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The applications for patent seldom show the reasons upon which the claim of applicability is based, and the applicant should he so desire, will change his application at the hearing to accord with his second thought. Until he sets forth the identity of the group work and its applicability, the Government can not take any testimony by deposition or otherwise. Then, too, a deposition taken two years or more prior to the hearing is essentially weak because of the fact that it has been carefully scrutinized and studied to the point where human fraility triumphs over honesty.

The number of cases pending before this office will take probably four years to try. To add additional time which will only inure to the benefit of the claimant in rendering the Government's case more difficult is departing from all principles of a speedy trial, is departing from the rules of courts in which applications would not be tolerated, and is establishing a practice from which no good will flow.

The ultimate decision of the Krushnic case may be anticipated by letting the hearings proceed and holding up the decisions until the Supreme Court of the United States finally decides this case. Any other practice appears a danger

Gus one.

It is therefore respectfully recommended that this motion in the Wolf case and similar motions be denied and the hearing proceed.

Very respectfully,

BENJ. F. I.. HERON, Inspector.

That was approved by Mr. Kelley as chief.

Now the next letter that I have here on the general subject-these are general letters that I am reading into the record-is a communication from Mr. Kelley addressed to the commissioner of May 4, 1928, on the same subject.

Senator WALSH of Montana. Along the same general lines.

Mr. KELLEY. Yes, sir; and much longer. I can abbreviate this to some extent by saying that he quotes Secretary Work's letter to Messrs. Thomas and others and refers to the previous letter by Heron and then goes on and repeats many of the same arguments and discussions. Perhaps I had better read it.

Senator WALSH of Montana. It may go into the record, but I think that it is scarcely necessary to read it. In a general way it advances the arguments advanced by Heron in the other letter. Mr. FINNEY. Yes, and I may say in passing that he refers to the Teapot Dome and to Blackmer and says that the lawyers Dines, Dines & Holme were applying for continuance in one case and that they represented the Midwest Refining Co., and things of that sort, which had no direct bearing unless it would be to throw some suspicion on the matter.

(The letter referred to, date May 4, 1928, directed to the Commissioner of the General Land Office and signed by Ralph S. Kelley, reads as follows:)

DEPARTMENT OF THE INTERIOR,
Washington, January 6, 1931.

I hereby certify that the annexed copy of report dated May 4, 1928, filed under Denver 035626, formerly Glenwood Springs 026229, 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.

DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Denver, Colo., May 4, 1928.

(Requesting denial motions for continuance of oil shale hearings; Ralph S. Kelley, division inspector)

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SIR: Herewith with my approval is a letter of Inspector B. F. L. Heron, attorney in charge of hearings for this division, recommending that the application for continuance of the hearings pending in Glenwood Springs 026229 et al. be denied. The applicant requests a continuance of these hearings until such time as the courts have decided the Krushnic case, now pending in the Supreme Court of the District of Columbia upon appeal from the decision of the Secretary.

Mr. Heron's letter is general in character and the objections raised therein are equally applicable to all requests for continuance of pending hearings upon oil shale applications for patent. It is transmitted to you in order that the consideration given it may be determinative of all similar applications for continuance of hearings.

March 29, 1928, I telegraphed the First Assistant Secretary as follows: "Continuance of oil-shale hearings for several years until conclusion legal proceedings in Krushnic case would in my judgment greatly jeopardize Government interests. Date of alleged performance of work now extends back at least eight years. Laborers who performed work are ignorant and have poor memories. Death will remove important witnesses. Government engineers who have examined lands will have accepted private employment. Courts required three years to decide Oreton Basin case. This office will require at least four years additional to try cases then pending."

April 13, 1928, your letter "N" UEG 033259 transmitted to this office copy a letter of the Secretary, dated April 7, 1928, addressed to Messrs. Charles S. Thomas, Long, Chamberlain & Nyce, and George K. Thomas, National Press Building, Washington, D. C. Your letter and the copy of the Secretary's letter are as follows:

Mr. RALPH S. KELLEY,
Division Inspector,

Interior Department,

Denver, Colo.

APRIL 13, 1928.

SIR Referring to office letter "N" of March 12, 1928, in the case of Emil L. Krushnic, Denver 033259, in which you were instructed that action on hearings involving the same question as that involved in the Krushnic case, would be suspended, pending further instructions, I am inclosing a copy of the letter of the Secretary of the Interior dated April 7, 1928, to Messrs. Charles S. Thomas et al., in accordance with which the hearings may now proceed.

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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 ocntinuing 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 application will be given prompt and careful consideration and such action taken as circumstances appear to warrant.

Very truly yours,

HUBERT WORK, Secretary.

Although no provision has apparently been made for advising this office of applications for continuance of hearings provided for in the Secretary's letter, yet we have been informally advised of the request for continuance of Glenwood 026229, 026334, and 026336, which are specifically mentioned in Mr. Heron's letter, and also of similar applications filed by the firm of Dines, Dines & Holme, as attorneys, for Glenwood 026390, 025845, 025844, 026163, 025760, 024830, and 025937.

For the reasons set forth in the telegram to the First Assistant Secretary and in the letter of Mr. Heron, it is urged that a continuance of any of the pending hearings upon oil shale claims may greatly jeopardize the Government's interest and will work to the advantage of the oil shale applicants. It is not too much to say that such continuances may result in the loss to the Government of the necessary evidence to sustain its case. A number of very important witnesses have already died since the initiation of these proceedings. As to the delay likely to be occasioned by such continuances, your attention is invited to the fact that a similar appeal taken from the decision of the Secretary in the Oregon Basin case (50 L. D., 253) was not decided by the courts until nearly two years after such appeal. The statement made in the telegram to Secretary Finney that this required a period of three years, was in error. Three years passed from the time of the decision of the Secretary to the final decision by the supreme court.

The good faith of the attorneys in making application for these continuances and the appeal of the Krushnic case, may be doubted. Attorneys for oil companies interested in oil shale lands usually follow the lead of the firm of Dines, Dines & Holme. What this firm decides to do, generally governs the action which may be taken by other oil interests.

This firm represents the Midwest Refining Co., a subsidiary of the Standard Oil of Indiana, Mr. Tyson S. Dines head of the firm, being president of the former company. If the ethics of the legal profession were to be judged by the practices of this firm of attorneys, severe criticism would be its due. We believe the lands embraced in the applications of this firm for continuances of pending hearings are the property of the Standard Oil of Indiana or its subsidiary, the Midwest Refining Co.

In the rehearing of the Krushnic case before the Secretary, December 12, 1927, the firm of Dines, Dines & Holme filed a printed brief as amicus curiæ. The attorneys representing Krushnic are Messrs. Lindsey & Larwill. This rehearing was granted to enable the presentation of argument tending to prove that the provisions of section 37 of the leasing act of February 25, 1920, did not require the performance of annual labor upon oil shale placer claims after said date. An examination of the brief filed by Dines, Dines & Holme shows that it presented arguments tending to show that the failure to perform annual assessment work upon an oil shale location for any one or more assessment years since the passing of the leasing act, would not result in automatic forfeiture of the mining location, forfeiture being prevented in the event work was resumed thereon before the land department took steps to secure the cancellation of the location.

It has been brought to the attention of this office that the firm of Dines, Dines & Holme represented the Midwest Oil Co. and the Wyoming Associated Oil Corporation in the case of Joseph Hodgson, plaintiff in error, vs. said companies, No. 7367 in the United States Circuit Court of Appeals, eighth circuit, and that Mr. Harold Roberts of this firm, argued this case before this court at St. Louis, Mo. A printed brief was filed by this firm of attorneys. An inspection of this brief, now in the office of the Secretary, shows that a strong argument was made for automatic forfeiture, the position taken being exactly opposite in this respect to that taken in the brief filed by the firm with the secretary, hereinabove mentioned. It is a question whether the arguments for automatic forfeiture presented in this brief are not even stronger than those in the secretary's decision in the Krushnic case. The circuit court of appeals

held for the defendants.

Inasmuch as the brief of this firm in the Hodgson case may not be before you, pages 10, 11, and 12 thereof are here quoted:

"The chief contention of plaintiff seems to be that such failure upon his part to perform assessment work could be taken advantage of only in the manner provided by R. S., section 2324; namely, by relocation of the claim during the period in which plaintiff might be in default. This argument ignores the fact that the two executive withdrawals of this land and the provisions of the leasing act have made a radical change in the law in so far as petroleum placers affected thereby, are concerned. These withdrawals, both of which covered these lands here in dispute, constituted a continuing assertion by the United States of a superior title. The United States could make no relocation, but by withdrawing the land, it could and did put itself in a position where its paramount rights would automatically attach to land embraced within the limits of the withdrawal just as soon as any locator might allow a single assessment work period to expire without having complied with the condition under which this claim was held. Thus the express exception in the withdrawal orders of locations or claims existing and valid upon the date of the withdrawal automatically ceases to exist when the condition essential to the continued validity of the claim shall be broken.

"This rule has been clearly expressed in an opinion by First Assistant Secretary Finney in Interstate Oil Corporation v. Chittenden. 50 L. D. 262, 266:

"This compels the conclusion that the withdrawal in question was intended to be of a continuing nature, and to attach immediately upon the default of any person having at the time of its inception a then subsisting and valid claim. "Such being the case, appellant's claim that performance of assessment work is a matter of no concern to the Government, comes to this: By the withdrawal all subsequent locations are barred, yet the Government may not take advantage of any default or abandonment of a claim during the existence of said withdrawal, no matter how complete the abandonment or how pressing the need for the land for a public purpose. No reason exists, therefore, for the performance of the annual labor prescribed as necessary to maintain a right to possession; and the locator is, by the fact of the withdrawal, sheltered from the consequences of his failure to perform the work prescribed by the statute, and said statute is repealed as to lands so withdrawn. The entire lack of justification, either legal or equitable, for the result above indicated clearly demonstrates the fallacy of the claim of this appellant. Certainly there is nothing in the expressed provisions of the act of June 25, 1910, supra, which indicates an intent to repeal or abrogate section 2324, Revised Statutes, in the manner claimed.'"

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Under the leasing act, section 37, this rule is not left to construction, but is explicitly announced in the act itself. This section provides:

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That the deposits of * * * oil, oil shale, and gas herein referred to, in lands valuable for such minerals ** * * shall be subject to disposition only in the form and manner provided in this act, except as to valid claims existent at date of passage of this act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.'"

It will, therefore, be seen that continued compliance with the laws under which a placer location had been made, which obviously refers primarily to the continued performance of assessment work for each and every statutory period, is the only way in which the land covered thereby could be

kept out of the class of lands exclusively subject to disposition under the leasing act. It appears upon the face of this petition that the plaintiff has failed to comply with this condition. Therefore, both under the withdrawal orders and under section 37 of the leasing act, his claim had been cut off prior to the commencement of this action.

"This interpretation of the withdrawal orders and section 37 of the leasing act is thoroughly consistent with the change of policy toward oil deposits in the public domain which brought about the enactment of the leasing act. Prior to the time of the petroleum withdrawals the policy of the Government had been to pass the oil lands out for private ownership to qualified purchasers as rapidly as locations should be made and the statutory purchase price paid. The failure to do essential work for any particular year was of little moment to the Government, so long as the intervening rights of third parties were not concerned, because a new location could have been made and this would have been equally acceptable to the Government. On the other hand, the new policy of the Government, expressed in the withdrawal orders and the leasing act, is not to sell (the word "sell" is in italics) at all except to those who may comply strictly with every letter of the earlier law, but to save all other lands for exploitation under leases. (The word "leases" is in Italics.) Thus by section 37 of the leasing act Congress has required of every locator who would keep an old petroleum placer claim alive that he maintain his claim each year in strict compliance with the law. This the plaintiff and his predecessors have not done.

"Your attention is invited to the function of amicus curiæ. It is different from that of an attorney pleading a cause for his client. As amicus curia, one is presumed to present matter impartially for the enlightenment or assistance of the court. His position is one in which confidence is presumed to be peculiarly reposed. One could hardly take one side of the case one day and, in good faith, appear as a friend of the court the next day and argue the opposite, especially so without enlightening the court as to his previous position or explaining it.

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Shortly before the rehearing of the Krushnic case, I was informed by one or more attorneys for oil shale interests in Denver that it had been arranged to have Mr. Harold Roberts represent the firm of Dines, Dines, & Holme at that hearing. While the hearing was in progress in Washington, or the day after, Mr. Roberts came into my office and I expressed surprise that he was here and not in Washington. He said he had decided not to go. What significance this had with the fact that he argued before the United States Circuit Court of Appeals, the case hereinabove mentioned, I do not know.

"In discussing the pending Krushnic case with Mr. Roberts, the point was raised as to the right of the applicant for patent to appeal to the courts upon the question of the necessity of performance of assessment work in the event the Interior Department ruled against the contention of the oil shale claimants. Mr. Roberts said that they had decided not to appeal to the courts in the event the Interior Department rendered an adverse decision because it was felt this procedure would be useless. If the arguments presented by Mr. Roberts for the firm of Dines, Dines, & Holme in the Hodgson case were his honest convictions and those of the firm he represented, a conclusion could readily be reached as to why he believed it useless to appeal from the department's decision on the same question.

"The Denver Daily Press reports a recent meeting of the board of directors of the Midwest Refining Co. and publishes as an announcement coming from Mr. Tyson S. Dines, a decision of said board of directors that the company had no claim upon the $763.000 of Government bonds obtained by H. M. Blackmer through the notorious Continental Trading Co. deal. Mr. Blackmer until very recently, remained director of the former company and was chairman of the board of directors at the time of the Continental deal. The papers state that Mr. Dines announced that the decision to renounce any claim to these bonds, was based upon the advice of the company's attorneys, Messrs. Dines, Dines & Holme. In this connection, it is interesting to note that even Mr. Stewart, chairman of the board of the Standard Oil of Indiana, and Mr. Harry Sinclair, have very recently found it advisable to turn their share of the Continental Trading Co. bonds over to their respective companies. The Midwest Refining Co., however, seems not to be influenced by the noble motives which evidently actuated Mr. Stewart and Mr. Sinclair.

"This office has evidence that the firm of Dines, Dines & Holme has in its possession, clear and convincing evidence showing the truth of the charges pre

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