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It is found that concluded on the ber 25, 1972, in violation of section basis of the evidence of record that 77.215(e) of the Mandatory Safety violations of section 77.215(c) actu- Standards applicable to surface ally occurred in that the refuse piles work areas of underground coal were burning on September 25, 1972, mines, the period for abatement proand that the evidence justifies the

vided for in Notices No. 1 J.M.J. adoption of an inference that the and No. 1 J.M.J. (Govts. Exh. Nos. fires were caused by spontaneous ig- 4 and 5), as extended, was reasonnition. See Glenn Munsey, Earnest able. Since the grounds given by Scott, and Arnold Scott v. Smitty Applicant in support of its AppliBaker Coal Co., Inc., 1 IBMA 144 cations for Review are not sustainat 161-162,79 I.D. 501 (1972). able under the law or facts of record,

the Applications for Review filed litimate Findings and Conclusions October 24, 1972, in Docket Nos.

HOPE 73-330 and HOPE 73-331 Inasmuch as the applicant owns are DENIED and Notices of Violaat its Preparation Plant Nos. 1 and

tion No. 1 J.M.J. and No. 1 J.M.J. 4 refuse píles which are defined as both dated September 25, 1972, are -coal mines” subject to the Federal

AFFIRMED. Coal Mine Health and Safety Act of 1969, and inasmuch as those ref

RICHARD C. STEFFEY, use piles were burning on Septem

Administrative Law Judge.

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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.

OPINION BY VRS. LEWIS INTERIOR BOARD OF LAND

APPEALS

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 rence 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.

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. SS 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

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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 Barstow, California, where the apclaims are void ab initio.

pellants' mill is located. The varied We have carefully reviewed and colors in the rock are imparted by considered the entire case record, minerals such as iron oxides and including the testimony and docu- hydroxides, iron hydroxide limomentary evidence presented at both nite, manganese oxides, and hemahearings.: As a result, we concur tite. Appellants quarry the rock by in the decisions below. Accordingly,

drill blasting, and load it in trucks we adopt the Bureau's decision of with skip loaders and haul it to December 9, 1969, a copy of which

their mill in Barstow where it is is attached.

crushed, bagged, and sold for $12 Appellants raised essentially the

per ton f.o.b. the mill in 80-pound same arguments as they did in their bags. The total production costs are appeal to the Bureau from the approximately $10 per ton. Judge's decision, which contentions The principle use of the matewere properly disposed of in the rial is for roofing rock, although a Bureau's decision. However, we feel

small amount is sold for other concompelled to discuss in more detail struction and landscaping purposes. the main thrust of their appeal, The primary market is Southern which is that the Judge and the California, including Los Angeles. Bureau erred in comparing stone

The total market demand for the having certain properties with naturally colored volcanic stone is other stone possessing the same approximately 3,000 to 4,000 tons properties, although the evidence per month, of which appellants supshows that the subject stone brings ply approximately 50%, while their a somewhat higher price as com- two main competitors supply about pared with the prices brought by 40% and 10% of the market. The other stone not possessing such competitors also obtain $12 per ton. properties in acceptable or desired Appellants have ten different colors degrees.

of rock in their line obtained from We find that each of the four these and various other mining claims involved contains volcanic claims and private lands. stone of a different color--pink, The deposits on the four claims in gold, lilac and beige. Deposits of

issue possess properties desirable similar volcanic stone of varying for a good roofing rock, such as colors are of widespread occurrence

color, hardness, opaqueness, retenin the desert in the general area of

tion of color, desirable crushing

characteristics, and chemical resist3 The second hearing was held as a result of

ance to weathering and to the other a remand by the Department for the presentation of evidence as to a comparison of the roofing materials which it is used to deposits in question, with other deposits of similar type minerals and whether the market

protect. However, there are other price is significantly greater than that for the kinds of commonly occurring rock common varieties of minerals used for the same purposes, i.e., roofing rock.

which are used for roofing rock.

February 6, 1973

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:

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.

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

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, 1-28557 (March 27, 1962), in

4 It is reasonable to assume that the total monthly demand for crushed granite, limestone and pea gravel, when added to the 2,500 tong 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.

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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 “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.

of a locatable mineral pursuant to the provisions of section 3 of the Act of July 23, 1955, 30 U.S.C.9 611 (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 vari. eties” 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 November 21, 1963. By a decision, A-30636 (July 21, 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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ANNE POINDEXTER LEWIS, M ember.

WE CONCUR:

EDWARD W. STUEBING, Jember.

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

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