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Senator PITTMAX. Taking the rule of law that you laid down a while ago, that you said you approved, would or would not, in your opinion, the geological reports with regard to this particular case lead a reasonable man to go on prospecting?

Mr. FINNEY. I can not quite answer that yes or no. With the additional evidence that was secured in this case that there had been a discovery on each of these locations, and with the additional evidence supplementing the geology which we had in this case, I did write an opinion personally, holding the discovery was sufficient to warrant a prudent man in continuing. Yes, it is my opinion that if a man discovers shale on the surface of a mining location, one of these beds in this Green River area, and is able to trace under that land these other beds below, at different depths, workable depths, those beds being exposed along the canyons and cliffs and so forth, that a reasonable man of course would take those things into consideration. You and I would. Any man would.

Senator PITTMAN. That is what I am getting at.
Mr. FINNEY. That was the ultimate decision in the case.

Senator PITTMAN. Now, take a quartz claim for instance. A quartz claim on the surface, we will say, goes $1 a ton in gold. Any miner knows it will not pay. He hasn't any geological way of ascertaining whether 100 feet down, or 1,000 feet down, it will be over $1 a ton. In fact, in 999 out of 1,000 cases it will not be. Yet, the Supreme Court has held that is a valid discovery.

Nr. FINNEY. Correctly, too, and we have held in the East Tintic case, which was mentioned, Secretary Jones held that very slight indications on the surface were sufficient in the East Tintic district to warrant the patenting of a mining claim, because we also took into consideration discoveries and geological formation on adjoining lands.

Senator PITTMAX. What I was interested in, was how 175,000 acres got patented under the same law.

Mr. FINNEY. In the opinion of those passing on it, there had been shown a discovery on each claim.

Senator PITTMAN. Ýhis field in this particular case is probably the richest of all.

Mr. FINNEY. No, there are many thousand acres that contain these same beds.

Senator PITTMAN. This is the highest grade field and yet you could not find evidence sufficient to warrant patenting that, and yet 175,000 acres have been patented in fields that are not as rich or not as attractive.

Mr. Fixney. We subsequently found evidence sufficient to do it.

Senator KENDRICK. What were the decisions in the contested cases ?

Mr. FINNEY. In some cases, we found discoveries sufficient, and there have been other cases where applications have been rejected.

Senator Walsh of Montana. Let me remind you in this connection, before we go further, that it is a matter of very little consequence, as I take it, to this committee, as to whether a correct conclusion in any particular case was arrived at or was not arrived at. We are more particularly concerned about how it came about that the department changed its view about the matter.

Senator KENDRICK. In this particular case. Mr. FINNEY. WellSenator Walsh of Montana (interposing). Before we go into that, Mr. Finney, let me ask you what part, if any, did you have in the preparation of that opinion.

Mr. FINNEY. I do not think I wrote any of this. I simply read it, reviewed it, agreed with it, and signed it. During the eight years I was first assistant secretary, I never signed a single decision in a land or mining case without reading it carefully, so I read this carefully, and it represented my views at that time on the record before me.

Senator WALSH of Montana. In one of the Kelley articles, No. 4, occurs the following—I think perhaps we better get the context before we come to that.

Mr. FINNEY. I can run right along here. I need not read all this stuff. I can tell you in substance what subsequently occurred, following that decision.

Senator WALSH of Montana. Well, before we get to that, Mr. Finney, Mr. Kelley is referring to a report made to you, after the opinion of Secretary Work has filed, reversing the opinion to which we have just been listening. He says concerning this matter he laid several copies of the report on your desk, Mr. Finney, and, he says

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 that he did not wish me to discuss the report with any of the attorneys. He spoke with some show of feeling.

“May I not leave copies of the report for distribution in the Solicitor's office?" I asked.

His reply was that he did not want them distributed and did not want them left in his office.

“Why, I wrote the Freeman-Summers decision,” he told me, impatiently, “and approved it.”

Apparently that was not correct, Mr. Finney.

Mr. Finney. It is in part correct. It is like a great many of Kelley's statements. They have some basis and are absolutely false or erroneous in other respects.

Senator WALSH of Montana. He continues:
He also said, “I did not write the first decision in this case."
Do you know to what that refers?

Mr. FINNEY. I do not recall having stated it, but I presume he means the decision which we have just been discussing, which I signed. That was the first decision that was rendered by the department in the case.

Senator WALSH of Montana. As distinguished from the later one by Secretary Work?

Mr. FINNEY. Yes; as distinguished from the later one by Secretary Work, which I did write.

Senator Walsh of Montana. He also says:

I did not write the first decision in this case. I do not understand how I ever permitted that decision to get by me and bear my signature.

Mr. FINNEY. Well, I do not recall that I said that, but if I did I had reference probably to a statement in one of the decisions. I made two. I denied a motion for a rehearing after this where there

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had slipped in a statement that 15 gallons of oil

to the ton was a prea quisite in order to classify land as oil shale. That, I think, caused more of the sensation in Colorado than the mere action upon the Freeman locations, or the Summers entry, because all these fellows that had locations and their attorneys thought the department was going to let a rule of the Geological Survey, which they used in classifying, determine the right of every locator of shale land.

Senator Walsh of Montana. Let us get at the matter now if we Mr. FINNEY. I did, I think, say something about that.

Senator WALSH of Montana. The statement here is attributed to you:

I did not write the first decision in this case.
Mr. FINNEY. That is right.
Senator Walsh of Montana. And then, he continues as saying:

I do not understand how I ever permitted that decision to get by me and bear my signature.

Mr. FINNEY. I do not recall having said that at all, but I did have a conversation with him and I talked quite freely with him.

Senator Walsh of Montana. We will come to that later, but I am now trying to get at the facts in relation to the preparation of these opinions or decisions, Mr. Finney.

Mr. FINNEY. Yes.

Senator Walsh of Montana. You referred just a moment ago to some opinion or decision which you disapproved.

Mr. FINNEY. Well, I referred to a second decision in this same case, which I signed, and which was written by this same Mr. Phillips, in which there was incorporated this statement about the 15 gallons to the ton.

Senator Walsh of Montana. Have you got that?
Mr. FINNEY. Yes.
Senator Walsh of Montana. Let me look at it, please.

Mr. Finney. That is probably what I was discussing with Kelley. My recollection is not very clear. I have no apologies for that decision. I think that was right at the time and on the record. In the interim, Senator, a motion for reconsideration had been filed by the attorneys for Freeman and ultimately resulted in that decision which denied the motion.

Senator KENDRICK. Senator Walsh, how long will you continue ? Senator Walsh of Montana. Well, only 10 minutes more. Senator KENDRICK. I will have to go now.

Mr. FINNEY. You find that reference there, do you not, to the Geological Survey classification rule? That is the only part of the decision that I would not have allowed to pass me, had I the opportunity to reconsider it, and that is evidently what I told this man Kelley.

Senator Walsh of Montana. Well, what you were referring to then in the conversation with Kelley was to an opinion that had been prepared by Phillips and signed by you.

Mr. FINNEY. Yes, sir.
Senator Walsh of Montana. Denying the motion for a rehearing.

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Mr. FINNEY. Yes; and I was referring particularly to that part of the decision, not to the conclusion.

Senator Walsh of Montana. Will you call our attention to the particular part of the opinion that had your disapproval?

Mr. FINNEY. It really had no place in the decision and should not have been there. I can not find it there. There is the reference in the motion to that 15-gallon rule.

Senator Walsh of Montana. I quote from the opinion as follows:

In support of said motion there is filed an affidavit by the protestant in which he avers :

That in the event opportunity is given deponent to submit further evidence and testimony he can and will submit a conclusion showing that there exist, disclosed and open to examination and sampling, on each of the placer claims in conflict with said homestead, deposits of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton, and in fact will show that situated on this homestead, disclosed and open for salupling, are deposits of oil shale not less than 4 feet in thickness and carrying an oil content of more than 20 gallons per ton; that evidence of these facts was not submitted in detail at the hearing heretofore held, for the reasons-

And so on, setting out the reasons.

Mr. FINNEY. In one of the decisions written by Phillips there was a reference to the regulations or rules of the Geological Survey requiring a minimum of 15 gallons to the ton, and that is what I have in mind, Senator.

Senator Walsh of Montana. Mr. Finney, we may as well suspend here for to-day, and if you can get that for us in the meanwhile it will help to straighten the matter out.

Mr. FINNEY. All right.

Senator Walsh of Montana. This opinion, however, denying the motion for a rehearing, may go in the record at this point.

(The opinion referred to by Senator Walsh, dated May 23, 1925, reads as follows:)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, January 10, 1931, I hereby certify that the annexed copy of departmental decision dated May 23, 1925, filed under Denver 032575, formerly Glenwood Springs 018827, is a true and literal exemplification of the record 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.

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DEPARTMENT OF THE INTERIOB,

Wushington, May 23, 1925.

J. D. Freeman v. George L. Summers Glenwood Springs 01882), 018827.

Protest dismissed. Denied

MOTION FOR REHEARING AND RETRIAL

This is an alternative motion for rehearing and new trial filed by J. D. Freeman in the matter of his protest against the enlarged homestead entry 018825 of George L Summers made subject to the provisions of the act of July 17, 1914 (38 Stat. 509), for the S. 14 NW. 14, N. 12 SW. 14. sec. 1; S. 14 NE. 14, N. 12, SE. 14, sec. 2; and his additional stock-raising homestead entry 018827 for lots 3 and 4, s. 12 NW. 14, sec. 2; lots 1, 2, and 3, and SE. 74 NE. 14, sec. 3; all in T. 5 S., R. 97 W., sixth principal meridian, Glenwood Springs land district, Colorado.

The said entries were allowed, respectively, May 17, 1920, and January 28, 1921, and final proof was submitted on both of the entries May 22, 1923.The protest, which was filed May 21, 1923, charged that the entries were in: conflict with five oil shale placer-mining locations known as the J. D. groupsNos. 1, 2, 3, and 5, and F. D. Group No. 7, all owned by the protestant; that said claims were located April 18, 1918; that at all times after their location the locators and their transferees, except in so far as prevented by the interference of the protestee, had held, used, and occupied said claims; that the protestant and his predecessors in interest have complied with the mining laws of the United States and the State of Colorado in the performance of annual assessment work; and that the land has no value except for its shale deposits; it was prayed that a hearing be had “as to mineral or agricultural character of the lands in conflict," and that the homestead entries be canceled. Notice issued on said charges July 18, 1923, the notice reciting that the protest. alleged:

“ That the said lands have been designated by the United States as mineral lands and that the said lands are chiefly valuable for their mineral contents and that this contestant had located, through his predecessors in title and interest, the said lands as placer lands long before the contestee had connected himself with the said lands or any part thereof."

Hearing, commencing September 5, 1923, was held before the local officers, and from the evidence adduced they found and held that

“ While there appears to be no question but that immense shale beds underlie this land at a considerable depth, it is just as clear that the higher strata exposed on the Summers place, and on which discovery is claimed, do not now constitute valuable deposits and by development in the future could not be expected to show such value as to make them merchantable. Hence, it is our opinion that on such deposits a discovery can not be predicated on which to base a valid mineral claim to the land."

On appeal from that action the commissioner, by decision of April 8, 1924, found and held that

“It clearly appears that the lands in question, along with a large area of other land in that vicinity, are mineral in character and valuable as a source of petroleum and nitrogen; that oil shale was discovered thereon and that they were located, surveyed, staked, and filed upon by contestant and his grantors long before the entries in conflict were made. It also appears that a certain amount of assessment work, said to be the required amount for each year, has been done on and for the benefit of each of said claims and that their future development for the mineral contained therein is justified.”

On appeal by the entryman from the commissioner's decision the department in the decision here complained of found and held that the evidence in the case compelled the conclusion that such shale deposits as were actually exposed on the area included in the claims in conflict with the entries in question were of no value for their contents, and that in any event the testimony was too indefinite to enable it to be determined on just which of said claims such deposits outcropped; that however justifiable might be the inferences, geologically, that lean shale outcroppings within said area indicated the presence within such limits of valuable but undisclosed oil-shale beds at depth, such lower beds, being separate and distinct from any beds so exposed on the surface, were entitled to no consideration as bases for the determination of the sufficiency, as an actual discovery in support of a placer mining location, of anything exposed on the surface; that as no discovery within the meaning of the mining laws had been made within the boundaries of any of the claims in conflict with the entries, and as the mineral claimants were not, as shown by the evidence, at any time engaged in the diligent prosecution of work leading to adequate discoveries thereon, the claims were of no validity; that the conflicting testimony as to the performance of assessment work upon or for the benefit of the claims for the year 1919 and subsequent years ending June 30, 1923, was of no importance, as, in the absence of discoveries within the limits of the claims the performance of annual assessment work could serve no practical purpose; that while there was a large mass of testimony in the record with respect to the relative value of the lands included in the entries for mining purposes on one hand and for agricultural and stock-raising purposes on the other, which was not essential to a determination of the case, such testimony nevertheless showed that both entries in question were traversed by a valley that has a substantial and certain value for dry farm

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