Senator WALSH of Montana. So that under his contention if one went upon any portion of this several hundred thousands of acres and found on the surface, as he would, of course, find, under the statement it is all one solid body of ore, what would he have to do in order to make a discovery Mr. Finney, not your contention, but if his contention is correct?

Mr. FINNEY. Either find the exposure on the surface or dig down for it.

Senator WALSH of Montana. If a rock came to the surface, all he would do would be to put up his stakes or notice?

Mr. FINNEY. That is right.

Senator WALSH of Montana. If there was the overburden of soil, he would clear off the soil until the rock was disclosed?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Under that condition he would not have to make any discovery?

Mr. FINNEY. He would not have to exert himself further than find it and see it and discover it.

Senator WALSH of Montana (reading):

And so we believe, gentlemen, that when you have discovered visually exposed within the four corners of a claim oil shale which you may identify as a part of the Green River formation then you have discovered that enormous bed, or deposit of ore, which must be the foundation and very basis of any operations that are ever conducted in oil shales in those three States.

Was there anybody there who combatted that theory?

Mr. FINNEY. No; there was no contention against it, as I recall, when it was filed there were geologists' statements, maps, stratigraphs, which we could consider.

Senator WALSH of Montana (reading):

In order to bring more clearly to your attention this question, which to us is all important, mining engineers of the highest standing will speak to you to-day concerning the methods to be employed, in their opinion, in mining and handling this gigantic deposit of ore. In the early days of the study of this formation the geologists were wont to look upon it as a few layers of shale of some richness separated entirely from other portions of the Green River formation by barren streaks or zones of foreign materials. The mining engineers, following the geologists in their conception of this thing, looked at it from the viewpoint of a selective mining problem; that is, to mine only the rich or richest bed or stratum; if you care to view it in that way, of some 10, 12, or 20 feet in thickness-that bed or stratum that would produce the most oil-believing that the rest of the formation was of little value.

And so we had discussions of, and papers written about, the selective system of mining this property, and it was compared to the coal problem. Then when the geologists began to made a more intensive study of the problem and began to accumulate more information and knowledge about the deposit they found that they had been mistaken in their original position and that the whole formation was an ore bed; that it all carried considerable mineral value; and then the mining engineers, following this lead of the geologists, began to look at the formation in the light of wholesale mining methodsmethods which would move the mountain in effect—and they have determined, if you please, that they can mine sections of the formation of 500 or 600 feet in one operation at a lower mining cost per gallon of oil produced than the cost of mining one section of the richest ore.

Was there anybody there who defended the old geological theory referred to here, namely, that this was not all one solid body of ore, but that some of the whole body was barren, and some had oil in it of an inconsequential quantity, and other strata were rich and valuable?

Mr. FINNEY. Oh, we were there to hear a presentation. We were to make our determination later on that presentation.

Senator WALSH of Montana. What was the other presentation made? Everything that was said there was in support, or at least not in contradiction, of the theory advanced by Mr. Walker? Mr. FINNEY. That is substantially correct; yes, sir.

Senator GLENN. You had nothing to do with who saw fit to come there and argue this matter?

Mr. FINNEY. It was a free for all and open to anybody who wanted to come and make a statement and file evidence. It was not a contest between two sides.

Senator WALSH of Montana. George Otis Smith appears to have been there.

Mr. FINNEY. Yes.

Senator WALSH of Montana. He was the head of the Geological Survey at that time, was he?

Mr. FINNEY. Yes.

Senator WALSH of Montana. He was responsible, of course, for putting out this theory that there would have to be 15 gallons of oil per ton in the rock in order to justify the classification of it as oil shale?

Mr. FINNEY. Yes; that was his rule of classification.

Senator WALSH of Montana. Did he say, Mr. Finney, anything at that time in contravention of this theory that is backed by Mr. Walker?

Mr. FINNEY. I do not recall he made any statement at the hearing at all.

Senator GLENN. Did any of the Government officials or employees make any statement there at all?

Mr. FINNEY. No statement. There are some questions there. I asked one of the men, perhaps it was Mr. Hawley, whether it was his contention this was a continuous formation bearing oil, and he replied it was. From time to time questions were asked or statements made. For instance, there seemed to be a general impression then, and it seems to have been the impression of Mr. Kelley and these men that appeared at the hearing and others, that that open hearing was a free for all and not directed to any specific case laying down a rule which would compel the department to issue every patent applied for in this large area.

I made a statement on page 65 of these hearings:

I suppose you gentlemen agree that if and when applications for patents are presented to the department that the department will consider each case on its own facts; in other words, each applicant for patent must make his original showing as to what discovery he has made on his claim, in the consideration of those individual cases if and when they arise in the future, we would pass upon those particular records. Of course, we will have the benefit, however, and will refer to such briefs and arguments as have been made here or left with us in this hearing.

Senator GLENN. May I ask a question, Senator Walsh, for information? I am not familiar with this oil country. I take it from your questions or the statements made, the importance which you attach to the position taken by this attorney from whom you have read, is this, that if this is one oil body, one solid oil body, that that position being taken or adopted by the department-it was taken or

adopted by the department-any claimant in this entire vast field would not need to make a discovery on each particular claim. Is that correct? Is that the importance of the thing?

Senator WALSH of Montana. Except as Secretary Finney said, if it was covered by soil or overburdened, he would have to clean it off.

Mr. FINNEY. That is all, because if decision was reached it is one body and rich enough to be valuable, it is not necessary to do anything further in the entire field except to discover it on the surface, and then his case is made.

Senator WALSH of Montana. In the Kelley letters he contends that is the effect of the decision.

Mr. FINNEY. To incorporate what I said in my statement, I called attention to the departmental decision of July 9, 1930, Alturus Shale case, in which the department said there is nothing in the decision, in Freeman v. Summers (52 L. D. 201), which justifies the deduction that on locations made for oil shale in the Green River formation the locators are relieved from the well-settled requirement of the mining law, that actual discovery of mineral must be made within the boundaries of the claim.

Senator GLENN. What is the date of that?

Mr. FINNEY. July, 1930.

Senator WALSH of Montana. If these gentlemen are correct geologically, if a fellow does make a discovery within the boundaries of his claim, because it is all one solid mass of ore, they will say, "We have done that. We have exposed on our claim the portion of this mass."

Mr. FINNEY. That contention was denied in that decision I just cited. However, I do not want to be misunderstood. I do not think the extent of a mineral deposit is any reason why a man can not make a valid discovery, or why 20 or 40 men can not; in other words, if it is a placer deposit and extends over several miles of country, and 100 miners can make location on it, that is not forbidden by the mining laws.

Senator WALSH of Montana. I understand that. Let me inquire

Mr. FINNEY. Could I make one more statement: You asked if George Otis Smith said anything at the hearings. He did not, but on September 24, 1926, he submitted a memorandum, in which he refers to this hearing. It is quite a long one.

Senator WALSH of Montana. I was about to ask you whether the Secretary had before him any statement by any geologist controverting the position thus taken by the lawyers and geologists who appeared at this hearing.

Mr. FINNEY. This memorandum principally discusses the rule. He says they were designed solely as a guide for classification, and no possible thought of their part to use as a criterion for determining the sufficiency of discovery under the placer mining laws.

Senator WALSH of Montana. His rules he insisted were only for the government of his own office.

Mr. FINNEY. For classifying the lands, if they were called upon to classify an area as shale bearing or nonshale bearing, they would intend to apply that rule. Then he speaks in here about the proper

method of mining, and so forth. I do not know that you care for that.

It was suggested at the hearing by one engineer this would be mined by caving, blow off part of the mountain and cave it down below, which would result in the handling of the entire mass of the mountain. There was some discussion of that.

Senator WALSH of Montana. Then, the question I asked you a moment ago was there anything before the secretary either at the hearing or otherwise in contravention of the position taken here, that this was on one solid body of ore. What have you to say about that?

Mr. FINNEY. I did not take the view when I wrote the decision in the Freeman-Summers case that it was a solid body.

Senator WALSH of Montana. I understand that, but this argument was all addressed to Secretary Work.

Mr. FINNEY. Yes.

Senator WALSH of Montana. Was anything brought to the attention of Secretary Work in any way in contravention of the geological situation as represented by these lawyers and attorneys?

Mr. FINNEY. Not that I recall.

Senator WALSH of Montana. At page 36 I read as follows:

Inasmuch as there is so close a relationship between the oil shales and the porphyry coppers in so far as the unequal distribution of values and the consequent necessity for wholesale production in both cases is concerned, there seems to be no need for differentiation between their bases of discovery. Copper ore is basically metallic, of igneous origin, and is subject to location under the lode law, while oil shales are of aqueous origin, possess nonmetallic mineral, and are subject to location under the placer act. Certain porphyry coppers have been known to run only a trace at the surface, but they did run that trace and they were taken to patent on that basis. Some of the oil shales at the highest elevation in the Green River series produce only a small quantity of oil, but they do produce oil, and we therefore maintain that the production of oil, be the quantity thereof great or small, is a "discovery" within the meaning of the law.

That is a statement by Mr. Russell.

Senator GLENN. Who is he?

Senator WALSH of Montana. Denver, Colo.

Senator GLENN. Did he identify himself?

Senator WALSH of Montana. On page 31 Mr. Hawley identifies him as a mining engineer of Denver.

Mr. Russell, I think, continuing at page 44. Am I correct that is Mr. Russell?

Mr. FINNEY. No; that is Mr. Goodale. If you turn back to page 40 you will see where Mr. Larwill introduced the statement prepared by Mr. Goodale.

Senator WALSH of Montana (reading):

Mr. Larwill here quoted at length from Mr. Goodale's statement. Mr. Goodale is a mining engineer in the employ of the Columbia Oil Shale & Refining Co., one of the parties interested, for whom I speak.

Mr. Goodale, among other things, says:

A zone situated near the middle part of this formation, and known as the Mahogany Zone," contains the richest of the oil shales, and a composite sample across 10 feet of this zone will yield in excess of 50 gallons of oil per ton of shale. By varying the width of the composite sample, various yields can be had; as for example, a sample across 50 feet of the Mahogany Zone" will

yield about 35 gallons of oil per ton of shale. By extending the composite upwardly, and downwardly to the limits of the oil shale series in the Green River formation, we can get a composite zone about 2.600 feet thick, which would constitute one immense mineral deposit, made up of many zones of varying oil yield, and a sample taken from any portion of this deposit and yielding oil in any amount, would constitute a discovery.

Do you remember how deep that Mahogany Zone is? My recollection is it is about 600 feet.

Mr. FINNEY. It is 600 or 700. Of course that varies, as you realize. It is greater or less.

Senator GLENN. Where is that located as respects the particular claims in controversy?

Mr. FINNEY. It runs right under them, according to geologists. Senator WALSH of Montana. It is exposed, not necessarily on these claims. There is no evidence it is on these claims, but at a distance where the streams cut the formation, it is exposed in the bluff, and then it is exposed further on in another cut, and they assume it goes clear through, the geologists do.

Mr. Larwill, having finished Mr. Goodale's statement, himself says, among other things:

Before I have finished, I want to read from one of the depositions which have been taken, to show just what a practical discovery is. There is nothing mysterious about a discovery. It is not a laboratory experiment; it is an exposing to view, the simple showing, opening up of the deposit. That is all a discovery is. But the difficulty arises from these so-called top claims; that is to say, the claims that lie between the gorges and canyons; and many of these applications for patent which are pending, to which I have referred, concern these so-called top or ridge pole claims. Now on these claims, on each and every claim, the mineral has been discovered in some quantity, but the richer shales which are exposed, the richer zones or horizons which are exposed in the canyons and gorges, are not exposed, as you can see, on these top claims, and it must be therefore a discovery under the old law of some of the mineral on the claim sufficient absolutely for a discovery because of the fact, as it is shown by such remarkable unity among these technologists who have prepared these papers, that it constitutes but one single blanket deposit and a discovery anywhere within that deposit is a discovery of the entire deposit.

Now briefly, I wish to quote from the cases which have been referred to more particularly in our brief, the simple statement of what is required in a discovery, and I am amazed that we have sat here all day and have had not mention of the case of Castle v. Womble decided by this department.

Secretary FINNEY. You are getting back to first principles.

Mr. LARWILL. And that is just what this is, Judge Finney, simply a matter of first principles-a blanket deposit, a discovery of mineral and the locating and going to patent under the laws as they have always existed. Back to first principles, yes, sir.

Now the case of Castle v. Womble has been authority as you know and has been quoted by the courts right down through the years. Where minerals have been found." As I have stated, this precise mineral has been found on all of these claims to which I refer, top claims. In claims with cliff face the same thing, the mineral, the kerogen, the mineral that produces the oil when retorted, has been found on all of these claims. "Where mineral has been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his time and money with a reasonable prospect of success there has been a discovery."

Secretary FINNEY. And now right there the case of Womble involved a lode mining claim. There is a discovery of a vein. Now the theory is that a man discovers some mineral, it may be a small amount, and has reason to believe that that vein is impregnated with mineral and may probably grow richer as he goes down. That is sufficient discovery. There is continuity. He follows the vein on down into the rock.

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