tion and formation that the vein or deposit could be followed to depth, with reasonable assurance that paying minerals will be found, such discovery may form the basis of a patent, where compliance with the law has been had in other respects.

Field investigation is being made of all shale claims, to the end that valid rights may be protected and permitted to be perfected, but that invalid claims, where compliance with the laws has not been had, may be eliminated and canceled. Many difficult questions of law and of fact necessarily arise in these cases, and while general rules of law may be applied, the facts of each case, as disclosed by investigation and evidence, must govern the department in the disposition of the cases.

I suppose you wrote that part of the report, Mr. Finney?

Mr. FINNEY. I think Burlew wrote the annual report that year but undoubtedly I reviewed that. I don't think he would put that in without consulting me.

Senator WALSH of Montana. Well, one would get the impression from this that the decision in the Freeman-Summers case was more or less influenced by the conference on December 1, I would think, Mr. Finney.

Mr. FINNEY. Well, I don't know.

Senator WALSH of Montana. It says

A public hearing, attended by many people interested, was held in the department on December 1, 1926, and the subject was thoroughly discussed. Following this hearing, after extended consideration by the department, decision was rendered in the case of Freeman et al. v. Summers, involving, primarily, the question of what constitutes sufficiency of discovery upon certain shale placer-mining claims.

Mr. FINNEY. Of course, the hearing was called for the purpose of discussing discovery, that is true.

Senator WALSH of Montana. Let me continue from Mr. Kelley's article. [Reading:]

Mr. Finney remarked to me that the facts contained in the report "would prove very embarrassing."

What is the fact about that?

Mr. FINNEY. I don't recall that I said that.

Senator WALSH of Montana (reading):

He asked me also if I knew what the consequences would be if the facts in the report proved to be incorrect. I replied that I was not under any misapprehension and that I was prepared to stand on every line of the report.

What does that mean?

Mr. FINNEY. I think I did say something to him about the fact that he was being criticized by the attorneys and others out there for being unfair, and that if he made a statement to the Secretary which he could not support, it might be troublesome to him.

I want to say right here, if I may, that I had been instrumental, to a degree at least, in keeping Kelley in his job. There had been a lot of criticism of him and I had spoken to the Secretary and suggested that no changes be made.

Senator WALSH of Montana. Criticism from where?

Mr. FINNEY. From lawyers and shale claimants out in Colorado. Senator WALSH of Montana. Out in Colorado?

Mr. FINNEY. Yes.

Senator WALSH of Montana. He continues

Thereupon I laid several copies of the report on his desk. I said that I wished to have the opportunity of taking the facts in the report up with

all the attorneys in the office of the solicitor of the department. At that Finney told me he did not wish me to discuss the report with any of the attorneys. He spoke with some show of feeling.

Mr. FINNEY. I wasn't holding any soviet. As long as I am in a position of control, I am not going to submit to the subordinate the final decision of the case. I don't believe that is proper. If these men had had the case before them, any one of them, and were charged with the duty of preparing the decision, I certainly would have given them a copy of that report. That was not the fact, Senator. No one among the attorneys had the case before them at that time.

Senator WALSH of Montana. When the application for the exercise of supervisory authority was filed, what was done with that application?

Mr. FINNEY. That was referred out to Mr. Phillips, the same attorney who had written the two previous decisions.

Senator WALSH of Montana. Well, when this application by Summers came before you for a rehearing, to whom was that referred?

Mr. FINNEY. That, I think at the time-I am speaking now just from recollection-I think that was just resting in the file with other cases. We usually have 700 or 800 cases on hand down there waiting to be assigned out. A long time afterwards it was assigned out to this same Mr. Duncan.

Senator WALSH of Montana. On application, the Kelley report would be exceedingly pertinent, would it not?

Mr. FINNEY. Well, that would depend, of course, on the questions that were raised by the Summers attorney in his motion, and also whether the parties considering it gave any particular weight to that report; yes, sir.

Senator WALSH of Montana. Well, anyway, did the Kelley report go to the solicitor of the department?

Mr. FINNEY. No, sir.

Senator WALSH of Montana. Nor to any of the board of review? Mr. FINNEY. No, sir.

Senator WALSH of Montana. It came before you, and, except for the talk that you had with Doctor Work about it, no one else in the department knew anything about it?

Mr. FINNEY. Well, I told Spry we had decided not to take any action on it.

Senator WALSH of Montana. That was your determination on the

matter.

Mr. FINNEY. Yes; that was while Kelley was still in Washington. Then, the report was referred by me to the General Land Office to be filed in the usual place. In other words, the action was nonaction.

Senator WALSH of Montana. Well, what was eventually done with the application for a rehearing?

Mr. FINNEY. That was held, not acted on, because of the pendency of the Krusknic case, which involved the annual assessment work, and after the decision by the Supreme Court in that case, it was assigned to Mr. Duncan and he prepared a paper which was approved by Assistant Secretary Edwards. I think you will find

the question of discovery is not particularly discussed in there. There are five or six other questions discussed.

Senator WALSH of Montana. This does not discuss the question of discovery at all, apparently.

Mr. FINNEY. No, sir; I said I thought it did not. I did not take any part in this for some reason. It did not come through my

office. I was solicitor.

Senator WALSH of Montana. This is dated January 31, 1930, I see. Mr. FINNEY. Do you care to have that put in?

Senator WALSH of Montana. No; it does not discuss the question of discovery at all.

Mr. FINNEY. No.

Senator WALSH of Montana. The motion apparently was based on other grounds.

Mr. FINNEY. Yes; four or five.

Senator WALSH of Montana. And simply discusses, among other things, failure to do assessment work.

Mr. FINNEY. Yes.

Senator WALSH of Montana. And that was taken care of by the Krushnic case?

Mr. FINNEY. Yes; and it discussed the question of whether they had to file a notice with regard to assessment work, and things like that.

Senator WALSH of Montana. That is all I care to inquire about with respect to the Freeman-Summers case.

Mr. FINNEY. Just one other word. I thought Kelley was unduly excited about the effect of the hearing and I still think he was unduly excited. In other words, as you will recall, I stated during the hearing that each case was to be determined on its own facts. It is true, however, that when you refer to geology and to exposures on near-by lands, what would apply to A's case would apply to B, but I thought Kelley was unduly excited and that he thought the department was just going to shovel out a lot of mining patents to everybody. There was no intention on my part of doing anything of that kind, so I did not give very great weight to the oral statements he made to me when he was there. I felt the department had decided this case after two hearings and that decision had been made, and that it was not advisable for the department, on that nature of a report, based on a statigraph made 15 miles away-I saw no particular reason for reopening it. We could not have taken adverse action just on the report itself because we do not cancel or deny claims on agents' reports. We order a hearing.

Senator WALSH of Montana. I want to find out from you now just what effect, if any, the Freeman-Summers case had upon subsequent cases coming before the department.

Mr. FINNEY. Well, we had an examination made of the records. by the General Land Office, and they tell me that there have only been three claims that have passed to patent which may be said to have gone on a doctrine analogous to the Freeman-Summers case, and that the aggregate area is about 2,000 acres. In other words, the Land Office, or the department, apparently found the same state of affairs on the three claims, including 2,000 acres, as was found in the Freeman-Summers case. Does that answer your question? Senator WALSH of Montana. Yes; I think so.

Mr. FINNEY. I think we referred to the Alturas case earlier in the hearing; did we not?

Senator WALSH of Montana. I don't remember that.

Mr. FINNEY. That came up before Secretary Wilbur, involving the question of discovery, and the statement was made in there that the Freeman-Summers decision was not one that controlled other cases, that each case was to be decided upon its own facts, and I believe he called for further evidence. Is that right?

Mr. ELY. That is correct.

Mr. FINNEY. I only know of the three, after a search made by the Land Office.

Senator WALSH of Montana. Let me inquire; that is, reference was made in three cases, as I understand you, to the Freeman-Summers case in the opinions filed?

Mr. FINNEY. The Land Office has classified them as the cases that were acted on by the Land Office following the Freeman-Summers case as a precedent.

Senator WALSH of Montana. Let me see that.

Mr. FINNEY. That is the Alturas decision. That is a case where action was not taken. Additional evidence was called for, if I remember rightly.

Senator WALSH of Montana. This is along the line concerning which I was inquiring.

The opinion says:

The weight and preponderance of evidence is that no oil shale was disclosed on Hope 10. There is nothing in the decision in Freeman v. Summers (52 L. D. 201) that justifies the deduction that on locations made for oil shale on the Green River formation, the locators are relieved from the wellsettled requirement of the mining law, that actual discovery of mineral must be made within the boundaries of the claim.

Mr. FINNEY. Mr. Ely has just handed me a summary from the Land Office giving the numbers of the claims and the acres patented, as they say, following the Freeman-Summers decision.

Senator WALSH of Montana. Covering questions controlled by the Freeman-Summers decision.

Mr. FINNEY. I have not examined those records personally, so I do not know.

Senator WALSH of Montana. Well, were opinions filed in these cases?

Mr. FINNEY. I can tell you later on. I don't know.

Mr. Ely just called my attention to the fact that Richardson referred to the Alturas case in this report on page 151.

Senator WALSH of Montana. What was the result in that case? Were patents ordered or denied?

Mr. FINNEY. The Alturas case?

Senator WALSH of Montana. Yes.

Mr. FINNEY. My recollection is that part of them were denied. There were a number of claims in the group, and I think it was denied as to certain locations on which insufficient discovery was shown and approved as to certain other claims.

Senator WALSH of Montana. We will suspend here until Thursday morning at 10 o'clock.

(Whereupon, at 12.10 o'clock p. m., the committee recessed until Thursday, February 12, 1931, at 10 o'clock a. m.)

OIL SHALE LANDS

THURSDAY, FEBRUARY 12, 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: Senator Walsh of Montana.

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.

Senator WALSH of Montana. Mr. Finney, I think we will proceed. STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPARTMENT OF THE INTERIOR-Continued

Mr. FINNEY. You asked me to get the map showing the locus of the 88 claims that had been located by Hubbard and his people, or by Dow and associates, and these are the claims, on the margin are the numbers given, the dates of location, and the names of the original locators.

The land involved in the Freeman-Summers contest was in parts of sections 1 and 2 and cropping over into 3, and I have checked in red the locations, parts of which were involved in that proceeding. May I add this, Senator, that I find that a patent issued on four of these claims and covering section 27, November 8, 1928. May 4, 1930-I don't know what that means-there were two patents possibly.

The report, the Land Office advises me, of July 6, 1926, was on the charge that they had failed to perform assessment work and that the patent expenditures were insufficient. There is no charge of no discovery in that particular section, involving four of the locations.

The south half of 22 is embraced in a pending entry on which patent has not been issued, and the field report, made July 6, 1926, does allege nondiscovery. Then it appears that a subsequent field report was made February 21, 1930, recommending dismissal of proceedings relative to discovery in view of the Freeman-Summers decision, but as I say, the patent has not been issued. The entry is still pending in the Land Office.

Senator WALSH of Montana. Mark the chart presented by Mr. Finney in order to identify it.

(Whereupon, the reporter marked the chart presented by Mr. Finney, "Finney, Exhibit A, February 12, 1931.")