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effect that the improvement thereof was very insignificant and would not cost more han $50 or $100. The assessment work in 1920 and later consisted in digging shallow open pits either on the claims in question or nearby claims for the benefit of the claims as a group. In the case of United States v. Northern American Oil Consolidated (242 Fed. 727), the court defined diligent prosecution of work on a mining claim as follows:
It is enough if reasonable effort was made at that time indicating a bona fide intention to complete the work of discovery in the particular claim with all practical expedition; such intention being manifested by the doing of physical act or acts which had a direct tendency to facilitate the exploration for and discovery of oil or gas thereon, although drilling has not commenced and the work may not have been done on each claim." Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; U. S. v. Thirty-Two Oil Co. (D. C.) 242 Fed. 730, just decided ; L'. S. v. Ohio Oil Co. (D. C.) 240 Fed. 996.
It is not perceived how a slight repair of a pack trail that has never extended to the land, and the digging of shallow pits as assessment work tended in any way to facilitate the exploration for or discovery of valuable deposits of shale that are presumed to underlie the land in question at depth and the department is of the opinion that at no time were the mineral claimants engaged in diligent prosecution of work to discovery on these claims.
The strenuous contentions and conflicting testimony as to the performance of assessment work is of no moment in the case “assessment work had nothing to do with locating or holding a claim before discovery. On the contrary it was the condition subsequently prescribed by Congress to be performed in order to preserve the exclusive right to the possession of a valid mineral land location upon which discovery had been made. (McLemore v. Express Oil Co., 158 Cal., 559, 563." Union Oil Co. v. Smith, supra.)
A great mass of testimony was offered on both sides relative to the value of the land for agricultural or stock raising purposes. This is not an essential question for decision in this case but the testimony offered in that connection very clearly established that a valley which traverses this homestead has a substantial and certain value for dry farming and stock raising, that forage crops have been raised thereon by the entryman, and that he has resided upon and improved the land in good faith.'
In conclusion, it may be stated that there is no merit in the conclusions of the contestant that the prior filing of the location certificates and staking and posting the land constituted such an appropriation of the land as would preclude a right of entry under the homestead laws. “ Parties may not go on the public domain and acquire a right of possession by the mere performance of the acts prescribed for location, that is, where there is no discovery." (Lindley on Mines, sec. 218.) Mere “paper locations do not prevent appropriation of land under agricultural laws." (Hirchfeld v. Chrisman, 40 L. D., 112.) “And the recitals therein. constitute no evidence of discovery." (Independent Load & Copper Co..?'. Levelle, on Rehearing 50 L. 1. 5.) It is immaterial, therefore, what evid-nce of such locations was brought to the notice of the homestead entryman.
As no discovery within the meaning of the mining laws was made within the boundaries of any of the locations heretofore mention d and as the claimants have not at any time been engaged in the prosecution of work to that end, the claims are of no validity.
In the case of a conflict between a mining location and a homestead claim the department has authority to inquire into and determine the validity of both, and if the mining location be found invalid and the homestead claim valid, to declare the former null and void and give full effect to the latter. (Cameron v. United States 252 U. S. 463.)
The mining claims in conflict with the entry of Summers and involved in this contest are therefore held to be null and void. The homestead entries of Summers will remain intact and the commissioner's decision is accordingly hereby reversed.
(Signed) E. C. FINNEY,
First Assistant Secretary. Senator Walsh of Montana. Let me see if I can accurately state what the conclusion was as expressed in that opinion; namely, that although the mineral claimant had found on the surface of his claim, or by shallow diggings, oil bearing shale, there was not enough oil in it to justify the conclusion that that particular strata could
ever be profitably worked and the fact that it was disclosed that there were underneath, as a geological probability, beds that would contain shale, or consist of shale, that could be profitably worked, that that did not amount to a discovery.
Mr. FINNEY. That, I think, is substantially correct with this modification. I did find in this opinion that they had not definitely placed the location of the alleged discoveries, or of the alleged outcrops, except in the case of the one claim, the J. D. No. 2, where they said it produced seven and nine-tenths barrels to the ton.
Senator WALSH of Montana. I thought that was gallons.
Mr. FINNEY. Yes, sir; gallons. In other words, they had not gotten right down to brass tacks and specified that on each of the five locations there had been either a hole dug exposing this open bed, or that there was an outcropping, but your statement is substantially correct; yes, sir.
Senator Walsh of Montana. I just wanted to get the principle, as far as there was any principle announced in there.
Mr. FINNEY. Yes.
Mr. FINNEY. I think that was written by an attorney in the office named Edson Phillips.
Senator Walsh of Montana. And, who participated in the inquiry on the review from the commissioner?
Mr. Finney. I presume it was reviewed by three members of our board of review, and the secretary's office, Mr. Gardner, Mr. Newman and Mr. A. W. Patterson.
Senator Walsh of Montana. Are they still there?
Senator WALSH of Montana. Well, it would be one of them who wrote the opinion.
Mr. FINNEY. No; the paper was written by an attorney named Edson Phillips.
Senator WALSH of Montana. Upon consultation with the members of the board of review?
Mr. FINNEY. No; the practice is this, Senator, that an appealed case in our department is assigned out to one of the attorneys. You know we have a number of them, 19 at present. He reads the record, the testimony, the briefs and arguments, if there are any filed. Then he prepares himself a proposed decision for the approval of the Secretary, and that decision is forwarded through this board of review, on its way to the Secretary. The board of review, all of them, each of them, reads the proposed decision. If they agree, they put their names on the paper, or on the covering of the paper. If they disagree, they may call him in and discuss it with him or may suggest a modification. Possibly, if no agreement can be reached, they may have another attorney make a separate examination of the claim and prepare such decision as he thinks should be prepared, but if they agree with it they put their names on it and pass it along to the Secretary.
Senator Walsh of Montana. And, what did you say was the name of the lawyer who drew the opinion?
Mr. FINNEY. Edson Phillips.
Senator Walsh of Montana. And, does the opinion bear the initials indicating the approval of the members of the Board?
Mr. FINNEY. This does not, but I presume the covering sheet does.
Senator Walsh of Montana. What is meant by the covering sheet!
Mr. FINNEY. It is a sheet of paper that is placed over the top, partly to keep the typewriting from smudging, and it is a yellow cover sheet bearing the number and title of the case, and these initials are put on that.
Senator WALSH of Montana. You haven't got that here.
Senator WALSH of Montana. You infer, however, that it did have the approval of the board.
Mr. FINNEY. Yes, it did have.
Senator Walsh of Montana. Well, then it came before you, Mr. Finney.
Mr. FINNEY. It did.
Senator Walsh of Montana. Does it bear your approval? You signed it, of course. Mr. FINNEY. Certainly, I signed it. Senator KENDRICK. Before you leave that, Senator, please. Senator WALSH of Montana. Yes.
Senator KENDRICK. Under the present best known system of reducing this oil, do you have any information as to what would be considered profit earning shale as to the production? The lowest production of shale that would earn a profit.
Mr. FINNEY. Of course, I am not a technologist, but I do have considerable information.
Senator KENDRICK. You have heard that subject discussed.
Mr. FINNEY. Oh, yes. According to the best opinion of the people in the survey, and other places, there is none of these shales, the richest beds, that it would pay to work at the present time. The cost of mining the shale, either by shafts or through tunnels, and then the putting of that mass through a retorting or heating process, extracting the soluble elements, and then the refining of those soluble elements, would, it is estimated, cost from $2 to $3 a barrel.
Senator KENDRICK. Yes.
Mr. FINNEY. I think the estimate has been from $2 to $4. Now, oil is selling for about $1 a barrel so the loss would be from $2 to $3 a barrel, and that probably on this richest shale.
Senator KENDRICK. We were discussing, a few days ago, the extent of the oil shale fields. Have you any estimate as to what area that is known to include, these oil Shale fields?
Mr. FINNEY. Mr. Ely has it. It has been compiled by the Land Office. Shall I read it?
Senator KENDRICK. Yes. Mr. FINNEY. (reading): The maps prepared by the Geological Survey indicate the following approximate acreage of oil shales in the three States mentioned :
1, 496, 027 Utah
2, 754, 959 Wyoming
4, 006, 805
Senator KENDRICK. Is this particular territory considered the richest of the oil shale territories?
Mr. Finney. I think, so far as they have been actually explored and tested, that this Green River formation is considered to have the richest beds. There has not been very much development or testing in either Utah or Wyoming, although there are larger acreages bearing shales in those States.
And another thing, this particular formation here is nearer the railroad. It lies, as Senator Walsh said, north and west of the Glenwood Springs, and that is north and west of the D. & R. G. Railroad, and to the north is the old Moffat road, so that while there is no railroad that actually runs through the land itself it is easier to get in supplies and equipment. Possibly that has occasioned greater interest in those shales. Then, you will recall that under authority from Congress, and with an appropriation made by Congress, there was a test plant put out there, I think near Rifle, Colo., and they made some tests and so forth. So that, the greater activity appears to have been in this particular area. Senator KENDRICK. I recall that.
We had the other day—one of the things that prompted the inquiry—we had the other day a piece of legislation affecting the equities of, I believe, the Northern Ute Indians, on a tract, as I recall, of sixty thousand odd acres. Is that located in the neighborhood of this?
Mr. FINNEY. Yes, it would be in this general vicinity.
Senator GLENN. Senator Kendrick asked you moment ago whether it would be profitable to work these claims and you stated that in your judgment it would not be now and that it would be a distinct loss. What about that same matter at the time this deci. sion was rendered? Would it have been profitable then?
Mr. FINNEY. No, sir; oil was possibly a little bit higher in price, but even at that time the cost of mining, reducing these shales, and refining the oil therefrom, would have far exceeded the selling price. In other words, there has been no process discovered in this country up to the present time by which these particular shales could be mined, worked, and refined at a profit.
There has been some shale for many years mined and refined in Scotland and, I understand, disposed of at a small profit, but that is due to the high price of gasoline and oils, I presume, in Europe.
Senator KENDRICK. These photographs that you have handed to me suggest that geological formation is an open book.
Mr. FINNEY. Yes, sir; those were photographs taken by the Navy from airplanes in and around the Naval Reserve, which is also in this identical formation, and near to these particular lands, and they give a pretty good idea of the topography of the country and show the exposure of these different beds in the canyons and the sides of the cliffs.
Senator GLENN. What is the total acreage involved in this matter?
Senator Walsh of Montana. The question of the extent of these shales being presented I feel as if I should make this statement-I
find from the report of Mr. Richardson that the Geological Survey tells us there are in Colorado 1,496,027 acres; in Utah, 2,754,959 acres, and in Wyoming, 4,006,805 acres. Mr. Kelley claims, however, that up to the present time we have no information of any value concerning most of this area as to whether the shales contain-what quantity of oil the shales contain, and that there is only a restricted area in the Glenwood Springs neighborhood containing shales that bear a very high percentage of oil and that the lands in question here are within that limited area.
Senator KENDRICK. Well, Senator, maybe the witness can tell us how much of these lands have been filed upon and upon which proof has been made as oil shale lands.
Senator Walsh of Montana. I think he can tell us that, perhaps.
Mr. FINNEY. Do you have that data there, Mr. Ely, the acreage filed on?
Senator Walsh of Montana. I think this gives that.
Senator WALSH of Montana. Let me read this from the opinion of Mr. Richardson [reading]:
It must be clearly understood that these figures are only approximate, and that the acreage thus reported is area acreage, and does not take into account individual portions within such area, which portions may not present or contain oil shales. The actual oil shale acreage is undoubtedly considerably less than the acreage indicated in the above figures furnished by the Geological Survey.
With reference to the Colorado shales, thus estimated, the records of the Department of the Interior disclose that up to the present date, patents have been issued by the United States covering oil shales in Colorado to the extent of 107,263.18 acres. This amounts to approximately 7 per cent of the Colorado oil shale acreage. The records of the Interior Department further show that there are pending oil shale applications for patent aggregating 5,056.89 acres. Under these applications, no patent has yet issued, and it is not yet known whether or when patent will issue.
So far as Colorado is concerned, therefore, the United States appears to have disposed of approximately 7 per cent of its oil shale lands, and about 4 per cent of its oil shale lands are now pending on application for patent.
In the State of Utah the figures of the Geological Survey are 2,754,959 acres. The records of the Interior Department disclose that patents have been granted by the United States for oil-shale lands totaling 65,124.40 acres, or something less than 3 per cent. There are pending applications for oil-shale patents aggregating 9,935.82 acres, or approximately one-third of 1 per cent.
In Wyoming the figures of the Geological Survey estimates the oil-shale acreage as 4,006,805 acres. Of this total acreage the Government has patented oil-shale lands aggregating 3,438.30 acres, or approximately less than one-tenth of 1 per cent in area. There are pending oil shale patent applications covering 7,344.32 acres, or approximately one-fifth of 1 per cent.
The grand total of acreage of oil-shale lands as thus estimated by the Geological Survey, and covering the States of Colorado, Utah, and Wyoming, aggregates approximately 8,257,781 acres. The total acreage of all patents issued from the beginning up to the present date aggregates 175,825.88 acres, or approximately 216 per cent of the oil shale lands of the United States. Thus, regardless of the character of administration, alleged evils, shortcomings, or abuses, the United States, during its entire administration of the oil shale lands, has only parted with title to approximately 3 per cent of its estimated acreage, so far as the States of Colorado, Utah, and Wyoming are concerned.
Moreover, the total acreage involved in pending oil-shale patent applications amounts to 75,337.03 acres, or considerably less than 1 per cent of the total estimated oil-shale acreage owned by the United States in the three States referred to.