in 280 United States, held that we were wrong and that the matter of assessment work was a matter between rival claimants under the mining laws, and that the effect at least of the passage of the leasing law had not changed the law. Senator WALSH of Montana. Really the point was that the Government, having made no objection until after the $500 worth of work had been done, and application for patent had been made, and the usual publication had taken place, it was too late after that time to object. Mr. FINNEY. You are anticipating me a little. They held in substance what you say. In that particular case, the Spad claimants had resumed work at a later time, had done some more work and they had done $500 worth of work and had applied for their patent. Senator WALSH of Montana. Exactly. Mr. FINNEY. Now, the court said there was no challenge made by the Government of the claim. They did not say what would happen if we had challenged them while they were in default. Senator WALSH of Montana. But, the point was the Government had not challenged until after the $500 worth of work had been done and the work had been resumed. Mr. FINNEY. That is correct. Senator WALSH of Montana. Now, that situation was likewise exhibited in many of these claims, as I understand it. Mr. FINNEY. Yes. Senator WALSH of Montana. And, they were all continued, as I understand the matter, pending the determination of this Krushnic case in the Supreme Court. Mr. FINNEY. Yes, sir, a very large number of claims had the charge of failure to perform annual assessment work. Some of them had numerous other charges and some had only the one. Senator WALSH of Montana. How many of those cases were continued, Mr. Finney? Mr. FINNEY. Well, I can not answer that yes or no, because the continuance was not an absolute and general continuance. I have the letters right here and will be glad to put them in. Senator WALSH of Montana. Will you read them, please? Mr. FINNEY. Yes, sir. May I do it in an orderly way? If you will glance at that, you will see I have it chronologically arranged. Senator WALSH of Montana. Yes. Mr. FINNEY. After the first decision in Krushnic case, and pending the rehearing before Secretary Work, Senator Waterman asked that there be a continuance of hearings involving that question until after the disposition of the Krushnic case. Senator WALSH of Montana. Have you Senator Waterman's letter? Mr. FINNEY. Yes, sir. Senator WALSH of Montana. Read it, please. Mr. FINNEY (reading): Hon. E. C. FINNEY, Acting Secretary of the Interior, UNITED STATES SENATE, December 30, 1927. Washington, D. C. MY DEAR MR. FINNEY: I take the liberty of suggesting to you the extreme propriety of continuing all hearings at Denver upon shale applications for patent until some time subsequent to the final determination of the Krushnic case. If these hearings go on as scheduled, early in January, it may entail an enormous amount of expense on claimants and on the Government and a great deal of travel and hard work, unnecessarily. I hope the Denver office may be advised to continue, if it is agreeable to your good judgment. With kind personal regards, I am Yours very truly, C. W. WATERMAN. On December 31, 1927, I sent the following telegram to Mr. Kelley [reading]: December 31, 1927. Denver, Colo. KELLEY, Division Inspector, General Land Office, Am directing register Denver continue oil-shale hearings until further notice. You will be governed accordingly and discontinue taking depositions or other action in connection with any such hearings. FINNEY, Acting Secretary. The same day, the acting commissioner of the land office sent to the register, with my approval, this letter [reading]: REGISTER, UNITED STATES LAND OFFICE, DEPARTMENT OF THE INTERIOR, Denver, Colo. DEAR SIR: It has been suggested that pending final determination of the questions involved in the so-called Krushnic oil shale case, all hearings ordered by your office upon oil shale applications for patent be discontinued until some time after final decision is rendered in the case mentioned. You are hereby directed to postpone and continue all such hearings until further notice from here. You are authorized to so advise the chief of field division and any parties in interest. Very truly yours, Approved December 31, 1927. THOMAS C. HAVELL, Acting Commissioner. E. C. FINNEY, Acting Secretary. Evidently Mr. Kelley then wrote me under date of December 29 objecting to the continuances. I haven't that here but it is in the files and can be obtained. Senator WALSH of Montana. I would like to see what it was that Kelley had to say about the matter. Mr. FINNEY. I took these out of the departmental files and his letter was not there. His letter is probably in the Land Office and we can probably get it. Here is my letter to Kelley under date of January 3, 1928 [reading]: Mr. RALPH S. KELLEY, Division Inspector, General Land Office, DEPARTMENT OF THE INTERIOR, Denver, Colo.: MY DEAR KELLEY: Your letter of December 29, 1927, received, and I thank you for the information therein contained. You have already received my wire regarding continuance of oil-shale cases, and an appropriate letter was mailed to the register at Denver at the same time. The importance of the question involved is fully realized, and I feel sure it will have very thorough consideration. Very truly yours, E. C. FINNEY, First Assistant Secretary. Now, as I have stated, on February 8, 1928, Secretary Work rendered a decision adhering to the one previously issued by me. On March 3, 1928, Senator Waterman addressed a letter to me as Assistant Secretary of the Interior, as follows [reading]: MARCH 3, 1928. Hon. E. C. FINNEY, Assistant Secretary of the Interior, Washington, D. C. MY DEAR JUDGE FINNEY: I am in receipt of a letter from Mr. D. D. Potter, of Denver, Colo., inquiring, among other things, whether the department's recent decision in the Krushnic shale case will result in a revocation of the order that all litigation would be held up pending final determination of the issues involved in the Krushnic case. Mr. Potter states in his letter: "I have wondered if the order given by the Secretary that no further litigation instituted by the field division should proceed until the question in the Krushnic case was determined' still holds, or whether we may not expect the field division to proceed with their battle to deprive us of all of our just rights." I have advised Mr. Potter that it was your thought that perhaps 30 days' grace might be extended in order to permit shale claimants to initiate court, or whatever other action they may determine upon. I would be glad if you would advise me just what the attitude of the department is so that I can be in a position to properly advise my constituents. Yours very truly, C. W. WATERMAN. Now, as Mr. Secretary Work had rendered the last decision, I took up the matter of answering Senator Waterman with him, and on March 5, 1928, he wrote the following letter to Senator Waterman. [reading]: Hon. CHARLES W. WATERMAN, United States Senate. DEPARTMENT OF THE INTERIOR, MY DEAR SENATOR WATERMAN: I have your letter of March 3, 1928, referring to suspension of oil-shale hearings by this department pending final decision in the Krushnic case. You ask whether, in view of the denial of motion for rehearing in said case, shale claimants may be allowed 30 days within which to initiate court or such other action as they may determine, hearings being deferred for that time. As I stated in connection with said decision, the question involved is one of law, and I would be very glad, indeed, to have the matter reviewed by the courts. In order to allow claimants opportunity to take such action as they may deem appropriate, and to save expense incident to possible hearings during that time, I have to advise you that no hearings will be ordered or set involving the question of nonperformance of assessment work prior to April 1, 1928. Very truly yours, HUBERT WORK. On the same day I wrote this letter to the commissioner of the General Land Office [reading]: MARCH 5, 1928. The COMMISSIONER OF THE GENERAL LAND OFFICE. DEAR MR. COMMISSIONER: For your information I inclose copy of letter this day written to Senator Waterman. Advise Division Inspector Kelley hereof. FINNEY. I do not know what that is. Look at it please, Senator. Senator WALSH of Montana. I do not think it is material. Mr. FINNEY. The next letter in the series relating to continuances was addressed to Mr. Work under date of March 30, 1928, and signed 46780-31-13 by Charles S. Thomas, and Long, Chamberlain, and Nyce, and reads as follows: Hon. HUBERT WORK, Secretary of the Interior, Washington, D. C. WASHINGTON, D. C., March 30, 1928. MY DEAR MR. SECRETARY: We have this day filed in the Supreme Court of the District of Columbia suit styled as follows: (United States on relation of Emil L. Krushnic, plaintiff, v. Hubert Work, as Secretary of the Interior, defendant, at law No. 75165) This suit should determine the law on the issues involved and if we prevail, will change the present policy of the department in denying patents to shale claimants in cases similar to the Krushnic case. We, therefore, request that you issue a general order continuing all shale hearings before the Denver Field Division involving the question for determination in the Krushnic case. The order whch we would suggest in this letter should contain a provison that it not apply to any oil shale applicant who, after the date of the order, expresses a desire to proceed with his hearing before final termination of the above case in the courts. Please advise what, if any, action you take as a result of this letter, so that we and others may govern ourselves accordingly. Very respectfully, CHARLES S. THOMAS. On April 7, 1928, Secretary Work signed the following reply to these gentlemen: DEPARTMENT OF THE INTERIOR, Messrs. CHARLES S. THOMAS, LONG, CHAMBERLAIN & NYCE, Washington, D. C. GENTLEMEN: I have your letter of March 30, 1928, referring to the case filed by you in the Supreme Court of the District of Columbia, entitled "Emil L. Krushnic v. Hubert Work, Secretary." You suggest that this suit should determine the law on the issues involved (nonperformance of assessment work), and that the department issue a general order continuing all oil-shale hearings before the Denver field division involving similar questions, unless individual applicants express a desire to proceed with their hearings. The department is glad to have the question of law involved determined by the courts, and will of course defer any further action in the Krushnic case. As to other cases, however, it must be borne in mind that long delay in proceeding with hearings might work to the disadvantage of both the Government and the claimants, in that important witnesses might die or remove; that through lapse of time, memories of witnesses might not be so clear as at the present time, all of which might militate against ascertaining the exact facts in these cases. On the other hand, the Government does not desire to burden itself or the claimants with any unnecessary expense. I do not feel warranted, however, in issuing a general order of suspension of such hearings, and same will therefore proceed unless the claimants interested in any case or cases shall file with the department a request for continuance of the hearings. In that event, the applications will be given prompt and careful consideration and such action taken as circumstances appear to warrant. Very truly yours, HUBERT WORK, Secretary. Now, the next paper I have here is a letter from Mr. Benjamin F. L. Heron, inspector in Mr. Kelley's division. It is dated April 26, 1928. Shall I read that? Senator WALSH of Montana. If you please. DEPARTMENT OF THE INTERIOR, The COMMISSIONER GENERAL LAND OFFICE, GENERAL LAND OFFICE, Denver, Colo., April 26, 1928. Washington, D. C. SIR: This office has received a copy of a motion for an indefinite continuance of hearing filed by Messers. Lindsey and Larwill, attorneys for H. Comer Wolf, in M. A. Denver (formerly Glenwood Springs 026229), pending the determination by the courts of the Emil L. Krushnic case, together with copies of similar motions in Glenwood Springs M. A. 026334 and 026336, of Charlie Allen, and in several other cases. In the belief that favorable action on this and similar motions is inimical to the Government's interests, and in a large number of cases will practically jeopardize the proper presentation of the evidence, and in extreme cases be the equivalent of an order of dismissal, your attention is respectfully called to the following statement. The cases which this and similar motions will affect involve work performed from eight years to usually about two or three years old. The laborers who performed the work are mainly ignorant, and in many cases rather aged, with but few years to live. Many are bachelors, with no family connections and without a fixed abode, and frequently roam about leaving little or no trace from which they can be located. Most examinations disclose witnesses who are only located after one to two years' search, with many whose addresses are never ascertained and thus unavailable. It is anticipated that the Krushnic case will take about two years at the minimum in going through the courts, as did the Oregon Basin case. The memories of witnesses already interviewed have been extremely hazy, owing to the lapse of time, and a further delay will in all probability increase this to the point frequently of dispensing with the witness. In the past two years at least two important witnesses in one of the pending cases have died, with several other witnesses in other cases. It is no exaggeration to say that in cases involving over 50 locations death has removed the witness having the best knowledge of the material facts. Many of our important witnesses are aged or sickly. At present, owing to the itinerant habits of the workmen, witnesses are scattered from New Hampshire to Florida, Oregon to California, and only located after careful and extended search. Others will likewise scatter, and being naturally unfriendly to the Government, or through other causes, leaving little if any trace. Several of the inspectors formerly on shale work have left the service. Others will do so should they give preference to their financial interests over loyalty to the service. Others have gone to other divisions. All must testify from notes, but sometimes their notes are entirely inadequate where the details have slipped their memories from lapse of time. The various claimants have been responsible for much delay in hearings in the past two years. Inability to locate witnesses also has been an important factor in this delay. Some has resulted through lack of inspectors. In some 30 cases in which your order to proceed with the hearings in the absence of a request for continuance has been called to the claimant's attention, in only one instance has an attorney preferred the hearing to proceed. Delay works to the advantage of the claimant, a factor of much importance to them and is extremely inimical to the interests of the Government. It is no answer that in cases wherein it is anticipated that death, removal, and so forth. may deprive the Government of a witness that his deposition may be taken. Aside from the very serious objection to depositions as being incomplete, too far removed from the scene of battle to adequately cover any but the main facts, the principal objection proceeds from the rule that indicates the burden of the Government, as explained in a long line of decisions mentioned in the Krushnic decision as to group work, which is involved in practically all cases pending, whereby the claimant must show the performance of his work outside of the claim, together with its applicability in a general scheme of mining. |