of the miner, there does not appear sufficient grounds under all the evidence for departing from the conclusion that the deposit is composed of separate and distinct beds and strata.

Postulating production of some quantity of oil at all horizons of the vertical extent of the formation as an integral mass, the contestants endeavor to show that the system of mining that will be preferable and will be employed in attacking the deposits in question, is not that of selection of the better shale, but one contemplating utilization of all grades, which in the opinion of the witnesses who advocated it, would result in less costs and wastes and with greater acreage yield. Witness Carroll, who testified to his personal inspection of a number of large and well-known mines of the western mining States where low-grade coppers and other metalliferous ores are extracted on a large scale, and to extensive study of the system and costs of such mining, and to later study of the same factors in the problem of shale mining, particularly with reference to the formation here in question, was of the opinion that the method pursued would be that undertaken with success in mining limestone in the neighborhood of Santa Cruz, Calif.

The method as unfolded by him and narrated in a magazine article account of the same, introduced as an exhibit, consists in haulage levels being driven below the outcrop or the foot of a shaft at some point vertically from the surface and under the deposit. From these haulage ways, chute raises are driven at angles from the haulage ways at the top of which large rooms called "bulldozing" chambers are excavated from which vertical raises extended to open-surface quarries operated concentrically around them. By gravity and by the use of explosives in the hang-ups, the material is brought to the lower level.

It appears that the operations detailed are conducted in a topographic environment unfavorable for mining by a system of benches and steam-shovel mining, and is upon a deposit 1,200 feet wide and three-fourths mile long, whose axis is coincident with the trend of a ravine 1,500 feet from the face of a cliff which had been blocked out by means of diamond drill holes. It is stated that this so-called glory-hole mining is used at other places.

Winchester and Carroll testified as to computations of the average oil yield in gallons per ton of a section of the formation extending from the inferred stratigraphic position of the base of the so-called mahogany zone vertically upward 550 feet, representing the zone between said base and the beds sampled

154

by them on Triumphs Nos. 22 and 23, J. D. No. 1 and F. D. No. 7 claims, and another computation of like character extending from said base 620 feet vertically to the estimated position of the exposures sampled on the remaining claims, and conclusions were drawn that the former would yield an average of 14.7 and the latter 13.6 gallons. Estimates of the yield in barrels per acre were for the first group mentioned 404,250, and for the second group mentioned 421,600.

It was brought out on cross-examination that neither witness had made a detailed examination of the stratigraphic section upon the claims in question; that the estimates were based on partial tests of a corresponding stratigraphic column along a new trail in Sec. 16, T. 6 S., R 95 W., shown as table "HH" in Bulletin No. 729, supra, and admitted to be mostly and partly covered and not examined in detail to a vertical interval of 360 feet of such column. In this computation were also included general estimates made by pocket tests throughout the adjacent field of various sections of the upper member of the formation. As to the untested part an arbitrary yield of 5 gallons per acre was included in the computations. Conclusions thus drawn, assuming some facts, and ignoring the fact which appears by preponderance of evidence, that there are barren sandstones and practically barren shales upon the land, are of little or no weight.

Furthermore, while facts showing costs and systems of mining of like deposits under similar conditions are relevant in the appraisement of values, the department is not called upon to venture conjectures whether the shales exposed upon these claims, described to be hard and tough, impregnated in varying degree with an inflammable oil, and lying horizontally 31⁄2 miles distant at the nearest boundary and 5 miles at the farthest boundary from the richer shales in sight, will be mined by the methods heretofore or now envisaged by contestants' witnesses. It suffices to say that the scheme so far as it appears is untried as to oil shale, is but a theory that has not reached the stage of experiment, is entirely speculative and affords no foundation for attributing value to any shale exposed upon the lands in question that may yield oil.

The ultimate conclusions of the department are that the shale beds whose oil content was tested and shown by contestant subsequent to the date of the approval of the leasing act have not been connected with discoveries made prior thereto by evidence of sufficient weight and credibility to command respect; that the evidence does not show what actual exposures of oil shale the discoverer or locators found and relied upon as a discovery upon any of the claims; that the finding merely of oil shale upon the lands in question is insufficient to induce or warrant the belief, under the existing state of knowledge on the subject, that the same are valuable deposits, and a fortiori was insufficient at the time these locations were made. decisions must be and are hereby adhered to. It follows that the former

"Senator WALSH of Montana. Mr. Finney, I wish you would, before our next session, take this opinion and indicate those portions to which you dissented and to which you now dissent.

Mr. FINNEY. Well, I certainly dissent from the conclusion. I will be very glad to try to comply with your request.

The CHAIRMAN. When do you suggest we continue with this

matter.

Senator WALSH of Montana. I would suggest that we stop here and let it go over until Tuesday.

The CHAIRMAN. Very well, the hearing will be continued on Tuesday morning, February 10, at 10 o'clock.

(Whereupon, at 12 o'clock noon, the committee recessed until Tuesday, February 10, 1931, at 10 o'clock a. m.)

OIL SHALE LANDS

TUESDAY, FEBRUARY 10, 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 of the Committee on Interstate Commerce, Capitol, Senator Thomas J. Walsh, of Montana, presiding.

Present: Senators Walsh of Montana and Glenn.

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.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPARTMENT OF THE INTERIOR-Continued

Senator WALSH of Montana. Mr. Finney, we stopped when you were asked to point out the particulars in the opinion prepared by Mr. Duncan with which you disagreed.

Mr. FINNEY. I have made an effort to do so, Senator, but of course you will understand in the time I have had I have not been able to analyze all of the evidence in this case, covering 1,600 pages, Senator, so I took the Duncan decision and tried to point out-I have written a memo-I have tried to point out with reference to the page numbers, certain things that I don't agree with, and then I have also explained why I wrote the substitute decision.

Senator WALSH of Montana. Will you read it, please?

Mr. FINNEY. Yes, sir. There is the proposed decision, if you would like to have it before you.

Senator WALSH of Montana. Thank you.

Mr. FINNEY. (reading):

UNITED STATES DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, February 9, 1931.

Memorandum in re: Proposed decision prepared by Mr. Duncan in FreemanSummers case, February 27, 1927.

On page 5, reciting the measure and character of the proof to be submitted at the supplemental hearing, Mr. Duncan quotes from the decision of July 29, 1925, ordering the new hearing, but omits to quote or mention telegram of instructions to the register and receiver, January 28, 1926, authorizing them to receive and consider testimony with respect to the geological formation, exposures of shale on nearby lands, etc. This is material, because for years the department and the courts have held that in determining the character of land, investigations and evidence are not to be restricted to the specific tracts involved, but may go to discoveries on adjacent land and to their geological formations (30 L. D. 583); (34 L. D. 104); Diamond Coal and Coke Co. vs. United States (233 U. S. 236); Charlton vs. Kelly (156 Fed. 433).

Pages 18 and 19. I do not agree with the statement that the testimony of Dow was without probative force because he was unable to recall years after location the exact points on the claims where he saw shale. It is clear from the testimony of the Land Office Special Agent Kintz, corroborated by Crandall, that natural exposures were visible on the Triumph Nos. 22 and 23, and on the J. D. Nos. 1 and 2. On the F. D. No. 7, Kintz found oil shale in an open cut which had been made by mineral claimants at a time not stated. On the J. D. Nos. 3 and 5, Kintz found oil shale in an artificial exposure described to him by Freeman and designated by Dow and Hubbard as a discovery. Where natural exposures of shale were visible and were found by the Government agent, it is but fair to reach the conclusion that Hubbard et al., when upon the claims locating and performing acts in connection therewith, found and observed these exposures. Hubbard states in his testimony that he made discoveries on all the claims separately; that he knew oil shale and that took samples of it and brought a lot back with us and burned several samples in the camp to test them out." It is a fact that prospectors not equipped with scientific apparatus for testing shales do make tests by burning samples and I have personally subjected oil shale fragments to this sort of a test.

we

Dow's testimony is not definite because as he stated "Five years afterwards I can't carry a picture in my mind of the certain location of those things in so many claims I was over." It is not unnatural that years after the date of location he was not able to testify as to the exact position of exposures that he saw on the original visits to the ground. As to the location of discovery holes or workings, the statement of witness Hubbard that it was hard to definitely state the exact position thereof because none of the discovery holes were tied in i. e., connected by a surveyed line to a corner or natural object, is not to my mind an unreasonable explanation, and is not sufficient ground for disbelieving his testimony.

On page 26, Mr. Duncan refers to the introduction of documents including minutes of the meetings of the county commissioners, April 1 to 4 and April 5, 6, 8, and 9, 1918, showing Hubbard to have acted as clerk on those occasions and Hubbard admitted on cross-examination that if his name were signed to the documents, he must have been in Glenwood Springs on those dates. He explained that the trip from Glenwood to the claims took 6 or 7 hours and that the 11 days he worked were not continuous and he was going back and forth. At one point in his testimony he states that his work upon the claim was between April 2 and May 16. It is entirely possible, therefore, that Hubbard was working on the land for 11 days even if, as shown by the records of the county commissioners, he was present in Glenwood Springs during the 8 days covered by their records.

Mr. Duncan states on page 28 that at the time these parties were on the claim "snow was deep on the ground." In their testimony "there was snow on the north side of the ridges where the sun did not shine", but they did not remember placing any corners in the snow. It is not shown that other parts of the claims were covered with snow at that time and I found nothing in the testimony to justify Mr. Duncan's statement that the claims were covered with deep snow. Be that as it may, Mr. Duncan, on page 30, proposed to hold that assuming that oil shale outcropped on certain of the claims and that Hubbard and Dow at the time of discovery saw the shale, that Hubbard sampled it and found some of the samples would burn and recognized them to, be oil shale, the question is presented as to whether this in and of itself, constitutes a discovery. He then proceeds, pages 30 to 32, to discuss the mineral claimant's contention that the area in question is one homogeneous deposit of like mineral easily identifiable by fossil minerals and that a discovery of any oil shale on the land a part of the mass that lies below it is a sufficient discovery to satisfy the law.

Mr. Duncan, on page 32, states that the questions raised go beyond the scope of the inquiry that the department defined and constitute an attempt not to meet, but to avoid the measure of proof.

The telegram to the register permitted such evidence to be introduced and the cases cited heretofore in this statement and many other decisions specifically authorize taking into consideration discoveries on and the geological formation of the lands and surrounding areas. This is not only departmental practice, but is common practice of people engaged in mineral development and mining, and even uneducated prospectors soon learn to study the formations and exposures and to draw conclusions therefrom. Therefore, I do not agree with Mr. Duncan's statement that the questions raised went beyond