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of his entries, had forcibly prevented the mineral claimants from performing prosecuting operations on the tracts covered by the entries affect any rights that the protestant might otherwise have had with respect to the claims, in view of the protestant's failure to show at the hearing, or to now declare himself able to show at a further hearing, should one be ordered, that there was at the date of the act physically exposed within the limits of any of said claims a deposit of oil shale of such quality and thickness as to warrant the exposure being regarded as the discovery of a valuable mineral deposit. The motion, therefore, presents no ground for a new trial.

The decision complained of is accordingly adhered to, and the motion in its entirety denied.

E. C. FINNEY, First Assistant Secretary.

Senator GLENN. May I ask when Mr. Kelley is to appear? Senator WALSH of Montana. He was to be here today, Senator Glenn, but I am told he is sick with the flu.

Senator GLENN. I do not know what has been done, whether he has been subpoenaed, or arrangements made for him to come, but I would like to have him subpoenaed to bring with him all papers, contracts, correspondence, memoranda, and data, dealing or connected with any and all negotiations and arrangements for the preparation, sale, or publication of any and all articles or statements dealing with the oil shale matters now pending before the committee under Senate Resolution No. 379.

Senator WALSH of Montana. I think that is quite appropriate. We will adjourn until 10 o'clock on Tuesday, February 3, 1931. Secretary WILBUR. I brought along all the records of the cases under dispute. Will you take care of them for us or do you desire us to take them back with us? You are taking up a very large contract in this proposition. We propose to see this through to the very last case.

Senator WALSH of Montana. I had not thought, Mr. Secretary, of going into it at this time to that extent, but of course the committee will be glad to have anything you care to submit.

Secretary WILBUR. Certain charges have been filed, although no formal ones have been presented. They have been of a certain character and now that the Senate has started in on this we feel that we should have clearance in the Senate.

Senator WALSH of Montana. Absolutely.

Mr. ELY. There are 51 cases here, each with a summary of the case attached to it, and we have in addition all the cases in which patent applications are pending, and they will all be available before. this committee.

Senator WALSH of Montana. The committee, I am sure, will be very glad to hear anything that the Secretary feels is pertinent to the inquiry. I thought I made it clear that this committee is not authorized to go into any exhaustive investigation. This is simply & preliminary inquiry as to whether an exhaustive investigation is to be ordered by the Senate.

Secretary WILBUR. We have the material available, Senator. We can take it back, if you prefer.

Senator WALSH of Montana. Was any subpoena issued requiring its production?

Secretary WILBUR. Rather an indefinite letter from the chairman. of the committee asking me to appear, and no formal statement as to what was desired.

Senator GLENN. I presume this will run on after Tuesday, and I would like to have-I want before the thing is finished the publisher of the New York World, or whoever is the responsible party for the contracts and negotiations looking forward to the publication of these Kelley articles-I do not want to bring the publisher and take up his time if he had no direct dealings with it, but I wish you would communicate with the New York World and ask whoever is the responsible person there in charge of this matter to be present, bringing with him papers as outlined in the Kelley subpoena.

Senator WALSH of Montana. The Secretary better communicate. with them and inquire whether they will send someone when required by the committee.

Senator GLENN. Yes.

Senator WALSH of Montana. That is all, gentlemen.

(Whereupon, at 11.55 o'clock, a. m., the committee recessed until Tuesday, February 3, 1931, at 10 o'clock a. m.)

OIL SHALE LANDS

TUESDAY, FEBRUARY 3, 1931

UNITED STATES SENATE,

COMMITTEE ON PUBLIC LANDS AND SURVEYS,

Washington, D. C. The committee met, pursuant to the recess, at 10 o'clock a. m., in the committee room of the Committee on Interstate Commerce, Capitol, Senator Gerald P. Nye presiding.

Present: Senators Nye (chairman), Glenn, Pittman, and Walsh of Montana.

Present also: Hon. Ray Lyman Wilbur, Secretary, Department of the Interior; Hon. Edward C. Finney, solicitor, Department of the Interior; Northcutt Ely, executive assistant to the Secretary of the Interior; U. E. Goerner, Esq., assistant law examiner, General Land Office; Mr. Ralph S. Kelley.

The CHAIRMAN. You may resume your testimony, Mr. Finney.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPARTMENT OF THE INTERIOR-Continued

Senator WALSH of Montana. Did you get the opinion you were looking for?

Mr. FINNEY. Yes, the one we have not reached in my presentation. I had them all arranged according to date. After the two decisions had been rendered, which were read to you at our previous meeting, a petition for reopening of the case and for the ordering of a new trial, for the submission of additional evidence, was filed by Consaul & Heltman, attorneys for Freeman, in Washington. That was supported by affidavits purporting to state the new evidence to be submitted at the new hearing.

Decision was then prepared by myself, ordering a new trial, and in that decision is the statement to which I referred about the Geological Survey classification.

Senator WALSH of Montana. Will you read that, Mr. Finney, omitting the formal part, " By Decision of December 20, 1924 "Mr. FINNEY. I may say this was written by the same attorney, Edson Phillips, and initialed by the board of review.

The CHAIRMAN. Let us have the body of it, beginning "By Decision of December 20."

Mr. FINNEY (reading):

By decision of December 20, 1924, the department directed a dismissal of the protest on the ground, in part, that no actual discovery of a valuable deposit of oil shale was shown by testimony adduced in the protest proceeding to have been made by the protestant or his predecessors in interest within the limits of any of said claims prior to the approval of the leasing act of February 25, 1920, or the diligent prosecution of work leading to such a discovery. That decision was on motion for rehearing adhered to by departmental decision of May 23, 1925, which also denied an alternative motion for a new trial, the latter on the ground, in substance, that the allegations

contained in the affidavits filed in support of the motion were insufficient, if substantiated at a further hearing, to establish the existence of a valid discovery upon any of the claims as of the date of said act, or to show diligent prosecution of work looking to discovery.

To support the petition now under consideration, wherein a new trial is sought, there is filed an affidavit by the petitioner in which he alleges:

That affiant now offers, and declares himself able to show at a further hearing, should one be ordered, that there was, prior to February 25, 1920, exposed naturally or as a result of development work, on each of the placer claims in conflict with said homestead entry, a valuable deposit of shale oil bearing rock in place, of such thickness and carrying such shale oil content as to be and constitute a valuable mineral deposit within the meaning and intent of the placer mining law, and in conformity with the standards established by the scientific bureau of the Government as to what shall constitute a valuable deposite of oil shale rock; or to be more specific, as stated in affiant's former affidavit, he offers to show by competent evidence at a hearing, that "on each of the placer claims in conflict with said homestead, deposit of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton were discovered and disclosed, prior to February 25, 1920; and affiant further offers to show and to prove by competent evidence, the existence of deposits of such value and character naturally exposed at points where no excavation or development wrok has ever been done at all, and it was the purpose and intention of affiant to offer to make a showing such as here described, in the affidavits filed in support of his motion for rehearing.

In determining whether an oil-shale deposit shown to have been physically exposed within the limits of an asserted oil shal placer mining location on any particular date is sufficient to constitute an adequate discovery of mineral to render the location valid as of that date, the department will apply to the deposit that may be shown to have been so exposed at that time, and relied upon as a discoverey, and to that deposit only, the rule adopted by the United States Geological Survey in its regulations of April 3, 1916, for the classification of lands with respect to their oil shale character. To warrant the classification of areas of oil shale land those regulations provide (1) where the oil-shale beds are too deep to be mined by open-cut methods, such lands must contain shale capable of yielding 1,500 barrels of oil per acre in beds not less than 1 foot thick, yielding not less than 15 gallons per ton and within a reasonable depth below the surface; (2) surface to be mined by open-cut methods, such lands must contain shale sufficient to yield 750 barrels of oil per acre in beds not less than 6 inches thick and yielding not less than 15 gallons per ton. In computing the acre value of the oil shale, it is considered that a yield of 1 gallon of oil per ton of rock is equivalent to yield of 50 barrels (42 gallons each) of crude oil per acre-foot of rock. Accompanying the regulations is a table giving the number of barrels per acre for each foot thickness up to 6 feet for different shales yielding from 15 to 60 gallons per ton.

Upon the showing now made, considered in the light of matters previously disclosed herein, the department believes that the protestant should be afforded opportunity, at a further hearing to be ordered for that purpose, with notice to the entryman, to present such additional evidence as he may desire as to what, if any, oil-shale deposits were actually and physically exposed within the limits of each of the claims here involved, prior to February 25, 1920, together with evidence as to the thickness of such deposits, their depth beneath the surface, and their oil content in gallons per ton and barrels per acre, equal opportunity to be afforded entryman to participate in the hearing and adduce testimony on his own behalf should he see fit so to do. It is so ordered, and upon the presentation of such evidence it will be considered in further determining the validity of such claims as mining locations as of the date last mentioned.

E. C. FINNEY, First Assistant Secretary.

Senator WALSH of Montana. You say this opinion was prepared by whom?

Mr. FINNEY. Edson Phillips, then an attorney in the department. Senator WALSH of Montana. And initialed?

Mr. FINNEY. By the three members of the board of review, Mr. Gardner, Newman, and Patterson.

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