(The letters referred to follow :) COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Hon. ORVILLE L. FREEMAN, Department of Agriculture, Washington, D.C. U.S. SENATE, September 14, 1965. DEAR MR. SECRETARY: You will recall that in response to widespread and continued public requests, the Minerals, Materials, and Fuels Subcommittee held public hearings in Butte, Mont., in June on the interpretation and administration by the Forest Service and the Bureau of Land Management of Public Law 167, 84th Congress. This statute is known as the Materials Act or Common Varieties Act, and also as the Multiple Use Act. Mr. Reynolds Florance, head of the Division of Legislative Reporting and Liaison, attended these hearings as an observer. Enclosed is a galley proof of the stenographic record. Also enclosed is a memorandum prepared by the professional staff member for the subcommittee summarizing the testimony. Patently, the record as it now stands presents only one side of the controversy, and that only partially, concerning the administration and interpretation of the Materials Act. The committee believes that the Butte hearings would be far more useful as a basis for perhaps remedial legislation if the Department of Agriculture were to respond to and discuss the facts and issues involved in the specific complaints and charges. Therefore, a resumed public hearing on Public Law 167, 84th Congress, has been scheduled by the subcommittee for Friday, September 24, at 10 a.m., in the committee room, 3110 New Senate Office Building. The committee hopes that you can be present personally to assist the members or that you will designate a knowledgeable officer of the Department who is qualified to discuss the problems and issues on a policy level. Please advise our committee's staff director, Jerry T. Verkler, as to who will present the position of the Department of Agriculture and answer questions growing out of the Butte hearings. I have made a similar request to Secretary Udall. Sincerely yours, HENRY M. JACKSON, Chairman. U.S. SENATE, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Hon. STEWART L. UDALL, DEAR MR. SECRETARY: You will recall that in response to widespread and continued public requests, the Minerals, Materials, and Fuels Subcommittee held public hearings in Butte, Mont., in June on the interpretation and administration by the Forest Service and the Bureau of Land Management of Public Law 167, 84th Congress. This statute is variously known as the Materials Act or Common Varieties Act, and also as the Multiple Use Act. Mr. Thomas Cavanaugh, Associate Solicitor, and other officers of the Interior Department attended these hearings as observers. Enclosed is a galley proof of the stenographic record. Also enclosed is a memorandum prepared by the professional staff member for the subcommittee summarizing the testimony. Patently, the record as it now stands presents only one side of the controversy and that only partially. The committee believes that the Butte hearings would be far more useful as a basis for consideration of remedial legislation if the Department of Interior were to respond to the complaints and discuss the facts and issues involved in them. Therefore, a resumed public hearing_on Public Law 167, 84th Congress, has been scheduled by the subcommittee for Friday, September 24, at 10 a.m. in the Committee Room, 3110 New Senate Office Building. The committee hopes that you can be present personally to assist the members or that you will designate a knowledgeable officer of the Department who is qualified to discuss the problems and issues on a policy level. In view of the fact that so many of the complaints and misunderstandings appear to stem from decisions of the Solicitor of the Interior Department, it is requested that either Mr. Barry or someone who can speak for him also be prepared to make a presentation and answer questions at the September 24 hearing. Please advise our committee's staff director, Mr. Jerry T. Verkler, as to who will present the position of the Department of the Interior and answer questions growing out of the Butte hearings. I have made a similar request to Secretary Freeman. Sincerely yours, HENRY M. JACKSON, Chairman. Senator GRUENING. I should like to point out that the very able Senator from Montana, Lee Metcalf, is with the subcommittee today by our invitation. Although, as a result of the vagaries of subcommittee assignments, Senator Metcalf is not a member of the Subcommittee on Minerals, Materials, and Fuels, he is recognized as being one of the most knowledgeable men in the Senate with respect to mines and mining and the problems confronting our domestic producers. I will direct that a copy of my letter to Senator Metcalf also appear at this point in the record. (The letter referred to follows:) Hon. LEE METCALF, U.S. Senate, Washington, D.C. SEPTEMBER 21, 1965. DEAR LEE: As you know, the Subcommittee on Minerals, Materials, and Fuels is holding a public hearing next Friday, September 24, on the interpretation and administration of Public Law 167, 84th Congress, which is the so-called Common Varieties Act. This hearing is a resumption of the one we held in Butte in June, and we expect to hear the explanation of the Forest Service and the Bureau of Land Management with respect to the specific cases presented to us in Butte. Although as a result of the vagaries of subcommittee assignments, you are not at this time a member of the Minerals, Materials, and Fuels Subcommittee, it is the subcommittee's earnest hope that you will attend the Friday hearing and participate, actively and with vigor, in the questioning and other proceedings. As I stated in Butte, you are one of the most knowledgeable men in the entire Senate with respect to mining and mineral production and have devoted yourself in your long years in public service to trying to assist our domestic minerals industry. Your help will be invaluable to the subcommittee in our effort to obtain information upon which to base remedial legislation. We hope very much you will be with us. Sincerely yours, ERNEST GRUENING, Chairman, Subcommittee on Minerals, Materials, and Fuels. Senator GRUENING. At our hearings in Butte the text of Public Law 167, as amended, was made a part of the record, as was Senator Anderson's report on S. 1713, 84th Congress, which is the bill that formed the basis for the law. They are available in the appendix of the hearings. However, in order to set a framework for today's proceedings, I would like to read into this record two paragraphs from Senator Anderson's report. Under the heading "Purpose of the Measure," Senator Anderson stated: The purpose of S. 1713 is to permit multiple use of the surface resources of our public lands, to provide for their more efficient administration, and to amend the mining laws to curtail abuses of those laws by a few individuals who usually are not miners. At the same time, the measure faithfully safeguards all of the rights and interests of bona fide prospectors and mine operators. In no way would it deprive them of rights and means for development of the minerals resources of the public lands of the United States under the historic principles of free enterprise and private ownership of the present mining laws. I regret to say that at our Butte hearings evidence was presented that the clear intent of the law as cited above; namely, that "all of the rights and interests of bona fide prospectors and mine operators" will be safeguarded has been perhaps more honored in the breach than in the observance in some instances. Since we have not yet had the benefit of the comments of the administrative agencies on the Butte cases, I do not wish to prejudge the matter, but I must confess that the mine operators appear to have made out a fairly strong prima facie case. I hope the spokesmen for the Forest Service and the Department of the Interior will be able to rebut the evidence establishing the assumption. Unquestionably, much of the difficulty that has brought about the need for hearings on the law arises from what appears to be changes in its interpretation. Concededly, the phrase "common varieties" may be a difficult one to interpret. Is the criterion of what constitutes a common variety the areal distribution of a material, its quality, its quantity, or the end use to which it is put, or its price? Even more difficulty, however, seems to have arisen from the changes brought about in the old rule of discovery. The Supreme Court of the United States, in the historic case of Chrisman v. Miller, found in 197 U.S. 313, states the rule as follows: ***where minerals have been found in the evidence of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a valuable mine, the requirements of the statute (law of 1872) have been met ***. Recently, however, the Department of the Interior has been substituting for this "prudent man rule" theory a concept that there must be a ready, and profitable, market for a mineral before there can be a discovery of it. Had this "marketability rule" been in effect during the later years of the 19th century and the early years of this century, it is doubtful, indeed, whether our West would have been developed. What is unprofitable one day may be profitable the next as a result of a general change in economic conditions. While I certainly don't want to control the presentations of the departmental witnesses, it is my hope that they will give us a blowby-blow description of the administrative process by which a mining claim is declared invalid or a patent application reviewed. Then I hope they will give us a general discussion of their basic regulations and administrative philosophy with respect to the Common Varieties Act. And, of course, we will want to discuss, in detail, the cases presented at the Butte hearings. Unless some other member of the subcommittee or Senator Metcalf wishes to make a general statement, I will proceed to call the first witness. Senator Metcalf, would you like to make a statement? Senator METCALF. Mr. Chairman, I think that your statement has pretty well summed up this situation. As a Member of Congress, I was an enthusiastic supporter of the Common Varieties Act. I felt that legitimate mining claims would be protected. I feel that they were in the first days after the Common Varieties Act was passed, and yet there has been an erosion that has caused considerable concern among not only the people of the State of Montana, but also the people of our neighboring States of Idaho, Colorado, Arizona, and everywhere in the West where we have this mining business. The Forest Service, the Bureau of Land Management, all of the various agencies that manage the public land have, I feel, substan tially changed traditional and historic policies so far as the mining law is concerned. Again, I feel that you have summed it up very well. I thought a strong prima facie case was made in Butte by those people who came in and demonstrated by the facts of each individual case that there had been an invasion of what we had considered traditional mining practice, and I certainly hope that we will have the answer here this morning. Senator GRUENING. Senator Allott? Senator ALLOTT. I would just like to say, Mr. Chairman, I endorse what both the chairman and Senator Metcalf have said. I have been very concerned about the diversion into different principles of administration on this matter of prudent man and marketability. I would hope that, dependent upon the testimony of the witnesses, if necessary, we can consider legislation to bring this back in the area which I believe, and I think all of the Senators here believe, is necessary if the West and Alaska is going to continue to develop. I don't know whether Alaska Senator GRUENING. We are the most west of all. Senator ALLOTT. You are the most west of all, but you are the biggest of us all, too. But we almost always think of Alaska in a separate category, since it outgrew Texas as the biggest State. Senator GRUENING. Thank you very much. Our first witness is Arthur Greeley, Deputy Chief of the Forest Service of the Department of Agriculture. Will you give your name and title and also the names and titles of those accompanying you for the record? We are glad to have you here, having had long, pleasant, and favorable experiences with your fine service in Alaska. We are happy to have you present the case here for the Department, and pursuant to the suggestion made, I wish you would outline-well, you have a prepared statement. Go ahead with the prepared statement and then we will ask the questions afterward. STATEMENT OF ARTHUR GREELEY, DEPUTY CHIEF, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE; ACCOMPANIED BY REYNOLDS G. FLORANCE, DIRECTOR, DIVISION OF LEGISLATIVE REPORTING AND LIAISON, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE Mr. GREELEY. Thank you, Senator Gruening. I am Arthur W. Greeley, one of the Deputy Chiefs of the Forest Service. I am accompanied by Mr. Reynolds Florance, who is the Director of the Division of Legislative Reporting and Liaison of the Forest Service. have a prepared statement which I would like to give, Mr. Chairman. I am pleased to be here to discuss Forest Service actions in the application of Public Law 167 of the 84th Congress. In the Butte hearing, questions were raised regarding the interpretation of the mining laws, especially as to what constitutes a valid discovery to support a valid location. There was also expressed an interpretation of why Public Law 167 was enacted, and the apparent lack of a clear-cut definition of what is a "common variety." There was also the question of the qualification of the mining engineers or geologists employed by the Forest Service and the length of time administrative agencies require to bring a case on for determination on its merits. The interpretation of the mining law is properly, I believe, the responsibility of witnesses from the Department of the Interior and I think, Mr. Chairman, the committee will desire to hear from the witnesses of both Departments before digging very deeply into questions of interpretation. Senator METCALF. Mr. Chairman, would the witness yield? Senator METCALF. As I understand it, you are dividing your testimony and having the Department of Interior put in the interpretation of the mining law; is that it? You are saying to us that it is not the responsibility of the Forest Service to interpret this mining law? Mr. GREELEY. Senator Metcalf, if I may answer to the best of my ability your question Senator METCALF. Yes. I just want to be sure. Mr. GREELEY. The administration of the mining law is the responsibility of the Department of the Interior. Now, we have some responsibilities with reference to what happens on the national forests, but I think that it is a fair statement to say that, for instance, a question of definition of "common varieties" is the responsibility of the Department of Interior to make and not specifically the responsibility of the Department of Agriculture. We do not have in the administration of the mining laws on the national forests a different set of interpretations or a different set of decisions. As cases are brought on for hearing on a contest of a claim, the hearings are held before a hearing examiner of the Bureau of Land Management and the Forest Service people attend the hearing and appear before the BLM hearing examiner. The hearing examiner makes the decisions. Cases are appealed under the rules of the Secretary of Interior and the ultimate decision in these cases would be with the Secretary of Interior, not with the Secretary of Agriculture. Mr. Florance would like to add a point to this, if he may. Mr. FLORANCE. Senator Metcalf, Mr. Chairman, the rulings and interpretations of the mining law are made by the Department of the Interior. This basically is what Mr. Greeley is saying. Now, those rulings and interpretations are binding both upon mining locators and upon the Forest Service. It is the responsibility of the Forest Service, of course, in the administration of the national forests to attempt to apply to its actions dealing with mining activities on the national forests those interpretations and decisions of the Department of the Interior, but the Department of Agriculture has no responsibility and has no authority to actually make final and binding interpretations of the mining law, so that there is a division between the two Departments of actual authority and responsibility. Senator GRUENING. Is that arrangement satisfactory to the Forest Service in the light of the experience you have had now since the law was enacted? Mr. GREELEY. Senator Gruening, I would say this: I think there would really be chaos if there were two sets of definitions and two sets of rules. There are some problems, but I think by and large the two Departments are working effectively in eliminating the problems that we know about. |