5. The oil shales are exposed in the steep slopes near the base of the Green River formation and in the precipitous cliffs above these slopes. On the tops of the mesas, above the cliffs, there is an overburden of detritus, covered by a growth of tangle and sagebrush which often conceals the outcrop, making it difficult to find the richer exposures of soil shale. There are occasional growths of quaking aspens and red spruce on the northern exposures of the slopes. 6. All around these mesa tops, in every direction, deep canyons and gorges have been cut into the oil shales of the Green River formation and exposures of the richer zones can be found. This formation being a "syngenetic" or " contemporaneous" mineral deposit, and the outcrops in the canyons and gorges showing marked continuity and uniformity, it is certain, from geological inference, that the mahogany zone underlies the whole of the Green River formation and at such a distance from the top mesas in any place as to make it easily accessible for mining through shafts. 7. The accompanying photograph, marked "Exhibit A," shows the line of demarcation between the Green River and Wasatch formations, everything in the picture above such marker being Green River formation. The outline in black shown on the faces of the cliffs indicates the position of the mahogany zone. The photograph marked “Exhibit B" shows the top of the oil-shale mesas, which is the top of the Green River formation, and gives a visualization of the top mesas and how they are covered by an overburden of detritus and an overgrowth of tangle and sagebrush. Both pictures were taken in the region around Grand Valley. 8. Mineral deposits in metal mining often occur in wide veins or deposits of low-grade value, and the following example illustrates the analogy between making a discovery in that type of deposit and in the syngenetic sedimentary type, such as the oil shales of the Green River formation occur in. The famous Comstock lode at Virginia City, Nev., is a great fissure vein 4 miles long and several hundred feet wide. The ore occurs scattered throughout the vein. Portions of the deposit are too low grade to work, yet the finding of any portion of the vein or lode in place is sufficient to constitute a discovery. The lode has produced some $350,000,000 and upward. The Tradewell mine, at Douglas Island, Alaska, consists of a diorite dike 400 feet wide, piercing Triassic slates. It is a very low-grade gold ore deposit, yet its production has run into millions of dollars. At Black Hills, S. Dak., is the Homestake mine, one of the largest deposits of low-grade ore ever discovered. The ore deposit occurs in the Archean schists and shales and is from 300 to 400 feet wide. The boundaries of the deposit are poorly defined, and a superficial examination may fail to distinguish be tween ore and rock, yet a trace of gold would be sufficient to justify a prudent man exploring the formation. This mine has produced millions. The Mother lode, on the west flank of the Sierra Nevada range of mountains in California, is a mineral belt composed of parallel fissures contacting between slates and igneous rocks. It is over 100 miles long and from 1 to several miles wide. A trace of gold in that belt would be sufficient to warrant any prudent man to spend time and money in following up his discovery. SUMMARY 1. The oil shales of the Green River formation belong to a class of mineral deposits, known as syngenetic sedimentary deposits, which is sometimes referred to as contemporaneous deposits. These deposits are of exceptional uniformity and continuity, and their extent can often be predicted from a single outcrop. Copper, iron, manganese, coal, and "kerogen and other minerals are found in this type of deposits. 2. The Green River formation is a bedded mineral deposit, approximately 2,600 feet thick, composed mainly of zones of oil shale of varying thickness and yield, all bearing some kerogen. 3. The richest part of this deposit lies near its middle portion, and is a zone the various composites of which will yield from 35 to 50 gallons of oil per ton of shale. By extending the composite upwardly and downwardly to include the entire Green River formation we have one immense mineral deposit about 2,600 feet thick. 4. The mahogany zone can be traced for hundreds of miles in and out of the sinuosities of the canyons, and this proves the marked continuity and uniformity of the horizons of the Green River formation. 5. Outcroppings of rich oil shale are exposed in every direction from the top mesas, in the gorges and canyons cut through the Green River formation, which evidence, taken with the fact that the type of mineral deposit in which the oil shales are classed is that which is known as syngenetic or contemporaneous deposits, leads to the geological conclusion that the entire Green River formation of oil shale is underlain by the rich mahogany zone. 6. The top mesas of the oil-shale deposits of the Green River series are covered with detritus and tangled brush, making it difficult to find the richer horizons of oil shale in that part of the deposit. 7. The photographs marked Exhibit A" and "B" show visually the base of the Green River formation, the position of the mahogany zone, and the physical condition of the tops of the mesas. 8. Examples of a number of large ore deposits are given to show the analogy marking a discovery in the oil shales of the Green River formation and a discovery in any portion of those massive deposits. F. A. GOODALE, E. M., Mr. LARWILL (continuing): Attached to Mr. Goodale's statement are two pictures which illustrate the extent of the 2,600-foot vein. They illustrate also the sinuosities of the canyons, in any one of which the entire series is disclosed. Now on behalf of the Columbia Oil Shale & Refining Co. and nine other claimants we have prepared and wish to file at this hearing a brief. The claims are all individual claims. They are not large claims; but they all belong to different citizens of the country, many of whom are here in person, but others, owning a small number of claims, could not come. But, gentlemen, let me assure you that they are watching this hearing with intense interest, because in every case they either have pending applications for patent or else they are preparing their applications for patent, and on what is developed at this hearing they feel, in view of the expression of Judge Finney in the Freeman-Summers case-on what has been developed here to-day by these scientists and lawyers depends the fact whether they are going to lose what in good faith they have put into these claims. or whether, where there has been a discovery of mineral on the claim, their claims will be patented in accordance with the law as it has always stood and in accordance with the customs of miners which existed before there was any express law on the subject. These claims run from 7,500 acres in 2 of the 10 instances down to 1,500 acres and 1,300 acres, not large claims but of extreme importance to these men who have made the investment in their claims, relying upon the existing law and relying upon the fact that the Green River series in its entirety constitutes but one single deposit, and that under the existing law a discovery of the mineral sought in any horizon of the deposit constitutes in truth and in fact a discovery of the entire deposit. Now, as stated by Mr. Goodale, there is not any difficulty in making a discovery where the gorges and canyons cut up the mountains. These pictures of the Columbia property illustrate that. There is the whole Green River series exposed to view in these canyons, and all one has to do is to walk up those canyons and there discover and break off a piece of mineral. 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 ridgepole 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 is shown by such remarkable unity among these technologists who have prepared these papers-that it constittes but one single blanket deposit, and a discovery anywhere within that deposit is a discovery of the entire deposit. 46780-31-7 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 no 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. Mr. LARWILL. That is true; the language used in Castle v. Womble was used in connection with a lode mining claim. Secretary FINNEY. That is right. Mr. LARWILL. But it has been repeatedly quoted by the courts and followed by the courts whether the matter to be considered by the court was a placer claim or a lode claim. Secretary FINNEY. But the principle could only apply where you had continuity in your mineral bearing formation or deposit or whatever it is. Mr. LARWILL. And that is precisely, if you please, what has been shown by all of these papers and all of this discussion here to-day. There is not a barren zone, there is not a barren inch of that great Green River deposit in these shale areas of Wyoming and Colorado and Utah, not one barren inch. It all contains some of the kerogen, much in some of the zones, less in others. but never a barren streak in the whole deposit. I might stop and say here that when the department classified these deposits it could have classified them either as lodes or it could have classified them as placers. This character of deposit is right on the dividing line, and some of this character of deposits have been classified as lodes and some as placers, but the discovery of mineral is the same. As it happens the first case classified them as placers. The main effect of that was as to their shape and size. But as to the discovery of mineral, this language in Castle v. Womble has been used in most of the cases. It is the fundamental language as to discovery, whether the particular matter involved in the case was a lode claim or a placer claim. Now we get right into the Alaska muck cases, with which we are all familiar. Those are cases where the auriferous gravels were deposited along the river beds and then the muck came down and covered them up, but all through the mud there was a trace of gold. The courts have held in those cases, as your honors know, that the discovery in the top of that muck of a trace of gold, because of the surrounding evidence, is a sufficient discovery. Now, what may be considered after you have discovered the mineral, I do not care in what amount but in any amount, on your particular claim? What may be considered? First, it is laid down time after time that the minerals found need not in themselves be of commercial value. Lindley, our great authority, in his work on Mines, section 336, page 768, says: "It is enough if the vein or deposit has a present or prospective value. ** No court has ever held that, in order to entitle one to locate a mining claim, ore of commercial value, in either quantity or quality, must first be discovered.” Now Lange v. Robinson, the Alaska Muck case, laid down the rule that the situation of the claims in question upon which the gold had been discovered, near other lands presenting the same surface indications which at the date of the location of these claims were known to be valuable for the placer gold which they contained, might be considered after the discovery of the mineral in the claim, in large amount, in small amount, rich or lean-that you can consider the surrounding evidence. And what is the surrounding evidence? Up every gorge and canyon along the cliffs can be seen the entire Green River series, and with the discovery of the kerogen on the particular claim in this great blanket deposit there has been a sufficient discovery. What are some of the other evidences that may be considered? The case of Cascaden v. Bortolis (162 Fed. 267), also arising out of the condition of the muck cases in Alaska Secretary FINNEY. Don't you think that those Alaska courts were overly liberal in some of those mining cases? Mr. LARWILL. I do not think that was liberal, Judge Finney. It was the Ninth Circuit Court of Appeals. Judge Ross was speaking in most of these cases as I remember. But the courts have spoken, and those are the decisions that we have to guide us; they are the decisions that have existed; they are the decisions which induced these people in good faith to make their investment in these oil-shale claims. Secretary FINNEY. Now the department has the responsibility of determining the sufficiency of a discovery in a patent proceeding. Mr. LARWILL. The department has, but these decisions of the courts ought to be highly persuasive. Secretary FINNEY. Does not the Castle-Womble case along this line establish a principle without going to such lengths as some of these cases? It is almost ridiculous the extent to which they have gone. Mr. LARWILL. I would not characterize these Secretary FINNEY. You do not think, do you, that the finding of a few colors of gold in some mud that is washed down the stream is evidence of mineral? Mr. LARWILL. I think just this, that when that is discovered and I know that the country is mineralized then I have made a discovery, and even the department refers to mineral belts. Secretary FINNEY. What you find must be some index of what is below. An isolated color of gold does not mean anything by itself. Mr. LARWILL. But it is not isolated-it is not isolated in these mineral districts. That is just the point. In Michie v. Gothberg (30 L. D. 407), they found a little mineral and the evidence that was considered was that as stated in the statement: "It is further shown that said claim is situated in what is designated as a 'mineralized belt; that considerable prospecting for minerals was done upon this belt, in the vicinity of the claim, during the three years next preceding the date of the hearing; and that such prospecting had resulted in the discovery of indications of copper deposits to an extent justifying further expenditure of time and money in their development." Now that is spoken by the Secretary of the Interior himself. When you have discovered the mineral in whatever quantity then you may look at surrounding conditions and draw the proper deductions from surrounding conditions. Secretary FINNEY. That is true. Mr. LARWILL. And that is precisely what these gentlemen did. They were not skilled miners, and it is not required that they should be skilled miners, but they made their locations under the law as it then existed. Appended to our brief is a list of their names, in many cases original locators, in other cases the transferees of the original locators-ordinary, prudent citizens. The Columbia Co. is a group of gentlemen from the South-college professors, cotton planters-who went out there and bought up some of these claims. Mr. Wheeler is a cattleman in Colorado; Judge Weaver, who sits over there, a distinguished member of the New Jersey bar. Those are ordinary, prudent men and they did rely upon just this discovery and they were justified under the cases in relying upon this discovery, and in the light of the evidence which has been adduced by the geologists here to-day it was with something of a shock that they read this language in the Freeman-Summers case: "However certain or justifiable the inference geologically that the lean beds of oil shale outcropping on the land indicate richer and valuable beds at depth, it is apparent that they have no physical connection with such deeper beds of rich deposits nor are they continuations of them, but are separate and distinct therefrom." I say it was with a shock that the oil-shale world read that language, because from the beginning (and it is borne out in every one of these papers here to-day), the Green River series has been considered as a single deposit, and out of that erroneous statement of fact grew, of course, the erroneous conclusions of law; and that, it seems to me, is just the very crux of this hearing here to-day. If that language is a statement of the truth of the facts then disastrous results will follow. But is it a statement of the truth of the facts? And that is the reason that we must consider so carefully the statement prepared by these independent geologists as to the nature of these deposits, and I refer, of course, to Mr. Goodale's statement referring generally to deposits of this same character where the discovery of a trace or a few grains of the mineral is entirely sufficient-wide deposits-to justify making a location, and constitutes in fact a shale-oil discovery. The Freeman-Summers opinion was written in a changing period; that is to say, it was written in 1924. To illustrate my point I want to quote from the testimony of Mr. O. J. Berry, one of the first Government inspectors to get into the shale field in Colorado, given in 1922. Secretary FINNEY. Testimony given in the Freeman case? Mr. LARWILL. No, your honor, testimony first in the Wright case which was the first case coming up to the department in which we are concerned. I have the deposition here, but to save time I will quote from the brief. Secretary FINNEY. All right. Mr. LARWILL (reading): "Question. But you admit that the opinion is that formed upon the speculative basis, and that there have not been any commercial operations so far, and it is probable that the first commercial operations might be on a thinner yein or thinner strata?" This is a cross examination. Mr. Berry answers: "It is possible that they may find minerals in these oil shales, which in my opinion are not there. I have never made any tests to know that these minerals are not there, and I have been told by several parties that they are there. If that is true, perhaps the entire Green River formation may some day be worked, but in my opinion that is an erroneous statement to make." Mr. LARWELL (continuing). In other words, in 1922, as to some of these zones or strata this Government inspector, who is considered one of the best in the field, stated that in his opinion there were barren zones in his opinion there were zones where the mineral was not there; and while this was still extant in the department, the Freeman-Summers case came down saying that there was no physical connection as a matter of fact between these richer beds and these leaner beds. Then last summer in 1925, Mr. Berry testified in the case of the United States v Krushnic, in which our office happens to be concerned, and this is what he said [quoting from brief]: "Mr. Berry testified that the thickness of this formation is approximately 2,400 feet; that it is composed of sandstone and shales, the larger part being shale; that all portions of the formation contain traces of oil, even the sandstones; that the oil occurs as kerogen, a carbonaceous substance which can be converted into oil." In other words, in that period of five years, Mr. Berry had changed his opinion and had come to the conclusion, which is expressed in all these statements which have been quoted, that the whole series contains some kerogen and that there is no barren spot in the entire series. Now how is a discovery made? As I stated a faw moments ago, it is not a laboratory experiment; it is a theoretical problem. The old prospector, the miner, goes out on the land and he discovers some of the mineral and having discovered some of the mineral in an area which had been proven to contain that mineral he makes his locaton. Now I want to read just very briefly from the deposition taken of Mr. P. C. Coryell, taken in January, 1921, to preserve his testimony as to the locations which he had made, part of which locations belong to one of the parties whose names are affixed to our brief: "Mr. Coryell testified that for over 30 years he had been engaged in locating and opening up mining properties in western Colorado except during a year or two when he had been a coal-land inspector for the United States. He then told how he had become interested in oil shale. He described his retort for testing shale as follows (p. 4 of his deposition): "I constructed a small distilling apparatus out of a pipe. * * I did not have any accurate method of measuring the quantity of oil, but I was satisfied that the material was an oil-producing material.'" |