May 26, 1971 and associated minerals on lands in T. 11 S., Rs. 3 W, and 4 W., S.L.M., Utah. The appellants contend in essence that the "General Requirements” are unreasonable. Therefore, they request that they be waived as a condition to the issuance of permits. The appellants assert that (1) these requirements impose far more stringent controls than the decision by the Bureau of Land Management would indicate (2) section 12 of the basic permit form provides "all of the control necessary to protect the public interest", and (3) the requirements "*** could conceivably be construed to require the reporting of every blade of grass encountered." Section 12 of the basic permit imposes a duty upon a permittee to safeguard the environment and other existing values and to restore the surface of the land to its former condition. The requirements, to which the appellant objects, contain specifics directed to the same goals, e.g., no blasting is to be done within 500 feet of wells and springs, or within 300 feet of dams and reservoirs; and sets forth the method, species, seeding rate and period of seeding, for the purpose of revegetating cleared areas. In addition, they specifically interdict the removal, injury, defacing, or alteration of any object of scenic, historic, or scientific interest, including Indian archeological remains. As indicated earlier, the appellants do not question the Department's authority to impose environmental and related requirements upon a mineral permittee. Their position is simply that the "General Requirements" are unnecessary and unduly onerous. 2 Sec. 12 reads as follows: "Surface use restrictions. (a) If any of the land is embraced in a reservation or is segregated for any particular purpose, permittee agrees to conduct all operations thereon in conformity with such requirements as may be made by the Bureau of Land Management and/or the agency administering the surface for the protection and use of the land for the purpose for which it was reserved or segregated, so far as may be consistent with the use of the land for the purpose of this permit, which latter use shall be regarded as the dominant use unless otherwise provided herein or separately stipulated. (b) Permittee shall take such reasonable steps as may be needed to prevent operations from unnecessarily (1) causing or contributing to soil erosion or damaging any forage and timber growth; (2) polluting the waters of springs, streams, wells, or reservoirs; (3) damaging crops, including forage, timber, or improvements of a surface owner; or (4) damaging range improvements whether owned by the United States or by its grazing permittees or lessees. (c) Upon any partial or total relinquishment or the cancellation or expiration of this permit, or at any other time prior thereto when required or when deemed necessary by the Government, the permittee shall fill any sump holes, ditches, and other excavations, remove or cover all debris, and, so far as reasonably possible restore the surface to its former condition, including the removal of structures as and if required. The Government may prescribe the steps to be taken and restoration to be made with respect to lands of the United States and improvements thereon." Those requirements, inter alia, put flesh on the skeletal provisions of section 12 of the permit form. They also impose additional stipulations reasonably calculated to protect the land, environment, and public values. Although the appellants make general assertions, they have not shown that any specific provision of the "General Requirements" is unreasonable. Their contention that the "General Requirements" "could conceivably be construed to require the reporting of every blade of grass encountered" is disconsonant with the following provisions: No excessive disturbance or removal of soil or vegetation will be permitted. (Italics supplied.) All areas cleared during the mineral exploration operations shall be seeded or planted as directed by the District Manager. These requirements implicitly recognize that land may be denuded in the exploration process. We have reviewed carefully the provisions of the "General Requirements" in the light of the appellants' contentions. We find no basis to conclude therefrom that such requirements are unnecessary, unreasonable, arbitrary, or unduly onerous. On the contrary, such requirements are reasonably related to the environmental ethic of this Department and to the obligations of this Department under the National Environmental Policy Act of 1969 (83 Stat. 852), 42 U.S.C. secs. 4331-47 (Supp. V, 1969). The latter essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man's environment. The appellants' contention that the "General Requirements" are not “*** necessary to protect the public interest" in their view. It is the Department's responsibility to make that determination. Having found that the “General Requirements" in the light of this appeal are appropriate and reasonably related to the activities authorized under the mineral permits sought, we see no basis to disturb the decision below. 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 of the Bureau of Land Management is affirmed. We concur: JOAN B. THOMPSON, Member. ANNE POINDEXTER LEWIS. Member FREDERICK FISHMAN, Member U.S. GOVERNMENT PRINTING OFFICE: 1971 IBLA 70-43 D/B/A PIEDRAS DEL SOL MINING CO. UNITED STATES V WAYNE WINTERS d/b/a PIEDRAS DEL SOL MINING COMPANY Decided June 2, 1971 Mining Claims: Discovery: Generally The prudent man test of discovery of a valuable mineral deposit does not require present profitable mining operations, but it does require evidence of sufficient mineralization to justify a prudent man in expecting to develop a valuable mine with profits from sales over the expected cost of the operation, and the claimant's unfounded conjecture that the price of gold will increase in the future is not a relevant consideration. Mining Claims: Discovery: Generally In a mining claim contest, a showing of mineralization which might justify further exploration for minerals but not development of a mine is not sufficient to satisfy the prudent man test. Mining Claims: Hearings-Rules of Practice: Evidence-Rules of Practice: Hearings Evidence tendered on appeal in a mining contest case may not be considered except for the limited purpose of deciding whether a further hearing is warranted, since the record made at the hearing must be the sole basis for decision. Administrative Procedure Act: Burden of Proof-Mining Claims: Determination of Validity-Mining Claims: Discovery: Generally Government mineral examiners determining the validity of a mining claim need only examine the claim to verify whether the claimant has made a discovery; they are not required to perform discovery work, to explore or sample beyond the claimant's workings, or to rehabilitate alleged discovery cuts to establish the government's prima facie case. Administrative Procedure Act: Burden of Proof-Mining Claims: Contests Mining Claims: Discovery: Generally-Rules of Practice: Evidence In a government mining contest, where the contestant has made a prima facie showing of lack of discovery, the burden of producing preponderating evidence of the existence of a valuable mineral deposit sufficient to support a discovery is upon the claimant, and he cannot secure a determination that the claim is valid merely by attempting to discredit and impeach the government's witnesses. Mining Claims: Discovery: Generally-Mining Claims: Hearings-Rules of Practice: Evidence-Rules of Practice: Hearings New evidence tendered on appeal is not sufficient to justify further evidentiary proceedings, although it might discredit testimony by government 78 I.D. No. 6 438-307-71 mineral examiners that two of their samples of a placer mining claim were taken to bedrock, where there is no tender of proof showing that the alleged greater mineral values at bedrock actually exist and the record does not show evidence of sufficient gold to warrant a prudent man to anticipate development of a valuable mine. BOARD OF LAND APPEALS Wayne Winters, d/b/a Piedras Del Sol Mining Company, has appealed to the Secretary of the Interior from a decision by the Office of Appeals and Hearings, Bureau of Land Management, affirming a hearing examiner's decision of August 13, 1968, holding Winters' Oro Escondido placer mining claim null and void for lack of discovery of a valuable mineral deposit. The mining claim was located October 13, 1962, embracing the SESESE1⁄44 sec. 19, T. 23 S., R. 11 E., G. & S.R. Mer., Arizona, within the Coronado National Forest. Contest proceedings were initiated at the request of the Forest Service. The decisions below concluded that insufficient gold was shown within the claim to warrant a prudent man to further expend time and money with the expectation of developing a valuable mine, Castle v. Womble, 19 L.D. 455, 457 (1894). Appellant does not dispute the "prudent man test," which has been approved by the Supreme Court. Chrisman v. Miller, 197 U.S. 313 (1905); Cameron v. United States, 252 U.S. 450 (1920); Best v. Humboldt Mining Company, 371 U.S. 334 (1963); and United States v. Coleman, 390 U.S. 599 (1968). He contends, however, that the Bureau applied the test too stringently to the facts. He asserts that the Bureau is requiring the claimant to prove that a profitable mine will be developed and that this is not required. Appellant contends generally that the Bureau decisions deny him due process by merely advocating administrative policies rather than being supported by record evidence. He also asserts that the Forest Service failed to establish a prima facie case that there was not a valid discovery, and that he proved by preponderant evidence that a valid discovery was made. On March 3, 1971, on appellant's motion, oral argument was presented to this Board. It was argued on behalf of appellant that the Government's expert witnesses were incompetent to testify with regard to the conduct of a prudent man in these circumstances; that they were not qualified experts on placer gold mining; that they were biased and neither diligent nor impartial in the taking of samples; and that, consequently, their testimony was inadequate to establish a prima facie case of invalidity. It was also argued that ample evidence of a valid discovery was adduced at the hearing. Counsel for the contestant presented argument in rebuttal. D/B/A PIEDRAS DEL SOL MINING CO. The main thrust of appellant's case is an effort to discredit the testimony by the Forest Service's witnesses. Appellant contends that the Forest Service mineral examiners gave false testimony concerning their taking of samples to bedrock. He further adverts to the testimony tending to show that the samples were taken, handled and processed in such a manner as to lose much of their gold content. Accordingly, he argues that no weight can be given to any of their testimony and that the Government thus failed to establish a prima facie case. In support of this contention, appellant on appeal submitted an affidavit from Verne C. McCutchan, State of Arizona mine inspector, and two photographs identified as sample nos. 3553 and 3556. He alleges that this affidavit proves the Forest Service witnesses failed to sample to bedrock on those sample cuts, contrary to their testimony at the hearing. Appellant's argument, supported by the aforementioned affidavit and photographs, raises a real doubt that samples 3553 and 3556 were cut to bedrock, and are, therefore, representative of values which might otherwise have been disclosed. However, it is not the responsibility of the Government mineral examiners to do the discovery work, to explore or sample beyond the claimant's workings, or to undertake to rehabilitate alleged discovery cuts. It is the duty of the claimant to keep such discovery points available for inspection. United States v. Lawrence W. Stevens, 76 I.D. 56 (1969); United States v. Thomas C. Wells, A-30805 (January 8, 1968). Even assuming that the mineral examiners did not sample the two cuts to bedrock, this is insufficient to show their testimony as to the other samples and their overall evaluation of the claim was in error and must be disregarded. To the contrary, such evidence was admissible and, standing unrefuted, must be accorded significant weight. Where a Government mineral examiner offers his expert opinion that discovery of a valuable mineral deposit has not been made within the boundaries of a contested claim, a prima facie case of invalidity has been made, provided that such opinion is formed on the basis of probative evidence of the character, quality and extent of the mineralization allegedly discovered by the claimant. Mere unfounded surmise or conjecture will not suffice, regardless of the expert qualifications of the witnesses. But an expert's opinion which is premised on his belief or hypothetical assumption of the existence of certain relevant conditions, if evidence is presented that those conditions do exist, is sufficient to establish a prima facie case and to shift the burden of evidence to the contestee. The admissibility of expert testimony in a mining claim contest is determined by the hearing examiner, who exercises a wide latitude of discretion in making these determinations. |