United States v. Kelly Shannon, et al. (70 I.D. 136 (1963)), and cases cited therein.) As to all other locatable minerals, the mining laws require that the claimant demonstrate, as part of the "prudent man test," that there is a discovery of valuable minerals-i.e., minerals for which there is a reasonable prospect of a present or future market.

The courts have without exception sustained the Department's use of the marketability test. Foster v. Seaton (271 F. 2d 836 (D.C. Cir. 1959)); Mulkern v. Hammitt (326 F. 2d 896 (9th Cir. 1964)); Adams v. United States (318 F. 2d 861 (9th Cir. 1963)); The Dredge Corporation v. E. J. Palmer, et al. (Civil No. 366, D. Nav., Sept. 25, 1962 (appeal pending)).

We surmise that the immediate impetus for the resolution is the recent decision of the Department in the case of United States v. Alvis F. Denison, et al. (71 I.D. 144 (1964)). In that case the Department held that, although certain manganese claims might have been valid in prior years when manganese was sold from the claims and there was a market for the manganese, the claims lost their validity and became null and void for lack of discovery when the market for manganese ended and there was no reasonable prospect of a future market.

We must challenge the implicit criticism in the resolution that the Denison ruling departs from the decisions of the courts which recognize the prudent man test. As the Denison decision clearly states, it simply follows the ruling of the U.S. Court of Appeals for the Ninth Circuit in Mulkern v. Hammitt, supra. We repeat the following quotation from the court's decision:

"This court, in the recent case of Adams v. United States (9 Cir., 318 F. 2d 861), * * * held that even though the mining claim there in litigation would, at one time, have satisfied the test (of Castle v. Womble), nevertheless the Government rightfully denied a patent to the claimant since, because of changed economic conditions, the claim did not presently satisfy the test. *** The problem in both cases (Adams and Mulkern) is whether the public lands of the United States should be perpetually incumbered and occupied by a private occupant just because, at one time, he had there a valuable mine which has now been completely worked out; or because he had on his location a mineral which, in the then practice of the building industry, had a market, but which, on account of a change in building practice, no longer has a market or a reasonable prospect of a future market; or because at the time of his discovery, transportation facilities were available which made exploitation feasible, which facilities are no longer available (326 F. 2d at 898). [Emphasis supplied.]

Please note that in speaking of changed economic conditions the court was addressing itself to the question of the time at which the Castle v. Womble test should be applied. That is, the court recognized that the prudent man test was controlling, but that it was to be applied at the time the validity of a claim is called into question.

The Mulkern and Adams decisions appear to be no more than logical applications of principles set forth by the Supreme Court in Best v. Humboldt Placer Mining Company, supra. During the time when manganese of the grade involved in the Denison case was a "valuable" mineral, no patent applications were filed. It is a mining claimant's undoubted right under the mining laws not to seek a patent. But it is also the law that a locator who chooses not to carry his claim to patent takes the risk that his claim will no longer support the issuance of a patent. Such was the holding of the Supreme Court in Best v. Humboldt Placer Mining Company, supra. In that case the Court, after stating the rule to which I have just referred, went on to say that:

"*** It must be shown before a patent issues that at the time of the application for patent 'the claim is valuable for minerals,' worked-out claim not qualifying. United States v. Logomarcini (60 L.D. 371, 373).

"Respondents' mining claims are unpatented, the title to the lands in controversy still being in the United States. The claims are, however, valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met ***" (p. 336).

The basic principle upon which the Court relied in Best was announced in the oft-cited leading case of Cameron v. United States, 252 U.S. 450, 460 (1920), wherein Mr. Justice Van Devanter, speaking for the Court, said:

A minining location which has not gone to patent is of no higher quality and no more immune from attack and investigation than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under

which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public.

Of course, the land department has no power to strike down any claim arbitrarily, but so long as the legal title remains in the Government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void.* * *"

We are unable to distinguish in principle between a mineral once valuable but later worked out and a mineral once valuable but now valueless because of a change in economic conditions. In each case the unpatented claim loses its validity.

This principle was discussed and the same conclusion was treated as established law in the debates and reports in Congress on S. 3451 (87th Cong., 2d sess.) which became Public Law 87-851 (1962). The Senate report on the bill contains the the following statement:

"But, for one of a variety of reasons, many of the claims may not, in fact, be patentable at the present time. In some cases, the mineral veins which justified the original location have been worked out. In others, mineral deposits which, would have sustained a patent application some years ago will no longer suffice, because rising costs and artificially fixed prices for the minerals have rendered actual mining operations uneconomic" (S. Rept. 1984, p. 4, 87th Cong., 2d sess. (1962)).

This statement is identical to one made by Senator Church in introducing the bill (208 Congressional Record pp. 11079-11080 (1962)). Similar statements are contained in the House report on the same legislation (H. Rept. 2184, p. 2, 87th Cong., 2d sess. (1962)), and in the comments on the floor of the House (108 Congressional Record, p. 19648 (1962)).

In sum, we do not believe that the Department can fairly be charged with having departed from policies enunciated by Congress or from prior judicial or departmental rulings. Not only is the decision in the Denison case a logical corallary to the long-settled marketability test, but it is also in accordance with recent court holdings. I hasten to assure the Public Lands Committee of the American Mining Congress that it is our sincere intention to continue to carry out the public trust in the administration of the mining laws insofar as it is within our abilities to do so.

We hope that this explanation will be called to the attention of your committee and of the other organizations signing the resolution. If you would like additional copies of this letter to send to those organizations, we shall be happy to supply them.

Sincerely yours,

FRANK J. BARRY, Solicitor.

Mr. BARRY. The 1955 act, referred to as Public Law 167, is basically a protective measure, designed to eliminate the location of mining claims and use of the public domain for certain specified purposes. Unfortunately, the evils which prompted enactment of this law did not disappear with the passage of the act. Although not as prevalent today, there still exist a number of locators whose interest lies outside the field of legitimate mining to require vigorous enforcement of the law.

It has been repeatedly stated that the 1955 act was not intended to change the mining law of 1872, and, as that law is applied to those minerals which remain subject to location, the basic law has not been changed.

However, to the extent that the 1955 act removed from location some substances previously subject to location, it did change the mining law just as the Mineral Leasing Act of 1920 changed it. Were this not true, the act would be meaningless.

Also, other sections of the act did change the rights of the mining claimant to the use of the surface and surface resources. But the act did not change the essential provisions of the mining law itself, it did not change the requirements of a valid discovery to sustain a mining location and a patent, and it did not amend the prudent-man rule. Neither has any decision by the Department changed any one

of those essential provisions of the mining law, and we earnestly strive to apply the law correctly to the varied factual situations which confront us from time to time.

Unlike the Mineral Leasing Act, the 1955 act did not carve out of the operation of the mining laws clearly definable substances. It may have been felt by the act's framers that a distinction could readily be made between common varieties and uncommon varieties of the minerals subject to the act, but experience has demonstrated that this is not the case.

Early in the present administration, the need for clarifying legislation was expressed in a letter from the then-acting Secretary of the Interior to the chairman of the Committee on Interior and Insular Affairs of the House of Representatives. With your permission, I would like to insert a copy of that letter in the record at this point. Senator GRUENING. It will be included. (The letter referred to follows:)

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY, Washington, D.C., November 2, 1961.

Hon. WAYNE N. ASPINALL,

House of Representatives,

Washington, D.C.

DEAR MR. ASPINALL: This is in reply to your letter of August 29, concerning Associate Solicitor's opinion M-36619 (May 12, 1961). That opinion has been modified by a supplemental Associate Solicitor's opinion, M-36619 (supp.) (Oct. 5, 1961). A copy of the latter opinion is enclosed.

Two questions raised by the Bureau of Land Management prompted this opinion. One was whether a limestone deposit should be classified as a 'common variety" within the meaning of section 3 of the act of July 23, 1955 (30 U.S.C., 1958 ed., sec. 611), unless it has some distinct and special properties not generally found in limestone deposits. As you know the act states that a deposit of sand, stone, gravel, or other named materials must be deemed a "common variety" and hence not subject thereafter to location under the mining laws in the absence of some property giving it a distinct and special value. As stated in the enclosed opinion, the House and Senate Committee reports on section 3 reveal that under this language Congress intended to leave limestone deposits locatable under the mining laws if the deposits were "commercially valuable because of distinct and special properties." The Associate Solicitor considered this language to indicate that neither the House nor the Senate committee considered limestone as having "distinct and special properties" per se, but only those deposits which were commercially valuable because of such properties. In view of the language of the act, the legislative history as a whole, the prior decisions of the Department, and the fact that almost any limestone deposit may be used in the manufacture of portland cement if enough other substances are added to it, the Associate Solicitor ruled that limestone is a "common variety" within the meaning of section 3 of the act unless it has some distinct and special properties not generally found in limestone deposits.

The second question raised by the Bureau of Land Management was whether it was necessary to regard limestone used in the making of portland cement as a "common variety" because some additional material was used in manufacturing the limestone deposit into a portland cement clinker. The former Associate Solicitor, Mr. C. R. Bradshaw, was of the opinion that the only type of limestone used in the manufacture of cement which would not be a "common variety" was a deposit which could be processed into a portland cement clinker without the addition of any supplementary material. However M-36619 (supp.) adopts a more liberal view and rules that the mere fact that additional material is used is not sufficient to label the limestone deposit a "common variety." We understand that in nearly all cases additional substances are combined with limestone in the making of portland cement.

We believe that legislation to clarify the meaning of "common variety" in section 3 of the act would be helpful. Several questions about the meaning of the term have been asked, and only by legislation amending section 3 may they be

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answered conclusively. One pertinent question is whether "common variety” means a common variety of one of the enumerated classes or a common variety of a particular type of mineral within a named class; e.g., does it mean a common variety of stone or does it mean a common variety of a particular type of stone such as limestone or sandstone. Similarly, does the phrase "distinct and special value" mean a value not commonly found in stone, or does it mean a value not commonly found in a particular type of stone such as limestone? Furthermore, there is a question as to what factors are to be considered in determining whether a deposit has "some property giving it a distinct and special value." A deposit may have distinct and special value because of intrinsic factors such as its physical characteristics and chemical composition or because of extrinsic factors such as local scarcity, geographical location, and demand.

Sincerely yours,

JAMES K. CARR, Acting Secretary of the Interior.

Mr. BARRY. Notwithstanding the fact that the Department has been consistent in its belief that the common varieties provision requires clarification, as was said again by then Assistant Secretary Carver in a letter addressed to Congressman Aspinall on February 13, 1964, administration of the act could not be suspended awaiting further congressional guidance.

The ultimate responsibility and authority for determining the disposition of the public domain rests in the Congress. Once the Congress has determined the policy, it devolves upon the administrator to execute that policy and in the absence of clearly defined guidelines in the act through which the congressional policy is announced, the administrator must turn to the lawyers for assistance.

Our opinions and decisions are designed to aid administration of the law by furnishing definitions and guidelines not detailed in the actual legislation. They serve a multiple purpose in that they assure consistency of interpretation, they assist the hearing examiner by establishing workable criteria, and they enable the public to determine what standards are required for the location of a valid claim. We believe that our interpretations have supplied as reasonable standards as possible under existing law.

We are asked whether the Department adheres to clear and consistent definitions of common varieties of sand, stone, gravel, pumice, pumicite, and cinders. Our decisions and opinions on common varieties have been consistent.

Each case must, however, be decided on the basis of its own facts, and the factual situations in different cases have sometimes obscured the consistency of our holdings. Because the common variety provision is not itself explicit, many questions are left unanswered, and we have had to base detailed conclusions of law on the most general provisions.

One pertinent question is whether "common variety" means a common variety of one of the enumerated classes or a common variety of a particular type of mineral within a named class; for example, does it mean a common variety of stone, or does it mean a common variety of a particular type of stone such as limestone or sandstone?

Similarly, does the phrase "distinct and special value" mean a value not commonly found in a particular type of stone such as limestone? Furthermore, there is a question as to what factors are to be considered in determining whether a deposit has "some property giving it a distinct and special value." A deposit may have distinct and special value because of intrinsic factors such as its physical characteristics

and chemical composition or because of extrinsic factors such as local scarcity, geographical location, and demand.

All these and other questions have had to be answered, although the statute is not explicit on them. We have interpreted a common variety as a common variety of a particular type of mineral. Most important of all, we have concluded that only intrinsic values may be considered in determining whether something is a common variety. Our answers are based on the statute itself and the pertinent legislative history, and we believe that these are the answers demanded by the existing law. Yet, as I have indicated, the literal terms of the statute do not set forth these answers explicitly, and only the enactment of clarifying legislation can give fully satisfactory results. Consider for a moment our difficulties with limestone. The legislative history indicates that limestone suitable for the manufacture of portland cement is limestone with a distinct and special value. Some years ago a responsible legal officer in the Department ruled that this meant that only limestone which could be used without the addition of any other substances for the manufacture of portland cement was an uncommon variety.

Since only at one or two places in the country was such a deposit to be found, this made virtually all limestone a common variety and, thus, no longer subject to the mining law. Therefore, a reconsideration of the problem was required in 1961. Evidence was produced on this occasion that nearly all limestone was suitable for the production of portland cement, provided that enough other substances were added to it.

If, therefore, we interpreted the legislative history as saying that limestone suitable in any way for the production of portland cement was an uncommon variety, nearly all limestone would be an uncommon variety and, thus, still subject to the mining law. And yet it seems inconsistent with the 1955 act to say that a valid mining claim might still be located for nearly any deposit of limestone. We thus had to thread our way between these conflicting concepts.

Our final conclusion was that limestone is a common variety unless it has some distinct and special properties not generally found in limestone deposits, but that the mere fact that some additional material must be added to the limestone in manufacturing portland cement does not of itself render the limestone a common variety.

This liberalizing conclusion, I am confident, is sound and represents the law as it is now written. It may not, however, express the law as many have wished to see it or have thought it was being enacted. With our knowledge of this difficulty over limestone, we could expect that the law could be amended in a more generally satisfactory

manner.

I have selected limestone as an example not only because it has been such a major source of adverse comment, but also because it represents so clearly the difficulties under which we must labor in the absence of clarifying legislation. A more explicit statutory provision on limestone is not the only necessary amendment to the 1955

act.

There are several other points on which more definite guidelines are needed. The present statutory definition of a common variety does not satisfy all interested parties, and that definition's lack of