fluctuation, and almost uniformly, particularly of late years, have lent strong support to the theory of the patentee, that the words 'valuable mineral deposits' should be constructed as including all lands chiefly valuable for other than agricultural purposes, and particularly as including nonmetallic substances, among which are held to be alum, asphaltum, borax, guano, diamonds, gypsum, resin, marble, mica, slate, amber, petroleum, limestone, building stone, and coal. The cases are far too numerous for citation, and there is practically no conflict in them."

I strongly believe that this is the law of the land and that all changes that appear in Title 40 Code of Federal Regulations are an attempt by the administrative department of government and more particularly the Department of Interior to subvert this decision and the clear intent of Congress under Public Law 167 which is stated distinctly on page 46 of the Bulletin on Multi-use Mining law Administration and Operation held on January 31 and February 1, 1957, in the 85th Congress, First Session. On page 46 it is stated as follows:

"In recommending the enactment of House of Representatives 5891, the Department understood that the objectives with respect to mining claims to be located subsequent to the passage of the bill were:

(1) To remove certain mineral materials from location under the mining laws and authorize their disposal by permit and lease.

(2) To preserve for mining claimants all rights necessary to prospect for and develop minerals, but to prohibit uses not necessary for, or connected with, mineral development.

(3) To permit the United States to manage the surface resources of mining claims, prior to patent, in such a way as not to endanger or materially interfere with prospecting, mining, or processing operations and uses reasonably incident thereto.

(4) To continue to grant fee simple title to mining claimants through issuance of mineral patent."

For the information of the committee, I wish to point out the growth in the stone industry since 1946. The following is information given to our company by the Worth Start Research Institution, 3100 Thirty-Eighth Avenue So., Minneapolis, Minnesota, which provides in part as follows:

The major divisions of the industry include dimension stones, crushed and broken stone, and stone used in manufacturing processes. Some markets are expanding faster than others. Some of these markets vary depending upon such factors as the volume of commercial construction, architectural trends, proximity of construction projects to source of stone, and the competition of artificial products and other materials."

I believe in the basic principles of Public Law 167, I further believe that the law was passed to allow the Federal Government to take care of a vital natural resource which was allowed to be wasted by people who had filed mining claims and yet had not patented them. This allows the timber growing on the claims not to be used and harvested when they should have been. Further, Public Law 167 was intended to prevent people from creating a nuisance by filing mineral and mining claims in timber sale areas or in areas important for recreational use. The basis for filing such spurious claims were based upon common varieties of mineral such as sand, stone, gravel, and pumice. These were items that the Secretary was given authority to control. There was also inserted in the law the word "stone", however, the Federal Government now claims that the word "stone" is modified to the extent that Public Law 167, instead of reading "stone", should read "building stone". Since the large areas of federal land in the western United States are an important source of non-metallic minerals, which make up the mantel of the earth and can be classified as rock or stone, the Secretary is attempting to control all of the building stone industry or to hinder it or to hinder the sales of building stones, rubble stones, crushed aggregates, dimmensioned stones and gypsum and commercial grade limestones used for making cement.

It is my opinion that it was not the intent of Congress to repeal the right of the people of the United States to go upon the public lands and take stone which is valuable for building purposes and to repeal by implication Section 161 Title 30 of the U.S. Codes. I fully believe that 30 U.S.C. Section 161 of the United States mining laws is still in force and effect and a valid mining location can be made thereunder notwithstanding any ruling of the Department of Interior, Bureau of Land Management, or the Department of Agriculture.

However, to clarify the mining law, I believe that under Section 3 of Public Law 167 and starting with the words "provided, however," to the end of that paragraph should be more inclusive and should read as follows:

"Provided, however, that nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring or in association with such deposit. 'Common varieties' as used in this act does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value.

The following minerals are also exempt from the provisions of this act :

1. 'Black pumice' which occurs in nature in pieces having one dimension of two inches or more.

2. Building stone, including but not limited to, split stone, dimensioned stone, strip stone, ashlar stone, modular stone, and rubble stone; and other stone used for building purposes, including but not limited to, roof chips, exposed aggregates, and all other types of ornamental and decorative stone, and commercial limestone and gypsum.

3. The words 'valuable mineral deposit' as used for the purpose of this act includes all lands chiefly valuable for other than agricultural purposes, and particularly as including non-metallic substances, among which are held marble, mica, slate, amber, petroleum, limestone, building stone, and coal."

I hope that legislation shall soon be introduced in order to correct the conflict between 30 U.S.C., Section 161 and Public Law 167. If this is done within the near future, our company will be relieved of the expense and cost of appealing any decision of a hearing officer of the pending case against our concern. I further believe that the administrative decision that would be rendered in the case presently pending between Montana Travertine Quarries and the Bureau of Land Management would be decided, and in fact already has been decided, against our company, and that the theory of the Bureau of Land Management, the Department of Agriculture, and the Department of Interior, is to prevent small companies from taking their claims to Federal Court as it is a great expense and cost and burden which they cannot bear.

I further wish to remind you on the point of the expense involved in appealing a decision of the Bureau of Land Management that there should be added to the amendment of Public Law 167 a provision which would allow companies such as ours the right to appeal the decision of the Bureau of Land Management in refusing to grant a patent to the United States District Court in the district in which said mining claim is located in order that a judge trial may hear the evidence and make a determination as to whether the Bureau of Land Management has acted arbitrarily, capriciously, or tyrannically in refusing to grant said patent. Usually the District Judge in the district in which said mining claim is sit uated is a far better judge as to whether or not the company has a valid mining claim and whether or not the economy of the area deserves to have such an industry developed. I feel that hearing officers which determine the facts by which our Federal Courts are bound by the time the decision against a company is fought through administrative procedures to the District Court in the district in which the mining claim is located does not give a proper presentation of the facts to the Court as an original hearing would.

Needless to say, to expense and cost and present policy of Kaiser Industries which was presented at the hearing in Butte on June 18, 1965, indicated a complete need for revision of this type administrative change and procedure.

I hope that these comments will help you and your committee in some way quickly reaching a decision for revision and resolution of the conflict between Title 30, U.S.C., Section 161 and Public Law 167, as interpreted by the Department of Interior.

I have not received from Stewart French a copy of the transcript made in Butte, Montana, on June 18, 1965, in order that we may correct our statements, and I also would appreciate knowing if the Bureau of Land Management and the Secretary of Interior have filed any answers or information of their department in connection with the hearing. I would certainly appreciate knowing this infor

mation as we were allowed by your sub-committee the right to rebut any information that would be supplied by the Department of Interior.

If you have any further questions that you wish to be answered by our company or any information that you wish us to seek, please be free to call upon us at any time.

Very truly yours,

MCKINLEY ANDERSON.

APPENDIX B

(COMMITTEE NOTE.-There is set forth below the text of the very recent (June 21, 1966) opinion of the Ninth Circuit Court of Appeals in a case with direct bearing on many of the issues presented in the subcommittee's hearings in 1965 and 1966 on the interpretations and administration of the Common Varieties Act. The subcommittee is informed that the Interior Department is considering appeal to the Supreme Court, but the ninth circuit's findings are so pertinent to problems which are the subject of the subcommittee's inquiry that wide public knowledge and discussion of the case are deemed desirable.)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 20,227

ALFRED COLEMAN and EDWARD J. MCCLENNAN, Appellants,

vs.

UNITED STATES OF AMERICA, Appellee.

[June 21, 1966]

On Appeal from the United States District Court, Southern District of California, Central Division

Before: CHAMBERS and JERTBERG, Circuit Judges, and

THOMPSON, District Judge.

THOMPSON, District Judge:

Appellant has brought the case here to review the order of the District Court granting summary judgment to Appellee and dismissing Appellant's counterclaim. As originally filed by the United States, the suit was for ejectment of Coleman from his mining claims in the San Bernardino National Forest. The claims had been contested by the United States at the instance of the Forest Service in proceedings before the Interior Department and found invalid. In the District Court, Appellant counterclaimed, seeking judicial review of the decision of the Interior Department under the Administrative Procedure Act, 5 U.S.C. 1001, et seq. The initial problem here is the appropriateness of Appelant's counterclaim as a vehicle to obtain judicial review.

We think it settled, at least in this Circuit, that although the Administrative Procedure Act does not permit a trial de novo of administrative decisions, Noren v. Beck, 199 F. Supp. 708 (D.C. S.D. Cal. 1961); Adams v. United States, 318 F. 2d 861 (9 CCA 1963), it does authorize and require judicial review under the standards of the Administrative Procedure Act, Adams v. Witmer, 271 F. 2d 29 (9 CCA 1959), Denison v. Udall, 248 F. Supp. 942 (D.C. Ariz. 1965), and that a counterclaim is a permissible method of obtaining such review. Adams v. United States, supra.

The District Judge rendered judgment for the United States on its complaint and dismissed Appellant's counterclaim, but he did so only after "having considered the files, records and evidence in the case, including the entire certified record of the administrative proceedings." (Tr. 224) In view of this statement, we deem the dismissal of the counterclaim as an affirmance of the decision of the Interior Department on the merits and not as a dismissal because of 89

some procedural deficiency. This is so because the decision invalidating the mining claims is the sole foundation for the ejectment action.

The eighteen mining claims in question were located as building stone claims (30 U.S.C. 161)1 on the dry bed of Baldwin Lake and an adjoining mountain within the San Bernardino National Forest during the period of 1949 to 1952. The claims cover an area of 720 acres. An application for patent was filed by Coleman in January, 1956, and a contest was commenced at the instance of the Forest Service on February 24, 1958, the charges being that:

"(a) The lands embraced within the claims are non-mineral in character.

"(b) Minerals have not been found within the limits of the claims in sufficient quantities to constitute a valid discovery.

"(c) $500.00 has not been expended on Baldwin Lake Quarry Claims No. 7, 9, 11 to 19, inclusive."

The Hearing Examiner, on December 18, 1958, found five of the mining claims to be valid and the other thirteen to be invalid. On appeal, the Acting Director of the Bureau of Land Management, on June 22, 1960, sustained the validity of three claims and part of a fourth. The Secretary of the Interior, acting through his Deputy Solicitor, in considering the appeal taken by Mr. Coleman, reviewed in detail the evidence introduced at the hearing on the contests. The Deputy Solicitor rendered a decision declaring all the subject mining claims to be null and void for the reason that a valid discovery had not been made. United States v. Alfred Coleman, A-28557, March 27, 1962. The ejectment action was filed August 8, 1963.

At the outset, we are faced with contentions by the Government seeking to limit the scope of judicial review of decisions in the Department of the Interior. This campaign commenced some years back when first it was broadly contended that the Administrative Procedure Act does not apply to Decisions of the Secretary of the Interior. This Court had no difficulty in rejecting this contention. Adams v. Witmer, (9 CCA 1958), 271 F. 2d 29. Cf. Wong Yong Sung v. McGrath, 1950, 339 U.S. 33. Next, as in this case, the Secretary has argued that the determination of a question of fact by the "Secretary of Interior, or his authorized representative, is conclusive in the absence of fraud or imposition" and that "decisions of the Secretary of Interior with respect to public lands have historically been accorded a conclusiveness beyond that of typical regulatory agencies." These are not the standards for review provided in the Administrative Procedure Act adopted in 1946 [5 U.S.C. 1009(e)]. The Government supports the limited review of actions by the Secretary of the Interior with the footnoted excerpts from the following cases: Cameron v. United States, 1920, 252 U.S. 450; Standard Oil Co. of California v. United States (9 CCA 1940), 107 F. 2d 402, 410; 3 and Best v. Humboldt Mining Company, 1963, 371 U.S. 334.*

3

1 § 161. Any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims. Lands reserved for the benefit of the public schools or donated to any States shall not be subject to entry under this section. Nothing contained in this section shall be construed to repeal section 471 of Title 16 relating to the establishment of national forests.

2 Cameron v. United States, 252 U.S. 450, at p. 459:

"By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the land department, as a special tribunal; and the Secretary of the Interior, as the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. (Citations omitted.)

"A mining location which has not gone to patent is of no higher quality and no more immune from attack and investigation than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public.

"Of course, the land department has no power to strike down any claim arbitrarily, but so long as the legal title remains in the Government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid, and, if it be found invalid, to declare it null and void."

Cameron v. United States, 252 U.S. 450 at p. 464.

"Whether the tract covered by Cameron's location was mineral and whether there had been the requisite discovery were questions of fact, the decision of which by the Secretary of the Interior was conclusive in the absence of fraud or imposition. *** [Citations omitted.] Accepting the Secretary's findings that the tract was not mineral and that there had been no discovery, it is plain that the location was invalid, as was declared by the Secretary and held by the courts below."

3 Standard Oil Co. of California v. United States, 107 F. 2d 402. at p. 409:

"The disposal of the public lands is not a subject over which the judicial power' of the United States is extended. It is a field in which the authority of the Congress is supreme. Lee v. Johnson, 116 U.S. 48, 6 S. Ct. 249, 29 L.Ed. 570; Art. IV, sec. 3, clause 2, of the