been made on the claim. Further, he must determine whether the material is locatable under the mining laws. In reaching his conclusions he is assisted by the regional attorney in the region in which he is located, and guided by the applicable decisions of the Department of the Interior that pertain to the case.

The mineral examiner's report sets forth his conclusions as to validity and his recommendation for action. The report is submitted to the forest supervisor of the forest, on which the claim is located for his review and concurrence, or objection, to the recommendations made by the mineral examiner.

The case is then sent to the regional forester with the recommendations of the forest supervisor. When the mineral examiner has concluded that there is not a valid discovery, and has recommended that the claim be contested, it is referred to the regional attorney for his review and comments regarding the elements of contest.

Submission of the case for initiating contest action is made by the regional forester to the appropriate State director of the Bureau of Land Management. The Bureau of Land Management files the complaint and holds the hearing. The hearing is held by a Bureau of Land Management hearing examiner. Both sides, the claimant and the Forest Service, present their evidence.

The claimant and the Forest Service are on equal terms. We feel that neither side has any favored position at the hearing. The hearing examiner makes his decision. It may be appealed by either party to the Director of the Bureau of Land Management. The Director's decisions, in like manner, may be appealed to the Secretary of the Interior.

At the Butte hearing there were two specific cases mentioned that involve Forest Service actions: The Montana Travertine claims on the Gallatin National Forest, Mont., and the Kaiser Co. claims on the San Bernardino National Forest, Calif.

One of these was the Montana Travertine case.

On this case, the district forest ranger at Gardiner, Mont., was contacted in November of 1961, by Mr. Jack Ahern, of Montana Travertine Quarries, for a determination of whether or not his three mining locations could be considered valid claims and subject to patent on the basis of travertine stone.

Mr. Ahern had been referred to the Forest Service by the State office of the Bureau of Land Management in Billings where he had made inquiry on the procedure to bring a claim to patent. The forest supervisor wrote a request on December 1, 1961, to the regional forester for a mineral examination of these three claims by a Forest Service mineral expert.

Mr. Davis Hintzman, a valuation engineer who holds a master's degree in geology and who has had considerable mining and minerals experience, both in private industry and in the Forest Service, was assigned to investigate the claims and to submit a report of his findings and recommendations.

Mr. Ahern was notified on January 21, 1962, by the ranger at Gardiner that the examination could be made on February 6, 1962. This date was agreed upon and the examination was made on that date. The mineral examiner was accompanied by Mr. Ahern and by District Ranger C. R. Joy.

On the way to the claims and to facilitate the mineral examiner in recording accurately the factual background data of the case while

they were driving, Mr. Hintzman asked Mr. Ahern whether he objected to the use of a tape recorder. Mr. Ahern indicated he had no objection.

Mr. Hintzman was familiar with the literature of this travertine deposit previous to the examination and was aware, in general, of its chemical composition. During the drive to the claims Mr. Hintzman did discuss current Department of the Interior decisions and that use of the stone is a criterion in determining the validity.

In fact, the mineral examiner must consider two kinds of classification: geologic classification and use classification. While a rock may be geologically uncommon, the use being made of it, as ruled by the Interior Department, may cause it to be classified as common, and this was part of the subject they discussed as they drove out to the claims.

Senator METCALF. And this was recorded on tape?

Mr. GREELEY. I assume so. I did not know about the tape recorder until I read the record, Senator Metcalf. I frankly did not find out anything more specific than I have been able to give here as to the reason for it being used.

Senator METCALF. As you said, he consented that it could be used. Mr. GREELEY. As I understand it, our people told us that Mr. Ahern agreed it was all right to use it, and, of course, a man making an examination like this does have to make a lot of notes and it simplifies the note-taking procedure if he can talk them into a tape recorder or have the tape recorder record, rather than jotting down notes while he is driving. This may be an oversimplification, but this is my understanding of why the tape recorder was used.

Senator METCALF. I do not think, as I heard the testimony, that there was any objection at the time that the tape recorder was used. Mr. GREELEY. Thank you; that was my understanding. Senator ALLOTT. Mr. Chairman, may I ask a question? Senator GRUENING. Yes, sir.

Senator ALLOTT. In this sort of a situation, you do have, or might have, statements which could later be considered as statements against interest. Did you furnish a copy of that tape to the claimant?

Mr. GREELEY. I would be very surprised if we did; I doubt it. I do not think it would have occurred to any of our people to think to do it.

Senator ALLOTT. You have two people here who are acting in an across-the-table situation. The interest of these two people are entirely different-yours, of course, is that of administering and enforcing the law, and the man is attempting to establish a right under our laws for a claim.

Now, since even the most inadvertent statement might be used damagingly against him at a subsequent time, it would seem to me logical that if you are going to use a tape recorder, it ought to be done under one of two circumstances: Either that you give him a copy of the tape or that you forewarn him of his rights so that he may have a counsel there to advise him of any statements against interest into which he might be trapped.

Mr. GREELEY. Well, Senator Allott, rather than see this become something for which formal procedures would be required, I would much rather have our people not use a tape.

I do not think there is any particular reason for it. The intent, as I have previously stated, was to simplify the process of note

taking, but there is no particular reason why a tape recorder would have to be used. I know people traveling out of our office here occasionally use a tape recorder just to help them keep their notes up at night. I do not know too often of circumstances like this where an interview is tape recorded.

Senator ALLOTT. I use a tape recorder myself, but it does seem to me if you use a tape recorder, the man thereafter is always at a disadvantage unless you supply him with a copy of the tape.

Mr. GREELEY. I would rather see our people not use a tape recorder.
Senator ALLOTT. I just wanted to make that comment.
Senator GRUENING. Thank you.

Proceed, Mr. Greeley.

Mr. GREELEY. Mr. Hintzman did take samples of the travertine for laboratory study and for further chemical analysis, if necessary. After his study of the travertine, he was not in disagreement as to the chemical composition which was claimed. Mr. Hintzman's information about the uses made to date, and plans about future use, came from conversations with Mr. Ahern. I do not know whether this was entirely on the basis of conversations on the trip. I think it was then and otherwise, too.

Mr. Hintzman submitted his report of findings and recommendations on June 1, 1962. In his opinion, the travertine rock, as it was being used, was a common variety and not subject to mineral location. The three mining claims of Montana Travertine were located March 29, 1961, and, hence, would be subject to section 3 of Public Law 167. In reaching this conclusion, Mr. Hintzman was guided by current decisions of the Department of the Interior.

In June 1963 arrangements were made by the forest supervisor at Bozeman, Mont., for a meeting with the Montana Travertine people to discuss the findings of the mineral examiner and to determine if the case might be settled without resorting to contest action.

The meeting at Gardiner, Mont., on June 26, was attended by Mr. Ahern, his attorney, a mining consultant, and representatives of the Northern Pacific Railway, the Montana State Planning Board, the Forest Service, and the field office of the General Counsel of the Department of Agriculture.

The Forest Service personnel discussed the mineral examiner's findings. They explained that these were based upon the present use being made of this stone as a rubble building stone. It was stated as the opinion of the Forest Service that this material is not locatable since July 23, 1955, and, so, would not be subject to patent.

The Forest Service was willing that the material be made available for lease under the disposal laws. The amount of material which Montana Travertine Quarries would be removing would preclude a negotiated sale without advertising under the material disposal law. At the meeting in Gardiner, the permit form used by our people for material disposal was reviewed, but no permit was prepared or presented for Mr. Ahern's signature. Appraisal figures were discussed to present our ideas of what would be an equitable royalty. On such sales the Forest Service requires restoration of the surface where this action is feasible.

Other stone sales on adjacent private lands would have a direct bearing on the Government's appraisal value, but we would need to take into account the fact that we would need to require restoration.

Forest officials explained that a basic figure of 5 percent of the selling price of the stone at the quarry would serve as a guide. This amount is comparable to the royalties being paid to private landowners for travertine stone in this area.

In addition, and this is still talking about the meeting at Gardiner, it was pointed out that a special use permit for a fenced pasture which was, in part, a conflict with one of the claims had been in existence long before the date of location of the claims.

The company was given copies of current Department of Interior decisions, which our people felt were pertinent to the case, and was given until August 1, which date was later extended to October 1, to decide whether to go under a sale arrangement, or to continue to remove stone under the mining claims.

The company was told that contest action would be initiated on the mining claims if they continued on that basis and that, if the material should be ruled as a common variety, they would be held accountable for paying for the stone removed. The company and its attorney were notified in writing of this by Forest Supervisor Duvendack on July 12, 1963, and again on October 7, 1963.

The company, after 3 months' consideration and study of the decisions and laws, considered the travertine to be locatable under the general mining laws, and so informed the forest supervisor.

Since we could not settle the issues without contest action, such action was recommended to the Bureau of Land Management. A compliant was issued on February 19, 1964, and an answer was filed. The case presently awaits a hearing to decide the issue whether it is a common or uncommon variety.

In addition to the above, Mr. Ahern states many uses can be made of this high-purity travertine. We do not deny the purity of this deposit nor do we deny that such uses could be made of this stone. These other uses have not been made or demonstrated to date.

The other Forest Service case referred to in the Butte hearing was the patent application of Permanente Cement Co. on the San Bernardino National Forest mentioned by Mr. E. B. Conners of the Kaiser Cement & Gypsum Corp.

Our records show that the application for patent was received in our San Francisco regional office from the Bureau of Land Management on October 22, 1962. Forest Service Mining Engineer W. L. Johnson in November 1962 contacted representatives of the Permanente Cement Co. to arrange for a joint examination of the claims. Primarily because of winter weather conditions, joint examinations could not be arranged before March 19, 1963. On that date an examination was made of the claims by Forest Service Mining Engineers W. L. Johnson and E. B. Ball with representatives of Permanente Cement Co. An additional examination was made the next month, on April 25, 1963. Mining Engineer M. E. Harris joined Messrs. Johnson and Ball for this second examination. No company men were present.

Mr. Johnson's report was prepared on May 9, 1963, and he concluded that the material was ordinary quartzite and a common variety not locatable under the mining laws. Also, he contended that $500 worth of work had not been done on claims 1 and 3.

The case was discussed with Mr. C. F. Lawrence of the San Francisco field office of the General Counsel of the Department of Agri

culture. The regional forester, at San Francisco on August 9, 1963, recommended to the State land office of the Bureau of Land Management that a contest be initiated against the claims. The charge in the original complaint that $500 worth of work had not been done was dropped, because this work had been done prior to the hearing. A hearing on this matter was held on December 5, 1963, in Los Angeles, before Bureau of Land Management Hearing Examiner Rudolph Steiner. The hearing examiner's decision was made on October 15, 1964. His decision dismissed the complaint and held that the quartzite was locatable.

The hearing examiner's decision was appealed to the Director of the Bureau of Land Management on October 20, 1964, because we believed the hearing examiner's decision was in error. The appeal is now pending in the Department of the Interior..

Mr. Chairman, this concludes my prepared testimony. I would be glad to answer questions or have further discussions at the committee's pleasure.

Senator GRUENING. I have a number of questions.

How many of these appeals have been successful? Can you give me any idea? How many cases of appeals from the decision of the examiner have been sustained and how many have been reversed? Mr. GREELEY. Mr. Chairman, I am not sure that I have the figures. We can get the figures on this.

Senator GRUENING. Have you any approximate idea?
Senator METCALF. Perhaps Interior has it.

Senator GRUENING. Does the Interior witness have that?

Mr. BARRY. Mr. Chairman, I have no specific information as to how many. There are, however, a number of appeals both in the Bureau of Land Management which are sustained over the decision of the hearing examiner, and there are some appeals to the Secretary which are upheld.

Now, how many of these involve common variety cases would require a research of the records and a report to you.

Senator GRUENING. I hope that can be supplied to the committee. because I have been informally informed-I do not know whether it is correct or not-that none of these appeals have been successful, and naturally we would like to know what the facts are.

Senator GRUENING. What is the situation on the Montana Travertine case now? Is it pending?

Mr. GREELEY. Yes, sir..

Senator GRUENING. Has there been any further action on the site? Has any more material been removed?

Mr. GREELEY. Senator, I understand that the site involves land, some on private land and some on Federal land, and that the activities of the company have been carried on on the private land portion of the property.

Senator GRUENING. But the portion on the Forest Service land has not been disturbed.

Mr. GREELEY. My understanding is the company has decided not to take any more stone out of there while this case is pending.

Senator GRUENING. How long has that appeal been pending? Mr. GREELEY. The complaint was issued in February of 1964, Senator; it was answered by the company and I do not have the date of the answer. It has been before the BLM hearing examiner