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and we are talking mostly of the Forest Service then, but the Bureau of Land Management and the Forest Service are carrying out the same sort of regulations-that there wasn't the same objection or there would not be the need for such a hearing as we have today had they continued the policies that they adopted then. Is that the situation?

Mr. ROTH. I think that's absolutely correct, Senator Metcalf.

Senator METCALF. It seems that a policy has evolved, if not changing the regulations, of at least changing the interpretation of them, so that there has been almost a complete turn-around in administration of the same law.

Mr. ROTH. Right.

Senator METCALF. Primarily, the same regulations?

Mr. ROTH. I believe that is true.

Senator METCALF. Thank you very much.

Senator GRUENING. Mr. French, have you any questions?

Mr. FRENCH. As a lawyer myself, I would like to compliment Mr. Roth on his very persuasive and cogent presentation, and I know that Reynolds Florance, Tom Cavanaugh, and Bill Shafer find it very helpful, too. Mr. Roth, do you discern any difference between the approach of the Forest Service, say, and the Bureau of Land Management? The Forest Service has a direct responsibility for the conservation and use of the surface resources of areas of the national forest system. The Bureau of Land Management has the same responsibility with respect to our nonforest areas and also has the responsibility for enforcement. Is it or is it not a fact that the Forest Service is rather more rigorous in trying to, shall we say, "clean up," to use their phrase, any conflicting uses that might possibly develop in the forests? Do you notice any distinction between the two managements?

Mr. ROTH. I think that is probably true, and I think they are justified in being vigorous in pursuing this congressional policy of invalidating these claims which are for non bona fide purposes, and I think they should be complimented for their vigor in that particular area. However, I think that is true also because they did have, probably, sort of an ambivalence toward any location, they want to conserve the national resources, the surface, vegatative resources, and that is what they are paid to do, to protect the public domain. I think sometimes they get carried away, perhaps, with their quest, and sometimes instead of a dragon, why, they slay the maiden.

Mr. FRENCH. Sir, do you feel that the trouble is in the law itself or in its interpretation? That is, of course, a very basic question.

Mr. ROTH. Well, because of all fields of industry which were affected and of Government affected-the Department of the Interior, agriculture, timber, mining people—they agreed in 1955 that we needed a change in the law, and they agreed in substance with Public Law 167. I don't think there is anything wrong with the act, it is the way in which the act has been interpreted and administered, and the obstacles that they place in the way of the claimant, and the expenses. Let me underline the expense of these contests. This is no small matter, it is an adversary proceeding where high-priced experts are needed to substantiate a claimant's case where the Government has a battery of expert witnesses at their disposal, and the claimant is

put at a real economic disadvantage. If he is small, he just doesn't have the money to fight this contest, and something has to be done to clarify it for the small mine operator because he can't afford to make these contests. That is all there is to it. He just can't afford it.

Senator GRUENING. Well, I have one other question: Do you find or does your experience indicate that there has been any change in the character of the administration and the character and attitude of the Federal agencies with the change of the administration at the top? The notorious Al Sarena case occurred in the early days of the Eisenhower administration under Secretary of the Interior Douglas McKay-there was a change in administration in 1960. Do you find there has been any changes in the policies bearing on this situation either one way or the other? Has there been an improvement or has there been a deterioration from your standpoint, or is it about the same?

Mr. ROTH. Well, I think that since 1960, actually, with no criticism meant to the administration, but, nevertheless, I think that these decisions have become more disastrous from the viewpoint of the small mine operator. I think it has gone further since that time. For example, the Gold case is a 1962 decision, the Carlile decision is a 1960 decision. A lot of these metallic, mineral decisions are post-1960 decisions, and, while I have not analyzed the trend, nevertheless some of the most significant decisions deteriorating the law of discovery have actually occurred since 1960, I believe.

Senator GRUENING. Well, then, it is very important that we go back to Mr. French's question, that we make sure that this isn't merely interpretation, although that's important, but if changes in the law are necessary to assure a better interpretation that we shall have those changes in the law. I know that Senator Metcalf and I will do everything we can to sponsor such changes if they are demonstrably desirable. We feel there have been some very definite injustices and unfortunate situations have developed which we want to rectify, so this is important, and following my previous suggestion, concurred in by Senator Metcalf, we would like to have your suggestions as to any specific amendments and changes in the law.

I am

Mr. ROTH. If I may supplement my answer in response to Mr. French's question-I don't believe I really answered his question fully. Now, that you have this large body of administrative law established, the question is raised in our minds: What are we going to do about it now? I mean, how do you reverse the trend? not sure that there is any solution for it except specific legislation aimed at it now. I just don't know how you are going to do anything about it once it is there, so I suppose specific legislation is required to overrule these decisions.

Senator GRUENING. Well, there is no earthly reason why, in a free society, we can't rectify error-that is what we are here for. Mr. ROTH. Cut out the cancer.

Senator METCALF. I am sure that the agencies themselves would appreciate the clarifying and rectifying of the situation, and I know that I have worked very closely with some of the men who are sitting in the back of the room here and are responsible for the enforcement, and they would welcome a clarification. If Congress does change the policy, they would enforce the new change of policy. But I agree with you that such a mass of both regulations and deci

sions on regulations and decisions on the law and some court cases exist that the only way we can get out of the situation is to do it with the Supreme Court decision with which we disagree or any other decision that is enacted into law, and we will appreciate your aid and assistance. On the basis of this splendid statement, I know that it will be helpful to the committee.

Mr. ROTH. Thank you very much, Senators, I will certainly study it. Senator GRUENING. I would like to suggest, without changing the direct order, that the representatives of the Bureau of Land Management and the Forest Service comment. I feel that it would be useful to them to comment at this time in order that the particular point made by Mr. Roth may not be lost in a lot of other testimony. Also if they would care to comment at any time after any of the witnesses on any specific thing, I would be very glad to have them do so.

We are trying to get information, we want the controversy that comes out of an exchange of ideas, and if any of you people from the Interior Department or Forest Service feel it would be useful to make a specific comment on testimony that has just been given, please feel free to do so. You may do it now, or you may do it at the end of the hearing after the regular witnesses-whichever seems most useful and enlightening in this whole proceeding. If any of you wish to say anything now you may do so, and if not, we will proceed to the next regular witness.

Senator METCALF. Well, Mr. Chairman, if you will pardon me, it may be that they would want to study this material and make a comment later in Washington, at which time the hearings will be printed and available for everybody.

Senator GRUENING. Well, I think that they will want to testify later after studying the hearings. At the same time, there is nothing like a live comment and an immediate reaction to something which has been said. We are not trying to indict anybody here, we are just trying to get information on the basis of which we can improve whatever needs improvement.

Apparently none of those Federal representatives wishes to testify at this time. We will print your prepared statement in full at this point, Mr. Roth, and then proceed to the next witness.

(The statement referred to follows:)

STATEMENT OF URBAN L. ROTH ON BEHALF OF THE MINING ASSOCIATION OF MONTANA

I. INTRODUCTION

I am Urban L. Roth, of Butte, Mont., a practicing lawyer, a partner in the law firm of Poore, Poore, McKenzie & Roth. Before this Senate task force I represent and speak on behalf of the Mining Association of Montana in regard to administration of Public Law 167.

II. HISTORY OF PUBLIC LAW 167

Prior to 1955, Federal mining law was designed to encourage "individual prospecting, exploration, and development of the public domain. The incentive for such activity has been the assurance of ultimate private ownership of the minerals and lands so developed. Under these laws prospectors may go out on the public domain, not otherwise withdrawn, locate a mining claim, search out its mineral wealth, and if a discovery of a mineral is made, can then obtain a patent." (Congressional and Administrative News (1955), vol. 2, p. 2476.)

COMMON VARIETIES ACT

21

House Report No. 730, reprinted in United States Code Congressional and Administrative News, supra, pointed out that—

"Mineral resource utilization comes about only after:

(1) Prospecting;

(2) Exploration; and,

(3) Development."

(Id., 2476.)

To effectuate the purpose set out above, Congress made available for location "all valuable mineral deposits and lands belonging to the United States." (17 Stat. 91.)

Because Congress and the mining industry realized that the act of 1872-being unrestricted as to type of minerals locatable thereunder, was being used as a vehicle to locate spurious claims or to locate for strictly nonmineral purposes, Congress enacted Public Law 167. This law was designed to eliminate what Congress felt were the following defects or abuses in existing law:

1. To withdraw from location minerals of widespread and common occurrence in nature.

2. To invalidate claims:

(a) Used as summer homes;

(b) Utilized for their surface resources; e.g., timber, grazing, and water; (c) Locations used primarily for commercial enterprises such as those locations with a high recreational value. (United States Code Congressional and Administrative News, 1955, vol. 2, pp. 2478-2479.)

Thus legislation was asked for which would eliminate the above abuses but not discourage the legitimate miner and prospector. (Id., p. 2480.)

III. PUBLIC LAW 167

To the end of effectuating the purposes set out above, Congress enacted Public Law 167. Section 3 is congressional response to the problems rising out of problem No. "1." above and this section withdrew from location "a deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders, *** 'common varieties' as used in this Act does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value and does not include so-called block pumice which occurs in nature in pieces having one dimension of two inches or more.'

In the hearings preparatory to enacting Public Law 167 "common varieties” was said to exclude from its operation-a fortiori, leaving subject to 1955 law, those materials "such as limestone, gypsum, etc., commercially valuable because of a distinct and special property.' (United States Code Congressional and Administrative News, supra, p. 2482.)

Moreover, the law did not affect:

"The validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit."

Public Law 167 set up the administrative machinery through which the abuses outlined in “2.” above could be eliminated or rectified. It gave the Department of Agriculture and of Interior an administrative system to test the validity of existing mining claims and in effect quiet title to those claims in the United States if in fact the claim proved invalid.

IV. LAW RE DISCOVERY PRIOR TO 1955

Before proceeding further, and so as to place outselves in a position to actually criticize post-1955 departmental law and application of Public Law 167, it is mandatory that we examine into the law relating to discovery prior to 1955.

The only statutory reference to the necessity of a discovery are those words stating that "valuable mineral deposits" are open to discovery (30 U.S.C. 22 (1872)).

What constituted "valuable mineral deposits" was characterized in 1894 in Castle v. Womble (19 L.D. 455), and specifically approved in Chairman v. Miller (197 U.S. 313), where it was said: "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 this statute (law of 1872) have been met. To hold otherwise, would tend to make of little avail, if not entirely nugatory, that provision of the law whereby 'all valuable mineral deposits and lands belonging to the United States *** *** declared to be free and open to exploration and purchase.' For, if as soon as minerals are shown to exist, and become remunerative, the lands are to be subject to other

are

disposition, few would be found willing to risk time and capital in the attempt to bring to light and make available the mineral wealth which lies concealed in the bowels of the earth, as Congress obviously must have intended the explorers should have proper opportunity to do.",

Since Castle v. Womble used the term "development" or "developing" a valuable mine, it is important to study what the court and the land department did regarding characterization of these terms. After careful study, we find that development actually was tantamount to further exploration rather than establishing a commercially profitable mine.

In Jefferson-Montana Copper Mines Company (41 L.D. 320, 1912) it was held as follows:

"The size of the vein, as far as disclosed; the quality and quantity of mineral it contains; its proximity to working mines and location in an established mining district; the geological conditions; the fact that similar veins in the particular locality have been explored with success; and other like facts, would all be considered by a prudent man in determining whether the vein or lode he has discovered warrants a further expenditure or not.

"To hold that, in order to constitute a discovery as the basis of a location, it must be demonstrated that the discovered deposit will, when worked yield a profit, or that the lands containing it are, in the condition in which they are discovered more valuable for mining than for any other purpose, would be to defeat the object and policy of the law. It is enough if the vein or deposit has a present or prospective commercial value. No court has ever held that in order to entitle one to locate a mining claim, ore of commercial value, in either quantity or quality, must be discovered. Such a theory would make most mining locations impossible."

In the case of United States v. Mouat et al. (A-26 181, Jan. 11, 1954), a decision by Clarence A. Davis, Solicitor, for the Secretary of the Department of the Interior, the Department cited the above three cases with approval and in support of a holding that discovery need not be such as would yield a profit or be a paying mine. The Solicitor also noted the following (Charlton et al. v. Kelly, 9th Cir., 1907, 156 Fed. 433-436).

From that case he quoted as follows:

"It is argued that a discovery sufficient to justify the expenditure of time and money in the development of a mining claim must necessarily be greater than that which is necessary to justify the expenditure of money for the purpose of exploration, with the reasonable expectation that, when developed, the claim will be found valuable as a placer mining claim. Counsel for the plaintiffs in error have assumed for the word 'development' a broader meaning than was intended in the charge. The court did not mean that. In order to comply with the law, there must be such a discovery as to justify the expenditure of time and money upon a claim to the extent of opening up the whole thereof and acquiring an exhaustive knowledge concerning its resources. The word as it was used by the court, and as in connection with the whole charge, it must have been understood by the jury, was equivalent to the work 'exploration,' and was used in the sense in which it was employed in Chrisman v. Miller. ***"'

This continued to be the law as to both metallic and nonmetallic minerals until 1933 when the department decided Layman v. Ellis (52 L.D. 714, as interpreted by the Solicitor's opinion in 54 I.D. 294 (1933)), where the Department of Interior laid down an additional requirement as to minerals of common occurence e.g., sand and gravel that the claimant in addition to satisfying the "prudent man" test, viz, would a prudent man be justified in expending more money to explore further, must satisfy the additional requirement that he prove he could operate the claim at a profit.

This dichotomy and the Solicitor's opinion were accepted by a Federal circuit court in Foster v. Seaton (271 F. 2d 836-838). In that case the court stated that a mineral locator of sand and gravel must show that by reason of accessibility, bona fide in development, proximity to market, existence of present demand, and other factors, the deposit is of such value that it can be mined, removed, and disposed of at a profit. However, the court's decision was specifically restricted to "widespread nonmetallic minerals such as sand and gravel."

It would seem apparent that from the congressional report on Public Law 167, that insofar as locating minerals other than those specifically excluded from location, Congress intended traditional mining law to apply; presumably intending to only require a "valid mineral deposit" to be tested by pre-1955 rules. Thus, with enactment of Public Law 167, Layman v. Ellis and Foster v. Seaton were implicitly overruled or rendered moot by reason of the fact that minerals of widespread occurrence were no longer open to location.

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