ington D.C., along with statements later submitted, that a clarification of Section 3 of P.L. 167 is necessary because of the interpretations and the administration of the act.

We believe S. 3485 will carry out the intent of Congress to safeguard the interests and rights of bona fide mineral prospectors and mining operators.

Respectfully,

W. G. MALONEY, Secretary-Manager.

NEVADA MINING ASSOCIATION, INC.,
Reno, Nev., June 23, 1966.

Hon. ERNEST GRUENING,

Chairman, Hard Minerals Subcommittee, Senate Interior and Insular Affairs Committee, Washington, D.C.

DEAR SENATOR GRUENING: We have been notified that hearings are to be held June 28, 1966 on S. 3485, Amendment of the Common Varieties Act, copy of which has been supplied to this office.

Both large and small operators are severely hampered by inability to determine the validity of their claims without testing through expensive litigation. Production from claims not determined to be valid leaves the operator open to heavy liability.

Our analysis of S. 3485 leads us to believe this will go a long way toward protecting the rights and interests of bona fide mineral prospectors and mining opertors and eliminating the uncertainties and vagueness of Administrative interpretation. We wish to go on record as strongly urging passage of S. 3485. Respectfully yours,

PAUL GEMMILL.

W. R. GRACE & Co.,

ZONOLITE DIVISION,

Libby, Mont., June 23, 1966.

Senator LEE METCALF,
Senate Office Building,
Washington, D.C.

DEAR SENATOR METCALF: The non-metallic industry has in many instances been presented with problems arising out of interpretation of the definition of "common varieties" as presented in section 3 of the Act of July 23, 1955 (ch. 375, 69 Stat. 368).

Passage of Bill S. 3485 would do much to clear up the ambiguity of this section. It is our feeling that this bill should be passed. It will be of benefit to the non-metallic industry and should clarify the position of those charged with administration of the original act.

It would be appreciated if you would present the viewpoint of this writer to the subcommittee on Interior Minerals, Materials and Fuels holding hearings on this bill.

Very truly yours,

E. D. LOVICK.

DILLON, MONT., June 23, 1966.

Senator LEE METCALF,
U.S. Senate,

Washington, D.C.

DEAR SENATOR METCALF: I certainly appreciate your informative wire of June 22. Thank you.

This has to do with the Interior Minerals, Materials and Fuels Subcommittee hearings on the Common Varieties Bill, S. 3485 which will be chaired by the very able Senator from Alaska on June 28 in Washington:

Since it will be impossible to make an appearance personally, I would very much appreciate your including the following in the record if at all possible.

To those of us that have seen the controversy brought about by the broad definitions of "Common Varieties," this bill is the answer to our dreams. I most certainly endorse it in its present form.

Basically, what is sought and what you and Senator Gruening has worked so hard for is a better definition of "Common Varieties"-here we have it.

Definitely, I am not alone in saying that the efforts of you two men are greatly appreciated.

If I can be of further assistance please do not hesitate to call on me.

Very truly yours,

WILLIAM M. HAND.

HELENA, MONT., June 25, 1966.

Senator LEE METCALF,
Senate Office Building,

Washington, D.C.:

Thank you for telegram information of hearings on Senate bill 3485. Impossible for me to be present, but wish to place myself on record as supporting this bill.

Senator ERNEST GRUENING,
Senate Office Building:

NORMAN ROGERS. HELENA, MONT., June 25, 1966.

After reading draft of Senate bill 3485, I wish to place myself on record as supporting this bill.

NORMAN ROGERS. Senator GRUENING. I have a statement from Senator Bible of Nevada, for inclusion in the record.

STATEMENT OF HON. ALAN BIBLE, A U.S. SENATOR FROM THE STATE OF NEVADA Mr. Chairman, as a co-sponsor of S. 2281, I am pleased that your Subcommittee is holding hearings today on bills to amend the Common Varieties Act.

The interpretation of the Department of the Interior of the Common Varieties Act which does not distinguish between common and special varieties of building materials has caused frustration and hardship to many legitimate mining interests. It has been a troublesome problem in my State and in other areas and, in my opinion, needs correcting. It is for this reason that I am particularly pleased that the Senate Subcommittee on Minerals, Materials, and Fuels has called hearings today on bills which will offer clarification.

As a member of the Public Land Law Review Commission, I know this is one of the important areas in which further study will be given; nevertheles, it is a problem for the Congress and I am hopeful language can be developed by this Committee which will permit orderly development of legitimate materials, with proper safeguards, for those who are ready and willing to make investments. It is true that some unscrupulous practices of the past, such as spurious mining claims, have caused unauthorized uses of public lands. I do not favor such uses and I am sure that none of the members of this Committee favors such practices. Irrespective, legitimate mining activities of sand and gravel and other common materials should not be sacrificed.

I am fully cognizant that some language in S. 2231 may be of concern to members of this Committee and to what we know as the "hardrock" miner. Nevertheless, some protection in my opinion must be given to legitimate operators and further clarification of materials and protection for the producer is vitally needed.

The bill offers a starting point and I trust this Committee will produce language from the several bills before you to alleviate some of the concern and confusion experienced by those who produce sand and gravel, building stone, and other special varieties.

Thank you.

Senator GRUENING. Our next witness is Mr. Thomas J. Cavanaugh, Acting Solicitor of the Department of Interior, accompanied by Ernest F. Hom and Frederick N. Ferguson.

We are happy to have you gentlemen. Will you please identify yourselves for the record.

'STATEMENT OF THOMAS J. CAVANAUGH, ACTING SOLICITOR, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY ERNEST F. HOM, ASSISTANT SOLICITOR FOR LAND APPEALS; AND DAVID B. FINNEGAN OF THE LEGISLATIVE COUNSEL'S OFFICE

Mr. CAVANAUGH. Thank you, Mr. Chairman.

I am Thomas J. Cavanaugh, Acting Solicitor of the Department of Interior, and I am accompanied by Ernest F. Hom, Assistant Solicitor for Land Appeals of the Department of the Interior, and Mr. David B. Finnegan of the Legislative Counsel's Office of the Department. If I may, Mr. Chairman, I do have a brief statement I would like to read.

Senator GRUENING. Please go ahead.

Mr. CAVANAUGH. The Department of the Interior is very pleased to have the opportunity to offer its comments to you on 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, and S. 3485, a bill to amend section 3 of the act of July 23, 1955 (ch. 375, 69 Stat. 368). Both of these bills would amend section 3 of the act of July 23, 1955, which is usually called the "common varieties" provision. S. 2281 would also add a new section 3A to that 1955 statute.

Few enactments in recent years have presented such difficulties of interpretation as the "common varieties" provision. Section 3 of the 1955 act provides that no deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders shall be deemed a valuable mineral deposit within the meaning of the mining laws.

"Common varieties" are defined as excluding deposits which are valuable because of some properties giving the deposit a "distinct and special value." Ever since that statute became law on July 23, 1955, there has been great dispute as to just what is a distinct and special value, and the Department's decisions in that respect, though we believe them to be required by the law, have been widely criticized.

What properties may be recognized as giving a distinct and special value is a matter of dispute. Some have suggested that extrinsic qualities such as the geographic location of the deposit, accessibility to market, and means of transportation, should be recognized. Others have emphasized the intrinsic qualities of the deposit such as its physical properties or chemical composition should be recognized.

After 10 years' employment of this provision we are happy that your committee has before it two bills which would amend it.

Section 1(a) of S. 2281 would amend section 3 by changing the definition of "common varieties." In addition to excluding from that definition deposits having properties giving them distinct and special value and deposits of block pumice, S. 2281 would also exclude "limestone suitable for use in the production of cement, metallurgical or chemical grade limestone, and gypsum" and also "sand, gravel, and rock for use as aggregates in the manufacture of concrete or for other construction purposes."

The exclusion of sand, gravel, and rock usable for any construction purpose would come close to abrogating section 3 and returning to the conditions existing before 1955. This does not seem to us a feasible solution. The 1955 act was passed to correct serious misuse of the

public domain, and there is no justification for returning to conditions in existence before that statute.

Accordingly, it is our tentative recommendation, after careful consideration of this problem, that section 3 should be amended to provide that there will be no locations made in the future for any deposits of sand, stone, gravel, pumice (other than block pumice), pumicite, clay, cinders, or petrified wood. All distinctions between common and uncommon varieties of those mineral substances should be dropped. Whether a deposit is of a common variety of sand or of an uncommon variety of sand, it should not be deemed a valuable mineral deposit within the meaning of the mining laws.

This, in our opinion, is one solution which will give adequate protection to Federal interests in the public domain and which will be so clear and free of ambiguity that it can be fairly, easily, and understandably applied. Our report contains suggested language for this purpose.

I would like to emphasize that this recommendation is offered only as a tentative and possible solution, because S. 3485 offers a different solution which we have not yet had time to study and evaluate. This bill was only recently introduced. We shall give you our comments on that approach as soon as possible.

Senator GRUENING. How soon will that be?

Mr. CAVANAUGH. I think, Mr. Chairman, if we have to-I don't think the Legislative Counsel's Office has gotten any reports from any of the interested bureaus yet.

Dave, do you have any estimate of

Mr. FINNEGAN. We would hope we could comment within the next few weeks, sir.

Senator GRUENING. We would like to have that report when Congress reconvenes.

Mr. FINNEGAN. We will do our best to comply.

Senator GRUENING. Thank you.

Mr. CAVANAUGH. As I have said, S. 2281 would not only amend section 3 of the act of July 23, 1955, but would also add to that statute a new section 3A. Perhaps it was intended that the new section 3A would have general application to all future mining locations and to mining locations in existence based on minerals described in section 3, but we interpret section 3A as intended to apply only to mining claims and minerals described in section 3 as amended by S. 2281.

If our proposed amendment of section 3 is adopted, there will, of course, be no future locations for any minerals described in that section and, therefore, section 3A's applicability would be limited to a few mining claims already in existence.

In our opinion, the scope of section 3A would be so limited that there would be little value in its enactment. We should, however, point out that we find the proposed provisions of section 3A very interesting and, although we are not prepared at this time to concur in their exact terms, we believe that they should be given serious consideration as a general amendment to the mining law of 1872.

However, I wish to emphasize that immediate amendment of the "common varieties" provision is so important that we would prefer to have any general amendment to the mining laws handled separately. That concludes my statement, Mr. Chairman.

Senator GRUENING. In other words, you are in favor of this legislation in general, although you have some minor reservations as to language; is that correct?

Mr. CAVANAUGH. Well, we think there are perhaps several approaches to the problem, Mr. Chairman. We would prefer the approach suggested in our report to the committee and that is the one I have also suggested as a tentative solution, and that is the elimination of the distinction entirely.

S. 2281 offers a second approach. We do have objections to that, as I mentioned, primarily as to the provision on defining "common varieties." We feel that this is really too broad, that we would have difficulties, again, of interpretation, that really it is almost a return to a situation which prevailed prior to the enactment of this statute.

Another approach, of course, is the approach that we find in Senator Metcalf's bill, S. 3485. Our examination leads us to the conclusion that this has some promising features. We cannot report on it this morning simply because we have not had it long enough to properly evaluate it.

Of course, the last approach, and the one that I am sure that we are all in agreement on, that what we would not want, would be to return to the conditions before 1955.

I do not know whether that rather lengthy statement answers your question or not, Mr. Chairman.

Senator GRUENING. Senator Metcalf, do you have any comments? Senator METCALF. I wish that we did have some recommendations on S. 3485, because as you point out, Mr. Cavanaugh, the approach is quite a bit different than S. 2281. Probably we should give careful thought to the enumeration of the varieties of stone that are listed, so that we can be sure that we have included all.

Senator Allott has mentioned rhyolite, which is not mentioned in subparagraph 2. It would seem to me that by pointing out that certain limestone, travertine, marble, and so forth, used for cement, as you have in your regulations at the present time, and also used for facing and beautification of buildings, should be taken out of the classification of "common varieties." This would take care of most of this problem.

At the same time I do not know about this subparagraph 3 which gives some discretion to determine what concrete aggregates and sand and gravel and pumice deposits and cinders shall be.

It would seem to me that approach would take care of the complaints that developed during the hearings that Senator Gruening has held and at the same time prevent us from going back to the situation that was in existence before 1955.

Mr. CAVANAUGH. Well, I might say, Senator, that my own reading of your bill leads me to the conclusion that it does have considerable merit along the lines you suggest.

Certainly, the Department has reported, I think, by letter, as well as the statements that were made at the last hearing that Senator Gruening had on this act, and we have indicated that we recognize the need for clarification of this.

We are certainly no more infallible than the next fellow. This is an act of Congress. I think that perhaps we do need guidelines from Congress, and that is what your bill is attempting to provide, assum