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February 6, 1973

making it useful for some purpose for which other commonly available materials cannot be used. The decision then defined the criteria for determining whether such a deposit of stone is a common or uncommon variety by stating that if the deposit is to be used for the same purposes as minerals of common occurrence, then there must be a showing not merely that the material is marketable, but that some property of the deposit gives it a special value for such use and that this value is reflected by the fact that the material commands a significantly higher price in the market place. Then the departmental decision remanded the contest proceedings, holding:

The present record does not contain sufficiently detailed information upon which a comparison may be made of the economic value of the rocks within these claims with other stone used for the same purposes. The general statements of the witnesses at the hearing as to the economic value of the rocks were not supported by evidence showing differences in market prices between these rocks and other materials being used for the same purposes. Therefore, a further hearing in this case is needed to receive evidence on this issue of the comparative market place value of this stone with other materials used for the same purposes before a final decision can be made as to whether the deposits of stone within these claims are of an uncommon variety as defined under the act and the standard discussed above.

Consequently, a further hearing was held before a Hearing Examiner on December 5, 1968.

The appellants object in their

present appeal to the Hearing Examiner's finding at page 7 of the decision appealed from that 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." (Italics supplied by the appellants.) From a reading of the Hearing Examiner'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 usable for the same purposes. The appellants assert that the Hearing Examiner failed to apply the facts adduced at both hearings to the criteria defined in the Brubaker departmental decision, supra, for determining whether such deposits of stone come within the category of common varieties of stone pursuant to the quoted Act.

The evidence adduced at both hearings shows that:

Witnesses for both parties at the earlier hearing stated that the material in issue was used for "roofing granules" (1963 Hr. Tr. 11-12, 39, 73, 117). At the subsequent hearing Mr. Brubaker and one of the contestees' witnesses explained that in their opinion "roofing granules" were used in the manufacture of asphalt shingles and rolled goods, and the material on the mining claims in issue was too large to be

suitable for such use (1968 Hr. Tr. 52-53, 79-80, 96). This question of semantics is not significant in these proceedings since the witnesses at both hearings agreed that the crucial use of the colored volcanic rocks on the mining claims is in the build-up roofing industry-two layers of saturated felt are generally laid down and covered with hot asphalt, then colored roofing rock is thrown on top to give the roof color and protect the underlayers from the rays of the sun (1963 Hr. Tr. 13; 1968 Hr. Tr. 79, 123). We shall follow the practice of the Hearing Examiner at the later hearing and refer to the material in issue as being used primarily for "roofing rock," since that appears to be the term used in the build-up roofing industry.

From the evidence, it is clear that although most rock is not suitable for roofing rock purposes (1963 Hr. Tr. 92), there are widespread deposits of different rocks that are practical for such purposes (1963 Hr. Tr. 43; 1968 Hr. Tr. 83, 118). Mr. Brubaker testified that he has had to do considerable exploring to find sources of such rock that is attractive, but he did testify concerning eighteen quarries in the Barstow area in which suitable colored roofing rock is produced (1963 Hr. Tr. 64; Exh. B). The mining claimants' consulting geologist testified that, in his opinion, the colors of the rock in issue made it unique, otherwise he agreed it would be a common rock (1963 Hr. Tr. 132,

135). A wholesale building mate

rial dealer also agreed that colors alone bring the higher price (1968 Hr. Tr. 120).

The mining claimants have several sources from which to supply the roofing rock they sell. The company quarries some of the rock on a royalty basis, they have acquired some lands as a source of supply, and they have located placer claims in the area for such rock (1963 Hr. Tr. 58). The company sells ten colors of roofing rock (1963 Hr. Tr. 60, 90). The rock on the claims in issue is colored gold, pink, lilac and beige, each claim having a different colored rock (1963 Hr. Tr. 60). To avoid possible trespass charges, the company is not quarrying rock from the Nebocher, Orchid Slope No. 1 and Near Pink claims; they are able to supply most of the colors found on these claims from lands they have purchased (1968 Hr. Tr. 71).

During the hearing held in 1968, Mr. Brubaker showed that there is a market of from 3,000 to 4,000 tons of colored roofing rock a month in the area (Tr. 107-108), that his company sells approximately 1,500 tons of the material a month (Tr. 53, 70), and that his two major competitors produce most of the rest of the rock for the local market (Tr. 62, 116, 119). BrubakerMann's two major competitors produce roofing rock from similar materials to that sold by the contestees, and they all sell it for approximately the same price (Tr. 22, 28, 63-63, 102, 119-120). In other words, stone of the same general

February 6, 1973

characteristics is sold for approxi-
mately the same price by those in
the industry (Tr. 108, 119-120).
Red and green colored roofing rock
sells for $13 a ton, but there is no
such rock on any of the claims in
issue (Tr. 55). The pink colored
stone on one of the claims in issue
has at present a low market demand
(Tr. 72). The evidence shows that
the mining claimants, and their
competitors, sell the type of stones
on the claims in issue at the mill at
a price of approximately $12 a ton
(Tr. 28, 54-55, 87, 109). There was
no explicit testimony concerning
the expenses of the mining claim-
ants' competitors, except that one
active producer has an appreciable
freight advantage over Brubaker-
Mann quarries (Tr. 62). Mr. Bru-
baker showed that he produces the
rock at a cost of approximately $10
a ton (Tr. 54-55). There are several
other materials used for the same
purposes as natural colored roofing
rock, and the testimony of the min-
ing claimants' witnesses was not in
accord as to the comparative advan-
tages of one material over another.
Mr. Brubaker was of the opinion
that colors must not fade (1963 Hr.
Tr. 62), while one of his witnesses
stated that it was not important if
some fading occurred. A stone
dealer testifying for the mining
claimants stated that he only used.
colored stone if the roof could be
seen, otherwise local gravel or other
less expensive rocks were used (Tr.
124-125). The market for natural
colored roofing rock goes up and

down, but has been good for the last 20 years (Tr. 114); however, the industry is able to supply the market demand.

1

A summary of the evidence shows: (1) There are many rocks and other materials used for the same purpose as the rock in issue; (2) the rock in issue sells for no higher price than other attractive stones offered in the market for the same purpose by the contestees and their competitors; (3) there is a sufficient supply of attractive rock of suitable quality from many different deposits in the area so that those in the industry have been able to adequately supply the market demands; and (4) no economic advantage in producing the stone has been asserted over that of similar competing stones in the area. In response to the decision of the United States Court of Appeals for the Ninth Circuit, McClarty v. Secretary of Interior, 408 F. 2d 907 (1969), the Department in United States v. Kenneth McClarty, 76 I.D. 193 (1969), explained that stone used for the same purposes as more common stone must show a significant economic advantage because of a unique property to come within the category of an uncommon variety of stone. Thus, the Department in its latest McClarty decision, supra, somewhat developed its explanation, set forth in the depart

1 In this connection we note the readiness with which the mining claimants obtained suitable rock of most of the colors found on the claims in issue from other sources when these adverse proceedings were initiated.

mental Brubaker decision, supra, and stressed in the appellants' statement in support of their appeal, of the criteria for determining whether deposits of rock are an uncommon variety. The appellants have not shown that the Hearing Examiner was in error in finding that the stone in issue is a common variety of stone under the quoted Act and the standards discussed heretofore. Taking the criteria into consideration mentioned in the latest McClarty decision, supra, it is not enough that the rock in issue sells for a higher price than rock used for the same purpose that is less attractively colored, where there is no showing that the deposits in issue have any economic advantage over other suitable, attractive rock in the area which is commonly available in sufficient quantities to adequately supply the market demands. The contestees were required to offer a preponderance of the evidence to overcome the Government's prima facie showing that the material in issue is a common variety of rock, and the contestees have failed to make the necessary showing. The stone in issue is a common variety of stone, and common varieties of stone were not locatable under the mining laws at the times the mining claims in issue were located, nor are such materials now locatable.

Accordingly, the Hearing Examiner's decision determining that the Nebocher, Near Pink, Orchid Slope No. 1, and Calico Shores mining claims are null and void is affirmed.

The above-named appellants have the right of appeal herefrom to the Secretary of the Interior in accordance with the regulations in 43 CFR Part 1840. See Form WO 1844-1 and Circular 2137. If an appeal is taken, it must be filed with the Director, Bureau of Land Management, Washington, D.C. 20240. The filing fee will be computed on the basis of $5 for each mining claim included in the appeal. If the appeal covers all mining claims adversely affected by this decision, the total filing fee will be $20. In taking an appeal there must be strict compliance with the regulations. The appellants must show wherein the decision appealed from is in

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tract of land by metes and bounds in unsurveyed sections 16 and 17, T. 4 S., R. 7 E., Copper River Meridian, containing approximately 120 acres and lying con

A homestead settlement claim for an ad- tiguous to a tract, containing ap

ditional homestead entry under the Act of April 28, 1904 (33 Stat. 527), 43 U.S.C. § 213, may be made for unsurveyed lands in Alaska by a person otherwise qualified who has filed an application for homestead entry on a form approved by the Director, Bureau of Land Management, and made acceptable final proof on his original homestead settlement claim, where the combined area of the two claims does not exceed 160 acres.

APPEARANCES: Davis L. Dann, pro

se.

OPINION BY MRS. LEWIS INTERIOR BOARD OF LAND

APPEALS

Davis L. Dann has appealed from a decision by the Alaska State Office, Bureau of Land Management, dated October 27, 1971, which declared unacceptable for recordation his notice of location of settle

ment claim filed pursuant to the Act of April 29, 1950 (64 Stat. 94; 43 U.S.C. §§ 270, 270-5, 270-6, and 270-7 (1970)), for an additional homestead entry under the Act of April 28, 1904, as amended, 43 U.S.C. § 213 (1970), and vacated its notice of August 19, 1969, entitled "Claim Recorded."

Dann had filed on June 13, 1968, the notice of location of settlement claim for an additional homestead entry under the 1904 Act, Serial No. AA 2956. The notice described a

502-314- -2

proximately 40 acres, on which he had previously filed a notice of location of settlement claim for occupancy under the homestead laws, Serial No. AA 801. On May 6, 1969, the Alaska State Office informed Dann that the land description was incorrect and that the filing would be closed if the defect was not corrected within 30 days from receipt of the notice. Dann filed a new location notice with a corrected description on June 25, 1969, whereupon the State Office issued its notice of August 19, 1969, accepting the claim for recordation.

The decision below pointed out that the regulations under the Act of April 28, 1904, supra, authorize a person who has not theretofore entered 160 acres but has entered

less than that amount to enter other

and additional land lying contiguous to the original entry which, with the land first entered and occupied, will not in the aggregate exceed 160 acres (43 CFR 2512.2(a)); that 43 CFR 2512.2(b) states that a person who desires to make an additional entry under the 1904 Act must comply with the provisions of 43 CFR 2511.3-1, which regulation provides that applications for public lands in Alaska subject to entry must be filed on a form approved by the Director, and that homestead

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