I do think, Senator, that in order for the Forest Service and the Bureau of Land Management to not operate under two sets of rules, we do have to adhere to and should adhere to, and are willing to adhere to, the definitions that are made in the Department of the Interior in this matter.

Senator GRUENING. What would be an uncommon variety? There must be some stone that is uncommon. What specifications would you have? Would you not think that unusual color, unusual veining would tend to make it uncommon? You consider marble to be uncommon, would you not?

Mr. GREELEY. Again, I beg a lack of expertise.

Senator GRUENING. I think the views of people who are not experts in the last degree-sometimes people get so expert, to use a mixed metaphor, they cannot see the forest for the trees. What would you think as a layman on the subject?

Mr. GREELEY. It seems to me that would be something that makes good facing material and takes a high level of polish. That is apparently what it is in marble that sets marble apart from other things, but I would think, in addition, it would need to be quite rare in physical

occurrence.

Senator GRUENING. I have no further questions. Thank you very much.

Senator METCALF. Just a moment.

During the course of the hearings in Butte I called attention to section 161 of title 30; let me read it to you:

Any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims. Lands recerved for the benefit of the public schools or donated to any States shall not be subject to entry under this section. Nothing contained in this section shall be construed to repeal section 471 of title 16 relating to the establishment of national forests Do you think the passage of the Common Varieties Act we are talking about repealed that section of the statute?

Mr. GREELEY. May I ask Mr. Florance to comment?
Senator METCALF. Surely.

Mr. FLORANCE. Senator Metcalf, again, I cannot speak as a representative of the General Counsel's Office or Interior, but from my own background: I would say that, to the extent that building stone was withdrawn from location and entry under the mining law by the 1955 act, then the provisions of that section 161 would no longer apply to that material.

And certainly there was an intent in 1955 to withdraw from location. entry under the mining law many materials that have great value in its withdrawal of sand, stone, gravel and so on, so that the fact that a substance has value is not the criterion by which it necessarily is determined to be locatable.

Senator METCALF. You are saying that the act put building stone in the same category as sand, gravel, pumice, and so forth?

Mr. FLORANCE. I say, to the extent that the 1955 act withdrew building stone from location entry under the mining law as one of the varities of stone that could no longer be located under the mining law, then the provisions of section 161 would no longer apply. Senator METCALF. And that applies whether it is a variety that you have been talking about or whether it would be an uncommon one?

common

Mr. FLORANCE. Under the 1955 act it would have to be a common variety. Now, what is a common and what is an uncommon variety is the line that we are trying to distinguish here.

Senator METCALF. We would certainly, under ordinary rules of statutory interpretation, attempt to give as much effect to section 161 as possible, would we not?

Mr. FLORANCE. Well, under the rules of statutory construction, again, I want to beg off from trying to give the legal interpretation of the Department, because I am not in a legal position in the Department, but

Senator METCALF. Well, we can ask Mr. Barry.

Mr. FLORANCE. But the 1955 act was a later act and, therefore, the later act is the one that is given the key interpretation.

Senator METCALF. So here is a repeal of a specific act mentioning building stone by——

Mr. FLORANCE. I would not say it is necessarily a total repeal. I say to the extent that building stone was withdrawn from location and entry under the mining laws by the 1955 act, then the provisions of 161 would no longer apply.

Senator METCALF. Well, the provisions of 161 say just that, so they no longer apply. It says:

may enter

Any person authorized to enter lands under the mining laws * * * lands that are chiefly valuable for building stone under provisions of the placer mineral mine claims.

Mr. FLORANCE. Again, I would say they would, first, have to be authorized to locate the material under the mining law, then if the 1955 act

Senator METCALF. You are authorized to locate the mining laws in accordance with section 161. If the land is chiefly valuable for building stone, section 161 says you may locate under the law in relation to placer mineral claims.

Now, it is your contention that when we remove from claims pumice, sand and gravel and so forth, and building stone, we also repealed that section. I have not gone back over the Montana hearings; I do not recall that we even talked about that section.

Mr. FLORANCE. As I recall, that section was not discussed at all at the time the 1955 act was under consideration. I am sure, Senator Metcalf, Solicitor Barry can talk much more authoritatively on this than I can.

Senator METCALF. I will be delighted to talk with Mr. Barry.
Thank you very much, Mr. Chairman.

Senator GRUENING. Before you leave, you indicated that you were pretty well satisfied with the present arrangement with the Department of the Interior, but you also indicated there were some areas in which you had a little doubt, particularly some question of finding proper alternatives.

Would you be able to develop that in writing and let the committee have it? We would like to have your views as to how this arrangement, which has now been in effect for several years, has worked out. In view of the testimony made in Butte, which I think contains very substantial challenges, I would like to have your views on that, and any suggestions that you have as to possible modification of existing legislation. No legislation can ever be fully appraised at the time it is enacted. It takes a few years of experience with it.

Now, we have had these very moving claims on the part of miners out there. They seem to us, to put it objectively, to have legitimate reason for their complaints and in protecting the public interest, which you obviously desire to do and which I know you always have done, there is the interest of the individual, which is also part of the public interest.

We are not ending these hearings today, we are going to continue these for some time. Would you be willing to sit down and write some suggestions as possible modifications of the legislation, or any other suggestions you have as to changes in procedure so the committee may have them.

Would you do that?

Mr. GREELEY. I will be glad to attempt to do that, sir.
Senator GRUENING. We will appreciate that very much.

We are really feeling our way here, trying to find an equitable solution to the agencies and the public.

Thank you.

Senator GRUENING. The next witness is Frank J. Barry, Solicitor of the Department of the Interior.

Mr. BARRY. Mr. Chairman, I would like to have Mr. Cavanaugh, the Associate Solicitor, and Mr. Ernest Hom, who is the Assistant Solicitor for Land Appeals in my office, come up with me. These are

my principal advisers on the subject and I would like to have them at hand, too.

Senator GRUENING. We are glad to have them here.

Mr. BARRY. I have a prepared statement.

Senator GRUENING. Go ahead.

Mr. BARRY. I will read it, if I may.

STATEMENT OF FRANK J. BARRY, SOLICITOR, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY THOMAS J. CAVANAUGH, ASSOCIATE SOLICITOR; AND ERNEST HOM, ASSISTANT SOLICITOR, BRANCH OF LAND APPEALS

Mr. BARRY. I am grateful for the opportunity to speak to the committee about the "common varieties" provisions in section 3 of the act of July 23, 1955.

Ever since its enactment, this section has presented difficulty of interpretation and our departmental rulings based on this provision have been subject to some misunderstanding. The transcript of the hearings which you held on this subject in Butte on June 18 reveals examples of this misunderstanding.

I hope that my testimony here today will help to clear up these erroneous impressions. At the same time, I must emphasize that I believe that this problem will continue to be controversial until the present law is amended. Clarifying amendments to the "common varieties" provision appear essential if the statute is to settle, finally, the rights of the United States, of the public, and of the mining industry.

I have received a copy of Mr. French's memorandum to you at the Butte hearings. I am not able to comment on the specific cases discussed in that memorandum which are pending in the Bureau of Land Management and may, if decided against the mining claimant, come to my office on appeal.

How these cases will be decided will depend on the specific facts of each case, and those facts will be developed only as the cases are considered in the proper tribunal. I would like to add, however, with respect to those cases which are now pending, that some of the testimony deserves comment, insofar as I can make comment without governing how they are going to be decided before they come up here or what course the hearings are going to take before they reach me. I think that some of the principles of law that have been announced here deserve discussion by me and they are involved in those

cases.

The Department has lately been accused of having recently invented the marketability test in opposition to the prudent man rule. The so-called prudent man rule was first enunciated in a Department of the Interior decision in Castle v. Womble, in 1884.

The issue being considered was discovery, and the Secretary of the Interior said:

* * * it is my opinion that where minerals have been found and the evidence is of such 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 have been met.

The principle announced in Castle v. Womble was accepted by the Supreme Court as a correct expression of the law first in Chrisman v. Miller (197 U.S. 313 (1905)) and in many other cases thereafter. From the earliest days of the interpretation of the mining laws the prudent man was assumed to have been motivated by a desire for economic gain. Thus, in 1914 the Department said that "the evident intent and purpose of the mining laws" was to provide an "inducement or incentive for the mineral claimant to remove the minerals from the ground and place the same in the market."

The response to this proposition in recent years has been to suggest that a new element has been introduced, that the law has been changed, and that some other rule has guided the Department in the past.

I pointed out in an opinion dated September 20, 1962 (69 İ.D. 145) that the so-called marketability test is only an aspect of the prudent man rule. Castle v. Womble, 19 L.D. 455 (1894); Layman v. Ellis, 52 L.D. 714 (1929); and Chrisman v. Miller, 197 U.S. 313 (1905) are all consistent with each other and with our present holdings. If a mineral is not economically valuable, if it has no market, would a reasonably prudent man spend his time and means to remove it from the ground and place it in the market?

However, our discussion of the marketability aspect of the prudent man rule has no direct connection with the common varieties provision. The fact that a reasonably prudent man might expend time, labor, and money in the development of a deposit of a certain mineral does not make that mineral an uncommon variety. It has no bearing whatsoever on that point. Whether a mineral is excluded from the mining law by section 3 depends entirely on the intrinsic qualities of that mineral. The most readily marketable common variety of sand is not locatable.

A more detailed statement on the subject of marketability is contained in a letter I addressed to Mr. J. Allen Overton, Jr., executive vice president of the American Mining Congress, on September 11, 1964, a copy of which I will furnish for the record. I will give the reporter a copy of that now.

Senator GRUENING. That will be included in the record.

(The letter referred to follows:)

U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SOLICITOR,
Washington, D.C., September 11, 1964.

Mr. J. ALLEN OVERTON, Jr.,

Executive Vice President, American Mining Congress, Washington, D.C.

DEAR MR. OVERTON: This will acknowledge on behalf of Secretary Udall your letter of June 29, 1964, enclosing a resolution by the Public Lands Committee of the American Mining Congress and a number of mining associations.

The resolution expresses concern over the asserted threat to the mining laws posed by the application by this Department of the marketability rule in mining cases, particularly where it is based upon a concept of fluctuating economic conditions. The resolution strongly urges that the Department "return to the policies enunciated by the Congress and to those decisions of the courts which recognize the prudent man test in the determination of the validity of a mining claim."

The import of the resolution seems to be that this Department has recently been disregarding or departing from policies expressed by the Congress and rulings of the courts. If this is indeed the meaning of the resolution, it is a severe indictment of the Department, for the Department, of course, is charged with the duty of administering the mining laws in accordance with the intent of those laws and the interpretations placed upon them by the courts.

We cannot accept the charge as true.

There is no identification in the resolution of any policy enunciated by the Congress which has been disregarded by the Department. The Congress speaks through the enactment of statutes and resolutions. We know of no legislation enacted in recent or remote years which states policies which have been ignored in departmental rulings.

The fact is that the mining laws provide only that "all valuable mineral deposits" in lands belonging to the United States shall be open to exploration and purchase (Rev. Stat., sec. 2319 (1875), 30 U.S.C. 22 (1958)). This brief, general language has not been amplified or clarified by the Congress in the 92 years since the law was enacted. Of necessity, the burden has been placed upon the Department initially and the courts finally to ascertain the specific meaning of the law.

Shortly after the enactment of the above-mentioned mining laws, the Department of the Interior began giving specificity to the laws and making clear what factors were necessary to establish a valid mining claim. In Castle v. Womble (19 L.D. 455 (1894)), it was held that a valid discovery of minerals would be made only if a reasonable, prudent man "would be justified in the further expenditure of his labor and means, with a reasonable prospect of success" to develop the mine. This rule was given express approval by the Supreme Court in Chrisman v. Miller (197 U.S. 313 (1905)) and more recently in the case of Best v. Humboldt Placer Mining Company (371 U.S. 334 (1963)).

The resolution appears to interpret the application of the "marketability" test as something either contrary to or different from the "prudent man" test of Castle v. Womble, supra. On the contrary, the marketability test has been utilized many times in the past and is clearly a logical and necessary adjunct to the "prudent man" rule.

As early as 1912, in holding that a deposit of pumice or volcanic ash was properly located under the mining laws as a valuable mineral deposit, the Department stressed the fact that it had commercial value as evidenced by sales of the pumice that had been made. Bennett et al. v. Moll (41 L.D. 584 (1912)). The marketability concept of determining whether a mineral was valuable and thus worthy of a prudent man's "labor and means" was also applied in Stanislaus Electric Power Company (41 L.D. 655 (1912)), Cataract Gold Mining Company et al. (43 L.D. 248 (1914)), and Layman et al. v. Ellis (52 L.D. 714 (1929)). The syllabus to the Layman case states:

"Lands containing deposits of gravel which can be extracted, removed, and marketed at a profit are mineral lands subject to location and entry under the placer mining laws." [Emphasis supplied.]]

It is clear, therefore, that for more than half a century departmental decisions have recognized marketability as an essential requirement in judging whether a valid discovery for purposes of the mining laws has been made. In the case of nonmetalliferous minerals of widespread occurrence, the Department has held that the claimant must show immediate marketability to perfect a claim. (See