COMMON VARIETIES ACT AMENDMENTS TUESDAY, JUNE 28, 1966 U.S. SENATE, SUBCOMMITTEE ON MINERALS, MATERIALS, AND FUELS Washington, D.C. The subcommitee met, pursuant to call, at 10 a.m., in room 3110, New Senate Office Building, Senator Ernest Gruening (chairman of the subcommittee) presiding. Present: Senators Gruening, Moss, Nelson, Metcalf, Allott, Jordan, Simpson, and Fannin. Also present: Senator Cannon. Staff present: Jerry T. Verkler, staff director; Stewart French, chief counsel, and E. Lewis Reid, minority counsel. Senator GRUENING. The hearing will please come to order. This is an open hearing by the Subcommitee on Minerals, Materials, and Fuels of the Interior Commitee on proposed legislation pending before it. The most far reaching of the bills before the subcommittee at this time involves the administration of the so-called Common Varieties Act, which is Public Law 167, 84th Congress, found in title 30, United States Code, beginning with section 601. The Common Varieties Act was passed in July of 1955 primarily to prevent abuses of the mining laws, particularly in our national forests. It was sponsored in the 84th Congress by Senator Anderson of New Mexico who had been Secretary of Agriculture under President Truman. At the hearings in May 1955, on Senator Anderson's bill S. 1713, it was brought out that the mining laws were being used by persons, who for the most part were not miners, to obtain title to hundreds of thousands of acres of valuable timber belonging to the people of the United States at no cost to themselves, and subject to little or no control by the Forest Service. The infamous Al Sarena case is a glaring example. Also, mining claims were being used as a means of obtaining rentfree and cost-free tracts of land belonging to the people of the United States for taverns, motels, and other commercial enterprises which bore no relationship to mining. It was to correct such situations that the Common Varieties Act was enacted. The Interior Committee's report on the measure, after setting forth the purposes and needs for the legislation, specifically states: At the same time, the measure faithfully safeguards all of the rights and interests of bona fide prospectors and mine operators. In no way would it deprive them of rights and means for development of the mineral resources of the public lands of the United States under the historic principles of free enterprise and private ownership of the present mining laws. (S. Rept. 554, 84th Cong.) 1 Certainly the objectives of Public Law 167 as enacted, and with the congressional intent as set forth in the quoted paragraph, were praiseworthy, and unquestionably the measure, within the framework of the purposes, intent, and safeguards for legitimate mining, was necessary at that time. Unfortunately, of late years the Departments of the Interior and Agriculture have interpreted and administered this law so narrowly and in such a bureaucratic manner that legitimate mineral development on the publicly owned lands has been adversely affected, and rights of bona fide mining men jeopardized. So widespread became the complaints of citizens against the interpretation and administration of this law that the subcommittee, aided by the distinguished and able junior Senator from Montana, Lee Metcalf, a valued member of the Interior Committee, went to Butte, Mont., last June and held hearings. Subsequently, the views of the executive agencies were sought at hearings in Washington. These hearings have been published under the title "Common Varieties Act," and without objection I will direct that they be incorporated, by reference, into these hearings. Two bills designed to remedy the situation are the subject of our hearing this morning. They are S. 2281, sponsored by the able junior Senator from Nevada, Mr. Cannon, for himself and Senators Bible, Moss, Simpson, and Bennett, and S. 3485, sponsored by Senator Metcalf and me. I will direct that the text of these measures, together with the reports of the executive agencies, be made a part of this hearing record at this point. (The data referred to follows:) [S. 2281, 89th Cong., 1st sess.] A BILL To amend section 3 of the Act of July 23, 1955 (69 Stat. 367, 368), and to authorize mining locations for certain mineral deposits Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of July 23, 1955 (69 Stat. 367), as amended (30 U.S.C. 601-615), is amended by: (a) Deleting in section 3 thereof the penultimate sentence and substituting therefor the following: ""Common varieties' as used in this Act does not include (1) deposits of such materials which are valuable because the deposit has some property giving it distinct and special value; (2) so-called block pumice which occurs in nature in pieces having one dimension of two inches or more; (3) limestone suitable for use in the production of cement, metallurgical or chemical grade limestone and gypsum; and (4) sand, gravel, and rock for use as aggregates in the manufacture of concrete or for other construction purposes. Subject to valid existing rights, the minerals of the classes described in clauses (1), (2), (3), and (4) shall hereafter be subject to location and patenting under the United States mining laws, as those laws are amended with respect to these minerals by section 3A of this Act; valid existing mining claims for those classes of minerals may be maintained only in conformity with section 3A of this Act." (b) Adding a new section reading as follows: "SEC. 3A. Mining claims located after the effective date of this section and patents issued pursuant to such claims and mining claims existent on the effective date of this section for the classes of minerals described in clauses (1), (2), (3), and (4) of section 3 shall be subject to the following requirements and conditions: "(a) The owner of any unpatented mining claim for which application for patent is not on file with the Secretary of the Interior on the effective date of this section shall file with the Secretary of the Interior a statement setting forth the name of the claim, the names and addreses, if known, of all persons claim ing an interest in the mining claim, the description of the lands so claimed as they are described in the location certificate and as they are identified in accordance with the current official plats of survey, if the land is surveyed, and the book and page of the local record of such location certificate, and of any amendments thereto. If the mining claim is situated on unsurveyed land, the statement shall (1) describe the situs of the mining claim by metes and bounds and with a connection by course and distance to (i) the nearest public land survey corner or United States mineral monument, or (ii) at least two permanent and prominent natural objects or monuments; and (2) be supplemented by such further description, map, plat, or survey as the Secretary of the Interior may request in order to identify the land with a reasonable degree of accuracy, and the supplemental data shall be filed within ninety days after request by the Secretary therefor. Statements pertaining to claims located prior to the effective date of this subsection shall be filed within ninety days from and after the date of location of the claim. Failure to file such statement, or such further identification data as the Secretary may require, within the prescribed period shall terminate any right, title, or interest which the owner may have by virtue of such mining claim without further action or proceedings and all right, title, and interest which he may have shall revert to the United States. Failure to file further identification data shall be noted on the records of the Secretary of the Interior. "(b) Expenditures incurred in surveying and in the preparation of maps or plats or similar identification data to comply with the requirements of subsection (a) of this section may be used toward assessment work for the assessment year in which performed or the succeeding assessment year. Within ninety days after the expiration of each and every annual assessment year, the owner of a mining claim for which statements are filed with the Secretary of the Interior pursuant to subsection (a) of this section shall file with the Secretary of the Interior a statement that the assessment has been performed for the benefit of the claim within that assessment year. Failure to file such statement for two consecutive assessment years, unless excused for good cause by the Secretary of the Interior upon a petition filed within that period, shall terminate any right, title, and interest which the owner may have by virtue of any such mining claim located after the effective date of this Act without further action or proceedings and all right, title, and interest which he may have shall revert to the United States. Appropriate notations of such termination shall be noted on the records of the Secretary of the Interior. "(c) Compliance with subsections (a) and (b) of this section shall create no presumption as to the validity of any mining claim. "(d) Within sixty days after the effective date of this section, the Secretary of the Interior shall cause to be published in the Federal Register a notice setting forth the requirements of this section. Within that period, the Secretary shall also cause notices of the requirements of this section to be published in such newspapers, posted in such public offices, and given publicity by such other means, as he deems feasible and appropriate for the dissemination of information concerning this section. "(e) Prior to the commencement of mining operations on any mining claim located after the effective date of this section, there shall be filed with the Secretary of the Interior a good and sufficient bond or undertaking shall be relieved of his obligation thereunder upon the patenting of the mining claim or the restoration of the land to a condition satisfactory to the Secretary. "(f) The owner of any unpatented claim, located after the effective date of this section, shall file with the Secretary of the Interior an application for patent within three years from the date of location. Failure to file such application within the prescribed period shall terminate any right, title, or interest which the owner may have by virtue of such mining claim without further action or proceedings and all right, title, and interest which he may have shall revert to the United States. "(g) No mining claim shall hereafter be located if the land, prior to the date of location, (1) has not been classified by the Secretary of the Interior as proper for such use and disposal; and (2) has been zoned against such use by competent State or local authority. "(h) Title to lands patented under this section based upon mining claims hereafter located, shall revert to the United States if (1) within five years of the date of patent the owner has not, by substantial mining operations, demonstrated to the satisfaction of the Secretary a devotion of the land to the production of mineral materials, or (2) within twenty-five years from the date of patent and prior to the removal of all of the mineral material which may be economically extracted, the lands are devoted, without the prior consent of the Secretary, to any use other than mining or processing operations and uses reasonably incident thereto. "(i) Notwithstanding any other provision of law, patent for any mining claim located after the effective date of this section shall be issued only after payment to the Secretary by the claimant of the fair market value of the surface estate only, as that value is determined as of the date application for patent is filed. "(j) The owner of any unpatented mining claim, located prior to the effective date of this section, may elect to make his claim subject to the provisions of this section in such manner as may be prescribed by the Secretary." SEC. 2. The Secretary of the Interior is authorized to make such rules and regulations as he deems appropriate for the purpose of administering this Act. SEC. 3. This Act may be cited as the "Mining Law Revision Act of 1965.” [S. 3485, 89th Cong., 2d sess.] A BILL To amend section 3 of the Act of July 23, 1955 (ch. 375, 69 Stat. 368) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3 of the Act of July 23, 1955 (ch. 375, 69 Stat. 368), is amended to read: "No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and no deposit of petrified wood, shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claims hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. 'Common varieties' as used in this Act shall not include deposits of such materials which have some chemical, physical, or chemical and physical, property or properties (other than lack or presence of physical properties of mere weight, volume, or strength), making them valuable mineral deposits under such mining laws. Use or usefulness for a common purpose or application shall not classify a material as a common variety. 'Common varieties' as used in this Act shall not include, among others: (1) limestones suitable for use in the production of cement lime, extenders or fillers, or metallurgical or chemical grade limestones, gypsum, talc, and the like, whether or not any such material may require treatment, benefication or additives; (2) travertine, marble, limestones, granites, or gabbros, suitable for use with or without shaping or sizing in the commercial construction of exposed portions of buildings, or suitable for high polishing or accurate shaping for monument, building plate, or surface plate purposes, or so-called block pumice which occurs in nature in pieces having one dimension of two inches or more; or (3) any material considered as concrete aggregate which will meet Federal or State or other government concrete aggregate specifications, with or without treatment or benefication. 'Common varieties' as used in this Act shall include, among others, deposits of sand, stone, gravel, pumice, pumicite, and cinders valuable and suitable for use only as fill, or as riprap, road base, or any other purpose where only lack or presence of the physical properties of mere weight, volume, or strength, is required. 'Petrified wood' as used in this Act means agatized, opalized, petrified, or silicious wood, or any other material formed by replacement of wood by silica or other matter. Terms used in this Act shall be understood and applied in the meaning they have in commerce and the construction and mining industries. Nothing contained in this Act shall be construed as relieving a claimant from any other requirements of the mining laws of the United States." Hon. HENRY M. JACKSON, DEPARTMENT OF AGRICULTURE, Chairman, Committee on Interior and Insular Affairs, DEAR MR. CHAIRMAN: As you requested, here is our report on S. 3485, a bill “To amend section 3 of the Act of July 23, 1955 (ch. 375, 69 Stat. 368)," and S. 2281, a bill "To amend section 3 of the Act of July 23, 1955 (69 Stat. 367, 368), and to authorize mining locations for certain mineral deposits." We recommend that S. 2281 and S. 3485 not be enacted in their present form. The Act of July 23, 1955, as amended (30 U.S.C. 611), is commonly known as the Multiple Use Mining Act. This Act defined the rights which locators and the United States would have on mining claims located after July 23, 1955, the date of the Act. It provided that common varieties of sand, stone, gravel, and certain other mineral substances would not thereafter be deemed valuable minerals for purposes of locations under the mining laws. Under the Act, these common varieties are disposed of under lease or permit arrangements. S. 3485 and subsection 1(a) of S. 2281 would amend section 3 of the Multiple Use Mining Act by redefining the "common variety" category. The Act presently excludes from that category: (1) deposits of such materials which are valuable because the deposit has some property giving it distinct and special value; and (2) so-called "block pumice" which occurs in nature in pieces having one dimension of two inches or more. In addition to these presently excluded materials, S. 2281 would exclude: (1) limestone suitable for use in the production of cement; (2) metallurgical or chemical grade limestone and gypsum: and (3) sand, gravel, and rock for use as aggregates in the manufacture of concrete or for other construction purposes. Subject to valid existing rights, these materials would be permitted to be located and patented under the United States mining laws, as they would be amended by the bill. S. 3485 would exclude from the common variety category the following: (1) limestones suitable for use in the production of cement, lime, extenders or fillers, or metallurgical or chemical grade limestones, gypsum, talc, and the like; whether or not any such material may require treatment, beneficiation or additives; (2) travertine, marble, limestones, granites, or gabbros, suitable for use with or without shaping or sizing in the commercial construction of exposed portions of buildings, or suitable for high polishing or accurate shaping for monument, building plate, or surface plate purposes, or so-called block pumice which occurs in nature in pieces having one dimension of two inches or more; or (3) any material considered as concrete aggregate which will meet Federal or State or other government concrete aggregate specifications, with or without treatment or beneficiation. S. 3485 would exclude from the common variety category the following: (1) gravel, pumice, pumicite, and cinders valuable and suitable for use only as fill, or as riprap, road base, or any other purpose where only lack or presence of the physical properties of mere weight, volume, or strength, is required. The bill would direct that the terms used therein would be understood and applied in the meaning they have in commerce and the construction and mining industries. The Multiple Use Mining Act has produced many beneficial results and, in general, we have looked upon it as extremely good. The problems in following and administering it have arisen mainly in connection with the provisions on common varieties. We believe the congressional committees, the Executive departments, and the private industry representatives that considered and supported the Multiple Use Mining Act felt that the common variety provisions could be applied with little difficulty. Experience has been otherwise. S. 2281 and S. 3485 would approach the "common varieties" problem by clarifying the term through statutory amendment. S. 3485 would spell out new guidelines for classification. Both bills would specifically exclude from the common variety category or include in it certain substances which have been found difficult to classify under the present statutory definition. Although S. 2281 and S. 3485 might solve some present problems and narrow the area of uncertainty, their approach would probably not be a permanent cure. A "common variety" will always be difficult, if not impossible, to define. Claimants under the mining laws would still have to risk contests when the substances they mine are on the borderline of a category defined by statute. Administrative decisions interpreting and further defining the statutory definition would still be necessary and would still result in a degree of uncertainty. S. 2281 and S. 3485 would have the effect of narrowing the scope of the "common variety" category. The bills would thereby increase the number and types of materials which would be locatable under the mining laws. We feel that such a narrowing of the "common variety" category would be a step backward from the gains realized through enactment of the Multiple Use Mining Act. One of the principal purposes of that Act was to protect and insure |