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ing and stock raising; that forage crops had been raised thereon by the entryman and that he had resided upon and improved the land in good faith. The decision of the commissioner was accordingly reversed, and the asserted locations in conflict with the entry were declared to be null and void.

Upon careful consideration of the several points presented in the motion for rehearing the department is of opinion that none of them, considered in the light of the testimony adduced at the hearing, affords any ground for disturbing the decision complained of.

In the prayer for a new trial the protestant expresses the belief that the principal phase of the case which led to the said decision was that the facts were not developed and proven by the testimony submitted in such a manner as seemed to him to be required by the department. He accordingly asked that opportunity be afforded him to adduce all material facts, including discovery and the performance of work in good faith for the development of the claims here involved. He represents in the motion that since the hearing "further development has absolutely demonstrated the existence, at points of discovery designated in the testimony, of oil-shale deposits of intrinsic value, this demonstration being material as corroborating the testimony of discovery submitted by placer claimant at the original hearing of this case." 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 conclusive 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 sampling, 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: (a) Deponent at said hearing submitted his evidence and proofs on the theory and belief, on the advice of his counsel, that proof that the land was mineral in character, and proof of the existence of certain oil-shale strata thereon, together with proof that the known geological conditions in the section of country involved indicated with certainty the existence of valuable oil-shale deposits underlying the land, whether or not the latter were actually disclosed, was sufficient proof of legal and valid discovery; and (b) that for a long time prior to said hearing, said homesteader, Summers, patrolled the land covered by his homestead, armed with a rifle, and warned this deponent, his employees, and associates, against taking any samples or making any excavations within the area of said homestead, as a result of which deponent and his employees were prevented from making excavations, or from doing a thorough sampling of the lands in conflict, in preparation for the said hearing. and deponent was therefore compelled to rely on his general knowledge of the character of the lands and the shale deposits thereon, together with a few samples that had been taken some years before.

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"That deponent knows of his knowledge that commercially valuable deposits of oil shale are opened and disclosed on the lands in controversy, and that if given opportunity he can submit conclusive proof on this point." In a second affidavit filed by the protestant he avers:

"That prior to the commencement of the hearing before the Glenwood Springs Land Office, Mr. C. W. Darrow, attorney representing affiant and said Standard Shale Products Co., in the presence of applicant, conferred with the register of the Glenwood Springs Land Office, with Mr. Spencer, with regard to the scope of testimony to be adduced; that while affiant is unable at the present time to quote the precise language used either by Mr. Darrow or by Mr. Spencer, the purport of the statements made by Mr. Spencer at that time was that the issue to be determined and concerning which testimony should be submitted, was the relative value of the land involved, either for agricultural or grazing purposes on the one hand or for mineral purposes on the other hand.

"That in a large measure the submission of testimony in behalf of affiant and of said company at said hearing pertains to the issue mentioned; that testimony dealing with discoveries of oil-bearing shales upon the land and pertaining to performance of annual labor upon the placer claims involved

was submitted at the instance of affiant's counsel for the purpose of showing good faith in connection with the location and maintenance of said shale placer claims.

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That, as indicated by testimony in the matter of said hearing, the contestee, Summers, refused to permit mining development work to be conducted upon his so-called homestead claim, which fact rendered it almost impossible thereafter, although some prospecting work had been done upon said homestead claim prior to the making of threats by said Summers.

"That affiant attaches to this affidavit and makes a part thereof a blueprint plat showing said homestead and conflicting shale placer claims and also showing various mining workings thereon.

"That since the submission of testimony to said hearing the following workings have been excavated upon said claims upon oil-bearing shale beds, which are indicated upon said attached plat as folows, to wit:

"On F. D. No. 7 placer, excavations Nos. 19, 20, and 21, situate upon the ground in conflict with said Summers homestead, done as assessment work for the fiscal years ending June 30, 1924, and June 30, 1925; that one of said excavations had been previously commenced before the men working thereon had been driven therefrom by said Summers, and after said Summers departed from the vicinity that work was completed.

"On J. D. No. 1 placer, excavations Nos. 2 and 3 upon the area in conflict with said homestead.

“On J. D. No. 2 placer, workings Nos. 5 and 7 upon said homestead conflict. "On J. D. No. 3 placer, workings Nos. 9 and 10 upon the area in conflict with said homestead.

"On J. D. No. 5 placer, workings Nos. 15 and 16 upon area in conflict with said homestead.

"That the showings in said excavations are corroborative of the showings previously secured in earlier workings described in the testimony submitted at said hearing, and tend to show with all reasonable certainty the existence in said claims and on the land in conflict with said homestead of oil-bearing shale of economic value."

The department correctly held in its previous decision that at the date of the approval of the leasing act neither the protestant nor his predecessors in interest with respect to the five claims were diligently engaged in the performance of work upon any of the claims leading to a discovery of valuable mineral deposits thereon. An important issue in the case was therefore whether at that date there had been such a discovery within the limits of each of the claims as would support a valid placer mining location. That issue, on the evidence presented at the hearing already had, was decided adversely to the protestant and the decision of the department thereon is clearly in accord with the evidence. There is nothing in the evidence tending to show that at the date of the act a deposit of shale valuable on account of its oil content was naturally exposed within the limits of any of the claims, nor that there had been performed upon any particular one of said claims any work that artificially exposed such a deposit. There was evidence tending to show that in 1921 an excavation was commenced on the J. D. No. 1 claim and that in the fall of 1920, or before June 30, 1921, an excavation was commenced on the F. D. No. 7 claim. It was testified that during the year ending June 30, 1920, some work was performed at a point a short distance to the south of the south line of the J. D. No. 5 claim, then thought to be within the limits of that claim, but it is nowhere made to appear that such work was performed prior to the date of the leasing act or that it exposed a valuable deposit of shale.

The evidence which the protestant now seeks to produce at a further hearing would seem to relate entirely to developments and exposures within the limits of the claims made as a result of work performed long after the approval of the leasing act. Assuming, however, that the protestant could now prove that excavations made since the date of the hearings already have resulted in the exposure of a deposit of shale of workable oil content and thickness upon each of the claims of the protestant in conflict with the entries in question, that fact, in the absence, as established by the evidence, of diligent prosecution of work commenced prior to the approval of the leasing act, leading to such exposures, could not be accepted by the department as constituting discoveries that would relate back to and validate the claims as of the date of the act. Nor would the fact, if it be a fact, that the entryman, after the allowance

of his entries, had forcibly prevented the mineral claimants from performing prosecuting operations on the tracts covered by the entries affect any rights that the protestant might otherwise have had with respect to the claims, in view of the protestant's failure to show at the hearing, or to now declare himself able to show at a further hearing, should one be ordered, that there was at the date of the act physically exposed within the limits of any of said claims a deposit of oil shale of such quality and thickness as to warrant the exposure being regarded as the discovery of a valuable mineral deposit. The motion, therefore, presents no ground for a new trial.

The decision complained of is accordingly adhered to, and the motion in its entirety denied.

E. C. FINNEY, First Assistant Secretary.

Senator GLENN. May I ask when Mr. Kelley is to appear? Senator WALSH of Montana. He was to be here today, Senator Glenn, but I am told he is sick with the flu.

Senator GLENN. I do not know what has been done, whether he has been subpoenaed, or arrangements made for him to come, but I would like to have him subpoenaed to bring with him all papers, contracts, correspondence, memoranda, and data, dealing or connected with any and all negotiations and arrangements for the preparation, sale, or publication of any and all articles or statements dealing with the oil shale matters now pending before the committee under Senate Resolution No. 379.

Senator WALSH of Montana. I think that is quite appropriate. We will adjourn until 10 o'clock on Tuesday, February 3, 1931. Secretary WILBUR. I brought along all the records of the cases under dispute. Will you take care of them for us or do you desire us to take them back with us? You are taking up a very large contract in this proposition. We propose to see this through to the very last case.

Senator WALSH of Montana. I had not thought, Mr. Secretary, of going into it at this time to that extent, but of course the committee will be glad to have anything you care to submit.

Secretary WILBUR. Certain charges have been filed, although no formal ones have been presented. They have been of a certain character and now that the Senate has started in on this we feel that we should have clearance in the Senate.

Senator WALSH of Montana. Absolutely.

Mr. ELY. There are 51 cases here, each with a summary of the case attached to it, and we have in addition all the cases in which patent applications are pending, and they will all be available before this committee.

Senator WALSH of Montana. The committee, I am sure, will be very glad to hear anything that the Secretary feels is pertinent to the inquiry. I thought I made it clear that this committee is not authorized to go into any exhaustive investigation. This is simply a preliminary inquiry as to whether an exhaustive investigation is to be ordered by the Senate.

Secretary WILBUR. We have the material available, Senator. We can take it back, if you prefer.

Senator WALSH of Montana. Was any subpoena issued requiring its production?

Secretary WILBUR. Rather an indefinite letter from the chairman of the committee asking me to appear, and no formal statement as to what was desired.

Senator GLENN. I presume this will run on after Tuesday, and I would like to have-I want before the thing is finished the publisher of the New York World, or whoever is the responsible party for the contracts and negotiations looking forward to the publication of these Kelley articles-I do not want to bring the publisher and take up his time if he had no direct dealings with it, but I wish you would communicate with the New York World and ask whoever is the responsible person there in charge of this matter to be present, bringing with him papers as outlined in the Kelley subpoena.

Senator WALSH of Montana. The Secretary better communicate with them and inquire whether they will send someone when required by the committee.

Senator GLENN. Yes.

Senator WALSH of Montana. That is all, gentlemen.

(Whereupon, at 11.55 o'clock, a. m., the committee recessed until Tuesday, February 3, 1931, at 10 o'clock a. m.)

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