testified that in 1948 he was the major producer of sand and gravel in the Las Vegas Valley, and he had located the Las Vegas group of claims as future reserves for his plant on the Best Bet placer mining claim in S12NE14 section 27, T. 20 S., R. 60 E. This claim has since been patented. He stated he had done the necessary discovery work on each claim and had removed perhaps 50 to 100 yards of material from each claim. He sold the Las Vegas claims to Olaf Nelson, and other adjacent claims to William McCall and to Wells Cargo Company. He was unable to state that Nelson had removed material from the contested claims, although much material was taken from the Las Vegas Nos. 1, 2 and 7. He said he was hired in 1956 or 1957 by Nelson and McCall to dig exploratory holes on each 10-acre subdivision of each of the contested Las Vegas claims. The excavated material was run through the plant on the Best Bet claim, and was used on a job at the Las Vegas City Jail. Bradley stated that before washing plants were installed in the area, most gravel excavation was done in the bottom of dry washes where there was no excess of fines. On cross-examination, Bradley stated that he did not know of the removal of any significant amounts of material from the contested claims although Nelson did take lots of material from the Las Vegas Nos. 1, 2, 7 and 18. (Patents have since been issued for all or parts of these claims.) He said he had done no exploratory work on the Las Vegas Nos. 3, 4, 5, 6, 11, 12, 13 and 14 claims while he owned them, but in 1957 he had dug small pits on each of these claims at the behest of Nelson. The Las Vegas claims have been used as dumping grounds for excess unusable materials from other sources in the past. He stated the Las Vegas claims were located as a source of good gravel close to the City of Las Vegas, but were not operated because the Best Bet provided all the materials he needed for his operations in 1948, although he did take small amounts of surface gravel in the washes on some of these claims, for use in blending with Best Bet gravels.

Stanley Hansen, vice president and general manager of WellsStewart Construction Company, highway contractors, testified that his company had been operating on the Las Vegas Nos. 12 and 13 claims since 1963, but had done no work on the claims prior to 1963. He stated that some 400,000 tons of material had been extracted from these claims in 1964. He said that material on these claims could be processed into Type 1 and Type 2 material for roads, and for plant mix surface, but from 3 to 7 percent was wasted as fines in screening for Type 2 material. He testified that hauling costs are a very important factor in supplying aggregate for road construction, and that his company tries to keep the hauling distance under three miles.

March 22, 1971

Joe W. Wells, president of Wells Cargo Company, a construction firm, testified that he had obtained title to the Best Bet claim in 1949 for a source of sand and gravel for local use, and that he had an agreement dated March 24, 1959, with Nelson and McCall to obtain a 20 percent interest in the Las Vegas group of claims after doing the exploration work on each 10-acre subdivision of each claim. The exploration work cost approximately $25,000. He said that the material on the Las Vegas claims would be processed into sand and gravel meeting all specifications for both highway and building construction. He said he was aware of operations on the Las Vegas claims since 1948, but he had no specific knowledge as to work on any individual claim in this group. He stated that the cemented gravels could be broken by shooting and then processed to meet any standard specifications. Such processing is more expensive and therefore little production of such gravel occurred in the period prior to 1959, but now a big ripper mounted on a heavy "cat" can break the cemented gravels. Water soaking is efficacious to dissolve the "cement," and smaller cats can be used for ripping after such soaking. He stated it is cheaper to drill a water well and soak the cemented material in place than it is to shoot or dry rip. The economics of the situation precluded much blasting to break the cemented gravels prior to 1957. He predicted a much greater need for sand and gravel in the Las Vegas area in upcoming years, so that the Las Vegas claims are ideally situated to supply future construction needs in the area.

Howard Geer, an employee of J. M. Murphy Construction Company, testified that Murphy had operated a plant from 1948 to 1952, producing Type 2 base material on the Las Vegas No. 18 claim, but he could not state that material was extracted from any other of the Las Vegas claims for that operation. He said that all of the contested Las Vegas claims have sand and gravel.

Eton Stout, a contractor, testified that he is operating a hot mix plant on the patented Homesite claim, N2NE14 section 27, with his pit some 35 feet deep. He is of the opinion that the pit could be deepened another 75 feet through good gravel, but such a depth would damage the property for other uses, leaving only a large hole. Also, he stated the costs of mining would be increased by the lifting haul from the bottom of such a deep pit. He said he had tested materials on the Las Vegas Nos. 19, 20, 25, and 26, finding a little hardpan on top, but very good gravel below. He stated the hardpan had been successfully broken by a D-9 cat with a ripper. In his opinion, the Las Vegas Nos. 3, 4, 5, 6, 11, 12, 13 and 14 in section 15 would be easier to mine as there is less hardpan in that area, and the gravel material is similar to that found throughout the whole area of the claims.

He stated there is no caliche on any of these claims, as caliche is never gravel. The cemented gravels are not caliche. They can be broken by ripping, with or without water soaking, and then run through a crusher and screened into the type material desired.

Elvin Hitchcock, formerly employed by Vernon Bradley, testified that he had heard all of Bradley's testimony and, that if asked the same questions on examination or cross-examination, he would give substantially the same answers.

William C. Hartman, vice president of Wells Cargo, stated that he superintended the drilling of the pits on each 10-acre subdivision of the Las Vegas claims, excepting Las Vegas No. 23, after Wells Cargo had bought a 20-percent interest in the claims in 1959. The pits were drilled to a depth of 10 feet and shot, then cleared by a backhoe. The resulting pits were from 7 to 10 feet wide, 20 to 25 feet long, and at least 12 feet deep. Sand and gravel were found in every hole, but with variations according to the location of the pit on the alluvial fan; that is, some pits had coarser deposits, some finer, but all were substantially sand and gravel from top to bottom. The gravels from these claims are still able to meet the more stringent specifications now imposed. In his opinion, Hartman stated the cemented gravels, after crushing, are equally as good as the loose gravels for either road or other construction. At the present time, horticulture provides a market for the excess fines recovered from screening operations. Hartman defined caliche as a tightly cemented calcereous fine material, very dense and with no rocks. Cemented gravel is variable in composition. The highly cemented gravel is actually a variable conglomerate and resembles ordinary concrete when broken. There are no true caliches in the Las Vegas claims, only cemented gravels.

Howard Greene, one of the intervenors, testified relative to the small tract applications which had been filed for some of the lands embraced in the Las Vegas claims, but submitted nothing bearing on the question of the validity of the mining claims.

The basic principles of law applicable to this case are now well established and need no extensive elaboration. For a mining claim to be valid there must be discovered on the claim a valuable mineral deposit. A discovery exists

[W]here minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine. *** Castle v. Womble, 19 L.D. 455, 457 (1894); United States v. Coleman, 390 U.S. 599 (1968).

This test, the prudent man rule, has been refined to require a showing that the mineral in question can be extracted, removed, and presently

SR., ET AL. 79 March 22, 1971

marketed at a profit, the so-called marketability test. United States v. Coleman, supra. This present marketability can be demonstrated by a favorable showing as to such factors as the accessibility of the deposit, bona fides in development, proximity to market, and the existence of a present demand. The marketability test has been specifically held to be applicable in determining the validity of sand and gravel claims in the Las Vegas area. Palmer v. Dredge Corporation, 398 F. 2d 791 (9th Cir. 1968), cert. denied, 393 U.S. 1066 (1969); Foster v. Seaton, 271 F. 2d 836 (D.C. Cir. 1959); Osborne v. Hammit, Civil No. 414, D. Nev. (August 19, 1964).

Furthermore, since Congress withdrew common varieties of sand and gravel from location under the mining laws on July 23, 1955, 30 U.S.C. sec. 611 (1964), it is incumbent upon one who located a claim prior to that date for a common variety of sand and gravel to show that all the requirements for a discovery, including a showing that the materials could have been extracted, removed, and marketed at a profit, had been met by that date. Palmer v. Dredge Corporation, supra; United States v. Barrows, 404 F. 2d 749 (9th Cir. 1968), cert. denied, 394 U.S. 974 (1969).

There is no contention that any of the claims has an uncommon variety of sand or gravel, and, indeed, the evidence shows clearly that the mineral material present is of an ordinary nature and common variety, similar to that found widespread throughout Las Vegas Valley. We turn, therefore, to a consideration of the evidence bearing on the marketability as of July 23, 1955, of the sand and gravel from these contested claims.

The Government's expert witness, Scarfe, testified that he found no evidence of any mining activity when he examined the claims in 1959, and that the caliche-coated material probably could not have been mined, crushed, and processed into material usable for fill except at a much greater cost than would be required to extract and process the unconsolidated sands and gravels on other mining claims in the near vicinity.

Testimony was given that larger equipment now available can break the cemented gravels, so that they are suitable for common usages of sand and gravel, and that water soaking can be employed and the gravels mined with smaller equipment.

The original locator of the Las Vegas claims, a leading purveyor of sand and gravel in the Las Vegas market in 1949, testified that he had satisfied the demand for sand and gravel from other claims adjacent to these contested Las Vegas claims and from sources elsewhere in Las Vegas Valley, and that he had located these Las Vegas claims as a

reserve for future operations, but had taken some small amounts of surface material from the washes that cross these claims.

Testimony was given to the effect that the demand for sand and gravel in the Las Vegas area was increasing so there was a growing need for the materials from these claims. But it was adduced that road contractors, who need large amounts of material, try to find sources of gravel for fill within three miles of the construction area, as hauling costs make up a large part of the cost of sand and gravel, and hauling beyond three miles limits the marketability of sand and gravel for road construction purposes.

Much of the testimony relating to operations and production of sand and gravel prior to July 23, 1955, related to the Las Vegas Nos 1, 2, 7, 18 and 27 claims, rather than to the Las Vegas claims included in these contests.

The best that can be said for the testimony on behalf of the contestees is that there was a general demand for sand and gravel in the Las Vegas area of the type present on these claims, but nothing was adduced to indicate that the cemented gravels prevalent on these claims could have been mined, processed and marketed at a profit before July 23, 1955. The testimony was insufficient to show a discovery because to satisfy the present marketability test the claimants must show the existence of a demand for the material on the specific claims and not simply a general demand for the type of material in question United States v. Harold Ladd Pierce, 75 I.D. 270 (1968); United States v. Everett Foster, 65 I.D. 1 (1958); aff'd in 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, 77 I.D. 83, (1970); United States v. William A. McCall and R. J. Kaltenborn, IBLA-70-379 (Nov. 25, 1970; United States v. Neil Stewart et al., IBLA-70-42 (Dec. 9, 1970).

The claimants contend the successful mining operations on similar mineral materials in the adjacent Las Vegas Nos. 1, 2, 7, 18, and 27 claims and in other claims nearby, before July 23, 1955, is adequate proof that these claims could also have been operated at a profit in that period. This is the same type of theoretical evidence which the court in Osborne v. Hammit, supra, found to be insufficient to satisfy the marketability test as to similar placer mining claims in the Las Vegas area. A further discussion of Osborne v. Hammit is given in United States v. Osborne, supra, United States v. Ramstad, supra, and United States v. Keith J. Humphries, A-30239 (April 16, 1965).

Obviously the claimants have failed to show that by reason of present demand, bona fides in development, proximity to market and accessibility, and other factors, the deposits on these Las Vegas claims were of