plaintiff of the United States of America were set down. These contentions are as follows:

(A) For the contestant:

(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 (69 Stat. 367; 30 U.S.C. 601).

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

(5) That section 39 U.S.C. 161 is repealed by implication by Public Law 167.

(B) Contentions for Montana Travertine Quarries are as follows:

(1) That the minerals found upon the claims are located under 30 U.S.C. 161 as building stone and that said section has not been repealed by implication by Public Law 167.

(2) That 30 U.S.C. 601 is not applicable to the claims here in question as it only deals with the management of surface rights of patented mining claims and was principally enacted by Congress to prevent location of mining claims in the future for the purpose of acquiring a homesite, acquiring grazing privileges on them, or use of timber.

(3) That 30 U.S.C. 161 has not been repealed by implication by Public Law 167.

(4) That the mineral located on said claims is an uncommon variety of mineral and is a valuable mineral deposit subject to the general mining laws of the United States of America.

7. That thereafter this matter was continued without date and is still pending before the Office of Hearing Examiners of the Department of the Interior.

8. That Montana Travertine Quarries at the meeting in August of 1964 advised the Forest Service of all uses to which the valuable mineral located on the claims could be used, and when asked for the mineral analysis and the reasons why the valid mining location could not be located and a patent issued on these claims. Mr. Manchester advised Montana Travertine Quarries that it was all based upon usage and if it is used for building stone and the company did not have enough money to use the material for mineral value or manufacture it into chemically pure calcium carbonate for uses in manufacturing, that it could uot be patented. In other words, even though a mineral has many uses and a company does not have the capital to develop them to the fullest extent, they will be penalized by the Bureau of Land Management, the Department of the Interior, and the Forest Service who are desirous of building up their own bureaucracy.

9. That to date, no patent has been issued on these lands.

II. THE LAW

Title 30, section 161, United States Code Annotated, 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." Title 30, section 601, United States Code Annotated, provides as follows: "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: *** stone ***) on public lands of the United States, *** if the disposal of such mineral * * * (1) is not otherwise expressly authorized by law, *** and the U.S. mining laws, and (2) is not expressly prohibited by laws of the United States and (3) would not be detrimental to the public interest. Such materials may be disposed of only in accordance with the provisions of this subchapter and upon the payment of adequate compensation therefor, to be determined by the Secretary: * * *.

Title 30, section 611, United States Code Annotated, provides as follows: "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: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such deposit. 'Common varieties' are used in sections 601, 603, and 611-615 of this title does not include deposits of such mineral which are valuable because the deposit has some property giving it distinct and special value. ***" (This was passed July 23, 1955.)

Placer locations and the applicable mining laws are found in title 30, sections 35 to 38, United States Code Annotated, and provide in brief the provisions for locating inapplicable mining claims and providing for discovery work thereon. In Marvel v. Merritt, 29 Law Ed., 550, it is stated:

"The words used are not technical, either as having a special sense by commercial usage, or as having a scientific meaning different from their popular meaning. They are the words of common speech, and as such their interpretation is within the judicial knowledge, and therefore matter of law. Webster, in his dictionary, defines the noun 'mineral' as 'any inorganic species having a definite chemical composition;' and ore as 'the compound of a metal and some other substance, as oxygen, sulfur or arsenic, called its mineralizer, by which its properties are disguised or lost.' The word 'mineral' is evidently derived from mine, as being that which is usually obtained from a mine; and accordingly, Webster defines the latter as 'a pit or excavation in the earth from which metallic ores or other mineral substances are taken by digging, distinguished from the pits from which stones only are taken and which are called quarries'.

In Northern Pacific Railway Company v. Soderberg, 47 Law. Ed. 575, the U.S. Supreme Court considered the following question:

"Whether lands valuable soley or chiefly for granite quarries are mineral lands within the exception of the grant of 1864?

"In construing this grant we must not overlook the general principle announced in many cases in this court, that grants from the sovereign should receive a strict construction- -a construction which shall support the claim of the Government rather than that of the individual. Nothing passes by implication, and unless the language of the grant be clear and explicit as to the property conveyed, that construction will be adopted which favors the sovereign rather than the grantee.

"The rulings of the Land Department to which we are to look for the contemporaneous construction of these statutes, have been subject to very little fluctuation, and almost uniformly, particularly of late years, have lent strong support to the theory of the patentee, that the words 'valuable mineral deposits' should be constured as including all lands chiefly valuable for other than agricultural purposes, and particularly as including nonmetallic substances, among which are held to be alum, asphaltum borax, guano, diamonds, gypsum, resin, 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.

*

*

*

*

*

"We do not deem it necessary to attempt an exact definition of the words 'mineral lands' as used in the act of July 2, 1864. With our present light upon the subject it might be difficult to do so. It is sufficient to say that we see nothing in that act, or in the legislation of Congress up to the time this road was definitely located, which can be construed as putting a different definition upon these words from that generally accepted by the text writers upon the subject. Indeed, we are of the opinion that this legislation consists with, rather than opposes, the overwhelming weight of authority to the effect that mineral lands include not merely metalliferous lands, but all such as are chiefly valuable for their deposits of a mineral character, which are useful in the arts or valuable for purposes of manufacture."

In Freezer v. Sweeney, 8 Mont. 508, 513, it is stated:

"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 is for building purposes, and if the land in which rock or stone quarries are found cannot be taken up under the provisions of the section mentioned, no provision of the land laws is known under which title to such deposits can be acquired, when they are found outside lands valuable for minerals (strictly speaking) or outside agricultural lands, title to which can be acquired under the preemption and homestead laws."

In Sullivan v. Schultz, 22 Mont. 541, the Court stated as follows:

"But whether this principle applies here or not, and apart from these considerations, we think the plaintiff entitled to recover. The cutting of timber upon the public domain is prohibited by law, but there is no such prohibition touching the deposits of mineral upon the public lands. Under the law they are all free and open to exploration and occupation by the citizen for his own profit. This applies to all lands containing valuable deposits, including building stone." (Rev. Stat. U.S. sec. 2319; Act Congress Aug. 4, 1892, 27 Stat. 348.) "The right thus granted necessarily carries with it the license to take what may be found in the course of exploration and apply it to the discoverer's own use. The option is left to him to acquire the exclusive right to the land containing the deposit; but, if he does not choose to do so, he may still avail himself of the deposit, exclusively or in common with others, until someone else acquires the exclusive right from the Government."

III. THE INTENT OF CONGRESS IN PASSING PUBLIC LAW 167

We believe that the purpose of the multiuse mining law administration and operation as set out in the House of Representatives Subcommittee on Mines and Mining of the Committee on Interior and Insular affairs at the hearing held on January 31 and February 1, 1957, to be as stated on page 63 of said report:

"Mr. THOMSON. What interests me now is with regard to this cabin site business that the gentleman from California was inquiring about. Actually it is the intention of the Forest Service here, is it not, that you will force these people into a permit or a special use permit rather than to give them complete control? That was the impression I got during the summer, certainly, when I was in my State.

"Mr. CRAFTS. I would say again, Mr. Thomson, that the use of this act does not affect that problem. We do not like to have people reside in the forests unless they are on a valid claim or unless it is a piece of private land or unless they are under special use permit. Otherwise technically they are in trespass.

"Mr. THOMSON. Will you tell me what the purpose of this act is, then? "Mr. CRAFTS. The purpose of this act is to determine upon what claims the United States will have the right to manage the vegetative surface resources. "Mr. THOMSON. I have the feeling here that we are applying a sort of 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. THOMSON. Then the purpose of the legislation with regard to those that 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."

It is further stated in the same hearing on page 64:

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

In the appendix to said hearing on page 99, it is stated:

"Section 1 of the act authorized the Secretary to dispose of common varieties of sand, stone, gravel, pumice, pumicite, and cinders (as well as regetative matter previously authorized) section 3 specifically removes these mineral materials from the purview of the mining laws and a valid mining claim must hereafter be based on the discovery of some other mineral subject to location separately or in combination with the excluded common varieties. In those areas where forestry and range personnel conduct the appraisal and sale of materials and the administration of those sales under 43 CFR 259 and 43 CFR 115, the inclusion of pumice and pumicite should be called to their attention. Just exactly what is meant by the term 'common varieties' will be subject (except where specifically spelled out in the law, in regard to pumice) to the exercise of commonsense, until, through the administration of the law and the resolution of controversies over this point more definite descriptions can be applied. 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."

On exhibit 4 attached to said hearing on pages 112 and 113 it is stated as follows:

"Valid mining claims cannot be located subsequent to July 23, 1955, based on a discovery of common varieties of sand, stone, gravel, pumice, pumicite, and cinders which have some special characteristic which differentiates them from 'common varieties'."

In exhibit 7 on page 125 and page 126 it is stated as follows:

"There are several hundred thousand mining claims covering millions of acres of public lands, and several thousand additional claims are filed each month. On the national forests alone, as of July 1, 1955, there were some 200,000 mining claims covering about 42 million acres. This land supports some 12 billion board feet of timber worth about $130 million. 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 recreation 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. However, claims cannot be located on the basis of discovery of common varieties of sand, stone, gravel, pumice, pumicite, and cinders. This does not preclude valid claims based on discoveries of locatable minerals, such as gold, occurring in or in association with deposits of common varieties of the materials named above."

Further, it is interesting to note that even though the temporary directive of the Forest Service which is dated June 28, 1963, and which expired on June 27, 1964, relies upon the case of United States v. J. R. Henderson (A 28946, Jan. 13, 1961, 68 I.D. 26) and states the following:

"In view of these decisions, the Chief's Office now considers that any building stone is not subject to mineral location since July 23, 1955. Any stone which is being removed on the basis of a mining claim located after that date would not be in accordance with these decisions unless it were covered under a mineral materials permit. There may be some cases where building stone is being removed from mining claims located prior to Public Law 167. The validity is based upon whether the rock being removed was mined and marketed at a profit prior to July 23, 1955, and can still meet these requirements."

However, the Henderson case specifically recognizes the intent of Congress in the passage of Public Law 167 in the following language:

"The last sentence of this section declares that-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. This language is intended to exclude from disposal under the Materials Act materials that are commercially valuable because of 'distinct and special' properties, such as, for example, limestone suitable for use in the production of cement, metallurgical or chemical-grade limestone, gypsum, and the like. The House report on the bill which became the act of July 23, 1955 (H.R. 589), also notes that the language of the bill excludes 'material such as limestone, gypsum, etc., commercially valuable because of distinct and special' properties."

Further, we believe that attached exhibits A, B, C, and D indicate that title 43, of the Code of Federal Regulations revised as of January 1, 1963, provides that limestone and gypsum are minerals which can be located under the general mining laws of the United States and are not subject to Public Law 167 and are not common varieties of stone.

From the above authority we can draw the following conclusions:

1. Insofar as 30 United States Code, section 161 is concerned it is not repealed by implication.

2. That gypsum, limestone, clay such as benonite can be located under section 30 United States Code, section 161.

3. That the purpose of Public Law 167 is to prevent the abuses which were enumerated on page 63 of the Subcommittee on Mines and Mining hearing held on January 31 and February 1, 1957.

IV. FOREST SERVICE DIRECTIVES AND PROCEDURE

On August 22, 1962, the Forest Service in Missoula, Mont., issued a directive expiring August 21, 1963, which stated:

The question as to whether all building stone is to be considered a common variety material is a legal question on which the statute is not clear. We are not in a position to inform the public or take action against all building stone claims. Clarification has been requested from the Washington office. It is our opinion that stone use for purposes such as ballast, riprap, surfacing, road construction,

certain types of building stone, aggregate in cement or other similar uses is a common variety material and is subject to disposal by a mineral materials permit.' Then after decisions in the Henderson, Ligler, and Kelly Shannon et al. cases, the Forest Service in Missoula, Mont., on June 28, 1963, again issued a directive which stated as follows:

"In view of these decisions, the Chief's office now considers that any building stone is not subject to mineral location since July 23, 1955. Any stone which is being removed on the basis of a mining claim located after that date would not be in accordance with these decisions unless it were covered under a mineral materials permit. There may be some cases where building stone is being removed from mining claims located prior to Public Law 167. The validity is based upon whether the rock being removed was mined and marketed at a profit prior to July 23, 1955, and can still meet these requirements."

All of the cases relied upon by the Forest Service in their directive dated June 28, 1963, can be distinguished from the case now pending against Montana Travertine Quarries and cannot be used for authority for holding that all building stone is a common variety stone.

In the Ligler case the claim was a location for a material known as tuff. Tuff is defined as "a rock composed of the finer kinds of volcanic detritus (loose material that results directly from rock disintegration), usually stratified." The facts of the case were as follows:

"The evidence in this case shows clearly that the mining claims were located for tuff after July 23, 1955. Millions of tons are estimated to exist on the claims and tuff is also found in a 20-mile area surrounding the claims. Except for one carload, none has been removed from the claims but because of the colors, ranging from white through cream, pink, lavender, and brown, its high compressive strength and lightweight, the locators have high hopes of developing a market for an ornamental building stone."

The appellants appealed on the following points of law:

"The appellants dispute the conclusion of the appeals officer that the building stone is a common variety because it can be used only for the same purposes as other deposits of similar stone and deny that marketability has ever been required by any court as an element of a discovery which validates a mining claim.'

Therefore, it appears that two tests have to be presented before a claim for building stone, under Forest Service regulation, can be taken out of a common variety. First, it has to have a special value over and above the general run of such deposits, and second, the claimant has to show:

"that by reason of accessibility, bona fides 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."

In the Henderson case the claim was for sand and gravel. The hearing officer determined under the facts of the case as follows:

"The distinct and special value for which he contends consists only of the factors which make the materials suitable for his particular local business and cause his processing costs to be law and thus give the materials more value to him than like materials in the area.'

In the Shannon case the claimant contended:

"To support their first contention, the claimants contend (1) that the act of July 23, 1955 (30 U.S.C. 1958 ed., secs. 611-615), is not applicable to their claims; (2) that the Government has the burden of proving that the claims are invalid; (3) that a showing of commercial ore is not essential to establish a discovery on a mining claim; and (4) that the stone found on their claim is not a common variety as described in section 3 of the act of July 23, 1955 (30 U.S.C., 1958 ed., sec. 611)." But the hearing officer reduced these contentions to the following: "At the consolidated hearing on these contests, the issue stated by the hearing examiner was the validity of the claims arising from the Government's charges that minerals had not been found within the limits of the claims in such quantities as to constitute a valid discovery; that the materials present on the claims could not be marketed at a profit; and that an actual existing market had not been shown to exist for the materials. In the course of the hearing, the claimants eliminated their claim to a discovery of gold, silver, tungsten, and uranium (Tr. 32-34) and based their case on decorative building stone, which they referred to as agate and clay, which they referred to as Fuller's earth and Montmorillonite."

And the hearing officer further stated:

"Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his