January 12, 1971 As the decisions below stated, appellants' witness, Kiersch, after defining pumice (Tr. 351) and acknowledging that many materials are pumiceous but may not necessarily meet a specific geologic classification of pumice (Tr. 365), stated that he "would prefer" to call material from the claims "pumiceous material" (Tr. 366–367). Although other witnesses referred to material from the claims as pumice, no witness described any of the material as "block pumice." In the absence of competent evidence to that effect we cannot conclude that "block pumice" has been shown to exist anywhere on appellants' claims. Even if the material is not "block pumice," appellants argue, it is an uncommon variety of pumice because of properties which give it a distinct and special value. The properties which allegedly do this are: (1) The material is stronger than common pumice; (2) It is less absorbent than common pumice; (3) It is more coarse and does not generate fines as does common pumice; (4) It can be run through a crushing cycle without powdering; (5) It can be used as a lightweight concrete aggregate; and (6) It has an extraordinary insulation quality. The Department has held that, in order to determine whether or not a deposit of stone, or other material, has a unique property which gives it a distinct and special value, there must be a comparison of the material under consideration with other deposits of similar materials. It must then be shown that the material under consideration has some property which gives it value for purposes for which other materials are not suited, or, if the material is to be used for the same purposes as other materials of common occurrence, that it possesses some property which gives it a special value for such uses, which value is reflected by the fact that it commands a higher price in the market place. Differences in chemical composition or physical properties are immaterial if they do not result in a distinct economic advantage of one material over another. United States v. U.S. Minerals Development Corporation, 75 I.D. 127 (1968); United States v. Gene De Zan et al., A-30515 (July 1, 1968); United States v. Alice A. and Carrie H. Boyle, 76 I.D. 61 (1969), as supplemented, 76 I.D. 318 (1969). Moreover, the comparison is not limited to other deposits of the same material. That is, it may not be enough to show that pumice from a particular deposit can be used for purposes for which ordinary pumice cannot be used. If the special use to which it may be adapted is one for which common varieties of other materials are equally adaptable, and if the price commanded by the pumice is no greater than that paid for other materials, pumice must still be considered a common variety. See United States v. Norman Rogers, A-31049 (March 3, 1970). Assuming that material from appellants' claims has all of the characteristics attributed to it and the Williams deposits are, as indicated by appellants' witness, Gilbert Olson, the only source of pumice in the State of Arizona suitable for the manufacture of concrete block (Tr. 101-104), what is the special and distinct value derived from these properties? As noted, the hearing examiner found the pumiceous materials on appellants' claims are suitable for a number of uses. Whether or not other pumiceous materials found in Arizona can be used for all the purposes for which appellants' materials reportedly are adaptable, it is clear from the record that other materials are used for all of the listed uses. There is, in fact, no evidence that material from appellants' claims can be used for any purpose for which a common variety of some material is not already being used or that the material from appellants' claims has any advantage over other materials with which it must compete which is reflected in the market price which it can bring. Accordingly, we cannot conclude from the showing appellants have made that their "pumice" has a distinct and special value. Appellants suggest that, if the Secretary is not convinced that the pumice from the contested claims commands a higher price at the market place than material not having such special properties, he should remand the case for the development of more complete and full evidence on this issue. The Secretary has, in several recent decisions, remanded cases for the development of additional evidence relating to the market price of material where the evidence bearing upon that question was inconclusive. Appellants, however, have not offered any evidence that material from their claims commands a better price than other materials used for the same purposes. In the absence of an offer of proof, there is no reason for further inquiry into the question. In support of their contention that the decisions below constitute a denial of due process, appellants argue that there must be support in the record for a decision. The decisions appealed from, appellants charge, clearly are not supported in the record and are, therefore, a denial of administrative due process. There can be no doubt that an administrative decision must have support in the record. However, there is an enormous gulf between the acceptance of that rule and the conclusion that a particular decision is not supported by the record. Appellants have attempted to bridge that gulf with a single giant step which we are unable to duplicate. Having concluded that the provisions of the act of July 23, 1955, are applicable in this case and the evidence does not establish the January 15, 1971 1 uncommon nature of the materials found on appellants' claims, there remains only the question of whether or not the deposits were, by virtue of the then-existing market, valuable mineral deposits on July 23, 1955. Careful review of the record is conclusive that the hearing examiner's factual findings, which have previously been set forth, are supported by the evidence. Those findings justify his conclusion that a discovery, within the meaning of the mining laws of the United States, has not been shown on any of the claims in question. Accordingly, the claims were properly declared null and void. Appellants have petitioned the Secretary to grant an opportunity to present oral argument in this matter. They have not, however, shown wherein such argument would serve a useful purpose, and the petition is hereby denied. Therefore, pursuant to the authority delegated to the Board of Land Appeals, by the Secretary of the Interior (211 DM 13.5; 35 F.R. 12081), the decision appealed from is affirmed. MARTIN RITVO, Member. WE CONCUR: EDWARD W. STUEBING, Member. FRANCIS E. MAYHUE, Member. IBLA 70-680 CARLSON OIL COMPANY, INC. Decided January 15, 1971 Rules of Practice: Appeals: Dismissal An appeal to the Director, Bureau of Land Management, will be dismissed where the appellant did not timely file the notice of appeal in the proper office. BOARD OF LAND APPEALS Carlson Oil Company, Inc., has appealed to the Director, Bureau of Land Management,1 from decisions dated June 24, 1970, by the Bureau's State Office for Alaska which rejected its noncompetitive oil and gas lease offers F 12530, 12531, 12532 and 12533, because the description of the lands sought in each offer did not meet the regulatory requirements. The decisions were received by Carlson on June 26, 1970. Carlson's combined notice of appeal, addressed to the "Director, Depart 1 The Secretary of the Interior, in the exercise of his supervisory authority, transferred jurisdiction over all appeals pending before the Director, Bureau of Land Management, to the Board of Land Appeals, effective July 1, 1970. Circular 2273; 35 F.R. 10009, 10012. ment of the Interior, Bureau of Land Management," accompanied by the requisite filing fees, was filed in the Departmental mail room, Washington, D.C., on July 6, 1970. The Department's rules of practice in effect at the time of the State Office decisions provided that appeals to the Director, Bureau of Land Management, be filed, together with payment of a filing fee, in the office of the officer who made the decision appealed from. Each decision here involved specifically directed that any appeal must be filed in the Alaska State Office within 30 days from date of receipt of the decision. When no appeals were received in the Alaska State Office during the period allowed, the cases were closed of record and refunds of the advance rental payments were directed. The Board of Land Appeals received the notice of appeal by Carlson on July 14, 1970, but did not ascertain that the document should have been filed in the Alaska State Office, Bureau of Land Management, until after July 27, 1970. The Department has many times been confronted with cases under its rules of practice where the appellant erroneously filed in one office documents which should have been filed in another office, and, by the time the documents had been forwarded to the proper office, the time for filing had expired. Consistently in such cases the Department held that the appeal has not been timely filed. Malcolm C. Petrie, 67 I.D. 220 (1960); Wilbert Phillips et al., 64 I.D. 385 (1957); United States v. August Ebbert and Verdabelle Ebbert, A-30984 (June 3, 1968). This appeal was improperly filed with the Director, Bureau of Land Management, and by the time it was ascertained that the document should have been filed in the Alaska State Office, Bureau of Land Management, the period for filing the notice of appeal had expired. As the appeal was not forwarded to the proper office so as to be timely received there, it must be dismissed. 43 CFR 1842.4 (c). Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior (211 DM 13.5; 35 F. R. 12081), the appeal is dismissed. FRANCIS E. MAYHUE, Member. WE CONCUR: MARTIN RITVo, Member. EDWARD W. STUEBING, Member. IBLA 70-334 70-335 70-336 EDWARD R. HUDSON W. A. HUDSON, II W. A. HUDSON Decided January 15, 1971 Mineral Leasing Act for Acquired Lands: Consent of Agency The Secretary of the Interior exercises discretion in determining whether or not acquired lands under his jurisdiction should be opened to prospecting for sulphur, and where it is determined by the Bureau of Reclamation that lands under its administrative jurisdiction should not be opened to such prospecting because of potential damage to its surface works, and where the Geological Survey concurs in such recommendation, applications for sulphur prospecting permits on such lands will be rejected in the absence of compelling reasons otherwise. BOARD OF LAND APPEALS Separate appeals to the Director, Bureau of Land Management,1 have been filed by W. A. Hudson, II (IBLA 70-334), W. A. Hudson (IBLA 70-335), and EDWARD R. HUDSON (IBLA 70-336), from separate decisions by the Chief, Branch of Minerals, New Mexico land office, Bureau of Land Management, dated March 25, 1969, which rejected their respective applications for sulphur prospecting permits on 1,386.29 acres of acquired lands of the United States in Tom Green County, Texas, within the San Angelo Project because the Bureau of Reclamation, the agency exercising jurisdiction over the surface of the lands, has refused to give consent to issuance of such permits. Because the three appeals involve identical issues concerning the consent of an agency to an acquired lands prospecting permit, and a joint statement of reasons for the appeals has been submitted, the appeals have been consolidated for the purpose of this decision. Appellants state that the Bureau of Reclamation refused to consent to issuance of the permits because it feared interference with its surface use of the lands due to subsidence from removal of sulphur at depth. They argue to the contrary, stating: It is the writer's understanding, based on a reading of attached letters and conversations with geologists familiar with the area, that free sulphur, if it exists on the subject tracts, has been deposited by percolating sulphur-rich ground water in preexisting pore spaces (vugs and Fractures) in the Clearfork limestone. Further, that prior to and during this secondary deposition, the overburden which was supported by the Clearfork formation was greater than it is today, due to subsequent diminution by erosion. Thus, even assuming a super 1 The Secretary of the Interior, in the exercise of his supervisory authority, transferred jurisdiction over all appeals pending before the Director, Bureau of Land Management, on July 1, 1970, to the Board of Land Appeals, effective the same date. Circular 2273, 35 F.R. 10009, 10012. |