the presence of numerous vugs and large cavities, are more susceptible to attack than are thick-bedded massive shales. Certain shales, occurring at the base of the Green River formation, are perhaps, less resistant than any other type of shale, because of their peculiar foliiated structure and the presence of minute fossil shells in great abundance. The latter shales are found at the outcrop in an advanced stage of decomposition; with their original oil content greatly reduced, and their color bleached to various shades of buff or light brown.

Topographical environment is an important factor in controlling the depth to which weathering persists beyond the outcrop. The rate of transportation of weathered material away from its source determines, to a great extent, the depth to which the material near the surface will be found to be altered.

The rate of transportation varies with the topography. It is rapid on the steep slopes and escarpments, and relatively slow on the tops of plateaus and at the base of the mountain slopes; therefore it is reasonable to expect deeper and more advanced decomposition in the upland country and at the base of the plateau than on the steep declivities.

The relatively slow rate of transportation in the upland country favors the accumulation of a mantle of soil and subsoil which support vegetation, the latter, in turn, retarding erosion and aiding in the retention of moisture and thus promoting decomposition.

The weathering of rock is known to be at its best in the presence of moisture and vegetation. Deep snow accumulates on the tops of the plateaus, and because of the gentle topography and relatively porous nature of the rocks at this horizon, much of the moisture is retained and aids in decomposition. Vegetation thrives, and the organic acids derived from the products of decayed vegetation, as well as from the roots of plants, have a profound influence in the promotion of deep-seated decomposition. For these reasons the outcrops of oil shale on the surface of the plateaus are subject to vigorous attack and deep penetration and we should expect to find them in an advanced stage of alteration and materially reduced in oil-yielding value.

Because of the fact that steep slopes favor rapid transportation of material, the weathering of outcrops is shallow and weathering does not keep far in advance of erosion; therefore, with the exception of densely timbered slopes and areas affected by burning and partial distillation of the shale, the shale found at the outcrop is in a relatively fresh stage of preservation, although certain varieties, with many planes of lamination and therefore many planes of penetration, are found in an altered ocndition 20 feet back of the outcrop.

In what is called the basal zone at the base of the Green River formation, deep-seated weathering is notably prevalent. Here we find dark brown to black shales of uniform texture and structure, intensely altered, in numerous localities, to bleached material yielding less than 50 per cent of its original oil content. In many places these shales will be found at surface in a relatively fresh condition, but in other places decomposition persists as deep as 30 feet from the outcrop, the material showing a gradual transition from weathered to unaltered shale. As previously mentioned, there are certain shales in this zone, characterized by their peculiarly foliated structure, that seem particularly susceptible of attack by weathering agencies. Where fresh, this variety of shale will be dark colored and of tough constitution, yielding from 12 to 16 gallons of oil per ton. In its extreme stage of weathering, it consists of soft, pulpyappearing, buff-colored material, yielding but 5 to 8 gallons of oil per ton. There are other varieties of shale in this zone that are readily attached by weathering agencies, and show the same tendency to lose much of their oil-yielding value through the agency of surface decomposition.

WILLIAM O. PRAY. Subscribed and sworn to before me this 26th day of November, A. D. 1926. GEORGE W. HEPLIN, Notary Public.

My commission expires February 10, 1930.

Mr. MCMULLEN (continuing). Mr. Secretary, I do not want to take the time of this gathering to say anything on the legal aspects surrounding these questions except to show the pertinence of these affidavits. The department seems to indicate that it expects the locators to show on the surface-actually and physically exposed on the surface of the ground-oil shale with an oil content of at least 15 gallons per ton. We present these affidavits for the purpose of showing that this mountain with these correlated zones has successive areas of lean and rich material just like any other mineral formation.

On the surface the weathering and decomposition is such that this rule works an unnecessary hardship, because when we find the shale on the surface we know that we have found the Green Giver formation which contains the rich and the lean together, all correlated and all physically connected. We have always understood that the mining statutes of these United States do not prescribe what is necessary to constitute discovery. Congress never attempted to define it. The courts have held that no arbitrary rule as to what will constitute a sufficient discovery can be stated which will govern all cases, even in respect to lode claims or placer claims. It may be stated generally that the term "discovery," as applied to a mining claim, means acquirement of knowledge that it is reasonably valuable for placer mining. It is not necessary that shale in paying quantities be found. On that question the courts of Alaska, California, Colorado, Idaho, Montana, Nevada, Oregon, and the circuit court of appeals and other Federal courts have ruled specifically. It is sufficient if shale is found under such circumstances and of such a character and quantity that a reasonably prudent man would be justified in expending time and money in developing it with the reasonable expectation of finding thereon shale in paying quantities.

Now, why is it, we ask, that there seems to be a disposition to apply a fixed rule relative to discovery and perhaps other questions when it has never been done before and it has never been recognized in regard to any other deposit? Here we have decisions covering metalliferous deposits and we have decisions covering fossiliferous deposits, and here we have a sedimentary deposit, and it was you, yourself, Mr. Smith, in 1916, that called the attention of the department to the fact that this deposit would be difficult to be brought within the provisions of the placer laws; and yet. Mr. Secretary, it was done. In 1916, after the Geological Survey published three different pamphlets calling the attention of the people of western Colorado to this great resource, the land was classified and the General Land Office declared that the land might be entered under the placer act. We came down here in 1918. The question of the disposition of this land in that area was then at issue. We went before the Sixty-sixth Congress, which formulated the leasing bill, and the Sixty-sixth Congress in that leasing bill put in a saving clause protecting the rights of these locators--and why? I have no doubt but what there is some disposition on the part of some people, perhaps overzealous, to talk about us as western speculators; and yet, gentlemen of the department, I want to say to you that we made our shale locations in 1916, 1917, 1918, and 1919 primarily because we understood it was a war resource and that it was a patriotic duty, and the Sixty-sixth Congress understood that and they protected those of us who had acted from that sense of duty.

Now what does this mean? How can you expect to find the conditions in a sedimentary formation that you do in a metalliferous formation? How can you expect to apply the rules, applicable to discovering a vein or lode in place in a mineral formation, to a sedimentary formation? I have argued this matter fully in my brief and am simply calling your attention to this matter at this time in order to preserve the continuity of this thought. We contend that the nature of the deposit permits us to show at all times facts which clearly and unequivocally-not geologically inference but absolutely-established that this land is valuable for oil shale and no other purpose. It is not valuable for agriculture. I think the records of this department will show that the department refused to establish a forest reserve in this country because of that fact. It is valuable for nothing else, and yet we can take this land and through it develop what everybody considers to be a great and coming necessary industry. Even now in this country we are looking forward to the time when the mineral oil supply will be below the demand. How does your department expect this resource to be developed? How do you expect this industry that will take millions of dollars to be developed unless you remove these restrictions which we believe are unwarranted by the facts, and adopt an attitude which will permit those who in good faith acquired their properties from various locators to go ahead and perfect their titles; who will pay this Government $2.50 an acre for otherwise valueless land; who are prepared to go ahead and develop this industry which will take millions and millions of dollars? Is not this necessary in order to create a demand for the larger area of this land still held by the Government?

Now in conclusion I want to say I have my printed briefs here with copy of this paper, which I desire to file with you. I have lived in western Colo

rado for 37 years. I made my first shale locations 13 years ago. I have traveled across this country time and time again without any financial reward to this hour to secure the capital for the purpose of developing this industry. We people in western Colorado realize it because we are living in its atmosphere, but we are not any more interested than you here. It is a great potential resource of this country and it should be aided in every legitimate

manner.

(At this point Mr. McMullin presented to the secretary a large photograph showing a typical oil-shale formation. The photograph was filed with the other papers of the record.)

I desire to file that photograph with my briefs, Mr. Secretary, and thank you for your attention.

Mr. HAWLEY. Mr. William C. Russell, a mining engineer of Denver, will be the next speaker.

Mr. RUSSELL. Mr. Secretary and friends: I will dispense with any preliminaries and at once proceed to read the statement which I have prepared on the subject of "discovery." I was uncertain at the time I wrote this statement or article whether I should be present to read it or not, and I have therefore addressed it in the form of a letter to the Secretary.

To the Hon. SECRETARY OF THE INTERIOR,

WASHINGTON, D. C., December 1, 1926. Washington, D. C.

In re: Discovery on Oil Shale Placers. MY DEAR DR. WORK: In recognition of your call for a public hearing at Washington beginning this 1st day of December, 1926, on the question of what constitutes a "discovery" within the meaning of the law, on an oil shale placer mining claim. I have the honor to submit for your consideration a few facts covering my observations gained over a period of 28 years as a mining engineer, including 9 years practical experience as such, in the oil shale fields of the West.

It is indeed much to your credit, our Honorable Secretary, that you have opened wide the doors for a full and candid discussion of the whole question of discovery as affecting oil shale placers, for it has appeared that certain members of your department have been acting under a misunderstanding as to the nature of the oil shale deposits and as a result of such misunderstanding have undertaken to set up a schedule of limitations as to the quantity of oil that a given thickness of shale must produce as one of the prerequisites to a patent. It appears that they have been inclined to take the rules which were prepared by the Geological Survey for the guidance of its field force in the classification of the western oil shales and write them into the general mining law of the land.

It seems hardly possible that the Survey had any notion, when it framed the schedule, of upsetting the very foundation of our mining law by injecting into it a new interpretation of the term "discovery." Lawmaking is quite outside the sphere of the Survey's authority, and it is unbelievable, therefore, that it should presume upon the prerogatives of Congress. The Survey's oil shale schedule may have served its purpose well as a guide for the field force in their work of land classification, but it should have no bearing or influence whatever upon the discovery question, and it certainly has no standing as a practical operating guide in determining what is commercial and what is noncommercial oil shale. However, the advocates of this schedule have succeeded in carrying it along far enough to cause more or less disturbance and to entail considerable unnecessary expense among certain shale land claimants, and it is, therefore, to be hoped that the results obtained through an open and candid discussion of the whole shale problem will set at rest for all time the fallacy of establishing limitations on shale land discovery. Only upon rare occasions hitherto in the entire history of the mining industry of the United States have limitations on discovery been seriously considered either by the Department of the Interior or by the courts. It seems safe, therefore, to predict that when all the facts with respect to the physical and economic conditions which surround the oil shales shall have been laid before you, that you will find no place for any schedule of values whatever, but that you will be entirely satisfied to permit the laws and precedents which have hitherto governed "discovery" on both lodes and placers, to prevail.

Although oil shale lands have been properly classified as placers and are placers in the sense that they are of sedimentary origin, yet at the same time, as a practical proposition they come nearer being lodes than placers, if for

no other reason than that they contain mineral substances, are completely indurated or solidified and must be mined in the same general manner that lodes are mined.

Limestone deposits have likewise been classified as placers, and the general placer mining law has been subjected to so many interpretations during the last half century that to-day it bears but little semblance to the original law which was made to fit the alluvial gold deposits of California. However, the law governing "discovery" on both lodes and placers has remained practically unchallenged and unsullied from its very inception in 1866. We therefore maintain that the rule which has held good ever since the beginning of the mining industry in America to the effect that when a locator had found mineral in either rock in place or in gravel, he had made a discovery," should still hold good. A prospector has always been considered as having made a discovery when he found mineral and when the evidence was of such a character that a person of ordinary prudence would be justified in the further expenditure of time and money, in the hope of ultimate reward.

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Some may argue that the oil shale business is really the oil business and should therefore come under oil regulations, while, as a matter of fact, the only relationship that the shale oil business bears to the well oil business is that in both cases oil is ultimately produced. The oil shale business is strictly a mining and manufacturing proposition and nothing else.

It is well known, of course, that the oil shales of Colorado, Utah, and Wyoming, at least, are found in what is classified as the Green River series of the Tertiary Period. There is no free oil in these shales and it is conceded by some of our best engineers that they must be mined and treated in a large way, just, for instance, as we would mine and treat huge deposits of low grade copper ore, limestone, and gypsum or any other material that must be handled in a wholesale manner in order to be made profitable. Therefore, taking these opinions as being worthy and well founded, the several streaks or zones of rich shale which enter into the schedule of land classification of the Geological Survey, have no standing as a commercial proposition.

It is entirely untenable to try to set up the claim that a 6-inch horizontal stratum capable of yielding 30 gallons of oil per ton, or of a 12-inch stratum capable of yielding 15 gallons per ton, or of any other one of the various streaks which enter into the Survey's classification, can be mined and treated singly at a profit. Enough of these streaks must be mined together and in one operation so that mining costs may be reduced to a minimum because the cost of mining will vary in accordance with the methods used and the volume produced, whereas the retorting costs per gallon of oil produced from either high or low grade shale will remain fairly constant. According to the accepted logs, the hydrocarbon elements in the shales are, by no means, evenly distributed inch by inch or foot by foot throughout the Green River deposit, but there is enough high grade material present at intervals through the deposit to bring the general average of the whole mass, at least from the surface down to the so-called "Mahogany Ledge," to a point where its treatment may be profitable.

During the last 10 years, and since the Survey drew up its classification schedule, various individuals and corporations have employed skilled mining engineers and chemists to sample and analyze in vertical section, thick zones of the Green River formation, and these scientists have found that the shales will yield in one certain representative area, in northwestern Colorado, an average of 15 gallons per ton for a total vertical thickness of 525 feet from the surface, and in another place 14.7 gallons for 550 feet from the surface. A rich zone, 50 feet in thickness and included within the above two deep sections, will produce an average of 32 gallons per ton in one place and 36 gallons in another. Assuming that the 525-foot section, running an average of 15 gallons per ton, has been correctly sampled and analyzed, what place in the scheme of things has the Geological Survey's 1 foot that runs 15 gallons? It must be that the Survey had some idea as to the possible commercial value of the shales at the time they framed their schedule, and it would be enlightening indeed if the record were supplied with the reasons, commercial or otherwise, that lay back of the schedule.

If Congress finally threatens to amend the mining law by establishing limitations on discovery, taking as a basis therefor the 15 or the 30 gallon rule of the survey, the mining engineers of the country would ask for nothing easier, in the light of the up-to-date information as to the potential gallonage contained in the shales from top to bottom, than to show up the utter im

practicability of such a schedule as a basis for commercial operation. After all, then, what virtue is there in any schedule of limitations on anything, anywhere, unless it is practical?

As to the geology of the Green River series, it is admittedly made up of stratified sedimentary rock, in place. The entire deposit is homogeneous in character to the extent that it was all laid down under substantially the same physical and climatic conditions and contains more or less hydrocarbon elements or kerogen practially throughout its entire depth. True enough and fair enough, the geologists and engineers who pioneered the shale deposits described the formation as being "composed of beds of oil-yielding shale interstratified with more or less sandstone and oolite." This was not bad for a starter, but it seems that the rather limited Government crews employed during the early stages of their investigation, sampled and analyzed principally the richer and more promising sections of the deposit. This was a perfectly natural thing for them to have done at the time and under the circumstances. Later on, came large companies with their adequately financed crews of technicians who sampled, analyzed, and charted cross-sections of the formation ranging in thickness from a few feet here and there to 2,200 continuous feet in vertical thickness. These results have indeed been highly educational and have added much to the store of information gained by the early prospectors, and it is some of this broader and more extended knowledge as to the extent and oil content of the shales, and of even the sandstone partings, that is being continually brought to light. It, therefore, seems safe to venture the opinion that, had the department known in 1913 what is now known concerning the shales, it would have either set up an entirely different book of rules for the guidance of the field men in their classification work or that the entire shale area would have been withdrawn from entry because of its prospective value as a reserve source of oil.

As noted hitherto, it is doubtful if the survey, when it set up its classification schedule, had in mind the question of "discovery" at all. The presumption is that wherever the field force could make the schedule work, they did so, and wherever it would not work, they evidently classified the Green River deposit as being valuable for its oil content by geological inference. Wherefore, even if the 15-gallon rule should perchance ultimately be made to apply, should valid shale-land claimants not be allowed to follow the same course of geological inference in making their proof as the Government geologists did in making their classification?

When we come down to the bare facts in the case, a discovery" has always been a discovery in just what the word implies, and it should always be thus when considered as the basis of a mineral location, regardless of any schedule of values, pedantic theories, or geological inferences.

Just as in the beginning of any other mining boom, there were those who took the law of discovery as affecting oil-shale placers just as they would have regarded the same in the case of any other placer and observed it faithfully, while there were others who undoubtedly regarded it lightly. Each class of locations should, therefore, be treated in accordance with its dues, and "let the chips fall where they may." No attempt is here being made to justify the acts of the bogus or fraudulent locator, but there is an earnest desire on the part of those interested in the general development of the oil shales to assist the legitimate locator who has made his discovery of oil in perfecting his title, realizing as we probably all realize that the patented lands will ultimately form the real basis of the oil-shale industry in America.

That oil shale lands will, sooner or later, become valuable as a source of petroleum is a safe enough prediction, and while it is wholly commendable that the Government has set aside some of those lands for the use of the Navy, it is inconceivable, even in the face of the growing desire to conserve our natural resources, that any undue hardship should be worked upon the legitimate shale land claimant, or that any laws or regulations, "discovery or otherwise, should be interpreted in a manner that will deprive the pioneer of his just and lawful mining rights-his vested property rights, if you please the rights which he believed he had at the time he initiated title.

Summarizing, we have the following to offer:

1. The shales under discussion contain no free oil-only the hydrocarbon elements from which oil may be synthesized by distillation.

2. The shales are hard or tough, or both, in accordance with their richness or leanness, and they must be mined in the same general manner as coal, metallic ores, or cement rock are mined.