use is the squeal of the machinery, so this is our plan and we hope to go through with it.

Now, there is one other thing that I think ought to be brought out at this hearing. Park County, Mont., has been declared a distressed area, and the economy of the county is in pretty tough shape, really. The tourist industry is the primary industry, then the cattle industry and so forth. Gardiner, Mont., is a seasonal area because of its proximity to Yellowstone Park. It is at the north gate of the park, and the tourist business is carried on there about 5 months out of the year.

Our payroll is about the only payroll in town that is a year-round thing. It is quite important to the economy of the area and if we can get sufficient financing and can establish this business, we are going to grow and be that much better for this area. We have employed over the past 41⁄2 years anywhere from 5 to 20 people. Presently we have 20 people on our payroll. We think we are doing a real service to the area to expend our time and our efforts in developing the travertine quarries.

I wanted to point out these two things, because I think this is all a part of the overall picture of the development of the natural resources of the United States and in particular the State of Montana.

Gentlemen, that is all I have to offer. Mr. Anderson, who will follow me, will carry on from there. Thank you very much. I appreciate the opportunity to talk to you.

Senator GRUENING. Thank you very much, Mr. Ahern.

Mr. Anderson, will you come forward? Mr. Anderson is the attorney for the Montana Travertine Quarries, Bozeman, Mont., and we have here a statement, an 18-page statement, and we will be very happy to have you summarize it and give us the highlights, and the entire statement may be included in the record.

STATEMENT OF MCKINLEY ANDERSON, ATTORNEY FOR MONTANA

TRAVERTINE QUARRIES

Mr. ANDERSON. Thank you very much, Senator Gruening, Senator Metcalf, and Mr. French.

My name is McKinley Anderson. I am an attorney from Bozeman, Mont., also attorney for the Montana Travertine Quarries.

As such, I have prepared here a brief which lists the facts which Mr. Ahern has covered in his brief statement. However, there are some statements that I feel should also be brought out that are factual, and I wish to quote from the geological report on travertine deposits near Gardiner, Mont., Park County, prepared by Carl E. A. Berg, Billings, Mont., for the Northern Pacific Railway, May 31, 1933. On page 19, it is stated:

The Calcite Products Co. of Springdale, Mont., removes some stone from this quarry for preparation as chicken grit, and the broken and checked condition was probably due to the shooting at that time. This indicates a use of this product as an animal feed supplement ***.

Also, on the map that we have given to the committee, it says: About 23 years ago—

and this we are speaking of is 1933.

a cut 52 feet wide was started in a northeasterly direction at the edge of the travertine outcrop in the northern portion of the southwest quarter, southeast

quarter of section 15 (SW4SE1⁄44, sec. 15) presumably with the intention of taking out travertine which was to be used in the manufacture of cement.

Now, the proceedings that Mr. Ahern mentioned were held in August of 1964, were held in my office in Bozeman, Mont., and as a result of that meeting, in Case No. Montana 1748 of the Department of Interior, Bureau of Land Management, United States of America v. Montana Travertine Quarries, Mr. Parker, counsel for the Forest Service and I arrived at what we would call under the Administrative Procedure Act and the Federal rules a pretrial order. Agreements were all reached except for the contentions of the contestant, the United States of America, and our contentions as the claimant. The contestant says:

1. No discovery of valuable minerals sufficient to support a location has been made present or within the limits of said claim. 2. That the land within the limits of said claim are nonmineral in character.

3. That the material within the limits of the claims are not a valuable mineral deposit under section 3 of the act of July 23, 1955.

4. That the minerals, if any, located under the claims are not an uncommon variety of stone under Public Law 167 and that minerals located upon said lands are a common variety of stone as it is used for a building stone.

Those were the contentions set out by the Forest Service and the Bureau of Land Management; also they add, and I think this is the most serious point of law that can be brought out at this hearing: 5. That section 161 of title 30, United States Code, is repealed by implication by Public Law 167.

To these contentions, of course, we have made the proper denials and claim that we have found a valuable mineral resource, and the mere fact that we used this first as a building stone and do not have enough money to put in a crusher to produce agricultural, industrial, and chemical products from our calcium carbonate really denies us the right to file a valid claim, but, nothwithstanding that, we believe that the law, as I have set out in the brief on page 6 provides as follows:

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 reserved 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. We believe that we have a right, under this section, title 30, section. 161, United States Code, to enter upon any land and locate a building stone and quarry for the purpose of producing building slate. This law has not been repealed by Public Law 167 and it is a well-known rule of law that repeals by implication are not favored in the law. But, to go on, title 30, section 601, which is referred to as Public Law 167, states:

The Secretary, under such rules and regulations as he may prescribe, may dispose of mineral materials (including, but not limited to, common varieties of the following—

and for the purposes of this discussion I have just set out the word "stone" as it appears in the statute

*** on public lands of the United States *** if the disposal of such mineral ***

and then the three requirements to be made:

*** (1) is not otherwise expressly authorized by law *** and the United States mining laws ***.

We feel that building stone, under section 161 of title 30, United States Code, is expressly authorized by law; it is not expressly prohibited by the law of the United States and it would not be objectionable to the public interest. We feel that under these two sections, which are under the Department of Interior and the Department of Agriculture are in conflict and have to be construed together to give both of them effect.

It further provides under title 30, section 611, United States Code: No deposit of common varieties of * * * stone *** shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws ***.

Now, what was the intent of Congress in passing this law? In the hearings before the Subcommittee on Mines and Mining of the Committee on Interior and Insular Affairs, House of Representatives, 85th Congress, held on January 31 and February 1, 1957, on page 63, is stated as follows:

Mr. Thompson was questioning Mr. Crafts, and Mr. Thompson said:

Will you tell me what the purpose of this act is, then?

Mr. Crafts replied:

The purpose of this act is to determine upon what claims the United States will have the right to manage the vegetative surface resources.

Now, I wish to point out here, and as a matter for the committee, that this hearing was limited to section 5, and was not concerned with section 3; however, it goes on, and Mr. Thompson further questions Mr. Crafts:

Mr. THOMPSON. I have a feeling here that we are applying sort of a hidden screw; that the purpose of this act is to prevent, No. 1, location of the mining claims in the future for the purposes of acquiring a homesite, acquiring grazing privileges on them, or use of timber. Is that correct?

Mr. CRAFTS. I would say so.

Mr. THOMPSON. Then the purpose of this legislation with regard to those who have already been located under the mining laws is to take away that right to the use of the surface, is it not?

Mr. CRAFTS. The use of the vegetative surface resources except as they need them for the claim.

We have no argument with this law, and believe that the purposes of this multiuse law have prevented the acts of Congress and have corrected them which they were set out to do▬▬

Senator GRUENING. Mr. Anderson, let me interrupt you one moment?

Mr. ANDERSON. Yes, sir.

Senator GRUENING. Do you happen to know whether that was Representative Thompson?

Mr. ANDERSON. Yes, it was. From Wyoming, sir.

Senator GRUENING. Oh, Keith Thompson from Wyoming?

Mr. ANDERSON. Yes, sir, Keith Thompson. And I think Senator Metcalf was at the hearing.

Then, Mr. Thompson went on further to question Mr. Florance on page 64:

Mr. THOMPSON. In other words, it is your contention that the purpose of this act is to give clear title, so to speak, to go ahead and sell the timber resources, if you want to? Is that right?

Mr. FLORANCE. To manage and dispose of surface resources.

Mr. THOMPSON. And then the vegetative resources?

Mr. FLORANCE. That is right.

Mr. THOMPSON. The other resources outside of timber?

Mr. FLORANCE. The authority to manage and dispose of vegetative resources, but only the authority to manage other surface resources. You cannot dispose, for instance, of sand and gravel under this act on an unpatented mining location regardless of whether you have followed section 5 proceedings.

And this is a statement that I think Mr. Thompson brings out and Mr. Maloney brought out before-Mr. Thompson's reply:

Mr. THOMPSON. It seems to me we are establishing a lot of confusion here. And it is our position that there has been nothing but confusion since, as Mr. Roth pointed out, 1960, in the Public Law 167 as it concerns building stones.

I now refer to page 71 of the same matter where it says in a footnote: Thus, white marble used in sculpture would not be a common variety of stone; ordinary building stone or sand and gravel or pumice or limestone used in building would be.

I think that this is a statement that no one can reconcile.

Senator METCALF. You could have a block of marble?

Mr. ANDERSON. Yes.

Senator METCALF. And carve a statue out of it?

Mr. ANDERSON. Yes, sir.

Senator METCALF. And it wouldn't be a common variety?
Mr. ANDERSON. Yes, sir.

Senator METCALF. But when you saw it up into slabs and use it to face a building it is a common variety?

Mr. ANDERSON. That is correct, sir. That would be the way I would interpret it.

We have an altar here in Butte that is sculptured out of our travertine and for that purpose it is an uncommon variety. Now, I don't know whether it is limited to white marble or other colors would come in.

Senator GRUENING. Well, then you would say that one of the essential things that you would want to rectify is either to eliminate "stone" from those excluded as mineral materials that could be mined or there should be a clearer definition of stone that is used in building or for other purposes?

Mr. ANDERSON. Yes, sir; the conflict between the two sections should be clarified.

Now, I am sorry to take so much of the committee's time, but I think these other points should be brought out because they reflect in the Bureau of Land Management and the Forest Service directives since 1957.

Senator GRUENING. The committee is here for that purpose, and time is no issue whatever. We want to get all the facts.

Mr. ANDERSON. Thank you, sir. On page 99 in the appendix and under exhibit 1, which is a memorandum to State supervisors of the forest department, date January 5, 1956, the statement appears:

Materials like marble, monazite, sands, and gypsum, which are essentially mineral in character, because of special properties or because they contain or are composed of mineral elements not ordinarily in the common forms of such materials, would remain subject to the general mining laws.

This, in itself, would indicate that section 161 is still a valid law of the United States.

Then, I believe, in exhibit 7 on page 125, there is a statement: "Why was a new law necessary?" And it points out:

*** there are some 200,000 mining claims covering about 41⁄2 million acres. This land supports some 12 billion board-feet of timber worth * * * $130 million * * *

Then it goes on to say, on the next page:

Some persons located mining claims for purposes other than mining, or because they wished to capitalize on the nuisance value of a mining claim in a timber-sale area or in an area important to the public for recreational use. Claims for common varieties of mineral materials, such as sand, stone, gravel, and pumice were frequently located for this purpose because these materials were so easy to find *** Now, I think that they had to include the word "stone" in there to prevent people from filing on homesites.

Another point which I wish to point to, which Mr. Roth brought out, is that in appealing this we have to go through the Department of the Interior where the facts are determined and the courts can only review whether they acted in an arbitrary, capricious, or tyrannical manner. Now, this is also a costly procedure, as has been pointed out, but the law as I have found it in the Supreme Court, and there may be many other cases on it, and especially in the case quoted in Northern Pacific Railway Company v. Soderberg, 47 Lawyers' Edition, 575, it is stated as follows:

The rulings of the Land Department, to which we are to look for the contemporaneous construction of these statutes

And to digress there for a minute this is why the rulings of the Interior Department at the present time are so important to our operations, because if we go to the Supreme Court, they will look to those rulings and will not have had a real opportunity to present the full facts in any Federal court

have been subject to very little fluctuation, and almost uniformly, particularly of late years, have lent strong support to the theory *** that the words "valuable mineral deposits" should be construed as including all lands chiefly valuable for other than agricultural purposes, and particularly as including nonmetallic substances, among which *** are held to be ***.

and then it lists a great many which are held:

*** marble, mica, slate, amber, petroleum, limestone, building stone, and coal. The cases are far too numerous for citation, and there is practically no conflict in them.

This is what our highest court says on the location of building stone. In the case of Freezer v. Sweeney (8 Montana, 508, 513), I think it states what the law should be:

It is not presumable that the Government of the United States intended to deprive its citizens of the use of, or means of acquiring title to something so necessary and indispensable as rock or stone for building purposes, and if the land on which the rock or stone quarries are found cannot be taken up under the provisions of the section mentioned ***.

and this is referring to section 30, U.S.C., 161