Now, certainly, the requirements or the characterization of "commercial value" by these various criteria set out in the regulations do not appear in the act. They do not appear in Congress' discussion of the act before it was enacted, and do not, certainly, square with what the Department said in 1957.

Let's go back to "bobtailing" claims. If you will recall, Mr. Engle asked if Public Law 167 would be used to "bobtail" claims or to invalidate them completely, and the departmental answer was just to "bobtail" them, not to invalidate them completely.

In 1960, the case of United States v. Carlile, A-28012, was decided. In that decision the Department of Interior overruled Eli Mining and Land Company (194 U.S. 220 (1904)), a U.S. Supreme Court case, which had cited with approval the Clipper Mining Company decision in 22 Land Decisions 527, 528. In effect, the holding in the Clipper case was this: The claimant proceeded to apply for a patent on his location; his claim didn't quite measure up; however, he was still working it in the hopes of bringing it up to the level where it would qualify for patent. Now, instead of invalidating the claim and declaring the claimant or locator a trespasser on the public domain and bringing some sort of action against him for damages for removing material from the public domain, what did the Department of Interior do, and what did the U.S. Supreme Court approve?

In effect, they said: "We will not invalidate the claim; go ahead, stay on it, work on it, retain your rights, called 'pedes possesseo', and continue to work this claim, and if you do bring it up to the requirements for patent, then come back to us and we will grant you a patent." Carlile reversed this and took away the claimant's rights under the doctrine of pedes possessio.

Now, why is the Carlile case such a landmark decision and why is it so dangerous for a small mine operator? Why does that decision, as it appears-it appears innocuous-pose a threat to the small mine operator?

Now, in Tucson, March 23, 1965, a Government panel pointed out the hazards facing a prospector under the Carlile decision: What if a claimant goes on land and he locates what he thinks is an uncommon variety of mineral, or let us assume that he thinks he has a possible mine going, and he proceeds to produce material from this claim? In that case what happens under Public Law 167 if the Government comes in to contest? Government people at this panel said:

If it was found that that locator was a willful trespasser, the damages would be in the amount of the value of the material removed on the marketplace, the claimant would thus suffer the loss of all he had invested to get the material to the marketplace.

This is a quote from Pay Dirt, April 23, 1965:

If, on the other hand, it were found that the claim had been staked in good faith in the honest belief that a special and distinct value existed, the claimant would be an innocent trespasser, would be liable for damages only for material sold, assessed at the value of the material in the ground.

Now, the dilemma presented by the Carlile decision and the Government position as expressed March 23, 1965, is patent; it is this:

1. Pursuant to regulation and administrative decisions, the claimant must, to perfect his location, show a profit in the production of the mineral. He has to do that.

53-117-65--2

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2. However, if he produces the material under the mistaken b that it is not a "common variety" by use or uniqueness, and sells product, he subjects himself to the sanctions which can be imposed trespass, innocent or willful.

3. And he can be subject to a contest, under Carlile, and have claim invalidated before a profitable mine is ever developed and t lose whatever rights he acquired up to that time; so, in effect, h "darned if he does and darned if he doesn't." He doesn't know w his rights in the property are, and certainly his location is subject the whims and the caprices of a Department contest.

RES

It was clear in the hearings of 1957 that commercial ore was 1 the criterion by which the validity of a claim was to be measur However, actual departmental practice certainly contradicts t position. The marketability and profitability tests in the field nonmetallic minerals have been applied to pumice, gypsum, limeston and limestone suitable for cement, contrary to the regulation, cla building stone, tuft, distinctive sand and gravel, pink quartz, and variety of other nonmetallic minerals, and we could fill pages wi citations if we wished to point out just precisely what has be departmental application of the profitability test in the nonmetall field.

R

But they haven't stopped there. They have taken that boo straps decision and applied it to metallic minerals, too; they hav applied it to manganese, they've applied it to gold, they've applied to low-grade copper deposits and let us pause for a minute to conside open pit operations right here in the Butte area-and what do the say:

A showing must reveal the probability of a mineral deposit of commercia value ***

Compare that with statement after statement at the 1957 hearing where commercial value was not going to be the criterion. Now, who is misleading whom?

Even gold, in the Rand decision-Mr. Maloney cited it to this task force even gold, what most people consider the most inherently or intrinsically valuable mineral-that if you have gold, why, you certainly have a location-and just because it couldn't be mined at a profit in 1962, although it was mined at a profit prior to World War II, it was invalidated-not "bobtailed"-invalidated.

Where does the burden of proof lie? In 1957 the Department told Congress that it had the burden of proof to prove that the claimant's land was nonmetallic in character and that the only proof required of the claimant was a showing of mineral which would induce a prudent man to develop further. Now, we are not making up these statements. This is the printed word that the Department told Congress; but in the case of United States of America v. Kenneth 0. Watkins, a Bureau of Land Management decision, there were enunciated two evidentiary rules which I think are disastrous to any appeal to the judiciary from an administrative decision. It held that:

1. The evidence in support of a claimant's case must be "clear and unequivocal." That's the burden of proof of a State, practically, in a criminal conviction.

2. The Board held "* ** that evidence of timber values on the surface of a mining claim is admissible as a proper element

COMMON VARIETIES ACT

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for consideration in determining the weight and credibility to be given the claimant's testimony *

* * ""

Now, the reason these evidentiary rules are so disastrous is because that, under the Administrative Procedure Act, which governs, in effect, the in-department litigation, of course-while recourse to the courts can be had, nevertheless, the claimant must exhaust all administrative procedures before any appeal to the Federal judiciary can be made after the matter has been decided at a departmental level, it goes into a Federal court clothed with the presumption that, at least, as to the facts, the Department's decision is correct; it is presumed that factually the Department had made a correct decision. Now, if under the Watkins rule, the decision characterizes the locator's case by saying that the proof is not "clear and unequivocal," or because there are some "timber resources," they don't believe the claimant's case, what chance does he have of overturning that decision? He does not have any under these evidentiary rules; he's hog-tied and bound before he ever gets into the judiciary, and there isn't a Federal court that can do anything about that.

With regard to "common varieties," I think, again, it is apparent on the face of the act on "common varieties" that it excluded rare minerals; just because the act says: "common varieties" of sandstone, gravel, clay, et cetera-it didn't include all stone, all sand, or all gravel, it excluded from location only the "common varieties." If the stone is rare, even though it is a stone, I submit to this task force that it is still open to location. But in Montana, in the case of a mineral called travertine, which is a pure carbonate of lime much like marble, and which occurs in commercial quantities in probably only two or three places in the United States, a contest has been initiated to declare the travertine deposit invalid.

Travertine is being profitably mined, and it has been, and it certainly is rare. An example of travertine being created is Old Faithful Geyser in Yellowstone National Park. This is the process of the hot spring water carrying up pure carbonate of lime. I am sure Mr. Uuno Sahinen will probably correct, perhaps, my characterization of this mining activity, but nevertheless, as I understand it, that is the creation of travertine. It is a rare rock; it doesn't proliferate like granite or other materials; but they are going to invalidate that claim if they can.

Gentlemen, thank you very much for giving me the opportunity to express my views with regard to the state of the law. I realize that I have taken more of the committee's time than, perhaps, I am justified to do, but I felt that we should really examine into what the departmental position has been in this regard. What did they say they were going to do and what have they actually done? Does it square with what Congress intended? Does it square with what they told Congress they would do? Does it square with the intent of the law as written?

It is evident that the disheartening trend evidenced in regulations and departmental decisions must be reversed by specific congressional action, either redefining "common variety" and "discovery" along traditional lines or imposing their own evidentiary rules as to what kind of proof is needed in support of the claim. Some clarification must be given so that the small mine operator can continue in business in order that the vast mineral resources-and paraphrasing what the

Supreme Court of the United States said in Chrisman v. Miller-in the bowels of the earth can be uncovered and the tremendous economic potential of our Rocky Mountain area be fully realized. Thank you very much.

Senator GRUENING. Mr. Roth, I, first of all, want to congratulate you on your superb, comprehensive, and expert statement. I have been so impressed, not only by your written statement, but by your variations from it as you testified, that I am going to direct that both your written statement, in full, as well as your oral statement, which followed your written statement, but diverts from it occasionally, be set forth in this record. I am going to suggest that the report of your written statement be submitted to you so that you may make any slight corrections or changes that you think are appropriate because the spoken word doesn't always follow exactly with recent ideas, and we will have them both in the record; and I think that will be a great asset to the record.

I want to ask you one or two questions, but, first of all, I am going to suggest that you, as well as the other witnesses, will be kind enough to submit to the subcommittee any proposed amendments that you think will be helpful in achieving the objectives that you believe in, and, if possible, stating the precise language. I think it would be very helpful to the subcommittee if you would do that.

Now, for further questions: You referred in your spoken words to the whimsical treatment, and of course those of us who have had dealings with the Federal bureaucracy know that whimsicality occasionally occurs. Having once been a bureaucrat myself, I can see both points of view; the bureaucrat wishes to preserve the public interest as he sees it and the claimant has a different view. Often the bureaucrat's interpretation of public interest differs substantially from that of those with whom he deals. That is one of the questions that frequently comes before us, and which we in the legislative branch are going to make every effort to resolve. Do you find that on the local level people first deal with your problems on the ground, that there is arbitrary treatment, or do you find that the contact you have with the particular individuals in the Federal agencies are properly courteous and that the trouble occurs higher up? Sometimes you find that there is quite a difference between the operation of officials in the field and those higher up; sometimes you find they are the same. Sometimes you find they are both right and sometimes you find they are both wrong in your view. I wish you would discuss that a little bit, Mr. Roth.

Mr. ROTH. Thank you, Senator Gruening, for your very kind remarks and suggestions.

In response, specifically, to your question: You will have to understand that my information comes to me mostly through what mine operators have told me, and not all of it through direct correspondence with the various departments or their officials or employees. However, I think, probably, the mine operators would agree that if it were purely, let's say, on a local level, if it was the engineer or someone like that, and the two parties, instead of being adversaries, were more friendly toward each other if this wasn't such an adversary proceeding that they could probably sit down and agree as to the mineral whether it was rare or whether it was common. They could probably sit down and discuss, let's say, the economic features of the location, as to whether it could be mined profitably or not.

I think the real basic policy change is dictated at a higher level. This is my feeling, that it is dictated at a higher level, that they are told that this is departmental position.

I don't think that these local fellows are making law in that fashion. I think it must be suggested to them from the people at the head of the department or nearly at the head of the department. I have no proof in support of that statement.

Senator GRUENING. Well, I think this is a useful point that should be discussed by the other witnesses from personal experience. We find great variations, we find public officials who, on the ground, want to be extremely helpful and want to understand the man or the enterprise with which they are dealing, want to be helpful. Then you find others who want to throw their weight around and are high handed and arbitrary and rather eager beavers in finding something wrong. I would like to feel that there is always a spirit of helpfulness and cooperation rather than a spirit of antagonism between the Federal bureaucracy and the public, and I think that is one of the important issues in government. We have found many places where there has been such great helpfulness and such cooperation and a desire to serve the public and they never lose sight of the fact that we public officials are public servants and not rulers. But you find the other type also, those who are arbitary and high handed and try to push people around and don't treat them with complete courtesy. I hope we can move steadily toward the first situation and I think that is the purpose of most of the officials, most of the bureaucrats. Where there are departures from that concept we want to try to correct the situation, either by education, by persuasion, and if that not succeed, by taking the matter higher up, or, if necessary, sometimes by legislation.

Thank you very much. Senator Metcalf, I am sure you have some questions of Mr. Roth.

Senator METCALF. Well, I want to concur with Senator Gruening on complimenting you on a superb statement. It puts the whole. problem in the proper perspective, and I think you have developed some of the problems that have grown during almost the decade since the inception of this law and demonstrated to the committee the need for both clarifying legislation and the need for a correction of some of the regulations which have changed and evolved over the years. I want to join with Senator Gruening also in urging you-and I know you have demonstrated that you have made a study of this matter to suggest to the committee any language for legislation of definitions or clarifying material that we might incorporate into a bill that we could introduce and possibly pass. I hope that you and all the witnesses who succeed you will think about that language and the record will be kept open, won't it, Mr. Chairman?

Senator GRUENING. Indeed, it will be kept open for several weeks, just long enough so that all those who want to contribute further may get their ideas into the record.

Mr. ROTH. Thank you very much, Senators.

Senator METCALF. Just a minute.

Mr. ROTH. Yes, sir.

Senator METCALF. It is my understanding from the way in which you have developed your case here this morning, Mr. Roth, that originally, back in 1957, when you were first confronted with this