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davits, and may have told me orally that their client was misled by the Register. We would not hold an oral argument unless attorneys for both sides were present, so the action taken was upon the printed record.

Senator WALSH of Montana. Did anyone else talk to you about it except Mr. Consaul and his partner?

Mr. FINNEY. No, I think not.

Senator WALSH of Montana. Any other members of Congress from Colorado?

Mr. FINNEY. No, sir; I think there was a letter written by Senator Phipps to Secretary Work.

Senator WALSH of Montana. Have you that letter?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Will you please read it?

Mr. FINNEY. Yes. That was prior to the decision on the motion for rehearing. [Reading:]

Hon. HUBERT WORK,

UNITED STATES SENATE, Washington, D. C., January 24, 1925.

Secretary of the Interior, Washington, D. C.

MY DEAR Mr. SECRETARY: Mr. J. D. Freeman has sent me copy of his letter addressed to you on January 20, protesting against decision A-6957, in the case of Freeman rs. Summers, Glenwood Springs 018825 and 018827.

I understand that Senators Smoot and Means have also been approached relative to this matter, and that a group of Pueblo citizens are interested, all of whom are applying to you for relief.

It would appear that your decision, reversing the action of the Commissioner of the General Land Office, is based upon the claim that discovery was not actually made on the lands in question. This is a point which was not considered at issue when the contest was first investigated and consequently Mr. Freeman and his associates did not submit all the evidence that they had on the subject.

They now ask for an opportunity to present shale samples taken from the claims at the time of discovery and that, if you can not see your way clear to reverse the former decision, the case should be remanded to the local land office at Glenwood Springs for retrial.

I shall appreciate your careful review of this matter, in the light of the statements made by Mr. Freeman in his letter to you of January 20, and shall be glad to hear from you at your early convenience.

Yours sincerely,

L. C. PHIPPS.

Senator WALSH of Montana. Are there any other communications of like character in the file?

Mr. FINNEY. I found a letter from Freeman. I have that. Senator WALSH of Montana. Letter from Freeman to Secretary Work?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Will you please read that?

Mr. FINNEY. It is rather long. It consists of four pages. [Reading:]

DENVER, COLO.,

January 20, 1925.

Re: Decision A-6957, Freeman v. Summers, involving Glenwood Springs 018825, 018827.

Hon. HUBERT WORK,

Secretary of the Interior, Washington, D. C.

MY DEAR Mr. SECRETARY: Permit me to direct your personal attention to the decision in the above entitled matter by First Assistant Secretary Finney,

under date of December 20, 1924, reversing decision of April 26, 1924, of the Commissioner of the General Land Office. My justification for bringing this matter to your attention now is that said decision is not, in my humble judgment, supported by the record in the case in important and controlling respects, and also because the decision involves a question of departmental policy of large importance in the development of the shale oil industry in the State of Colorado.

In brief, this decision holds my shale placer claims invalid and of no force or effect, as against a homesteader who made his entry more than two years after the claims were located, on the ground of no legal discovery within the boundaries of each of said claims prior to February 25, 1920, and on the further ground that I have not kept up my annual assessment work since that date.

As to the first ground of reversal, it is true as stated in the decision that a showing was made in the record to the effect that the disclosure of the higher shale beds of lesser value was conclusive of the existence of the lower beds of greater value, by reason of the known geology of that section of the country, and that it was urged that this in itself constituted a discovery within the meaning of the law, regardless of the value of the upper beds; we still believe this to be a sound legal proposition, but be this as it may, it was also conclusively shown in the record, as found by the commissioner, that the shale beds actually discovered and disclosed on each and every claim involved in this contest were of themselves of commercial value for the production of shale oil, separate and distinct from the lower beds known to exist. This evidence appears to have been largely disregarded in the decision herein complained of. The fact is, that on each of four of these claims which corner near homesteader's house, there is a shale bed disclosed that is four feet thick and has an oil content of not less than 25 gallons per ton. (The minimum valuable deposit fixed by the United States Geological Survey, is one foot thick, carrying 15 gallons per ton.)

In this connection, it should be stated that these shale claims were located in 1918; that the conflicting homestead entry was made in 1920, and from that time until after the decision of the commissioner, the homesteader, Summers, patrolled the land in his homestead, armed with a rifle, and neither myself nor any of my employees were permitted on any of the land in conflict, either for the purpose of doing development work or of sampling the shale deposits. This is the reason, and the only reason, why the evidence in the record as to the value of the shale beds actually disclosed on each claim is somewhat indefinite and general as to the particular places from which samples had theretofore been taken. By reason of our inability to do careful sampling prior to the hearing, reliance was placed on samples, and the oil content of same, from identical beds, taken at other points in the immediate vicinity, though not on the particular claims at issue.

In this connection also, I desire to call attention to the fact that since the hearing in this case was held, a mineral examiner of the General Land Office, Mr. G. M. Kintz, in his official capacity, has made a very careful, extensive and detailed examination of the claims here in issue, and many others in the vicinity. I am not advised as to the results of Mr. Kintz's examination, but knowing that he did the work carefully, I am perfectly willing to abide by his report on the question of whether or not there is on each and every one of the claims here in issue, a valid and legal discovery of oil shale deposits. Feeling so strongly as I do, that an injustice has been done by said decision of December 20, 1924, I feel warranted, in view of the mass of conflicting testimony in this case, in suggesting the propriety of the department resorting to the unprejudiced information of its own agents in the interest of ascertaining the actual facts in this case.

As to the second ground of decision, namely, delinquency in performing assessment work, the decision complained of states that the only evidence of assessment work on these claims for the years 1919, 1920, and later, is with respect to a pack trail on or near these claims; the trail in question was not built by me, and never claimed by me in the record or otherwise, as assessment work for these particular claims. On the contrary, the record shows conclusively that for each of the years 1920, 1921, 1922, and 1923 (the law required no assessment work for the year 1919), developing work of excavating in solid rock in place was done on each of these claims to the extent of not less than 40 cubic yards for each of said years. This work shows on the ground for itself; it has been examined by Mr. Kintz, and as to this point also, I am

perfectly willing to rest on his report, whatever it may be, as to the existence and value of these improvements, all of which are entirely ignored in the decision of Secretary Finney.

While, of course, I realize that the validity of my claims must depend on full compliance with the placer law rather than bad faith on the part of the homesteader, as a practical matter, it is quite apparent from the record, and from personal familiarity with all the circumstances, I believe it to be the fact, that this homesteader and numerous others in the vicinity are pretending to maintain homestead claims for the sole and only purpose of obtaining some advantage by interference with the rights of shale claimants who were there long before the homesteaders came in. This land having been formally classified as chiefly valuable for its shale oil content and being in the section of the country that is outstanding in this respect, it follows that in no event would this, or any other homesteader in this area, be granted a patent to the land homesteaded, inclusive of the mineral rights. If it be practical and legal, I am quite willing to procure patent for only the oil shale deposits in these claims and surface ground for working same, and leave to the homesteader all the rights that he can ever, under any circumstances, acquire by means of a homestead entry.

As to the matter of the public interest concerned, I may say that these particular claims, and numerous others in the immediate vicinity, on which I have had supervision of the work for the last four years, are generally regarded as the principal basis and opportunity for the practical development of the shale oil industry in the De Beque district. In this work and development, more than $400,000 has been expended under my personal supervision, for the purpose of developing and perfecting title to shale properties in this district. Other owners of claims and myself have negotiations under way which will undoubtedly lead to large bona fide operations of this sort imediately questions of title are settled. Senator Phipps, who has given much time and attention to the development of the shale oil industry in this State, is familiar with these facts.

For the reasons above stated, I have requested my attorneys, Messrs. Consaul & Heltman, to file a motion for rehearing. If the department is unable to see its way clear to reconsider this decision on the existing record, and other data now available to the Government, it would seem that the least that could be done under the circumstances, would be to remand the case for further evidence of the facts hereinabove briefly indicated.

Appreciating such personal attention as you may see fit to give this matter, Very respectfully,

I am

J. D. FREEMAN.

The CHAIRMAN. He is a pretty good lawyer himself, is he not? Mr. FINNEY. Yes; unless he had some help on it.

Senator WALSH of Montana. Now, Mr. Finney, what is the date of the decision denying the motion for rehearing and a new trial? Mr. FINNEY. That was May 23, 1925.

Senator WALSH of Montana. And the date of the filing of the application for the exercise of supervisory control power.

Mr. FINNEY. June 13, 1925.

Senator GLENN. That is the date of the filing; application filed on that date?

Mr. FINNEY. Yes, sir; I think so.

Senator WALSH of Montana. Now, up to that time what part did Secretary Work have in these proceedings, Mr. Finney?

Mr. FINNEY. As far as I can recall, he took no part in any of these decisions. It is barely possible he mentioned to me the receipt. of some of these letters. I am not very clear on that. I know at one time during the pendency of these matters he told me there had been some complaint about my decisions that the shale claimants felt I was arbitrary and unfair.

I can not recall whether it was at this time or later. He took no

part in the decision.

Senator WALSH of Montana. What was the date of that general hearing before Secretary Work?

Mr. FINNEY. That was December 1, 1926.

Senator WALSH of Montana. What was the date of the order under the petition for supervisory control?

Mr. FINNEY. When I remanded the case for hearing?

Senator WALSH of Montana. Yes.

Mr. FINNEY. That was August 29, 1925.

Senator WALSH of Montana. The conference was held after you had remanded the case.

Mr. FINNEY. Yes, sir; after the case had been remanded, after the trial had been held in the local office, and after the supplemented record had been returned.

Senator WALSH of Montana. When was the new hearing in the local office?

Mr. FINNEY. This was the additional hearing under the remanding ordered held at Glenwood Springs, Colo., January 25 to February 4, 1926, and it covered, according to the statement here of the affidavit of the stenographer, 856 pages.

After the record was received in the department, Senator, the local counsel asked to be heard in oral argument.

Senator WALSH of Montana. Let me get that straight, now. The rehearing was held January 25 to February 4, 1926.

Mr. FINNEY. Yes.

Senator WALSH of Montana. And when did the record get to your office?

Mr. FINNEY. I do not know that; very soon afterwards, because in cases of that sort where a supplemental hearing is ordered new testimony is taken to supplement the original record; there is not a decision by the register and by the commissioner. The new record is forwarded directly up.

Senator WALSH of Montana. No intervening decision.

Mr. FINNEY. No intervening time, and it was in the department some time prior to September 1926.

Senator GLENN. The chances are it got there much earlier than September.

Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. When was the final decision rendered validating the Freeman location?

Mr. FINNEY. That was not until September 30, 1927.

Senator WALSH of Montana. In the meanwhile a conference was held on December 1, 1926.

Mr. FINNEY. Yes.

Senator WALSH of Montana. That was in anticipation of a final hearing in the Freeman case.

Mr. FINNEY. I can not say what the people who participated had in mind. It was not an argument on the Freeman-Summers case at all. It was a general hearing of the question of what constituted discovery and geological formations of the area and things of that

sort.

Senator GLENN. What hearing was that?

Mr. FINNEY. December 1, 1926. That was a general hearing and not limited to this case.

I may say that after the record was received in the department the attorneys for Freeman, Consaul & Heltman, asked to be heard orally before me, and by my letter of September 29, 1926, I authorized an oral argument. Subsequently I found Summers was not represented at that time by any Washington lawyer, so on October 14, 1926, I revoked the order for oral argument on the ground that the attorney for Summers could not attend any oral argument that might be had before the department, and advised them the case would be considered on the evidence and briefs filed. Senator WALSH of Montana. So there was no oral argument? Mr. FINNEY. Not in that specific case; no, sir.

Senator WALSH of Montaña. But intervening, this general conference was had?

Mr. FINNEY. Yes.

Senator WALSH of Montana. I have here a memorandum showing who was present at that conference. I will put it in the record at this time. It is before the Secretary of the Interior on December 1, 1926, on the question of what constitutes a sufficient discovery to support the claim of an oil shale placer locator under the general mining law.

Let me inquire: How did this discussion come to take place, Mr. Finney?

Mr. FINNEY. That is a question that I can not answer definitely. It is my recollection that a number of people in Colorado, in the West, and possibly some members of Congress, asked the Secretary to have a general hearing on this subject.

Senator WALSH of Montana. On what subject?

Mr. FINNEY. On the subject of what constituted a sufficient discovery of a shale mining claim.

Senator WALSH of Montana. Have you any record showing by whom that conference was had?

Mr. FINNEY. I have not been able to find any. I have looked and found none. We found the departmental press notice authorizing

the hearing.

Senator WALSH of Montana. Can you put that in the record?
Mr. FINNEY. Yes; that does not say on whose request.
Senator WALSH of Montana. Will you read the notice?
Mr. FINNEY (reading):

DEPARTMENT OF THE INTERIOR

MEMORANDUM FOR THE PRESS

(Immediate release)

OCTOBER 22, 1926.

The act of February 25, 1920, commonly known as the general leasing law, provided that thereafter oil shale and certain other mineral deposits should be subject to disposition only in the form and manner provided by said general leasing act, "except as to valid claims existent at the date of the 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.” The records of the Department of the Interior show that prior to the enactment of the general leasing law numerous locations under the placer mining laws had been made upon alleged oil-shale deposits, particularly in the States of Colorado, Utah, and Wyoming. Some applications for patent are pending

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