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It is found that concluded on the basis of the evidence of record that violations of section 77.215 (c) actually occurred in that the refuse piles were burning on September 25, 1972, and that the evidence justifies the adoption of an inference that the fires were caused by spontaneous ignition. See Glenn Munsey, Earnest Scott, and Arnold Scott v. Smitty Baker Coal Co., Inc., 1 IBMA 144 at 161-162, 79 I.D. 501 (1972).

ber 25, 1972, in violation of section 77.215 (c) of the Mandatory Safety Standards applicable to surface work areas of underground coal mines, the period for abatement provided for in Notices No. 1 J.M.J. and No. 1 J.M.J. (Govts. Exh. Nos. 4 and 5), as extended, was reasonable. Since the grounds given by Applicant in support of its Applications for Review are not sustainable under the law or facts of record, the Applications for Review filed

Litimate Findings and Conclusions October 24, 1972, in Docket Nos.

Inasmuch as the applicant owns at its Preparation Plant Nos. 1 and 4 refuse piles which are defined as "coal mines" subject to the Federal Coal Mine Health and Safety Act of 1969, and inasmuch as those refuse piles were burning on Septem

HOPE 73-330 and HOPE 73-331 are DENIED and Notices of Violation No. 1 J.M.J. and No. 1 J.M.J. both dated September 25, 1972, are AFFIRMED.

RICHARD C. STEFFEY, Administrative Law Judge.

1

February 6, 1973

UNITED STATES

V.

R. W. BRUBAKER, ET AL.*

9 IBLA 281

Decided February 6, 1973

Appeal from decision by the Office of Appeals and Hearings, Bureau of Land Management, affirming an Administrative Law Judge's' decision declaring placer mining claims null and void in Riverside Contests Nos. 02776, 02777 and 02778.

Affirmed.

Mining Claims: Common Varieties of Minerals: Generally-Mining Claims: Common Varieties of Minerals: Special Value-Mining Claims: Determination of Validity

Where mining claims are located after enactment of the Act of July 23, 1955 for deposits of naturally colored volcanic stone having various colors, the stone being mined, crushed, sold, and used for roofing rock, the deposits are common varieties of stone and are not subject to location under the mining laws after July 23, 1955, where it is shown that similar volcanic stone is of widespread occurrence and that the claimants obtain the same price in the market for the stone as their competitors who produce and sell similar naturally colored volcanic stone. It is not enough to remove the stone in issue from the common varieties category merely to show that it sells for a somewhat higher price than other commonly occurring rocks used for the same purpose that are less attractively colored, such as crushed granite, limestone and pea gravel.

*Not in Chronological Order.

[blocks in formation]

APPEARANCES: John B. Lonergan, Esq., of Lonergan, Jordan & Gresham, San Bernardino, California, for appellants; George H. Wheatley, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Los Angeles, California, for the appellee.

OPINION BY MRS. LEWIS INTERIOR BOARD OF LAND APPEALS

R. W. Brubaker, and others 2 have appealed to the Secretary of the Interior from a decision by the Office of Appeals and Hearings, Bureau of Land Management, dated December 9, 1969, which affirmed an Administrative Law Judge's decision of September 11, 1969, declaring the Nebocher, Near Pink, Orchid Slope No. 1, and Calico Shores placer mining claims null and void. The decision held that the deposits on the claims are common varieties of stone no longer subject to location under the mining laws.

In their appeal, appellants contend that the naturally colored volcanic stone here involved is not a common variety and is therefore subject to location under the mining laws.

The four claims were located after the enactment of the Act of July 23, 1955, 30 U.S.C. §§ 601-615 (1970), section 3 of which, Id. § 611, removed common varieties of stone, inter alia, from the operation of the mining laws. Thus, if the deposits

2 Appellants are R. W. Brubaker a/k/a Ronald W. Brubaker; B. A. Brubaker a/k/a Barbara A. Brubaker; and William J. Mann a/k/a W. J. Mann.

80 I.D. No. 4

are held to be common varieties, the claims are void ab initio.

We have carefully reviewed and considered the entire case record, including the testimony and documentary evidence presented at both hearings. As a result, we concur in the decisions below. Accordingly, we adopt the Bureau's decision of December 9, 1969, a copy of which is attached.

Appellants raised essentially the same arguments as they did in their appeal to the Bureau from the Judge's decision, which contentions were properly disposed of in the Bureau's decision. However, we feel compelled to discuss in more detail the main thrust of their appeal, which is that the Judge and the Bureau erred in comparing stone having certain properties with other stone possessing the same properties, although the evidence shows that the subject stone brings a somewhat higher price as compared with the prices brought by other stone not possessing such properties in acceptable or desired degrees.

We find that each of the four claims involved contains volcanic stone of a different color-pink, gold, lilac and beige. Deposits of similar volcanic stone of varying colors are of widespread occurrence in the desert in the general area of

The second hearing was held as a result of a remand by the Department for the presentation of evidence as to a comparison of the deposits in question, with other deposits of similar type minerals and whether the market price is significantly greater than that for the common varieties of minerals used for the same purposes, i.e., roofing rock.

Barstow, California, where the appellants' mill is located. The varied colors in the rock are imparted by minerals such as iron oxides and hydroxides, iron hydroxide limonite, manganese oxides, and hematite. Appellants quarry the rock by drill blasting, and load it in trucks with skip loaders and haul it to their mill in Barstow where it is crushed, bagged, and sold for $12 per ton f.o.b. the mill in 80-pound bags. The total production costs are approximately $10 per ton.

The principle use of the material is for roofing rock, although a small amount is sold for other construction and landscaping purposes. The primary market is Southern California, including Los Angeles. The total market demand for the naturally colored volcanic stone is approximately 3,000 to 4,000 tons per month, of which appellants supply approximately 50%, while their two main competitors supply about 40% and 10% of the market. The competitors also obtain $12 per ton. Appellants have ten different colors of rock in their line obtained from these and various other mining claims and private lands.

The deposits on the four claims in issue possess properties desirable for a good roofing rock, such as color, hardness, opaqueness, retention of color, desirable crushing characteristics, and chemical resistance to weathering and to the other roofing materials which it is used to protect. However, there are other kinds of commonly occurring rock which are used for roofing rock.

February 6, 1973

such as crushed granite, limestone and pea gravel, as well as slag-a waste or by-product of a nearby steel mill-although they sell at somewhat lower prices than the naturally colored volcanic stone. Some of these rocks are artifically colored and are sold for roofing rock. The quantity of slag used in the market is approximately 2,500 tons per month, of which about 25% is artificially colored, although the record is totally devoid of any evidence as to the total market demand for crushed granite, limestone and pea gravel.1

Limestone and crushed granite in 80-pound sacks sell for $10.50 and $8 per ton, respectively, while pea gravel (sold only in bulk) sells for $1.60 per ton. Slag sells for $9.45 and artificially colored slag for $14.85 a ton, the colored slag being priced higher than the rock here in issue.

Witnesses for appellants testified that the colors of the rock in issue made it unique, otherwise it would be a common rock, and that the colors alone bring the higher price. Most buyers are concerned with the color and not with the other properties of the rock. The subject materials are used only on roofs that are visible or where an attractive color is important. Otherwise, common color rocks are used, such as granite, limestone, etc. It is apparent that

4 It is reasonable to assume that the total monthly demand for crushed granite, limestone and pea gravel, when added to the 2,500 tons of slag used in the market, will at least equal or exceed the 3,000 to 4,000 tons of naturally colored volcanic stone used.

much of these latter kinds of rocks are used in the market area, the different colored stones in issue being used to satisfy the aesthetic tastes of individual consumers, architects or stone dealers.

The Judge noted that the contestees and their competitors quarry, process, and sack their material at a cost of $10 a ton and sell it for $12 a ton. He stated that the occurrence of such materials are so common that there is little possibility of one deposit having a significantly higher value than another deposit containing stone with similar characteristics, and concluded:

The contestees established that they have deposits of volcanic material which they can process and market at a profit. They did not establish that their deposits have a distinct and special value over and above many other deposits having the same characteristics and useable for the same purposes. Thus the deposits on the four claims must be considered common varieties of stone no longer subject to location under the mining laws. (Italics supplied.)

With reference to the italicized portion of the above quotation, the Bureau in affirming the Judge stated:

***From a reading of the Hearing Examiner's [Administrative Law Judge's] entire decision, it is clear that he meant that the mining claimants did not establish that their deposits have a distinct and special value over other deposits in common supply in the same market area having the same characteristics and useable for the same purposes. *** (Italics supplied by the Bureau.)

United States v. Alfred Coleman, A-28557 (March 27, 1962), in

volved mining claims comprising 720 acres located on quartzite deposits of varying colors for building stone. The claimant said he needed all of the claims to be able to provide a complete range of colors of ornamental rock for construction use. This department held that "In view of the immense quantities of identical stone found in the area outside the claims, the stone must be considered a 'common variety' within the meaning of the Act." This finding was upheld by the Supreme Court in affirming the Department's decision. See United States v. Coleman, 390 U.S. 599, 603-605 (1968).

Accordingly, we find the subject mining claims to be null and void.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed.

ANNE POINDEXTER LEWIS, Member.

WE CONCUR:

EDWARD W. STUEBING, Member.

MARTIN RITVO, Member.

DECISION

December 9, 1969 Decision Affirmed

The above-named appellants have appealed from the Hearing Examiner's decision dated September 11, 1969, which determined that the above-identified mining claims are null and void for lack of a discovery

of a locatable mineral pursuant to the provisions of section 3 of the Act of July 23, 1955, 30 U.S.C. § 611 (1964), within the boundaries of any of the claims.

The mining claims in issue were located for a colored volcanic rock after the enactment of section 3 of the Act of July 23, 1955, supra, which provides, in pertinent part:

No deposit of common varieties of sand, stone, gravel *** 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. *** "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 * * *.

A hearing was held before a Hearing Examiner on November 21, 1963. By a decision, A-30636 (July 24, 1968), in these proceedings, the Department set aside the Bureau's decisions then under consideration. The departmental decision noted that the crucial issue is whether or not the evidence preponderates that the stone does have physical and chemical properties giving it a distinct economic value within the meaning of the quoted Act. The Department pointed out that in determining whether a deposit has a distinct and special value there must necessarily be a comparison of the deposit with other deposits of similar type minerals. The decision noted that there was no evidence that the material within the claims has some property

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