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had slipped in a statement that 15 gallons of oil to the ton was a prequisite in order to classify land as oil shale. That, I think, caused more of the sensation in Colorado than the mere action upon the Freeman locations, or the Summers entry, because all these fellows that had locations and their attorneys thought the department was going to let a rule of the Geological Survey, which they used in classifying, determine the right of every locator of shale land.

Senator WALSH of Montana. Let us get at the matter now if we

can.

Mr. FINNEY. I did, I think, say something about that.

Senator WALSH of Montana. The statement here is attributed to you:

I did not write the first decision in this case.

Mr. FINNEY. That is right.

Senator WALSH of Montana. And then, he continues as saying:

I do not understand how I ever permitted that decision to get by me and bear my signature.

Mr. FINNEY. I do not recall having said that at all, but I did have a conversation with him and I talked quite freely with him. Senator WALSH of Montana. We will come to that later, but I am now trying to get at the facts in relation to the preparation of these opinions or decisions, Mr. Finney.

Mr. FINNEY. Yes.

Senator WALSH of Montana. You referred just a moment ago to some opinion or decision which you disapproved.

Mr. FINNEY. Well, I referred to a second decision in this same case, which I signed, and which was written by this same Mr. Phillips, in which there was incorporated this statement about the 15 gallons to the ton.

Senator WALSH of Montana. Have you got that?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Let me look at it, please.

Mr. FINNEY. That is probably what I was discussing with Kelley. My recollection is not very clear. I have no apologies for that decision. I think that was right at the time and on the record. In the interim, Senator, a motion for reconsideration had been filed by the attorneys for Freeman and ultimately resulted in that decision which denied the motion.

Senator KENDRICK. Senator Walsh, how long will you continue? Senator WALSH of Montana. Well, only 10 minutes more. Senator KENDRICK. I will have to go now.

Mr. FINNEY. You find that reference there, do you not, to the Geological Survey classification rule? That is the only part of the decision that I would not have allowed to pass me, had I the opportunity to reconsider it, and that is evidently what I told this man Kelley.

Senator WALSH of Montana. Well, what you were referring to then in the conversation with Kelley was to an opinion that had been prepared by Phillips and signed by you.

Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. Denying the motion for a rehearing.

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Mr. FINNEY. Yes; and I was referring particularly to that part of the decision, not to the conclusion.

Senator WALSH of Montana. Will you call our attention to the particular part of the opinion that had your disapproval?

Mr. FINNEY. It really had no place in the decision and should not have been there. I can not find it there. There is the reference in the motion to that 15-gallon rule.

Senator WALSH of Montana. I quote from the opinion as follows: In support of said motion there is filed an affidavit by the protestant in which he avers:

That in the event opportunity is given deponent to submit further evidence and testimony he can and will submit a conclusion showing that there exist, disclosed and open to examination and sampling, on each of the placer claims in conflict with said homestead, deposits of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton, and in fact will show that situated on this homestead, disclosed and open for sampling, are deposits of oil shale not less than 4 feet in thickness and carrying an oil content of more than 20 gallons per ton; that evidence of these facts was not submitted in detail at the hearing heretofore held, for the reasons-And so on, setting out the reasons.

Mr. FINNEY. In one of the decisions written by Phillips there was a reference to the regulations or rules of the Geological Survey requiring a minimum of 15 gallons to the ton, and that is what I have in mind, Senator.

Senator WALSH of Montana. Mr. Finney, we may as well suspend here for to-day, and if you can get that for us in the meanwhile it will help to straighten the matter out.

Mr. FINNEY. All right.

Senator WALSH of Montana. This opinion, however, denying the motion for a rehearing, may go in the record at this point.

(The opinion referred to by Senator Walsh, dated May 23, 1925, reads as follows:)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, January 10, 1931.

I hereby certify that the annexed copy of departmental decision dated May 23, 1925, filed under Denver 032575, formerly Glenwood Springs 018827, is a true and literal exemplification of the record on file in this office.

In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

THOS. C. HAVELL,

Assistant Commissioner of the General Land Office.

DEPARTMENT OF THE INTERIOR,
Washington, May 23, 1925.

J. D. Freeman v. George L. Summers Glenwood Springs 018825, 018827. Protest dismissed.

Denied

MOTION FOR REHEARING AND RETRIAL

This is an alternative motion for rehearing and new trial filed by J. D. Freeman in the matter of his protest against the enlarged homestead entry 018825 of George L Summers made subject to the provisions of the act of July 17, 1914 (38 Stat. 509), for the S. 1⁄2 NW. 4, N. 1⁄2 SW. 4, sec. 1; S. NE. 14, N. 2, SE. 4, sec. 2; and his additional stock-raising homestead entry 018827 for lots 3 and 4, S. 1⁄2 NW. 4. sec. 2; lots 1, 2, and 3, and SE. 4 NE. 14, sec. 3; all in T. 5 S., R. 97 W., sixth principal meridian, Glenwood Springs land district, Colorado.

The said entries were allowed, respectively, May 17, 1920, and January 28, 1921, and final proof was submitted on both of the entries May 22, 1923. The protest, which was filed May 21, 1923, charged that the entries were in conflict with five oil shale placer-mining locations known as the J. D. groups Nos. 1, 2, 3, and 5, and F. D. Group No. 7, all owned by the protestant; that said claims were located April 18, 1918; that at all times after their location. the locators and their transferees, except in so far as prevented by the interference of the protestee, had heid, used, and occupied said claims; that the protestant and his predecessors in interest have complied with the mining laws of the United States and the State of Colorado in the performance of annual assessment work; and that the land has no value except for its shale deposits; it was prayed that a hearing be had as to mineral or agricultural character of the lands in conflict," and that the homestead entries be canceled. Notice issued on said charges July 18, 1923, the notice reciting that the protest alleged:

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"That the said lands have been designated by the United States as mineral lands and that the said lands are chiefly valuable for their mineral contents and that this contestant had located, through his predecessors in title and interest, the said lands as placer lands long before the contestee had connected: himself with the said lands or any part thereof."

Hearing, commencing September 5, 1923, was held before the local officers, and from the evidence adduced they found and held that

"While there appears to be no question but that immense shale beds underlie this land at a considerable depth, it is just as clear that the higher strata exposed on the Summers place, and on which discovery is claimed, do not now constitute valuable deposits and by development in the future could not be expected to show such value as to make them merchantable. Hence, it is our opinion that on such deposits a discovery can not be predicated on which to base a valid mineral claim to the land."

On appeal from that action the commissioner, by decision of April 8, 1924, found and held that

"It clearly appears that the lands in question, along with a large area of other land in that vicinity, are mineral in character and valuable as a source of petroleum and nitrogen; that oil shale was discovered thereon and that they were located, surveyed, staked, and filed upon by contestant and his grantors long before the entries in conflict were made. It also appears that a certain amount of assessment work, said to be the required amount for each year, has been done on and for the benefit of each of said claims and that their future development for the mineral contained therein is justified." On appeal by the entryman from the commissioner's decision the department in the decision here complained of found and held that the evidence in the case compelled the conclusion that such shale deposits as were actually exposed on the area included in the claims in conflict with the entries in question were of no value for their contents, and that in any event the testimony was too indefinite to enable it to be determined on just which of said claims such deposits outcropped; that however justifiable might be the inferences, geologically, that lean shale outcroppings within said area indicated the presence within such limits of valuable but undisclosed oil-shale beds at depth, such lower beds, being separate and distinct from any beds so exposed on the surface, were entitled to no consideration as bases for the determination. of the sufficiency, as an actual discovery in support of a placer mining location, of anything exposed on the surface; that as no discovery within the meaning of the mining laws had been made within the boundaries of any of the claims in conflict with the entries, and as the mineral claimants were not, as shown by the evidence, at any time engaged in the diligent prosecution of work leading to adequate discoveries thereon, the claims were of no validity; that the conflicting testimony as to the performance of assessment work upon or for the benefit of the claims for the year 1919 and subsequent years ending June 30, 1923, was of no importance, as, in the absence of discoveries within the limits of the claims the performance of annual assessment work could serve no practical purpose; that while there was a large mass of testimony in the record with respect to the relative value of the lands included in the entries for mining purposes on one hand and for agricultural and stock-raising purposes on the other, which was not essential to a determination of the case, such testimony nevertheless showed that both entries in question were traversed by a valley that has a substantial and certain value for dry farm

ing and stock raising; that forage crops had been raised thereon by the entryman and that he had resided upon and improved the land in good faith. The decision of the commissioner was accordingly reversed, and the asserted locations in conflict with the entry were declared to be null and void.

Upon careful consideration of the several points presented in the motion for rehearing the department is of opinion that none of them, considered in the light of the testimony adduced at the hearing, affords any ground for disturbing the decision complained of.

In the prayer for a new trial the protestant expresses the belief that the principal phase of the case which led to the said decision was that the facts were not developed and proven by the testimony submitted in such a manner as seemed to him to be required by the department. He accordingly asked that opportunity be afforded him to adduce all material facts, including discovery and the performance of work in good faith for the development of the claims here involved. He represents in the motion that since the hearing "further development has absolutely demonstrated the existence, at points of discovery designated in the testimony, of oil-shale deposits of intrinsic value, this demonstration being material as corroborating the testimony of discovery submitted by placer claimant at the original hearing of this case." In support of said motion there is filed an affidavit by the protestant in which he

avers:

"That in the event opportunity is given deponent to submit further evidence and testimony, he can and will submit a conclusive showing that there exist, disclosed and open to examination and sampling, on each of the placer claims, in conflict with said homestead, deposits of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton, and in fact will show that situated on this homestead, disclosed and open for sampling, are deposits of oil shale not less than 4 feet in thickness and carrying an oil content of more than 20 gallons per ton; that evidence of these facts was not submitted in detail at the hearing heretofore held for the reasons: (a) Deponent at said hearing submitted his evidence and proofs on the theory and belief, on the advice of his counsel, that proof that the land was mineral in character, and proof of the existence of certain oil-shale strata thereon, together with proof that the known geological conditions in the section of country involved indicated with certainty the existence of valuable oil-shale deposits underlying the land, whether or not the latter were actually disclosed, was sufficient proof of legal and valid discovery; and (b) that for a long time prior to said hearing, said homesteader, Summers, patroiled the land covered by his homestead, armed with a rifle, and warned this deponent, his employees, and associates, against taking any samples or making any excavations within the area of said homestead, as a result of which deponent and his employees were prevented from making excavations, or from doing a thorough sampling of the lands in conflict, in preparation for the said hearing. and deponent was therefore compelled to rely on his general knowledge of the character of the lands and the shale deposits thereon, together with a few samples that had been taken some years before.

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"That deponent knows of his knowledge that commercially valuable deposits of oil shale are opened and disclosed on the lands in controversy, and that if given opportunity he can submit conclusive proof on this point.' In a second affidavit filed by the protestant he avers:

"That prior to the commencement of the hearing before the Glenwood Springs Land Office, Mr. C. W. Darrow, attorney representing affiant and said Standard Shale Products Co., in the presence of applicant, conferred with the register of the Glenwood Springs Land Office, with Mr. Spencer, with regard to the scope of testimony to be adduced; that while affiant is unable at the present time to quote the precise language used either by Mr. Darrow or by Mr. Spencer, the purport of the statements made by Mr. Spencer at that time was that the issue to be determined and concerning which testimony should be submitted, was the relative value of the land involved, either for agricultural or grazing purposes on the one hand or for mineral purposes on the other hand.

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"That in a large measure the submission of testimony in behalf of affiant and of said company at said hearing pertains to the issue mentioned; that testimony dealing with discoveries of oil-bearing shales upon the land and pertaining to performance of annual labor upon the placer claims involved

was submitted at the instance of affiant's counsel for the purpose of showing good faith in connection with the location and maintenance of said shale placer claims.

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That, as indicated by testimony in the matter of said hearing, the contestee, Summers, refused to permit mining development work to be conducted upon his so-called homestead claim, which fact rendered it almost impossible thereafter, although some prospecting work had been done upon said homestead claim prior to the making of threats by said Summers.

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"That affiant attaches to this affidavit and makes a part thereof a blueprint plat showing said homestead and conflicting shale placer claims and also showing various mining workings thereon.

"That since the submission of testimony to said hearing the following workings have been excavated upon said claims upon oil-bearing shale beds, which are indicated upon said attached plat as folows, to wit:

"On F. D. No. 7 placer, excavations Nos. 19, 20, and 21, situate upon the ground in conflict with said Summers homestead, done as assessment work for the fiscal years ending June 30, 1924, and June 30, 1925; that one of said excavations had been previously commenced before the men working thereon had been driven therefrom by said Summers, and after said Summers departed from the vicinity that work was completed.

"On J. D. No. 1 placer, excavations Nos. 2 and 3 upon the area in conflict with said homestead.

"On J. D. No. 2 placer, workings Nos. 5 and 7 upon said homestead conflict. "On J. D. No. 3 placer, workings Nos. 9 and 10 upon the area in conflict with said homestead.

“On J. D. No. 5 placer, workings Nos. 15 and 16 upon area in conflict with said homestead.

"That the showings in said excavations are corroborative of the showings previously secured in earlier workings described in the testimony submitted at said hearing, and tend to show with all reasonable certainty the existence in said claims and on the land in conflict with said homestead of oil-bearing shale of economic value."

The department correctly held in its previous decision that at the date of the approval of the leasing act neither the protestant nor his predecessors in interest with respect to the five claims were diligently engaged in the performance of work upon any of the claims leading to a discovery of valuable mineral deposits thereon. An important issue in the case was therefore whether at that date there had been such a discovery within the limits of each of the claims as would support a valid placer mining location. That issue, on the evidence presented at the hearing already had, was decided adversely to the protestant and the decision of the department thereon is clearly in accord with the evidence. There is nothing in the evidence tending to show that at the date of the act a deposit of shale valuable on account of its oil content was naturally exposed within the limits of any of the claims, nor that there had been performed upon any particular one of said claims any work that artificially exposed such a deposit. There was evidence tending to show that in 1921 an excavation was commenced on the J. D. No. 1 claim and that in the fall of 1920, or before June 30, 1921, an excavation was commenced on the F. D. No. 7 claim. It was testified that during the year ending June 30, 1920, some work was performed at a point a short distance to the south of the south line of the J. D. No. 5 claim, then thought to be within the limits of that claim, but it is nowhere made to appear that such work was performed prior to the date of the leasing act or that it exposed a valuable deposit of shale.

The evidence which the protestant now seeks to produce at a further hearing would seem to relate entirely to developments and exposures within the limits of the claims made as a result of work performed long after the approval of the leasing act. Assuming, however, that the protestant could now prove that excavations made since the date of the hearings already have resulted in the exposure of a deposit of shale of workable oil content and thickness upon each of the claims of the protestant in conflict with the entries in question, that fact, in the absence, as established by the evidence, of diligent prosecution of work commenced prior to the approval of the leasing act, leading to such exposures, could not be accepted by the department as constituting discoveries that would relate back to and validate the claims as of the date of the act. Nor would the fact, if it be a fact, that the entryman, after the allowance

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