exact facts which the conclusion above quoted indicates he had not offered to show, and affiant alleges that there is nothing in the affidavit filed in support of said motion for rehearing, to justify the conclusion that affiant was thereby offering only to show discoveries of mineral on the claims in question as a result of excavations subsequent to the hearing, or subsequent to February 25, 1920.

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 bureaus of the Government as to what shall constitute a valuable deposit of oilshale 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, deposits 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 work has never 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 said motion for rehearing.

That affiant hereby by reference makes the affidavits heretofore filed in support of said motion for rehearing, to the extent applicable, a part of his showing in support of his said petition for the exercise of supervisory authority. That the facts and circumstances relative to the discovery of valuable deposits of oil shale on each of the placer claims of the Standard Shale Products Co., also in conflict with said homestead entry of George L. Summers, are identical in all respects with the facts herein alleged with respect to the claims of this affiant in conflict with said homestead, and affiant herewith makes the same statements and allegations above set out, and the same offer to make proof of discovery prior to February 25, 1920, on and with respect to each of the placer mining claims of the said Standard Shale Products Co. in conflict with said homestead, with the intention and purpose that this affidavit shall likewise be used in support of a similar petiton for supervisory authority in the companion case of the Standard Shale Products Co. v. George L. Summers (A-6957 (a)) pending before the Department of the Interior.

J. D. FREEMAN.

Senator WALSH of Montana. This recites what he claims he can prove concerning discovery.

Mr. FINNEY. Yes, this and his prior affidavits.

Senator WALSH of Montana. Did he make any showing why he did not make the proof when he had the opportunity to do so?

Mr. FINNEY. My recollection is he did make some such statement in connection with the motion for rehearing.

Senator WALSH of Montana. What reason did he offer for not making his proof of discovery in the first place.

Mr. FINNEY. My memory is not very clear, but I have a recollec

tion.

Senator WALSH of Montana. Have you any document which will show that he was excusable for not having made this showing in the first place?

Mr. FINNEY. We have all the papers filed, of course, in the record. Senator WALSH of Montana. Would you call my attention to any document in the record which shows an excuse as to why he did not make a showing in the first place, which he claims now he can make if he is given an oportunity to make? Pardon me, Mr. Finney.

When the hearing was had in the first place, of course it was

incumbent upon him to make his showing of a discovery on each of the claims.

Mr. FINNEY. Yes.

Senator WALSH of Montana. He claims in this petition for supervisory review after the whole case has gone through the regular course, that he now can make proof which he should have made in the first place, but so far as you have called our attention to it, he offers no reason why he did not.

Mr. FINNEY. His attorneys gave a reason, but even that is not material. It is the duty of the Secretary of the Interior to dispose of public lands according to their character and in accordance with. the facts. If the parties to a contest do not bring out evidence, the Secretary can do that, so we do not stand on technicalities.

Senator WALSH of Montana. Would you regard this as a technicality?

Mr. FINNEY. On material evidence.

Senator WALSH of Montana. Unquestionably, material evidence, that would be a good reason, but no claim is made here that he tendered legitimate evidence and it was rejected. Of course that would be a good reason. A case goes clear through the regular course, and then an application for supervisory regulation is made, and he offers to prove the very things that he should have proven in the first place, and offers no reason why he did not prove them in the first place.

Mr. FINNEY. Somewhere in the record I am quite certain there is a statement that his local attorney failed to introduce certain testimony as to discovery.

In this petition signed by Consaul & Heltman, his resident counsel: We ask that it be borne in mind that the greater portion of the testimony adduced by Freeman was for the purpose of showing that the land claimed by Sumners under the homestead laws, possesses little or no value for agricultural purposes, whereas, the point to which testimony should have been directed, was the validity of the placer claim. The reason for this grave error of procedure has been stated, and while we appreciate that petitioner was required to make his showing of material facts at the original hearing, it is plain that he and his counsel were misled by the erroneous advice given them by the register of the local land office.

While in a sense, the giving of that mistaken advice constituted no reason for failure to adduce required testimony, we submit that it may be fairly accepted as an excuse for failure. The situation is analogous to the trial of a case in court, in which the judge directs that testimony be addressed to certain points, which he deems of controlling importance, whereas, an appellate court deems those points of no moment, and says that the testimony should have been addressed to different phases of the case.

Assuredly, under such circumstances, the appelate court would ordinarily remand the case for a new trial, to be conducted in accordance with the opinion on appeal.

That is all that petitioner now asks

Senator WALSH of Montana. Then really the showing is that his attorneys in the first place did not take care of the case in the right way.

Mr. FINNEY. Yes; and the statement here the register advised them to put in their testimony on the homestead and then on the point of discovery.

Senator WALSH of Montana. Who were the attorneys for Freeman at the original hearing?

Mr. FINNEY. I do not know.

46780-31-4

Senator WALSH of Montana. Will the records show?
Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. Could you find that?

Mr. FINNEY. I have not the complete record here. The record would fill a trunk, but I can easily get that out for you.

Senator WALSH of Montana. The affidavit of the petitioner, which you read to us there, merely shows what he claims he can prove. Mr. FINNEY. Yes.

Senator WALSH of Montana. Was that supported by any affidavit telling what the actual facts are?

Mr. FINNEY. It was not accompanied at this time by other affidavits. There had been several affidavits filed in connection with the motion for a rehearing.

Senator WALSH of Montana. For a new trial. He makes the affidavit submitted on the motion for a new trial a part of this application?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Did those affidavits undertake to tell when and where these discoveries were actually made?

Mr. FINNEY. I do not recall.

Senator WALSH of Montana. Mr. Finney, if you will pardon me, let me explain the idea I have in mind: One makes an application for a continuance, for instance, of a cause, we will say, a criminal case, the defendant applies for a continuance in a case, and he represents if the continuance is granted he will be able to make proof of certain facts, and in order to substantiate that he submits an affidavit from the witness or his witnesses, whom he expects to have, that they know the facts, and they are as follows. Affidavits to which you have called our attention, state if given an opportunity to prove the facts, if he submitted further evidence by those who know about the discoveries, they could make proof.

Mr. FINNEY. Not knowing just what questions I was to be asked, I did not have copies made of the entire record, which, as I tell you, is very voluminous. These things I have here are copies of decisions and motions which I thought might perhaps serve as a preliminary, but I have here, Senator, a communication from Consaul & Heltman, his attorneys, in which they recite or describe briefly affidavits they did file supporting the motion for a rehearing and new trial.

Senator WALSH of Montana. Could you gather those affidavits together for us?

Mr. FINNEY. Yes, sir; there were a number of them.

Senator WALSH of Montana. The affidavits submitted in support of the motion for a new trial, an affidavit submitted in support of the motion for supervisory control.

Mr. FINNEY. Yes, the affidavit by Freeman and a geologist and witnesses. There are a number of them.

Senator WALSH of Montana. We will pass that, then.

Mr. FINNEY. All right.

Senator WALSH of Montana. Was there any personal appeal of any character made in support of this exercise of supervisory control?

Mr. FINNEY. Yes, I think possibly Mr. Consaul or Mr. Heltman called at my office once or twice in connection with filing these affi

davits, and may have told me orally that their client was misled by the Register. We would not hold an oral argument unless attorneys for both sides were present, so the action taken was upon the printed record.

Senator WALSH of Montana. Did anyone else talk to you about it except Mr. Consaul and his partner?

Mr. FINNEY. No, I think not.

Senator WALSH of Montana. Any other members of Congress from Colorado?

Mr. FINNEY. No, sir; I think there was a letter written by Senator Phipps to Secretary Work.

Senator WALSH of Montana. Have you that letter?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Will you please read it?

Mr. FINNEY. Yes. That was prior to the decision on the motion for rehearing. [Reading:]

Hon. HUBERT WORK,

UNITED STATES SENATE, Washington, D. C., January 24, 1925.

Secretary of the Interior, Washington, D. C.

MY DEAR Mr. SECRETARY: Mr. J. D. Freeman has sent me copy of his letter addressed to you on January 20, protesting against decision A-6957, in the case of Freeman rs. Summers, Glenwood Springs 018825 and 018827.

I understand that Senators Smoot and Means have also been approached relative to this matter, and that a group of Pueblo citizens are interested, all of whom are applying to you for relief.

It would appear that your decision, reversing the action of the Commissioner of the General Land Office, is based upon the claim that discovery was not actually made on the lands in question. This is a point which was not considered at issue when the contest was first investigated and consequently Mr. Freeman and his associates did not submit all the evidence that they had on the subject.

They now ask for an opportunity to present shale samples taken from the claims at the time of discovery and that, if you can not see your way clear to reverse the former decision, the case should be remanded to the local land office at Glenwood Springs for retrial.

I shall appreciate your careful review of this matter, in the light of the statements made by Mr. Freeman in his letter to you of January 20, and shall be glad to hear from you at your early convenience.

Yours sincerely,

L. C. PHIPPS.

Senator WALSH of Montana. Are there any other communications of like character in the file?

Mr. FINNEY. I found a letter from Freeman. I have that. Senator WALSH of Montana. Letter from Freeman to Secretary Work?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Will you please read that?

Mr. FINNEY. It is rather long. It consists of four pages. [Reading:]

DENVER, COLO.,
January 20, 1925.

Re: Decision A-6957, Freeman v. Summers, involving Glenwood Springs 018825, 018827.

Hon. HUBERT WORK,

Secretary of the Interior, Washington, D. C.

MY DEAR Mr. SECRETARY: Permit me to direct your personal attention to the decision in the above entitled matter by First Assistant Secretary Finney,

under date of December 20, 1924, reversing decision of April 26, 1924, of the Commissioner of the General Land Office. My justification for bringing this matter to your attention now is that said decision is not, in my humble judgment, supported by the record in the case in important and controlling respects, and also because the decision involves a question of departmental policy of large importance in the development of the shale oil industry in the State of Colorado.

In brief, this decision holds my shale placer claims invalid and of no force or effect, as against a homesteader who made his entry more than two years after the claims were located, on the ground of no legal discovery within the boundaries of each of said claims prior to February 25, 1920, and on the further ground that I have not kept up my annual assessment work since that date.

As to the first ground of reversal, it is true as stated in the decision that a showing was made in the record to the effect that the disclosure of the higher shale beds of lesser value was conclusive of the existence of the lower beds of greater value, by reason of the known geology of that section of the country, and that it was urged that this in itself constituted a discovery within the meaning of the law, regardless of the value of the upper beds; we still believe this to be a sound legal proposition, but be this as it may, it was also conclusively shown in the record, as found by the commissioner, that the shale beds actually discovered and disclosed on each and every claim involved in this contest were of themselves of commercial value for the production of shale oil, separate and distinct from the lower beds known to exist. This evidence appears to have been largely disregarded in the decision herein complained of. The fact is, that on each of four of these claims which corner near homesteader's house, there is a shale bed disclosed that is four feet thick and has an oil content of not less than 25 gallons per ton. (The minimum valuable deposit fixed by the United States Geological Survey, is one foot thick, carrying 15 gallons per ton.)

In this connection, it should be stated that these shale claims were located in 1918; that the conflicting homestead entry was made in 1920, and from that time until after the decision of the commissioner, the homesteader, Summers, patrolled the land in his homestead, armed with a rifle, and neither myself nor any of my employees were permitted on any of the land in conflict, either for the purpose of doing development work or of sampling the shale deposits. This is the reason, and the only reason, why the evidence in the record as to the value of the shale beds actually disclosed on each claim is somewhat indefinite and general as to the particular places from which samples had theretofore been taken. By reason of our inability to do careful sampling prior to the hearing, reliance was placed on samples, and the oil content of same, from identical beds, taken at other points in the immediate vicinity, though not on the particular claims at issue.

In this connection also, I desire to call attention to the fact that since the hearing in this case was held, a mineral examiner of the General Land Office, Mr. G. M. Kintz, in his official capacity, has made a very careful, extensive and detailed examination of the claims here in issue, and many others in the vicinity. I am not advised as to the results of Mr. Kintz's examination, but knowing that he did the work carefully, I am perfectly willing to abide by his report on the question of whether or not there is on each and every one of the claims here in issue, a valid and legal discovery of oil shale deposits. Feeling so strongly as I do, that an injustice has been done by said decision of December 20, 1924, I feel warranted, in view of the mass of conflicting testimony in this case, in suggesting the propriety of the department resorting to the unprejudiced information of its own agents in the interest of ascertaining the actual facts in this case.

As to the second ground of decision, namely, delinquency in performing assessment work, the decision complained of states that the only evidence of assessment work on these claims for the years 1919, 1920, and later, is with respect to a pack trail on or near these claims; the trail in question was not built by me, and never claimed by me in the record or otherwise, as assessment work for these particular claims. On the contrary, the record shows conclusively that for each of the years 1920, 1921, 1922, and 1923 (the law required no assessment work for the year 1919), developing work of excavating in solid rock in place was done on each of these claims to the extent of not less than 40 cubic yards for each of said years. This work shows on the ground for itself; it has been examined by Mr. Kintz, and as to this point also, I am