in extensive exploratory investigation in order to determine if a prospecting permit should issue. Clear Creek Inn Corporation, supra. The intent of the Act is to allow exploratory work to determine the existence or workability of a coal deposit when the information is not known.

The Mineral Leasing Act does not define "workability." In the fulfillment of his duties under the Act of March 3, 1879, 20 Stat. 394, 43 U.S.C. §31 (1970), the Director, Geological Survey, formulated policy guidelines to be followed in the classification of public lands and the examination of the mineral resource of the national domain. In 1913 the then Director, George Otis Smith, authored USGS Bulletin 537, "The Classification of the Public Lands," setting forth, inter alia, the factors to be considered in determining the workability of coal deposits.

The workability of any coal will ultimately be determined by two offsetting factors (1) its character and heatgiving quality, whence comes its value, and (2) its accessibility, quantity, thickness, depth, and other conditions that affect the cost of its extraction. It must be considered a workable coal if its value, as determined by its character and heatgiving quality, exceeds the cost of extraction, either as judged by actual experience at the point where it is found or as judged by actual experience on similar coals similarly situated elsewhere. There are no absolute limits to any of the factors. The mining of 1 inch of coal that may involve the mining of 3 feet of rock is physically possible but would not pay. Most unworkable coal beds lack one or more of three things-quality, thickness, accessibility-that is, they are too poor,

too thin, or too deep. USGS Bul. 537, p. 67. (Italics added.)

This definition of workability was adopted by the Department in Emil Usibelli A. Ben Shallit, supra, a case which arose under the Alaska Coal Leasing Act, 38 Stat. 742, October 20, 1914, as amended, 41 Stat. 1363, March 4, 1921. The present Manual of the Conservation Division of the Geological Survey has the above definition set forth as its current policy. See Section 671.5.2 (b).

Although workability is basically a problem of the physical parameters of the coal, the test of workability is dependent upon economic factors. If the value of the coal is greater than the cost of its extraction, the deposit is workable. It is not enough to show that mining is physically possible. Clear Creek Inn Corporation, supra. The cost of extraction figured in the meaning of workability in Usibelli by reason of inaccessibility due to the prohibitive construction costs of railroad tunnels and bunkers on the mining site.

Workability as defined by the USGS is concerned with the economics of the intrinsic factors. Extrinsic factors such as transportation, markets, etc., are not considered. However, the cost of mining must be considered. In its classification of coal lands, USGS has anticipated and assumed the ultimate coming of conditions favorable for mining and marketing of any coal if the coal is workable in terms of

the intrinsic factors. In this respect, the test of workability under the Mineral Leasing Act differs from the prudent man rule under the mining laws.

A further differentiation from the "prudent man" requirement of "a reasonable prospect of success" was made in Atlas Corporation, 74 I.D. 76, 84 (1967).

** [I]t is not necessary, in order to sustain a finding that such deposits do exist in workable quantity, that a determination can be made with some degree of assurance that a mining operation will be an economic success. Rather, it is enough that the available data is sufficient to determine that the lands under consideration would require only limited prospecting to project a program for development but would not require prospecting for the purpose of determining the presence or workability of the deposit. [Italics supplied.]

Workability may be established by geologic inference where detailed information is available regarding the existence of a workable deposit in adjacent lands and there are geologic and other surrounding conditions from which the workability of the deposit can be reasonably inferred. Atlas Corp., supra. See Diamond Coal and Coke Co. v. United States, 233 U.S. 236, 249 (1914). However, geologic inference, as a tool for determining workability, has certain limitations. The mere fact that lands applied for adjoin other lands which contain workable coal deposits does not, per se, permit the inference that they contain coal deposits in workable quality and quantity. As pointed out in Atlas, supra, geologic and other surround

ing conditions must lead reasonably to the inference of workability. It has been held that a coal prospecting permit may be issued for lands which adjoin other lands containing known workable deposits of coal but which themselves are not known to contain coal in workable quantity and thickness, Clarence E. Felix, A-30197 (January 7, 1965), even where there were known outcrops of coal on the application lands. Usibelli, supra.

USGS and Goodwin agree with the general rule applied by the coal industry that an exposure of coal establishes the inferred existence of such deposit for a radius of one-half mile, absent known contravening factors such as faults. Goodwin admits that he attempted to include in his applications only lands more than a half-mile from known coal exposures. In cases where he was made aware that he had included lands within a half mile of known exposures, he withdrew all affected lands from the applications.

On past occasions when USGS believed workable coal was present on part, but not all, of the lands under application, it recommended that prospecting permits be issued only on those parts where there was not available sufficient evidence of the presence of workable coal. Clarence E. Felix, supra.

Accordingly, we hold that prospecting permits should be issued for all lands described in the applications with the exception of the following, which lie within one-half mile of known deposits of workable

coal deposits or regarding which Goodwin has not refuted USGS as to their workability:

(1) Within the area of inference of the abandoned mine located on C-0127891: N 12 section 3 and E 12 NE 14 section 4;

(2) Within the area of inference of the Sun Gossard well and the Van James test hole within C-0127926: NE 14, E 2 NW 4 section 20 and all lands in sections 21 and 28; and within C-0127927: all lands in section 28;

(3) Within the area of inference. of the Van James water well within C-0127927: NE 14 NE 14 section 22 and NW 14 NW 14 section 23.

Therefore, pursuant to the authority delegated to the Board, 43 CFR 4.1, the recommended decision of the Administrative Law Judge is affirmed as modified and the applications are remanded to the Bureau of Land Management for action consistent herewith.

JAMES M. DAY,
Ex Officio Member.

I CONCUR:
NEWTON FRISHBERG, Chairman.
I DISSENT:

MARTIN RITVo, Member.

APPENDIX A

JAMES C. GOODWIN--Coal Prospecting Permit Applications-Land Description

The original permit applications, dated April 20, 1966, included the following described lands:

R.

C-0127891 (3,926.49 acres): T. 3 N., 93 W., 6th P.M.-Sec. 6: SW1⁄4SW; Sec. 7: Lots 1, 2, 3, 4, 5, 10, E2NW1⁄4, E1⁄2. T. 3 N., R. 94 W., 6th P.M.-Sec. 1: All; Sec. 2: All; Sec. 3: All; Sec. 4: E2E2; Sec. 9: NENE; Sec. 10: N2N2; Sec. 11: SW4SE1⁄4, N1⁄2SE1⁄4 SW, N2; Sec. 12: Lots 1, 3, NW1⁄4 SE4, N2.

C-0127926 (2,097.98 acres): T. 3 N., R. 93 W., 6th P.M.-Sec. 17: ESW, SE; Sec. 20: Lot 1, NESE, W1⁄2 SE4, SW, E2NW, NE; Sec. 21: Lots 1, 3, 5, 7, 10 NW SE, NSW1⁄4, N2; Sec. 28: Lots 6, 7; Sec. 29: Lots 2, 3, 5, NW; Sec. 30: SW4SE, N1⁄2 SE, NE, W1⁄2.

C-0127927 (2,703.82 acres): T. 3N., R. 93 W., 6th P.M.-Sec. 13: SW4SE, S2SW; Sec. 14: SE4; Sec. 22: Lots 10, 11, 14, 20, 22, SWSE, E1⁄2E1⁄2; Sec. 23: All; Sec. 24: W2, W1⁄2E%; Sec. 25: NSW, NW; Sec. 26: N1⁄2; Sec. 27: Lot 1, SW4 NW, E1⁄2NW4, NE; Sec. 28: Lots 2, 19.

On June 6, 1966, permit C0127927 was amended to include 320 additional acres described as S12 sec. 26, T. 3 N., R. 93 W., 6th P.M.

On September 25, 1967, the following described lands were deleted from the permit applications:

C-0127891 (777.86 acres deleted, leaving a total of 3,148.63 acres in permit application area): T. 3 N., R. 93 W., 6th P.M.-Sec. 6: SW1⁄4SW; Sec. 7: Lots 1, 2, 3, 4, 5, 10 E1⁄2NW, E1⁄2. T. 3 N., R. 94 W., 6th P.M.-Sec. 1: SESE; Sec. 12: Lots 1, 3, ENE1⁄44.

C-0127926 (240.00 acres deleted, leaving a total of 1,857.98 acres in permit application area): T. 3 N., R. 93 W., 6th P.M.--Sec. 17: ESW, SE4. DISSENTING OPINION BY MR. RITVO

I dissent from so much of the decision as remands the applications

to the Bureau of Land Management for the issuance of coal prospecting permits in part.

I would affirm the decision of the Director, Bureau of Land Management, which affirmed a decision of the Colorado Land Office, Bureau of Land Management, rejecting the applications in their entirety. A statement of my views will be filed later.

WILLIAM H. CASEY, G. N. AND M SHARP, A PARTNERSHIP, INTERVENOR

9 IBLA 163

Decided January 26, 1973

Appeal by the intervenor from decision by the Bureau of Land Management remanding Casey's section 3 grazing permit case (Nevada 6-68-1) to the District Manager for consideration on its merits of an application filed by him to transfer a portion of the grazing privileges attached to his base land to other lands acquired by him.

Affirmed as modified.

Grazing Permits and Licenses: Base Property (Land): Generally-Grazing Permits and Licenses: Base Property (Land): CommensurabilityGrazing Permits and Licenses: Base Property (Land): Transfers

Where a grazing permittee has been given two consecutive years in accordance with 43 CFR 4115.2-1 (e) (9) (i) within which to increase the production of his base property or suffer the loss of all or part of his base property qualifications and, where after two growing sea

sons have passed but not two full years, he files an application to transfer some of the qualifications from his base property to other land acquired by him, his base property qualifications are still in good standing at the time of filing the transfer application because the term "two consecutive years" specified in the regulation means two consecutive application years and not two growing seasons. Accordingly, the District Manager should have considered the transfer application on its merits.

Grazing Permits and Licenses: Base Property (Land): Generally-Grazing Permits and Licenses: Base Property (Land): Transfers

Where an application to transfer base property qualifications to other land owned by an applicant is approved, the transfer is effective as of the date the transfer application was filed. A sale at a later date by the proposed transferee would not affect the transfer, and the District Manager properly may consider the transfer application if the purchasers of the property have indicated an interest in obtaining any grazing privileges for which that land is base property. Words and Phrases

"Tico Consecutive Years." The term "two consecutive years" in 43 CFR 4115.2–1 (e) (9) (i) means two consecutive application years and not two growing seasons. APPEARANCES: W. Howard Gray, Esq. of Reno, Nevada, Gray, Horton and Hill, for appellant; Charles E. Evans, Esq., of Elko, Nevada, for appellee.

OPINION BY MRS. LEWIS INTERIOR BOARD OF LAND APPEALS

This is an appeal to the Secretary of the Interior by G. N. and M.