Management have been raised by the Forest Service. This uncertainty still exists as to the validity of claims filed since the "common varieties" amendment of 1955. Potential damages for working invalid claims are substantial. It seems that this controversy will not be resolved until Congress itself asserts as a matter of law that which to us seemed abundantly clear from the history of the "common varieties" legislation—namely, that "gypsum" is not a "common variety", but that claims to gypsum deposits are subject to location and patenting under the mining laws as they historically have been.

We believe that S. 3485 accomplishes this objective and we support the Bill. We suggest, however, that on page 2, line 13, the word "or" be inserted before the word "gypsum" to make it clear that the phrase "metallurgical or chemical grade" in line 12 preceding the word "limestones" does not also modify “gypsum.” The phrase "metallurgical or chemical grade" is not used and has no significance in the gypsum industry. Unless this change is made we fear the ingenuity evident in the past may again appear to suggest that the only gypsum which is not a "common variety" is a deposit of a non-existent "metallurgical or chemical grade" which has characteristics not found in other gypsum deposits.

On behalf of the Gypsum Association and its members I thank you, Mr. Chairman, for the opportunity of expressing our views.

Senator GRUENING. Our next witness is Dr. Donald K. Shields, of Brea, Calif.

Dr. Shields, we are very happy to have you here.

STATEMENT OF DR. DONALD K. SHIELDS, BREA, CALIF.

Dr. SHIELDS. Thank you. My name is Donald K. Shields, Brea, Calif.

Senator GRUENING. You are an M.D.?

Dr. SHIELDS. Yes, sir.

Senator GRUENING. What is your interest in this legislation?

Dr. SHIELDS. Mining claims that are concerned with common varieties. Before I entered these Chambers, I had no concept of the honor and the education that was to be mine to be able to appear before this committee. I prepared a rather brief, simple outline of a statement that set forth my statement. My problems have been much better stated by Senators Cannon, Metcalf, and a number of other people, so I would rather not go over material that has already been much better presented.

I would like to state briefly some things that have occurred to me in my education that I received today.

In the gentlemen who are here conducting these hearings, I see men who are trying their utmost to represent the will of their constituents, men that to me represent the principles that made this country great. There are others here who are citizens representing their own interests, such as myself.

Opposed to them, I see well-meaning public servants who seem to be more devoted to the interests of bureaucracy and social theory than to the legal rights of the citizens of this land.

The Bureau of Land Management and the Forest Service do recognize that common varieties at times have properties that give them distinct and special value. My reason for this or the proof that I would submit for this is that they charge varying lease prices for common rock that is used for decorative purposes varying from a few cents to many dollars.

This to me indicates that they recognize that there are some distinct and special properties in certain types of common rock.

It does not seem to me, however, that common varieties is the most basic issue here. The usage of land acquired under mining locations law appears to me to be the basic issue.

And I would simply sum up what I would feel the solution to this would be: To have broad and liberal definitions of locatable minerals, be they common mineral or common material, the common varieties I believe we referred to them as. This would include all of the minerals used in industry, construction, and including decorative purposes, including all other previously mentioned usages, too. And to insure the proper usage of mining land, I would suggest that effective measures to insure the devotion of lands acquired by mining claim or patent under mining location laws be enacted to insure their devotion to mineral production.

I see two or three dangers in interpretation of some of the terms in the previously mentioned bills, but in general I think that they encompass what is needed to solve this particular problem.

That is all I would like to say about it.

Senator GRUENING. Thank you very much, Dr. Shields.

Dr. SHIELDS. I might say my problems are very small. I came here with strictly a selfish interest, but my scope has been rather broadened

Senator GRUENING. Do you own some deposits?

Dr. SHIELDS. I have 10 mining claims of white marble which in my judgment possess distinct and special properties, I have been fighting for about 4 years over these claims; no legal action has been instituted at this time, however. The action has been strictly sparring with the Bureau of Land Management.

Senator GRUENING. Well, one of the functions of Congress is to hear the complaints of our citizens and see whether we can give them relief if the complaints seem to be legitimate.

Senator Metcalf, do you have anything to add?

Senator METCALF. In your outline that you have filed, Dr. Shields, you are talking about Senate bill 2281 and H.R. 9982?

Dr. SHIELDS. Right.

Senator METCALF. What about the bill that Senator Gruening and I have introduced, S. 3485?

Dr. SHIELDS. I was unaware of that bill until I arrived today. Although I have not analyzed its provisions completely what was presented to me seems very valid. The bill seems to answer many of the problems.

Senator METCALF. That is all, Mr. Chairman. Thank you very much, Dr. Shields.

Dr. SHIELDS. Thank you very much.

Senator GRUENING. Thank you, Dr. Shields.

Our next witness is Mr. William Kessler, of the Arizona Gypsum Corp.

STATEMENT OF WILLIAM KESSLER, ARIZONA GYPSUM CORP.

Mr. KESSLER. Mr. Chairman, my name is Bill Kessler, William Kessler, and I do not have a prepared statement. I learned of this hearing on Sunday and flew in yesterday, but I did make some notes on the plane coming in and I would like to speak spontaneously on it. Senator GRUENING. Go right ahead.

Mr. KESSLER. I am the general manager and secretary-treasurer of the Arizona Gypsum Corp. We are an Arizona corporation, operating only in Arizona. We operate two open pit gypsum mines there. One of the mines was located in 1945, and it was taken to patent in 1953. We have been operating the deposit consistently and continually at a small profit ever since then.

The material from that deposit is used to supply a cement company near Tucson, Ariz. I am, I think, a living horrible example of what you have spoken about here today, because our other deposit of gypsum located north of Phoenix about 100 miles we acquired in 1961 and we immediately applied for patent on that deposit of gypsum and it is now going into its sixth year of indecision and it was my hope that upon my trip to Washington at this time, I could meet with some representative of the Forest Service and the Department of the Interior and try to finally resolve this problem.

It seems to me to be unnecessary to have additional legislation in order to solve the common-varieties problems with respect to gypsum, but if that is what it takes, if we need to do more than just spell it out, if we need to draw pictures then I heartily endorse Senate bill 3485, which I believe does this.

I might say there has been many unkind words or criticisms of the Department of the Interior Bureau of Land Management here today, but I would like to say that we have been given much cooperation in our patent application, and we have also been given much written support of our position that gypsum is not a common variety of mineral.

It has been spoken of many times in the congressional reports that accompany Public Law 167. There have been many pamphlets, regulations and publications published by the Department of the Interior and almost without exception, they have clearly stated that gypsum is a locatable mineral, and, in fact, I have a letter which is dated June 26, 1964, and it was addressed to Mr. Edward Cliff, Chief of the Forest Service, Department of Agriculture, in Washington, and it is signed by Mr. Charles Stoddard, Director of the Bureau of Land Management, and I will quote two paragraphs as an excerpt from that letter. Mr. Snell, being the witness who just appeared before you, was a representative of the Gypsum Association. We are not a member of the association, but the reference in this letter is to Mr. Snell of the Gypsum Association:

Mr. Snell was advised that it was the position of the Department of the Interior and of this Bureau that gypsum was a locatable mineral and that a common varieties charge in a complaint is tantamount to a charge by the United States that the material claimed is not gypsum or is not primarily valuable for its incidental gypsum content. However, the patent application—

Referring to Arizona Gypsum's patent application

the engineer's field report and the contestee's answer all describe gypsum deposits as the basis for the claims.

Now, upon receiving a copy of this letter, I was highly elated and I thought finally after 4 years that we had the problem solved and that the Forest Service would capitulate so to speak.

However, such was not the case. I would not imagine then how any further stumbling blocks could be thrown in our path or how one could then say gypsum was not gypsum; but I now read a memorandum dated December 15, 1965, which says just that, and I will quote

it.

This is a memorandum from Mr. Smith, Assistant Regional Forester to Mr. Richard L. Fowler, attorney in charge. Mr. Fowler is attorney for the U.S. Department of Agriculture at Alburquerque. I will read two paragraphs as an excerpt from the memorandum:

In our opinion, the claims are chiefly valuable for the gypsum which occurs for the most part as salenite crystals in siltstone and clay stone, therefore, we cannot say that the material claimed is not a gypsum or that the claims are not primarily valuable for the gypsum contained therein.

I will come to his conclusion after he has said it is gypsum:

The gypsum occurring on the subject claims must be concentrated, this concentrate is now being used for only one purpose, namely, as a retarder in portland cement. This does not require a highly pure gypsum and the product contains impurities of clay stone and siltstone. Accordingly, the product produced is not gypsum in the true sense of the word, but it is principally valuable for the gypsum contained therein.

This is my only copy, but I would be glad to submit a copy to the committee and if they can read anything but doubletalk into that memorandum, then I would appreciate

Senator GRUENING. We would like to have the whole record. It will be included in the record. The record will be kept open for any reply that the Forest Service considers appropriate.

Mr. KESSLER. I might complete this comment by saying that the attorney at Albuquerque received this memorandum and also the letter from the Department of the Interior, and for some unknown reason he was unable to decide then that gypsum was gypsum and grant us our patent on this property.

I think perhaps the reason he did so was because we were advised by the local mining engineer who investigated our property for the Forest Service and also by his chief at Albuquerque that the claims had originally been recommended for patent.

We were then advised that we were to be used as a guinea pig, as a test case, to determine whether or not the gypsum could be construed as a common variety, and for that reason I was glad to hear the Senator from Colorado's comments about who pays the attorney's bills for appearances before the Bureau of Land Management.

Senator GRUENING. In what form did this advice come that you were going to be used as a guinea pig?

Mr. KESSLER. I had a telephone conversation with the chief mining engineer at Albuquerque.

Senator GRUENING. What is his name?

Mr. KESSLER. Mr. Trajit. I also was advised that it was originally recommended by Mr. Trajit. However, that was not to me personally. It was to our geologist. But I would like to just close by saying that, while we feel the law clearly has specified that gypsum is a locatable mineral, while we feel the regulations have been clear in that respect, if it must be left to the discretion of an ill-advised or perhaps an ill-informed or an innocently wrong attorney at Albuquerque, that if he is given such discretion then I believe we should clarify the law, and that is the reason that I support this change.

I am sure you do not wish to handicap any enterprising, ambitious, basic producer, basic prospector-businessman, and I am sure that you realize that the materials that we are dealing with, gypsum and these

other nonmetallics, are the very foundation of the house we live in and the building we are standing in now, and to handicap the individual entrepreneur such as myself leaves us at the mercy of these ill-advised personnel. So I would heartily solicit the recommendation of this subcommittee that Senate bill 3485 be passed.

Senator GRUENING. Senator Metcalf?

Senator METCALF. I have no questions.

Senator GRUENING. Mr. Greeley, I think this is an important point. If we can have a decision that gypsum is not gypsum, where does that leave the industry in any respect if it can be decided that a locatable mineral is not what it is said to be? What guarantee and what sure test do the mining people have? This is an extraordinary decision as presented by this witness.

Mr. GREELEY. This, I must confess, leaves me gasping.

Mr. KESSLER. I would hope that I could make an appointment with you before I leave Washington and perhaps we could get to where the trouble is here.

Mr. GREELEY. How is a quarter to two today?

Mr. KESSLER. That is fine.

Senator GRUENING. I think this spirit of cooperation is a very happy concluding note for this hearing.

Mr. Kessler, the letter and memorandum you mentioned will be printed at this point.

(The data referred to follow :)

Mr. EDWARD P. CLIFF,

Chief, Forest Service,

Department of Agriculture,

Washington, D.C.

JUNE 26, 1964.

DEAR MR. CLIFF: The Arizona Gypsum Corporation has filed its Mineral Patent Application No. AR 030559 for patent to 10 placer mining claims located in the Coconino National Forest. Following the rendition of your mineral examiner's report and upon the recommendation of the Regional Forester, we initiated Contest No. Arizona 10586, charging that the mineral material found within the limits of the claims is not a valuable mineral deposit under Section 3 of the Act of July 23, 1955 (69 Stat. 367; 30 U.S.C. 601). The complaint also charged the absence of a discovery and that the land was non-mineral in character.

On June 19, at the request of Senator Bible, Associate Director Harold R. Hochmuth met with Mr. Thaddius Snell, a representative of the national association of gypsum companies. Although the contestee, Arizona Gypsum Corporation is not a member of the association, the association had concerned itself because of the apparent charge that gypsum was a common variety mineral material within the meaning of Public Law 84-167, and, therefore, was not locatable.

Mr. Snell was advised that it was the position of the Department of the Interior and of this Bureau that gypsum was a locatable mineral, and that a "common varieties" charge in a complaint is tantamount to a charge by the United States that the material claimed is not gypsum or is not primarily valuable for its incidental gypsum content.

However, the patent application, the engineer's field report and the contestee's answer all describe gypsum deposits as the basis for the claims. Accordingly, we would appreciate your further consideration of the appropriateness of the charges in the light of 43 CFR 3511.1(b) (formerly 43 CFR 185.121 (b)).

Your recommendations may be made directly to the Arizona State Director in Phoenix. If we can supply further information or assistance we will be pleased to do so.

Sincerely yours,

CHARLES H. STODDARD, Director.