all, we have concluded that only intrinsic values may be considered in determining whether something is a common variety."

These administrative interpretations, coupled with the lack of clear guidelines and the departmental policy of determining whether deposits are common or uncommon on a case by case basis, have generated a storm of justified protest and complaint from members of the industry, large and small. The Department of the Interior is clogged with costly mining contests in pursuance of the "case by case" policy. Prospectors and mine operators have the choice of surrendering their claims or assuming the burden of expensive mineral contests of long duration. The lack of definitive classifications and standards, the uncertainties of title and the threat of suit by the United States for damages if mining claims are worked before final adjudication, have virtually frozen investment and development of mineral resources. Bona fide mineral prospectors and mining operators do not know where they stand. Financing is wholly risky or impossible. Operators cannot use their claims except at the peril of a federal claim for damages.

The point is that corrective legislation now is needed to mark unmistakably clear guidelines expressive of the original intent of Congress. In no other way can the rights and interests of bona fide prospectors and mining operators be protected. S. 3485 would accomplish that goal.

The administrators have made repeated admissions that legislation is needed. They confess that they can find no satisfactory definition of “common variety” as used in Section 3. In a letter dated February 28, 1957 from the Bureau of Land Management to Chad F. Calhoun, Vice President, Kaiser Steel Corporation, the statement was made that "as you know it would be very difficult to define a 'common variety' in such a way that it would not be subject to some misunderstanding." The same statement was repeated in a letter dated October 11, 1957 from the Bureau of Land Management to Mr. George W. Nilsson, 510 West 6th Street, Los Angeles, California.

Similarly, the Secretary of the Interior, the Secretary of Agriculture and the Solicitor of the Department of the Interior all agree that the common varieties law needs amendment. The Acting Secretary of the Interior by letter of November 2, 1961, informed the Chairman of the House Committee on Interior and Insular Affairs that "We believe that legislation to clarify the meaning of 'common variety' in the Section 3 of the Act would be helpful. Several questions about the meaning of the term [common variety] have been asked, and only by legislation amending Section 3 may they be answered conclusively." (See hearings before this Subcommittee on P.L. 167, 84th Cong., pp. 125–126, September 24, 1965.) Secretary of the Interior Stewart Udall joined in this view in his letter of November 22, 1961 to Senator Engel and his letter of the same date to Senator Kuchel.

The Solicitor, Department of the Interior, testified before this Subcommittee that “*** I must emphasize that I believe that this problem will continue to be controversial until the present law is amended." Hearings, supra, p. 120. We respectfully urge that S. 3485 be given favorable consideration.

STATEMENT OF JOHN B. AHERN, VICE PRESIDENT OF MONTANA TRAVERTINE QUARRIES, GARDINER, MONT.

Senator Gruening, Members of the Sub-Committee on Minerals, Materials and Fuels, I am John B. Ahern, Vice-President of Montana Travertine Quarries, a Montana Corporation, located at Gardiner, Montana. We are producers of Travertine building stone, one of the worlds most desired construction products. My views on the administration of Public Law 167 are well known to the members of this committee and I do not intend to attempt a review of all of the testimony and correspondence we have had.

The producers of building stone along with the rest of the mining industry have always been in favor of the concept of multiple use of the surface of unpatented mining claims and we support laws that will control those who abuse the mining laws. At the same time we feel that the regulatory agencies should respect the rights of, and protect, the legitimate mine operator.

It is indeed unfortunate that the definition of "common varieties" has been the cause of much hardship within the mining industry. Many small producers have been coerced into relinquishing their rights under the mining laws and have been forced to accept leases under the Material Disposal Law, which have, in

effect, so restricted operations that they are practically out of business. These persons entered into leases because it was felt that, "You cannot fight the Government".

Those of us who have been involved in this dispute with the several government agencies during the past few years have worked long and hard, and at considerable expense, in an attempt to find a solution of this problem that would protect the mining industry and at the same time serve the interest of the public.

S. 3485 is the result of our efforts and I think this is a god law. It will adequately define "common varieties" and so amend Section 3 of Public Law 167 that the intent of Congress will be carried out; That is, as stated by Senator Anderson, "to permit the multiple use of the surface resources of our public lands, to provide for their more efficient administration, and to amend the mining laws to curtail abuses of those laws by a few individuals who usually are not miners. 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 the 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 law."

In addition to the problems presented by the interpretation of Public Law 167 and the definition of "common varieties", there are other problems that face the small mine operator in a dispute with a government agency, not the least of which, is money.

As stated above, many small operators have been forced to accept a leasing arrangement to lease the property in question under the Materials Disposal Law. The payments to be made under these leases are generally excessively high, and so restrictive as to the volume that may be produced under the lease, that the operator is unable to be competitive and thus must eventually get out of the building stone business. In our case the suggestion was made that our royalty payment should be 5% of gross sales. In addition when we had paid the government $1,000.00 in royalties during any one year we would be required to make a competitive bid on the property in order to retain the lease. This would mean that we would be restricted to a production of 750 tons of stone per year. Under this proposal we could never hope to recover our development costs which to date exceed $20,000.00 on Happy Jack No. 3.

I have discussed this problem with several stone producers and I have not found any two leases that are identical. Apparently leases are made on a basis of whatever the traffic will bear.

At no time did we consider a lease.

We insist that we have a valid placer mining claim and that the Forest Service is in error in its interpretation of the common variety clause of Public Law 167.

When a dispute arises and a contest is started through the process known as administrative proceduces the financial burden placed upon the miner is unbearable. In our case our lawyers estimated legal fees would be approximately $11,000.00. In addition there would be travel expenses and expert witness fees. Frankly, gentlemen, the prospect of such unreasonable expenses had a strong influence on our decision to seek the aid of Congress to secure corrective legislation.

Referring to the hearing held in Washington on September 24, 1965, page 128, (Mr. Frank J. Barry described the administrative procedure as a "quasijudicial proceeding". He cast the Forest Service in the role of an advocate with an attitude of hostility who would carry a case through a series of appeals to the Secretary of Interior. As Mr. Barry stated, the Forest Service would take the case to court, "and the court is the Department of Interior". No small nine operator can afford to expend the sums of money required in such a so-called judicial process. As a matter of fact mining companies with large financial resources have the same problem as reported by Mr. E. B. Connors, representing Kaiser Cement & Gypsum Corporation at the hearings held in Butte on June 8, 1965, when he stated, on page 83, "we have spent 9 years and over a half million dollars on a project that has not yet gotten off the ground, due entirely to the manner in which our mining laws are being administered".

About two years ago Secretary Udall wrote to Congressman Olsen of Montana, and among other things, made the statement that in lieu of the relatively small cost of a hearing, the Montana Travertine Case should go to a hearing. I ask this question. These small costs are relative to what? My assets, or the budget of the Department of Interior? Believe me, there is a real difference.

I know Senator Gruening, that you have been disturbed over the delays that have occurred in the Montana Travertine Case. I have asked for these delays

for several reasons, including a change in legal counsel. I have had many problems, both business and personal, and I simply have not had the money to carry our case to a successful conclusion.

I urge the members of this Committee to favorably consider S. 3485 and to submit this Bill to the Senate as written, with a "do pass" recommendation. In my opinion S. 3485 adequately defines "common varieties", and more importantly, names the specific minerals that shall not be deemed "common varieties". This is accomplished without interfering with the multiple use concept of Public Law 167.

Thank you gentlemen for the privilege of presenting these few remarks for your consideration.

DEPARTMENT OF THE INTERIOR,

BUREAU OF LAND MANAGEMENT,
Washington, D.C., February 28, 1957.

Mr. CHAD F. CALHOUN,

Vice President, Kaiser Steel Corp.,

Washington, D.C.

DEAR MR. CALHOUN : I have read your letter of January 29, with interest and appreciate your concern over the possible misinterpretation of the definition of "common varieties" of minerals as given by footnote 2 on page 1 of the departmental regulations for Public Law 167.

First let me assure you that it was not our intention to imply that limestone, gypsum or other like material possessing "distinct and special" properties would be excluded from the operation of the mining laws and placed under the Materials Act of 1947 (61 stat. 681). We feel that these materials when they possess special properties that make them useful in the production of cement, metallurgical or chemical grade limestone, etc., should remain under the Mining Laws of 1872. While the language used in the definition of "common varieties" may be subject to misinterpretation I feel we are in complete agreement with the statements you referred to in House Interior Committee Report No. 730 and Senate Interior Committee Report No. 554.

As you know, it would be very difficult to define a "common variety" in such a way that it would not be subject to some misunderstanding. To amplify on the stated definition in the regulations, I would further say that a "common variety” of material is one that has no special physical or chemical properties which differentiate it from other deposits of such material so as to give it a special and distinct value. You will note that I have stressed the chemical or physical properties of the material itself. This was done to differentiate from geographical location as it is my opinion that location alone would not be a determining factor as to whether a material is a "common variety" or not. Certainly under ourTM definition of the term limestone, quartzite or other material valuable for metallurgy, limestone suitable for cement making, stone suitable for cutting into blocks or naturally cleavable into slabs suitable for building, or silica sand suitable for glass manufacture, foundry use, for example, would not be a "common variety". Such materials would remain subject to location under the mining laws upon a valid discovery and would, as in the past, be subject to patent upon proper application.

Sincerely yours,

Mr. GEORGE W. NILSSON,

Los Angeles, Calif.

L. E. HOFFMAN
(For the Director).

DEPARTMENT OF THE INTERIOR,
BUREAU OF LAND MANAGEMENT,
Washington, D.C., October 11, 1957.

DEAR MR. NILSSON: We are enclosing two copies each of Circulars 1921 and 1961 containing regulations issued under the Multiple Use Act of July 23, 1955 (69 St. 367), and the Disposal of Materials Act of July 31, 1947 (61 Stat. 681).

Section 185.121 of Circular 1961 defines common varieties of minerals. As you know, it would be difficult to define a common variety of any material in such a way that it would not be subject to some misunderstanding. However, if the deposit of stone you are interested in developing has no special physical or

chemical properties which differentiate it from other deposits of such material so as to give it a special and distinct value, it would be a common variety. For example, stone used for road surfacing, fill or ballast would be considered a common variety.

Stone, commercially valuable because of distinct and special properties, such as limestone suitable for cement making or of metallurgical or chemical grade, or stone suitable for cutting into blocks or naturally cleavable into slabs for building purposes, or stone suitable for monumental work would not be considered common varieties.

Sincerely yours,

MAX CAPLAN (For the Director).

Senator GRUENING. Our next witness is Mr. Urban Roth, of Butte, Mont., representing Southwest Montana Mining Association and Montana Mining Association. Please proceed in your own way. STATEMENT OF URBAN L. ROTH, ON BEHALF OF THE MINING ASSOCIATION OF MONTANA, THE SOUTHWESTERN MONTANA MINING ASSOCIATION, GEOLOGISTS FOR THE MONTANA BUREAU OF MINES, AND THE MONTANA STATE PLANNING BOARD

Mr. ROTH. Mr. Chairman, Senator Metcalf, my name is Urban L. Roth. I am a junior partner in the firm of Poore, Poore, McKinsey, and Roth, of Butte, Mont. I represent at this hearing the Mining Association of Montana, the Southwestern Montana Mining Association, Geologists for the Montana Bureau of Mines, the Montana State Planning Board, and numerous small miners and prospectors in Montana.

With the chairman's permission, I would like to digress from my written statement, because I feel that so many of these areas that I covered in the written statement have been covered so well by members of this subcommittee and by other witnesses.

Senator GRUENING. Your written statement will be included in the record at the end of your oral comments.

Mr. ROTH. Thank you very much, Senator.

If I may, I would like to comment briefly on Senator Allott's statements with regard to the vast, unexploited resources of the Big Sky country of Montana, Utah, Nevada, California, Colorado, and Idaho, and his statement that the known reserves of these resources are actually at the present time greater in extent and in amount than the vast amount of wealth, the tremendous amount of material already withdrawn from the rich western region.

So instead of stopping or emasculating the economy in this particular area or the method by which this vast mineral wealth can be uncovered and thus sterilizing the mining economy by a leasing method, I submit to this subcommittee that it is important that we adhere to those tried and true methods of exploiting this mineral wealth as I believe this committee intended when it enacted Public Law 167.

It has been clear from the reports made to this committee in the Butte hearing and in the Washington hearing, also in the administrative news with regard to what preceded Public Law 167, that the existing mining law was not to be changed except in the specific areas provided for in Public Law 167.

A valuable mineral discovery was open to exploration and exploitation, and Congress intended that this vast wealth that the West still has to offer was still open to discovery and exploration. However, with the advent of the departmental decisions in the commonvariety area, certain areas of this vast mineral wealth were actually foreclosed to discovery, and the mining economy in this particular area was completely stopped.

Now, as pointed out by Senator Metcalf, I believe very well, Congress in 1955 really wanted to tell the departments in effect what areas were not locatable and confusion arose over that. Now Senate bill 3485 is really a redefinition of the intention of Congress in 1955. The original intent of Congress was not followed, as I understand it, and certainly does not reflect what was said in the reports prior to enactment of Public Law 167.

So, Senate bill 3485 gives us the guidelines by which this confusion and this misinterpretation of Public Law 167 can be terminated. If we, for example, take certain portions of the bill and consider them with language used by witnesses at the Butte hearing and also statements made by members of the Government agencies, I think we can find that the proposed bill does supply the guidelines that geologists at the Butte hearings, for example, and department people have advanced.

For example, this statement appears from a letter in 1964 from L. E. Hoffman, who was acting for the Director of the Bureau of Land Management at the time:

I would further say that a common variety of material is one that has no special physical or chemical property which differentiates it from other deposits of such material so as to give it a special and distinct value.

Now, Mr. Chairman, compare this with the language in your and Senator Metcalf's bill, particularly the reference to physical or chemical properties. This is precisely the type of definition that the Bureau adhered to, at least in a letter, in 1964.

Further in the letter, they stated:

You will note that I have stressed the chemical or physical properties of the material itself. Certainly, our definition of the terms "limestone, quartzite, or other material value for metallurgy, limestone suitable for cement-making, stone suitable for cutting into blocks, or naturally achievable into slabs suitable for building, or silica sand suitable for glass manufacture, foundry use," for example, would not be a common variety.

So in a letter in 1964, by Mr. Hoffman, he agreed with you Senators that the physical and chemical properties of a stone or rock did distinguish it from a common variety. Based upon that letter, and I assume letters similar to that, we would be in agreement with, at least, that Government agency in this particular area.

Another thing the bill does is do away with the tests that use or useful necessity for a common purpose or application shall not classify a material as a common variety.

Now, this to me really makes sense. It seems to me that the fact that you might use a highly rare and valuable marble to face a building or for the construction of steps should not in any way have any relevancy to whether or not it is common or uncommon. The ultimate use really does nto have anything to do with it. We could draw out the test used by the Department of the Interior in its decisions to its logical extreme