The department is glad to have the question of law involved determined by the courts, and will of course defer any further action in the Krushnic case. As to other cases, however, it must be borne in mind that long delay in proceeding with hearings might work to the disadvantage of both the Government and the claimants, in that important witnesses might die or remove; that through lapse of time, memories of witnesses might not be so clear as at the present time, all of which might militate against ascertaining the exact facts in these cases. On the other hand, the Government does not desire to burden itself or the claimants with any unnecessary expense. I do not feel warranted, however, in issuing a general order of suspension of such hearings, and same will therefore proceed unless the claimants, interested in any case or cases shall file with the Department a request for continuance of the hearings. In that event, the application will be given prompt and careful consideration and such action taken as circumstances appear to warrant.

Very truly yours,

HUBERT WORK, Secretary.

Although no provision has apparently been made for advising this office of applications for continuance of hearings provided for in the Secretary's letter, yet we have been informally advised of the request for continuance of Glenwood 026229, 026334, and 026336, which are specifically mentioned in Mr. Heron's letter, and also of similar applications filed by the firm of Dines, Dines & Holme, as attorneys, for Glenwood 026390, 025845, 025844, 026163, 025760, 024830, and 025937.

For the reasons set forth in the telegram to the First Assistant Secretary and in the letter of Mr. Heron, it is urged that a continuance of any of the pending hearings upon oil shale claims may greatly jeopardize the Govern ment's interest and will work to the advantage of the oil shale applicants. It is not too much to say that such continuances may result in the loss to the Government of the necessary evidence to sustain its case. A number of very important witnesses have already died since the initiation of these proceedings. As to the delay likely to be occasioned by such continuances, your attention is invited to the fact that a similar appeal taken from the decision of the Secretary in the Oregon Basin case (50 L. D., 253) was not decided by the courts until nearly two years after such appeal. The statement made in the telegram to Secretary Finney that this required a period of three years, was in error. Three years passed from the time of the decision of the Secretary to the final decision by the supreme court.

The good faith of the attorneys in making application for these continuances and the appeal of the Krushnic case, may be doubted. Attorneys for oil companies interested in oil shale lands usually follow the lead of the firm of Dines. Dines & Holme. What this firm decides to do, generally governs the action which may be taken by other oil interests.

This firm represents the Midwest Refining Co., a subsidiary of the Standard Oil of Indiana, Mr. Tyson S. Dines head of the firm, being president of the former company. If the ethics of the legal profession were to be judged by the practices of this firm of attorneys, severe criticism would be its due. We believe the lands embraced in the applications of this firm for continuances of pending hearings are the property of the Standard Oil of Indiana or its subsidiary, the Midwest Refining Co.

In the rehearing of the Krushnic case before the Secretary, December 12, 1927, the firm of Dines, Dines & Holme filed a printed brief as amicus curiæ. The attorneys representing Krushnic are Messrs. Lindsey & Larwill. This rehearing was granted to enable the presentation of argument tending to prove that the provisions of section 37 of the leasing act of February 25, 1920, did not require the performance of annual labor upon oil shale placer claims after said date. An examination of the brief filed by Dines, Dines & Holme shows that it presented arguments tending to show that the failure to perform annual assessment work upon an oil shale location for any one or more assessment years since the passing of the leasing act, would not result in automatic forfeiture of the mining location, forfeiture being prevented in the event work was resumed thereon before the land department took steps to secure the cancellation of the location.

It has been brought to the attention of this office that the firm of Dines, Dines & Holme represented the Midwest Oil Co. and the Wyoming Associated Oil Corporation in the case of Joseph Hodgson, plaintiff in error, vs. said companies, No. 7367 in the United States Circuit Court of Appeals, eighth circuit, and that Mr. Harold Roberts of this firm, argued this case before this court at St. Louis, Mo. A printed brief was filed by this firm of attorneys. An inspection of this brief, now in the office of the Secretary, shows that a strong argument was made for automatic forfeiture, the position taken being exactly opposite in this respect to that taken in the brief filed by the firm with the secretary, hereinabove mentioned. It is a question whether the arguments for automatic forfeiture presented in this brief are not even stronger than those in the secretary's decision in the Krushnic case. The circuit court of appeals

held for the defendants.

Inasmuch as the brief of this firm in the Hodgson case may not be before you, pages 10, 11, and 12 thereof are here quoted:

"The chief contention of plaintiff seems to be that such failure upon his part to perform assessment work could be taken advantage of only in the manner provided by R. S., section 2324; namely, by relocation of the claim during the period in which plaintiff might be in default. This argument ignores the fact that the two executive withdrawals of this land and the provisions of the leasing act have made a radical change in the law in so far as petroleum placers affected thereby, are concerned. These withdrawals, both of which covered these lands here in dispute, constituted a continuing assertion by the United States of a superior title. The United States could make no relocation, but by withdrawing the land, it could and did put itself in a position where its paramount rights would automatically attach to land embraced within the limits of the withdrawal just as soon as any locator might allow a single assessment work period to expire without having complied with the condition under which this claim was held. Thus the express exception in the withdrawal orders of locations or claims existing and valid upon the date of the withdrawal automatically ceases to exist when the condition essential to the continued validity of the claim shall be broken.

"This rule has been clearly expressed in an opinion by First Assistant Secretary Finney in Interstate Oil Corporation v. Chittenden. 50 L. D. 262, 266:

"This compels the conclusion that the withdrawal in question was intended to be of a continuing nature, and to attach immediately upon the default of any person having at the time of its inception a then subsisting and valid claim. "Such being the case, appellant's claim that performance of assessment work is a matter of no concern to the Government, comes to this: By the withdrawal all subsequent locations are barred, yet the Government may not take advantage of any default or abandonment of a claim during the existence of said withdrawal, no matter how complete the abandonment or how pressing the need for the land for a public purpose. No reason exists, therefore, for the performance of the annual labor prescribed as necessary to maintain a right to possession; and the locator is, by the fact of the withdrawal, sheltered from the consequences of his failure to perform the work prescribed by the statute, and said statute is repealed as to lands so withdrawn. The entire lack of justification, either legal or equitable, for the result above indicated clearly demonstrates the fallacy of the claim of this appellant. Certainly there is nothing in the expressed provisions of the act of June 25, 1910, supra, which indicates an intent to repeal or abrogate section 2324, Revised Statutes, in the manner claimed.'"

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'Under the leasing act, section 37, this rule is not left to construction, but is explicitly announced in the act itself. This section provides: "That the deposits of ** * * oil, oil shale, and gas herein referred to, in lands valuable for such minerals * * shall be subject to disposition only in the form and manner provided in this act, except as to valid claims existent at date of passage of this act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.''

It will, therefore, be seen that continued compliance with the laws under which a placer location had been made, which obviously refers primarily to the continued performance of assessment work for each and every statutory period, is the only way in which the land covered thereby could be

kept out of the class of lands exclusively subject to disposition under the leasing act. It appears upon the face of this petition that the plaintiff has failed to comply with this condition. Therefore, both under the withdrawal orders and under section 37 of the leasing act, his claim had been cut off prior to the commencement of this action.

"This interpretation of the withdrawal orders and section 37 of the leasing act is thoroughly consistent with the change of policy toward oil deposits in the public domain which brought about the enactment of the leasing act. Prior to the time of the petroleum withdrawals the policy of the Government had been to pass the oil lands out for private ownership to qualified purchasers as rapidly as locations should be made and the statutory purchase price paid. The failure to do essential work for any particular year was of little moment to the Government, so long as the intervening rights of third parties were not concerned, because a new location could have been made and this would have been equally acceptable to the Government. On the other hand, the new policy of the Government, expressed in the withdrawal orders and the leasing act, is not to sell (the word "sell" is in italics) at all except to those who may comply strictly with every letter of the earlier law, but to save all other lands for exploitation under leases. (The word "leases" is in italics.) Thus by section 37 of the leasing act Congress has required of every locator who would keep an old petroleum placer claim alive that he maintain his claim each year in strict compliance with the law. This the plaintiff and his predecessors have not done.

"Your attention is invited to the function of amicus curiæ. It is different from that of an attorney pleading a cause for his client. As amicus curia, one is presumed to present matter impartially for the enlightenment or assistance of the court. His position is one in which confidence is presumed to be peculiarly reposed. One could hardly take one side of the case one day and, in good faith, appear as a friend of the court the next day and argue the opposite, especially so without enlightening the court as to his previous position or explaining it.

"Shortly before the rehearing of the Krushnic case, I was informed by one or more attorneys for oil shale interests in Denver that it had been arranged to have Mr. Harold Roberts represent the firm of Dines, Dines, & Holme at that hearing. While the hearing was in progress in Washington, or the day after, Mr. Roberts came into my office and I expressed surprise that he was here and not in Washington. He said he had decided not to go. What significance this had with the fact that he argued before the United States Circuit Court of Appeals, the case hereinabove mentioned, I do not know.

"In discussing the pending Krushnic case with Mr. Roberts, the point was raised as to the right of the applicant for patent to appeal to the courts upon the question of the necessity of performance of assessment work in the event the Interior Department ruled against the contention of the oil shale claimants. Mr. Roberts said that they had decided not to appeal to the courts in the event the Interior Department rendered an adverse decision because it was felt this procedure would be useless. If the arguments presented by Mr. Roberts for the firm of Dines, Dines, & Holme in the Hodgson case were his honest convictions and those of the firm he represented, a conclusion could readily be reached as to why he believed it useless to appeal from the department's decision on the same question.

"The Denver Daily Press reports a recent meeting of the board of directors of the Midwest Refining Co. and publishes as an announcement coming from Mr. Tyson S. Dines, a decision of said board of directors that the company had no claim upon the $763.000 of Government bonds obtained by H. M. Blackmer through the notorious Continental Trading Co. deal. Mr. Blackmer until very recently, remained director of the former company and was chairman of the board of directors at the time of the Continental deal. The papers state that Mr. Dines announced that the decision to renounce any claim to these bonds, was based upon the advice of the company's attorneys, Messrs. Dines, Dines & Holme. In this connection, it is interesting to note that even Mr. Stewart, chairman of the board of the Standard Oil of Indiana, and Mr. Harry Sinclair, have very recently found it advisable to turn their share of the Continental Trading Co. bonds over to their respective companies. The Midwest Refining Co., however, seems not to be influenced by the noble motives which evidently actuated Mr. Stewart and Mr. Sinclair.

"This office has evidence that the firm of Dines, Dines & Holme has in its possession, clear and convincing evidence showing the truth of the charges pre

ferred against the mineral applications hereinabove named, for which a continuance has been requested. Access to this data has been repeatedly requested of this firm over a period of several years and one excuse or another has been presented for not furnishing it. We have offered to present this evidence to the department in the form it exists in the firm's files and to agree that it shall be determinative in the matters to which it refers. We believe this evidence, if disclosed, would be detrimental to the firm's clients and that this is the reason we are not permitted to inspect it.

"It is believed that the appeal of the Krushnic case and the applications for indefinite continuance of the pending hearings, are based upon ulterior motives. I am advised that oil companies owning shale claims hope to secure remedial legislation. It is evident that owing to an aroused public opinion due to the disclosures of frauds practiced by Fall-Sinclair et al., such legislation can not be obtained from this Congress, although I was told upon good authority that an attempt to secure such legislation was being considered some weeks ago, backed by one of the Senators from Colorado. Doubtless an attempt will be made to lobby such a bill through the next Congress, hopes for its passage being based upon the assumption that those members of Congress who would oppose a steal of this kind, may be ignorant of its real purpose and effect.

"As further evidencing lack of good faith by those requesting indefinite continuances of shale hearings, wherein the charges are similar to those involved in the Krushnic case, your attention is invited to the fact that recently Mr. W. R. Eaton, attorney for the applicant for Denver 035039 advised me that he intended to ask for a severance of the charges pending against this application and to request the department for an immediate hearing upon such charges as were dissimilar in character to those involved in the Krushnic case. You are advised that if these charges were separated and a hearing held thereon only, to the exclusion of the presentation of testimony upon the other charges, the result would be doubling the cost to both the Government and applicant. It would be necessary for the Government to call the same witnesses in an immediate trial of the separated charges, whose testimony would be required to sustain the other charges. Very little additional time would be taken in examining the witnesses upon all the charges against this application. I questioned Mr. Eaton quite closely as to what he expected to accomplish by a severance of these charges and he was unable to state to me a single valid reason. If he had a good reason, he kept it to himself. I am satisfied his request for a severance of the charges and a separate trial will not be urade in good faith."

Further delay in the conduct of pending hearings is in my judgment not warranted, and if the Government's interests are to be properly protected, these hearings must proceed without undue delay. I have to recommend that all applications for indefinite continuances of such hearings be denied and that authorization be given to proceed therewith.

Very respectfully,

RALPH S. KELLEY, Division Inspector. Mr. FINNEY. Now, to conclude these letters, on May 15, 1928, Mr. Kelley wrote another letter to the commissioner in which he alludes again to the letter of Mr. Heron of April 26. Mr. Kelley's letter of May 4, 1928, mentioned certain specific cases by name, and again argues that delay will be inimical to the interests of the Government and refers to Mr. William R. Eaton, then practicing law in Colorado.

Senator WALSH of Montana. Does he refer there to cases in which there are other grounds of exception besides the matter of default in the assessment work?

Mr. FINNEY. Many of the cases that he enumerates did have a number of other charges.

Senator WALSH of Montana. Does he refer in the letter to that feature of the thing?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Please read that.

Mr. FINNEY. It says [reading]:

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Denver, Colo., May 15, 1928.

The COMMISSIONER,

GENERAL LAND OFFICE,

Washington, D. C.

SIR: See letter of this office of May 4, 1928, transmitting a letter of April 26 of Inspector B. F. L. Heron, attorney in charge of hearings in this division, requesting denial of motion for continuance of Glenwood Springs 026229, 026334, and 026336, applications for patent for oil shale claims. The letter of this office further requested the denial of the application of Dines, Dines and Holme, as attorneys for indefinite continuance of Glenwood Springs 026290, 025845, 025844, 026163, 025760, 024830, and 025937.

Also see the letter of this office of May 11, requesting the denial of applications for hearing for Denver 035449 and 035661, the former being an application of Delos D. Potter.

Your attention is also invited to adverse reports of Inspector Oral J. Berry upon mineral applications Denver 038572, 039699, 038571, 038597, 038600, and 038595, transmitted April 19, 1928. These were applications of Delos D. Potter for the Shale Oil Syndicate. Your attention is invited to these reports solely because a history of the transactions of Delos D. Potter is therein recorded.

With regard to Glenwood Springs 025760, an application for patent by the Denver Shale Oil Co., you are advised that there were some conflicting locations known as the Jones Placer Claims owned by Joseph Bellis. Bellis sold his rights in these claims to the owners of the conflicting Denver claims upon which patent is requested. D. D. Potter now owns a part of this group. One Luther Hurlburt, a farmer living near DeBeque, performed assessment work upon the Jones claims for Bellis. We have had difficulty in segregating the work performed for the benefit of these conflicting claims from that performed for the benefit of the Denver claims. Our ordinary mode of procedure to clear these matters up is to take the workmen who performed the work upon the ground and have them identify the position of the work they performed. In 1927, Inspector Paul F. Cutter made repeated requests of Mr. Hurlburt to accompany him as a guide for compensation to point out the work which he performed upon the Jones claims for Bellis. Hurlburt always had some excuse for not going. It become apparent that he was afraid to go because of some influence which was being exercised upon him. When Inspector Cutter left for the field in April he was instructed to make every effort to have Hurlburt accompany him to these claims and point out the work he performed. Mr. Cutter has again attempted to persuade Hurlburt to accompany him. Under date of May 13, 1928, Mr. Cutter writes this office as follows:

"Before Joe Bellis would authorize Luther Hurlburt to go on the ground and point out the holes made for the Jones claims in conflict with the Denver claims, he called up Denver on long distance telephone to see what the present owners who brought the claims from him, would say about it.

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Dines, Dines & Holme, attorneys for the Denver Oil Shale Co., told him in view of the fact that the Government has contested them on these claims that he should not send Hurlburt on the ground.

"D. D. Potter told him that in view of the fact that Savage had already furnished the Government with a plat showing the work Hurlburt did in conflict with their claims that he should not send Hurlburt on the ground with me, because his statements might not conform to the map."

The foregoing simply confirms what this office had long suspected, that influence was being exerted upon Hurlburt to refuse to accompany a Government inspector to these lands. The work which we desire Hurlburt to point out was performed by him as a laborer years ago. He is not in the employ of Joseph Bellis, Dines, Dines & Holme, or D. D. Potter, but is apparently an independent farmer. However, it is clear that these firms of attorneys through Joseph Bellis are exercising such an influence over him that he is afraid to accept a daily wage offered by the Government to point out the work which he performed. Representatives of large oil interests are enabled in some mysterious way to exercise such a control over this individual that he dare not do what a free citizen is entitled to do. The excuse given by