G. C. (Tom) Mulkern, A-27746 (January 19, 1959), aff'd Mulkern v. Hammitt, 326 F.2d 896 (9th Cir. 1964); United States v. United States Silica Corporation et al., A-30400 (August 24, 1965), aff'd Simplot Industries, Inc. v. Udall, Civil No. LV 1024 (D. Nev., June 19, 1969).

In light of the foregoing, it is clear that appellants have failed to show they had discovered a valuable mineral deposit as of the crucial date of July 6, 1965, i.e., that they, in fact, had established a market for the sale and disposal of gypsum from the mining claim as of that date. Although appellants disagree with the hearing examiner's conclusions, they have presented no evidence to substantiate their contentions that he erred in finding that no profitable market for the gypsum existed, and no support for their view can be found in the record.

Appellants admitted at the prehearing conference that no mining had been performed on the claim and that no sales of gypsum had been made. Since no actual mining operations had been conducted on the claim and no commercial transactions were carried out in an attempt to market specific gypsum deposits from the Jeep No. 3 claim, appellants rely on the mere possibility of hypothetical future transactions that might have occurred if they had further developed their claim subsequent to the date of the withdrawal. This is a tenuous position which is grossly inadequate to establish the necessary fact of marketability. While the Department has never held that proof of actual sales is an indispensable element in establishing the marketability of a mineral from a particular claim, it must be shown that the mineral could have been extracted, removed, and marketed at a profit before the critical date of the withdrawal. See United States v. E. A. Barrows et al., 76 I.D. 299 (1969), and cases collected therein, aff'd., Esther Barrows v. Walter J. Hickel, Civil No. 70–215F (D. Cal. April 20, 1970). Appellant's evidence, viewed at its best, shows no more than further development and market research were needed to obtain an outlet for their gypsum.

A brief review of the testimony of Albert B. Bartlett confirms the hearing examiner's conclusion that the gypsum on the Jeep No. 3 claim could not have been extracted, removed, and marketed at a profit as of the date of the withdrawal. Bartlett admitted on crossexamination that a market for the gypsum from the Jeep No. 3 claim did not exist at the time of the hearing, nor did one exist as of July 6, 1965. This, of itself, adequately supports the examiner's ruling. No existing open market for the gypsum was disclosed by the evidence.

May 13, 1971

Appellants contend that the reason for not further testing the deposit or seeking to develop a market was their advance knowledge that the Army was going to take over the land. While such forbearance may have been prudent under the circumstances, we cannot assume inferentially that quality, quantity and marketability would have been conclusively established had appellants elected to proceed with a normal development program.

We can attribute little significance to appellants' bare reference to Exhibits J and K involving the patents of other gypsum claims in Colorado and Wyoming. Appellants do not explain how the circumstances of these other claims in other areas relate to the development of their own site. There was also no indication whether the development on the cited patented claims was similarly subject to a time limit imposed by an intervening withdrawal. The facts of these other gypsum claims, however, are not before us for consideration. Whether or not patents have properly issued on other gypsum claims, issuance of a patent in this case is not justified if appellants have not shown a valid discovery.

Appellants cannot prove marketability for their gypsum either by reference to other patented claims or by reference to the successful mining operations conducted by the Johns Manville Products Corp. and the Ideal Cement Company, located at Florence, Colorado, some 20 miles south of the claim. Testimony at the hearing established that neither of these users was in the market for outside gypsum as each had its own sources. Such references do not indicate that the Jeep No. 3 claim could have been successfully operated at a profit prior to July 6, 1965. To satisfy the marketability test appellants must have shown the existence of a demand for the material on their specific claim and not simply that the type of material in question is being utilized in the area. United States v. Harold Ladd Pierce, 75 I.D. 270 (1968); United States v. Everett Foster, 65 I.D. 1 (1958), aff'd., Foster v. Seaton, 271 F.2d 836 (D.C. Cir. 1959); United States v. Loyd Ramstad and Edith Ramstad, A-30351 (September 24, 1965); United States v. J. R. Osborne et al., 77 I.D. 83 (1970); United States v. William A. McCall, Sr. et al., supra. Appellants have not met this burden.

Finally, appellants' contention that the case law applied by the hearing examiner is limited to claims for material known as "common variety" covered by the act of July 23, 1955, 30 U.S.C. sec. 611 (1964), and therefore not applicable to their mining claim, is clearly

erroneous. The “prudent man" test of discovery enunciated in Castle v. Womble, supra; Chrisman v. Miller, 197 U.S. 313 (1905); Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335-336 (1963) has been universally accepted and applied by the Department as a test for discovery on all mining claims. Likewise, the Department, for many years prior and subsequent to the act of July 23, 1955, supra, has applied the test of marketability in determining whether or not various materials of widespread occurrence constituted "valuable mineral deposits" within the meaning of the mining laws. See, e.g., Layman et al. v. Ellis, 52 L.D. 714 (1929), and authorities cited; Big Pine Mining Corporation, 53 I.D. 410 (1931); United States v. Strauss et al., 59 I.D. 129, 137 (1945); United States v. E. A. Barrows et al., supra. The ruling in Coleman, supra, approving the marketability test employed by the Department, is not restricted to those mineral deposits considered "common varieties." Converse v. Udall, 399 F.2d 616 (9th Cir. 1968), cert. denied, 393 U.S. 1025 (1969).

Moreover, in its specific treatment of gypsum the Department has held that deposits of gypsum which could not have been marketed at a profit during the times when the lands containing the deposits were subject to location under the mining law are not valuable deposits within the mining law, and claims containing such deposits are properly declared null and void. United States v. G. C. (Tom) Mulkern, supra.

Accordingly, we conclude that the hearing examiner correctly found from the evidence that no discovery of a valuable mineral deposit had been made on the Jeep No. 3 placer mining claim prior to the date of the withdrawal of July 6, 1965.

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.

EDWARD W. STUEBING, Member.

WE CONCUR:

JOAN B. THOMPSON, Member.

FRANCIS E. MAYHUE, Member.

May 21, 1971

IBIA 70-7

ESTATE OF MARY URSULA ROCK WELLKNOWN

Decided May 21, 1971

Indian Probate: Wills: Disapproval of Will

The Secretary is authorized to exercise his discretion in disapproving à devise in the will of a deceased Indian where approval of such devise would sanction a practice permitting the acquisition of Indian lands contrary to the public policy expressed in the statutory restrictions against the alienation of Indian lands held in trust.

Indian Probate: Evidence: Generally-Indian Probate: Wills: Applicability of State Law

Indian probate proceedings involve considerations which go beyond the conventional issues of a state probate proceeding and evidence may be admitted in an Indian probate proceeding which would not be relevant to the probate of a will in a state proceeding.

BOARD OF INDIAN APPEALS

William T. Shaw, Jr. and Richard E. Shaw, devisees under the Last Will and Testament of the decedent, Mary U. Rock Wellknown, dated February 8, 1963, have appealed from the Examiner's Order Approving Will and Decree of Distribution, dated January 8, 1968, and from the Examiner's Decision After Rehearing Affirming Original Decision and Ordering Partial Distribution, dated February 9, 1970. This appeal was originally filed with the Regional Solicitor. The authority of a Regional Solicitor to decide an appeal from an order and decision of an Examiner of Inheritance has been superseded by the Secretary's delegation of such authority to the Board of Indian Appeals and this matter is now before us for the final decision of the Department. 35 F.R. 12081, July 1, 1970.

The will of Mary U. Rock Wellknown devised the SW14, NE14, Sec. 19, T. 9 S., R. 37 E., P.M., Montana, containing 40 acres to “Richard E. Shaw, a Whiteman [sic], friend," and the S2, Sec. 24, T. 7 S., R. 34 E., P.M., Montana containing 320 acres to "William T. Shaw, Jr., a Whiteman [sic], a friend." Both of these parcels of land were portions of decedent's allotted lands, Crow Allotment No. 1838. In addition, the will devised to William T. Shaw, Jr. all of the decedent's interest (which constituted a 100 percent interest) in the allotment of Charles F. Wellknown, deceased Crow Allottee No. 2765, described as the NE1⁄44, Sec. 24, T. 7 S., R. 34 E., P.M., Montana, containing 160

acres. The lands devised to the Shaws totaled 520 acres, and represent almost 30 percent of the assets of the estate based upon the inventory and appraisement conducted by the agency realty officer.

The decedent died on January 10, 1965. After a probate hearing, at which the appellants were not present, the Examiner issued an Order Approving Will and Decree of Distribution, both dated January 8, 1968. The Examiner disapproved the paragraphs of the will containing the aforesaid devises to William T. Shaw, Jr. and Richard E. Shaw, and ordered distribution of those lands under the Montana laws of intestacy, there being no residual clause in the will. After notice of the Examiner's order, William T. Shaw, Jr. and Richard E. Shaw filed a petition for rehearing with the Examiner. A rehearing was held after which the Examiner issued his Decision of February 9, 1970, affirming his order of January 8, 1968, and ordering partial distribution.

William T. Shaw, Jr. and Richard E. Shaw appealed the aforesaid order and decision on April 28, 1970. The appellees filed a memorandum, dated July 15, 1970, in support of Examiner's decision. The appellants filed a motion to strike appellees' memorandum contending that it was not timely filed and the appellees wrote the Secretary challenging appellants' motion to strike.

We agree with the appellants that the appellees' memorandum in support of Examiner's decision was not timely filed in accordance with 25 CFR 15.19 (c). Under this rule of Indian probate procedure, the appellees had sixty days from the filing of appellants' Notice of Appeal within which to submit written arguments to the Secretary. We believe that the appellees' failure to file within this time is a sufficient basis upon which to grant the appellants' motion to strike.

The Examiner found that there was insufficient evidence in the record to conclude that the decedent had been subjected to fraud, duress, coercion, or undue influence exerted by the Shaws in providing for them in her will. His original order and his decision on rehearing were based rather upon the following proviso contained in 25 U.S.C. section 373 (1964), dealing with the disposition of restricted Indian lands by will:

***Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator, * * *.

Exercising the discretion granted the Secretary by the above proviso,1 the Examiner disapproved the devises to the appellants primarily

1 The Secretary's authority relating to Indian Probate matters has been delegated to Examiners of Inheritance. 25 CFR 15.1 (35 F.R. 12081, July 1, 1970).