I deeply appreciate the opportunity to appear and I am perfectly willing to answer any questions that might be asked.

Senator GRUENING. Mr. Lonergan, you have made a very effective presentation.

Do you happen to know what the current status of adjudication of the travertine claim is? Has the Secretary of the Interior made any reply?

Mr. LONERGAN. I am not in a position to answer that, Mr. Chairman. I believe it is pending in the Department and that is all I know. If I may, I will ask Mr. Roth, who is here for the Montana Mining Association.

Senator GRUENING. Yes. Mr. Roth, do you know?

Mr. ROTH. Yes, Mr. Chairman. That matter is in abeyance right at the present time. I believe pursuant to this subcommittee's interest in this particular area that inaction is probably the rule at the moment. rather than inactivity.

Senator GRUENING. Inaction is sometimes not for the moment, but over a longer period of time.

Senator Allott?

Senator ALLOTT. I think Mr. Lonergan's statement has been very helpful. I think it helps to have someone here who has had extensive experience in dealing with the problems that this raises. He points it out to us and in this category, Mr. Lonergan, since nobody seems to know about rhyolite here except me, would you consider rhyolite in the common variety classification?

I have no vested interest in this material, I just happen to think it is a beautiful stone.

Mr. LONERGAN. I think it falls in the same category, in my personal thinking, and here again I am outside my profession but I think it would be classified somewhat like granite or marble or travertine in that it is a stone, it is found as a part of the earth's crust normally, and could be, if processed, a very beautiful thing. It probably could be found in many places as a beautiful stone.

Senator ALLOTT. Well, we will try to get something out of the Department on it.

Mr. LONERGAN. I am afraid I am outside of my professional training. Senator ALLOTT. Thank you very much.

Senator GRUENING. Senator Metcalf?

Senator METCALF. I think that you have made a very helpful statement and it will contribute to the consideration that the committee gives to this bill.

Are we going to get into trouble in maybe some other area by the specific enumeration of some of these special varieties? For instance, suppose we had left rhyolite out and it should be considered as a part of the same-the same as marble or black marble or travertineare we going to run into the rule of statutory interpretation that the mention of one thing eliminates the other?

Mr. LONERGAN. I think it would be classified as a stone.

Senator METCALF. And would be included even though it were not specifically mentioned?

Mr. LONERGAN. Even though it were not mentioned, yes. There are many things that are not mentioned in that bill, but yet are valuable mineral commodities.

Senator METCALF. Actually, is not what we are trying to do here to lay down some new guidelines for the administration of the Common Varieties Act, and point out to the Forest Service and the Bureau of Land Management that the Congress intended that these rather uncommon stones should be locatable? Is that not what we are trying to do?

Mr. LONERGAN. As I understand the bill and your statement in offering it, Senator, it was intended to clarify and to express the intent of the Congress as it existed in 1955.

Senator METCALF. That is right.

Mr. LONERGAN. And which has been misinterpreted.
Senator METCALF. Distorted.

Mr. LONERGAN. Distorted, to use your word, and overextended and as I have suggested rather dangerously to the entire mining industry by the interpretations and actions of the Department.

Senator METCALF. Well, now, Mr. Cavanaugh and Mr. Greeleybelieve me, I share your regard for both of them-have been fine witnesses and I think they are outstanding administrators. I know Mr. Cavanaugh was originally from Montana and is an outstandingly good lawyer. He has pointed out that we have left some gray areas. But have we not, by clarifying the definitions, given some direction to both the Secretary of the Interior and the Secretary of Agriculture as to how to apply the law to these gray areas?

Mr. LONERGAN. I think that the bill in its present form does almost everything that could be done in that regard. I think it is ideal. Senator GRUENING. We are glad to have your testimony on that. Senator ALLOTT. Mr. Chairman, could I ask the gentleman one other question?

Senator GRUENING. Yes.

Senator ALLOTT. You mentioned the situation with respect to the copper deposits. A lot of people who go out and prospect are not necessarily mining engineers even in this day and age.

What could occur, and would you comment on the question you raised, whether you intended to raise it directly or not, with respect to a person who had filed a location on what is without question a valuable mineral. Then it develops that as a result of circumstances or highways or any one of a dozen things that might happen, the chief value of the location is not because of the original filing but because of the common varieties of sand, stone, pumice, or something like that which was also found on this particular area? What would be the situation in this instance? Suppose the patent had not been issued at the time this became obvious and the man had taken out 50 times as much dollar value of gravel or some other common variety as he had taken out of the locatable mineral? Where would we find ourselves in such a situation and does it need attention in this bill?

Mr. LONERGAN. I think there are a number of aspects of the mining law that need attention, including that one. I am not prepared to give a legal opinion on it, but I know one thing, it would erupt into a lawsuit for certain because of the uncertainty in it.

Senator ALLOTT. In other words, it is your feeling that probably the Bureau of Land Management would refuse a patent and then you would get into the lawsuit you are speaking of?

Mr. LONERGAN. I misunderstood your question. I think that it would be certain under present administrative rulings and practices

that the Bureau of Land Management, the Department, and, if the Forest Service were involved, the Forest Service, would take the view that the claim was not valid.

Senator ALLOTT. I have just had called to my attention by my legislative assistant a proviso in the Common Varieties Act, section 611, which is as follows:

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.

But you still believe that this leaves an area of much confusion? Mr. LONERGAN. Yes, sir, I do. The example, I believe given—it is either in the Senate or House report on the 1955 bill-was the finding of gold in the sand and gravel of the bed of a stream. That is a typical example.

If the Bureau of Land Management takes the view that the sand and gravel-all sand and gravel is a common variety and therefore not locatable unless the locatable mineral provided a valid discovery under the mining law with respect to the other minerals contained in it, there would be no help to the owner from all of those facts.

In my view, the fact that there was useful and valuable sand and gravel on the claim plus useful and valuable other mineral, and the other mineral was not sufficient of itself to support the claim as a valid mining claim, under the current rulings of the Bureau then the entire claim would fall.

Senator ALLOTT. Thank you very much, sir.

Mr. LONERGAN. Mr. Chairman, if it is a matter of normal procedure, may I ask that the printed record of the subcommittee hearings in Butte and Washington last fall be included in the record here on S. 3485?

Senator GRUENING. Those hearings already have been incorporated by reference.

Mr. LONERGAN. Thank you, sir.

I have, and would like to offer to the subcommittee, a statement dated June 25, 1966, by John B. Ahern, vice president of the Montana Travertine Quarries.

Senator GRUENING. We will be glad to include it into the record after your testimony.

Mr. LONERGAN. In my statement, which I have not read, because it is so repetitious of much that has been said, is a reference to a letter of February 28, 1957, written for the Director of the Bureau of Land Management, to a Mr. Chad F. Calhoun, of the Kaiser Steel Corp., and I offer a copy of that letter for the convenience of the committee, if it is not already in the record.

Senator GRUENING. It will be included following your prepared statement if it is not in the record.

Mr. LONERGAN. Finally, in my statement, I referred to a letter written for the Director to a Mr. George W. Nilsson of Los Angeles, and I do not believe that that is in the record of the earlier hearings. Senator GRUENING. What does that deal with?

Mr. LONERGAN. The same subject as the Calhoun letter to the effect that it is difficult to define a common variety of any material in such a way that it would not be subject to some misunderstanding.

Senator GRUENING. We will be glad to include it after the other letter submitted.

Mr. LONERGAN. Again, sir; I thank you and the members of the committee.

Senator GRUENING. Mr. Lonergan, your full statement and the letters submitted will be printed at this point.

Thank you for your testimony.

(The data referred to follow :)

STATEMENT OF JOHN B. LONERGAN, ATTORNEY FOR VARIOUS MINERAL INTERESTS

My name is John B. Lonergan. I am one of the senior partners in the law firm of Lonergan, Jordan & Gresham with offices at 506 Andreson Building, San Bernardino, California. A major part of my practice relates to the public domain and the Federal mining laws.

On behalf of myself and the clients I represent here today, I wish to express thanks and appreciation to the Chairman and members of the Committee for this opportunity to testify. We are most grateful for this hearing.

In speaking today in support of S. 3485, I represent Montana Travertine Quarries, of Gardiner, Montana, owner of unpatented mining claims located for their deposits of travertine, a marble-like building stone; the Gilmer family of Minnesota and Arizona, owners of well-established, substantial, granite processing plants at Delano, Braham, and St. Cloud, Minnesota, and an unpatented claim near Perris, California, located for its valuable deposit of gabbro (known commercially as black granite); the Johnson family of Escondido and Perris, in southern California, long engaged in the granite mining business and owners of a claim of black granite near Perris; Chas. Pfizer & Co., Inc., which in its Minerals, Pigments and Metals Division, is the owner and operator of a number of mining claims variously situated in southern California and Montana, and held for their valuable deposits of limestone, talc, bentonite, and wollastonite, all used as fillers and extenders in the paint and other industries and for other purposes; and California Portland Cement Company, the operator of three large portland cement plants in Arizona and southern California, and owner of a number of claims deemed valuable because of their limestone and silica deposits. S. 3485 would amend Section 3 of the 1955 Act. The 1955 Act is known as the Multiple Use Act. Section 3 of that Act is ordinarily known as the common varieties law and in my testimony I shall refer to it as the common varieties law or as Section 3. The intent of the common varieties law is well known to this Committee. That intent was succinctly stated by Senator Metcalf at the time he introduced S. 3485 for himself and Senator Gruening. The legislative history makes abundantly clear that the purpose of the law was to prevent the abuse and misuse of the Federal mining laws. Persons who had no interest in mining were getting free public land for summer homes, fishing camps and the like by filing spurious mining claims. These spurious claims were filed under color of discovery of sand, stone, gravel and like substances. Section 3 was designed to cure that situation. But, there never was any intent to change the law so far as bona fide prospectors and mining operators were concerned.

The full Committee made this plain when it reported out the bill which became the 1955 Act. Senate Report No. 554, (84th Cong., 1st sess., p. 2) states:

"At the same time, the measure faithfully safe-guards 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."

In discussing the background of the measure, Senate Report No. 554 (p. 3) noted that "our mining industry is under the constant necessity of exploring for the developing additional sources of new and old minerals to meet the everincreasing requirements of our national security and industrial economy."

The executive department reports in support of the 1955 measure, included in Senate Report No. 554, clearly disclosed the belief that the provisions would strike at the reported abuses of the mining laws, without interfering with the activities of bona fide prospectors and miners.

Interior's report noted that the national interest in encouraging the discovery of minerals dictated that the mining industry should have a continuing opportunity to locate claims, to mine minerals on those claims, to discover and develop commercial deposits and, if fortunate, to make a profit. This report of the Department, in noting the abuses at which the measure was designed to strike, pointed out that many claims had been based on deposits of sand,

stone, gravel, etc., which, although technically of sufficient value to justify a location, were actually of minor worth compared to other natural resources of the land.

The Under Secretary of Agriculture similarly reported, saying in part that the Department of Agriculture desired to encourage legitimate prospecting and effective utilization and development of the mineral resources of the national forests, and stated (S. Rept. No. 554, p. 17): "We would not favor legislation which would interfere with such development of minerals nor work hardship on the bona fide prospector or miner." He further stated in his report (S. Rept. No. 554, p. 18) that the measure "will correct deficiencies in the mining laws and prevent many of the abuses by other than bona fide miners, but it will not obstruct or interfere with bona fide mineral prospecting, mining, and development."

During the debate on the bill. Senator Anderson stated (Vol. 101, Part 7. p. 9334, Cong. Rec. June 28, 1955) that effort had been made to draft a bill that would meet a situation that was rapidly developing into a national emergency and yet at the same time not interfere with the existing rights of bona fide mining activities, either then or in the future. In explaining the bill, he said that, among other things, the bill would provide "that deposits of common varieties of sand, building stone, gravel, pumice, pumicite, and cinders, on the public lands, where they are found in widespread abundance, shall be disposed of under the Materials Act of 1947 rather than under the mining law of 1872." But this is not how things have worked out. As a practical matter, Interior and the Forest Service have administered the common varieties law almost as a prohibition against mining claims on the materials listed in Section 3. This is accomplished by imposing standards and tests which violate the intent and purpose of Section 3.

Senator Metcalf made an outstanding exposition of the manner in which the statute is frustrated by the unwarranted and arbitrary standards and tests applied by the administrative agencies. (Vol. 112, Cong. Rec. 12109-9, June 9, 1966.) I subscribe fully to the Senator's views and respectfully request that his statement be made a part of the record. In line with his expressions let me cite stone as an example.

The correct test should be whether a particular deposit of stone is common stone. But as pointed out by Senator Metcalf this is not the test Interior applies. An individual files a claim on a deposit of travertine. Travertine is a beautiful marble-like stone. It is more expensive than many marbles. Clearly travertine is not a common stone. Neither is limestone a common stone. If Interior applied the test intended by Congress, it would ask, is travertine or limestone a common stone? The answer is apparent. But Interior does not apply the obvious test intended by Congress. Interior asks, is this a common variety of travertine? Is this a common variety of limestone? On that basis Interior rejects the claims saying "Yes, these are common varieties of travertine, or limestone", as the case may be.

In the same fashion Interior administratively negates the exception in Section 3 which permits the location of deposits of the listed materials if such materials "are valuable because the deposit has some property giving it distinct and special value." House Report No. 730, 84th Congress, 1st sess. (1955), on the bill which became the 1955 Act, specifically refers to the language of this exception as excluding "materials such as limestone, gypsum, etc., commercially valuable because of 'distinct and special' properties". Nevertheless. Interior rules that "distinct and special value" does not mean value over and above that found in common stone, but rather means value over and above that found in stone of the particular category. Again, using limestone as an example, Interior's view is that whether a particular deposit of limestone has "distinct and special value" depends on whether it has value over and above that found in limestone generally. In this connection Interior limits itself to intrinsic factors such as physical characteristics and chemical composition and excludes extrinsic factors such as location, accessibility, market and demand, all related to commercial value.

Interior's position was summarized by the Solicitor, Department of the Interior, in a statement of September 24, 1965 before this Subcommittee, as follows (p. 8):

***We have interpreted a common variety as a common variety of a particular type of mineral. We have interpreted a 'distinct and special value' as a value not commonly found in a particular type of mineral. Most important of