March 22, 1971 remand this case for further proceedings consistent with this decision, but limited to the claim of Mrs. Laura Silk against the subject estate. DAVID DOANE, Alternate Member. I CONCUR: JAMES M. DAY, Director. .I UNITED STATES V. WILLIAM A. McCALL, SR., THE DREDGE CORPORATION, SMALL TRACT APPLICANTS ASSOCIATION, Intervenor IBLA 70-309 through 70-329 Decided March 22, 1971 Mining Claims: Discovery: Marketability-Mining Claims: Common Varities of Minerals: Generally To satisfy the requirements for discovery on a placer mining claim located for common varieties of sand and gravel before July 23, 1955, it must be shown that the materials within the limits of the claim could have been extracted, removed, and marketed at a profit as of that date. Where the evidence shows that there is an abundant supply of similar sand and gravel in the area of the claim, that sand and gravel was being produced and sold in the area on July 23, 1955, and that no sand and gravel had been or was being marketed from the claim as of that date, the fact that the material on the claim is sufficient both as to quantity and quality, as is the abundant supply of similar material found in the area, is insufficient to show that material from this particular claim could have been profitably removed and marketed on July 23, 1955, and the claim is properly declared null and void. Mining Claims: Discovery: Marketability To satisfy the requirement that deposits of minerals of widespread occurrence be "marketable" it is not enough that they are only theoretically capable of being sold but it must be shown that the mineral from the particular deposit could have been extracted, sold, and marketed at a profit. Mining Claims: Discovery: Marketability-Mining Claims: Location To hold that a mining claim located for a common variety of sand and gravel prior to July 23, 1955, must be perfected by a discovery (including marketability) made before that date is not to give retrospective application to the act of July 23, 1955, which bars locations thereafter made for common varieties of sand and gravel. Mining Claims: Discovery: Marketability To satisfy the requirements of discovery on a placer mining claim located for sand and gravel prior to July 23, 1955, it must be shown that the de posit could have been extracted, removed, and marketed at a profit as of that date and not as of some prospective date and where claimants fail to make such a showing the claim is properly declared null and void. Rules of Practice: Hearings-Mining Claims: Hearings It is proper to allow a third party to intervene in a proceeding where an interest of the intervenor may be affected by the outcome of the proceeding. BOARD OF LAND APPEALS William A. McCall, Sr., and the other contestees have appealed to the Director, Bureau of Land Management,1 from a decision dated August 15, 1968, whereby a hearing examiner declared the Las Vegas Nos. 3 through 6, 8 through 17, 19 through 23, 25 and 26 placer mining claims null and void on the ground that the sand and gravel for which the claims were located are common varieties within the meaning of section 3 of the Act of July 23, 1955, 30 U.S.C. sec. 611 (1964), and there was no discovery of a valuable mineral deposit on any of the claims because there was no market for the mineral material found on the claims as of the date of the Act. The decision also rejected the application for mineral patent Nevada 012928, and denied the motions by the contestees to dismiss the contest under the act of March 3, 1891, 43 U.S.C. sec. 1165 (1964), and to deny intervention by the Small Tract Applicants Association. The Las Vegas group of placer mining claims was located March 20, 1948, by Vernon D. Bradley, John W. Bonner, N. C. Bradley, and G. C. Bradley. Each claim includes 80 acres, and in toto, these contested claims encompass 1,680 acres, described as all section 15, W2, W2 SE1⁄44 section 22, S12 section 27, S1⁄2 NE, N1⁄2S11⁄2 section 28, S12SE1⁄44 section 29, T. 20 S., R. 60 E., M.D.M., Clark County, Nevada. The claims are adjacent to the boundary of Las Vegas City, and are approximately 5 miles from the Clark County Courthouse in the center of Las Vegas. By an instrument dated June 1, 1948, the four original locators released and quit claimed their interests in the Las Vegas group of claims to Olaf H. Nelson, who subsequently quit claimed an undivided one half interest in these claims to William A. McCall, Sr., in an instrument dated September 24, 1952. Nelson and McCall filed application Nevada 012928, on March 27, 1953, for patent to the Las Vegas group of placer mining claims. The land office manager at Reno, Nevada, issued a final certificate on these claims on October 8, 1954.2 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. 2 Mineral patent application Nevada 012928, filed March 27, 1953, included Las Vegas 1 through 23, 25 through 27 placer mining claims in sections 15, 22, 27, 28 and 29, T. 20 S., R. 60 E., M.D.M., Clark County, Nevada. The land office manager issued a certificate October 8, 1954. Patent 1211178 was issued August 4, 1960, for 40 acres described as SW NE1⁄4 section 22, T. 20 S., R. 60 E., M.D.M., in Las Vegas 7, supplanting other March 22, 1971 The Las Vegas number 23 claim was conveyed to the Dredge Corporation by a quit claim deed dated March 27, 1959. The present proceedings arose from complaints, Nevada 3092– 3095, 3097-3106, 3108-3113, issued March 18, 1960, by the land office manager against the Las Vegas Nos. 3 through 6, 8 through 17, 19 through 22, 25 and 26 placer mining claims, charging that the land within the limits of each claim is nonmineral in character and that no discovery of valuable mineral has been made within the limits of the claims because the materials present cannot be marketed at a profit and it has not been shown that there exists an actual market for these materials. Complaint Nevada 3224 against the Las Vegas No. 23 claim, issued June 1, 1961, charged that the land embraced within the claim is nonmineral in character, and that no discovery of a valuable mineral has been made within the limits of the claim because no actual market for the mineral materials claimed existed before July 23, 1955, and that these minerals are not considered a valuable mineral deposit under section 3 of the Act of July 23, 1955; therefore, any market for such materials developed after that date does not constitute a valid discovery within the mining laws. The Las Vegas No. 23 claim was consolidated into patent application Nevada 012928 by the Secretary's decision, United States v. McCall, et al. A-29161 (July 30, 1962). The contestees filed timely answers denying the charges. On April 20-23, 1965, a hearing on all the complaints was held at Las Vegas, Nevada, before a hearing examiner who set forth his findings and conclusions in the decision of August 15, 1968, the subject of this appeal. The appellants contend essentially that the hearing examiner's decision is contrary to the evidence, that the provisions of the act of July 23, 1955, 30 U.S.C. sec. 611 (1964), do not apply to these mining claims which were located in 1948, that it is illegal to apply the rule of "marketability at a profit," that the contests are barred by 30 U.S.C. sec. 38, and that it was illegal to allow intervention by the Small Tract Applicants Association. The contestant filed a brief in support of the hearing examiner's decision generally, and the intervenor filed a brief in support of the hearing examiner's decision insofar as it permitted the intervention. As the appellants contend the hearing examiner's decision is contrary to the evidence, and the appellee to the opposite effect, we shall set forth the salient points adduced at the hearing. patent 1211178 inadvertently issued on the same date for 400 acres, being all of the land in Las Vegas 1, 2, 7, 18 and 27. Patent 27-65-0095 was issued September 25, 1964, for 190 acres described as SE4SE, S1⁄2 NE SE, NE1⁄4NESE4 section 22 (in Las Vegas 1), SENE, E NE NE 4 section 22 (in Las Vegas 2), S2S2 NW, NESENE1⁄4 section 27 (in Las Vegas 18), and SENE1⁄4NW4 section 27 (in Las Vegas 27). Witnesses appearing for the contestant were George O. Scarfe, Jr., a valuation engineer (mining), employed by the Bureau of Land Management, and Lewis G. Chichester, the assistant land office manager for the Branch of Mining, Nevada land office, each qualified as an expert witness. Scarfe testified that he, by himself, had made several examinations of the Las Vegas group of placer mining claims in June, July and August 1959, and again in the company of Chichester in July 1963 and January 1965. He described the claims, identified by reference to established and found cadastral survey corners, as lying on an alluvial fan at an elevation of approximately 2500 feet, with a general slope of 2 percent toward the east. The alluvium is mostly limestone fragments, ranging in size from boulders to silt, and with some aeolian deposits in the top one foot. A caliche capping is present, varying from exposure at the surface to a depth of four feet. There is loose sand and gravel above the caliche throughout the area of the claims, as well as rework gravel in the washes which cross the claims. Scarfe described the caliche as a calcareous cement on the limestone deposits, formed by evaporation of the ground water. The caliche capping can be broken by blasting and, after treatment, the rock can be used as ordinary gravel. The material on these claims is similar to that found extensively in the Las Vegas Valley and is suitable for base course filling in highway construction, bituminous mix, and concrete aggregate. Scarfe submitted a sketch map of sections 15, 22, 27, and 28, T. 20 S., R. 60 E., (Ex. G-14), showing the location of the Las Vegas claims, depth of surface sand and gravel above the caliche layer, development workings such as shafts, trenches and bulldozer cuts on each claim, and surface improvements such as roads and power lines, as they existed on September 20, 1959. He described the shafts as having been dug by means of blasting and backhoe excavation, and the trenches as having been dug by hand. He stated that there was no evidence whatsoever of any mining on the contested Las Vegas claims before his examinations in 1959. He submitted another sketch map, Ex. G-15, showing the same area as Ex. G-14, depicting the locations of 64 pits which had been dug as additional development workings by July 31, 1963. His examination of the new shafts showed much silt-like lacustrine deposits in the Las Vegas Nos. 3, 4, 5, and 6 claims. The caliche-coated material exposed in the shafts could be mined, but would require more treatment at a greater expense to make it satisfactory for use as aggregate. He described a pit which had been opened on the Las Vegas Nos. 12 and 13 claims, in which considerable mining had been done recently, with the material screened and stockpiled on the claims, although there had been some hauling of finished material during his examination. The screening had developed a large amount of "fines," which do not meet road specifications. The pit operation in the Las Vegas Nos. 12 and 13 claims had been blasted through the caliche, with the excavation about 20 feet deep, where another layer of dense cementation was encountered. The gravel, however, was mineable. Scarfe stated his opinion that most of the material on the contested claims, excepting the lake-bed material and the caliche capping, would make specification gravel. He stated that any operation prior to 1959 would have been compelled to break the caliche by drilling and blasting before excavation would be possible, and these things would have increased greatly the overall cost to obtain usable gravel. The competitors operating in neighboring pits are mining gravels having much less caliche-cement. Overall, though, the material on the Las Vegas claims is very much similar to that found widespread throughout the Las Vegas Valley area. The material on these contested claims has no special or distinct characteristics or properties which make the deposits unique. Scarfe said that one shaft on each claim was sampled for gold, with negative results from each claim. He stated that he recommended the contest proceedings as it was his opinion, considering both the "prudent man rule" and the "marketability rule" and the Act of July 23, 1955, supra, that a valid discovery of a valuable mineral deposit had not been made on any of the claims. Chichester testified that he had accompanied Scarfe in July 1963 to examine the claims, and having heard all the Scarfe testimony, he declared he would have given substantially the same answers in response to the questions asked. He then testified as to Las Vegas No. 23 claim, which Scarfe had not examined, stating that insufficient exploration work had been done by the claimants. This claim, in the S12SE1⁄4 section 29, cornering on the Las Vegas No. 22 claim, is dissected by a major wash some 35 feet deep. Cemented gravels derived from limestone and dolomite are present. He defined "caliche" as "cemented gravels." He gave his opinion that each claim lacks a valid discovery, and added that except for the provisions and limitations of Public Law 167, act of July 23, 1955, supra, the Las Vegas Nos. 5, 12 and 13 claims might be considered valid locations as they can be operated profitably in the present Las Vegas area market for sand and gravel. All the other claims have too much blow sand and caliche cementation to support any profitable operations, even if presently subject to mining claim location." Several witnesses appeared on behalf of the contestees. Vernon D. Bradley, one of the original locators of the Las Vegas group of claims, |