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February 6, 1973

making it useful for some purpose present appeal to the Hearing Exfor which other commonly avail- aminer's finding at page 7 of the able materials cannot be used. The decision appealed from that they decision then defined the criteria “did not establish that their defor determining whether such a de- posits have a distinct and special posit of stone is a common or un- value over and above many other common variety by stating that if deposits having the same characterthe deposit is to be used for the istics and useable for the same pursame purposes as minerals of com- poses.” (Italics supplied by the apmon occurrence, then there must be pellants.) From a reading of the a showing not merely that the ma- IIearing Examiner's entire decision terial is marketable, but that some it is clear that he meant that the property of the deposit gives it a mining claimants did not establish special value for such use and that that their deposits have a distinct this value is reflected by the fact and special value over other dethat the material commands a sig- posits in common supply in the nificantly higher price in the mar- same market area having the same ket place. Then the departmental characteristics and usable for the decision remanded the contest pro- same purposes. The appellants asceedings, holding:

sert that the Hearing Examiner The present record does not contain failed to apply the facts adduced at sufficiently detailed information upon both hearings to the criteria defined which a comparison may be made of the

in the Brubaker departmental economic value of the rocks within these claims with other stone used for the same

decision, supra, for determining purposes. The general statements of the whether such deposits of stone come witnesses at the hearing as to the eco- within the category of common vanomic value of the rocks were not sup- rieties of stone pursuant to the ported by evidence showing differences

quoted Act. in market prices between these rocks and

The evidence adduced at both other materials being used for the same purposes. Therefore, a further hearing in

hearings shows that: this case is needed to receive evidence on Witnesses for both parties at the this issue of the comparative market earlier hearing stated that the maplace value of this stone with other ma

terial in issue was used for “roofing terials used for the same purposes before

granules" (1963 Hr. Tr. 11-12, 39, a final decision can be made as to whether the deposits of stone within

73, 117). At the subsequent hearing these claims are of an uncommon variety

Mr. Brubaker and one of the conas defined under the act and the standard testees' witnesses explained that in discussed above.

their opinion “roofing granules" Consequently, a further hearing were used in the manufacture of was held before a Hearing Exam- asphalt shingles and rolled goods, iner on December 5, 1968.

and the material on the mining The appellants object in their claims in issue was too large to be

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suitable for such use (1968 Hr. Tr. rial dealer also agreed that colors 52-53, 79–80, 96). This question of alone bring the higher price (1968 semantics is not significant in these Hr. Tr. 120). proceedings since the witnesses at The mining claimants have sevboth hearings agreed that the cru- eral sources from which to supply cial use of the colored volcanic the roofing rock they sell. The comrocks on the mining claims is in the pany quarries some of the rock on build-up roofing industry-two lay- a royalty basis, they have acquired ers of saturated felt are generally some lands as a source of supply, laid down and covered with hot and they have located placer claims asphalt, then colored roofing rock is in the area for such rock (1963 Hr. thrown on top to give the roof color Tr. 58). The company sells ten and protect the underlayers from colors of roofing rock (1963 Hr. Tr. the rays of the sun (1963 Hr. Tr. 60, 90). The rock on the claims in 13; 1968 Hr. Tr. 79, 123). We shall issue is colored gold, pink, lilac and follow the practice of the Hearing beige, each claim having a different Examiner at the later hearing and colored rock (1963 Hr. Tr. 60). To refer to the material in issue as avoid possible trespass charges, the being used primarily for “roofing company is not quarrying rock rock," since that appears to be the from the Nebocher, Orchid Slope term used in the build-up roofing No. 1 and Near Pink claims; they industry.

are able to supply most of the colors From the evidence, it is clear that found on these claims from lands although most rock is not suitable they have purchased (1968 Hr. Tr. for roofing rock purposes (1963 Hr. 71). Tr. 92), there are widespread de- During the hearing held in 1968, posits of different rocks that are Mr. Brubaker showed that there is practical for such purposes (1963 a market of from 3,000 to 4,000 tons Hr. Tr. 43; 1968 Hr. Tr. 83, 118). of colored roofing rock a month in Mr. Brubaker testified that he has the area (Tr. 107–108), that his had to do considerable exploring to company sells approximately 1,500 find sources of such rock that is at- tons of the material a month (Tr. tractive, but he did testify concern- 53, 70), and that his two major ing eighteen quarries in the Bar- competitors produce most of the stow area in which suitable colored rest of the rock for the local market roofing rock is produced (1963 Hr. (Tr. 62, 116, 119). BrubakerTr. 64; Exh. B). The mining claim- Mann's two major competitors proants' consulting geologist testified duce roofing rock from similar mathat, in his opinion, the colors of terials to that sold by the contestees, the rock in issue made it unique, and they all sell it for approxiotherwise he agreed it would be a mately the same price (Tr. 22, 28, common rock (1963 Hr. Tr. 132, 63–63, 102, 119-120). In other 135). A wholesale building mate- words, stone of the same general

February 6, 1973


characteristics is sold for approxi- down, but has been good for the last mately the same price by those in 20 years (Tr. 114); however, the the industry (Tr. 108, 119–120). industry is able to supply the marRed and green colored roofing rock ket demand. sells for $13 a ton, but there is no A summary of the evidence such rock on any of the claims in shows: (1) There are many rocks issue (Tr. 55). The pink colored and other materials used for the stone on one of the claims in issue same purpose as the rock in issue; has at present a low market demand (2) the rock in issue sells for no (Tr. 72). The evidence shows that higher price than other attractive the mining claimants, and their stones offered in the market for the competitors, sell the type of stones same purpose by the contestees and on the claims in issue at the mill at their competitors; (3) there is a a price of approximately $12 a ton sufficient supply of attractive rock (Tr. 28, 54-55, 87, 109). There was of suitable quality from many difno explicit testimony concerning ferent deposits in the area so that the expenses of the mining claim- those in the industry have been able ants' competitors, except that one to adequately supply the market active producer has an appreciable demands; 1 and (4) no economic freight advantage over Brubaker- advantage in producing the stone Mann quarries (Tr. 62). Mr. Bru- has been asserted over that of simibaker showed that he produces the lar competing stones in the area. In rock at a cost of approximately $10 response to the decision of the a ton (Tr. 54–55). There are several United States Court of Appeals for other materials used for the same the Ninth Circuit, McClarty v. Secpurposes as natural colored roofing retary of Interior, 408 F. 2d 907 rock, and the testimony of the min- (1969), the Department in United ing claimants' witnesses was not in States v. Kenneth McClarty, 76 I.D. accord as to the comparative advan- 193 (1969), explained that stone tages of one material over another. used for the same purposes as more Mr. Brubaker was of the opinion common stone must show a signifithat colors must not fade (1963 Hr. cant economic advantage because of Tr. 62), while one of his witnesses a unique property to come within stated that it was not important if the category of an uncommon vasome fading occurred. A stone riety of stone. Thus, the Departdealer testifying for the mining ment in its latest McClarty decision, claimants stated that he only used supra, somewhat developed its excolored stone if the roof could be planation, set forth in the departseen, otherwise local gravel or other less expensive rocks were used (Tr.

with which the mining claimants obtained 124-125). The market for natural suitable rock of most of the colors found on

the claims in issue from other sources when colored roofing rock goes up and

these adverse proceedings were initiated.

1 In this connection we note the readiness

mental Brubaker decision, supra, The above-named appellants and stressed in the appellants' state- have the right of appeal herefrom ment in support of their appeal, to the Secretary of the Interior in of the criteria for determining accordance with the regulations in whether deposits of rock are an un- 43 CFR Part 1840. See Form WO common variety. The appellants

1814-1 and Circular 2137. If an aphave not shown that the Hearing peal is taken, it must be filed with Examiner was in error in finding the Director, Bureau of Land Manthat the stone in issue is a common agement, Washington, D.C. 20240. variety of stone under the quoted The filing fee will be computed on Act and the standards discussed the basis of $5 for each mining heretofore. Taking the criteria into claim included in the appeal. If the consideration mentioned in the lat- appeal covers all mining claims adest McClarty decision, supra, it is versely affected by this decision, the not enough that the rock in issue total filing fee will be $20. In taksells for a higher price than rock ing an appeal there must be strict used for the same purpose that is compliance with the regulations. less attractively colored, where The appellants must show wherein there is no showing that the de- the decision appealed from is in posits in issue have any economic error. advantage over other suitable, at- If an appeal is taken by the aptractive rock in the area which is pellants, the attorney for the adcommonly available in sufficient verse party who must be served is: quantities to adequately supply the

Regional Solicitor market demands. The contestees

United States Department of the were required to offer a preponder

Interior ance of the evidence to overcome the

7759 Federal Building Government's prima facie showing that the material in issue is a com

300 North Los Angeles Street mon variety of rock, and the con

Los Angeles, California. testees have failed to make the nec

FRANCES A. PATTON, essary showing. The stone in issue OFFICE OF APPEALS AND HEARINGS is a common variety of stone, and common varieties of stone were not

DAVIS L. DANN locatable under the mining laws at the times the mining claims in issue

Decided April 4, 1973 were located, nor are such materials

10 IBLA 221 now locatable.

Accordingly, the Ilearing Exam- Appeal from decision (AA 2956) by iner's decision determining that the the Alaska State Office, Bureau of Land Nebocher, Near Pink, Orchid Slope Management, rejecting notice of locaNo. 1, and Calico Shores mining tion of settlement claim for an addiclaims are null and void is affirmed. tional entry under the homestead laws.

April 4, 1973

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Reversed and remanded.

tract of land by metes and bounds Alaska:

in unsurveyed sections 16 and 17, T. Homesteads - Additional

4 S., R. 7 E., Copper River Homesteads-Settlements on Public

Meridian, containing approxiLands

mately 120 acres and lying conA homestead settlement claim for an ad- tiguous to a tract, containing apditional homestead entry under the Act proximately 40 acres, on which he

, of April 28, 1904 (33 Stat. 527), 43 U.S.C.

had previously filed a notice of loca$ 213, may be made for unsurveyed lands

tion of settlement claim. for Ocin Alaska by a person otherwise qualified who has filed an application for home- cupancy under the homestead laws, stead entry on a form approved by the Serial No. AA 801. On May 6, 1969, Director, Bureau of Land Management,

the Alaska State Office informed and made acceptable final proof on his

Dann that the land description was original homestead settlement claim, where the combined area of the two

incorrect and that the filing would claims does not exceed 160 acres.

be closed if the defect was not cor

rected within 30 days from receipt APPEARANCES: Davis L. Dann, pro of the notice. Dann filed a new locase.

tion notice with a corrected descrip

tion on June 25, 1969, whereupon OPINION BY MRS. LEWIS

the State Office issued its notice of INTERIOR BOARD OF LAND August 19, 1969, accepting the claim APPEALS

for recordation. Davis L. Dann has appealed

The decision below pointed out from a decision by the Alaska State

that the regulations under the Act Office, Bureau of Land Manage- of April 28, 1904, supra, authorize ment, dated October 27, 1971, which a person who has not theretofore declared unacceptable for recorda- entered 160 acres but has entered tion his notice of location of settle

less than that amount to enter other ment claim filed pursuant to the Act

and additional land lying contiguof April 29, 1950 (6+ Stat. 94; 43

ous to the original entry which, C.S.C. $$ 270, 270–5, 270-6, and

with the land first entered and oc270–7 (1970)), for an additional cupied, will not in the aggregate exhomestead entry under the Act of ceed 160 acres (43 CFR 2512.2(a)); April 28, 1904, as amended, 43 that 43 CFR 2512.2(b) states that U.S.C. § 213 (1970), and vacated its a person who desires to make an notice of August 19, 1969, entitled additional entry under the 1904 Act "Claim Recorded."

must comply with the provisions of Dann had filed on June 13, 1968, 43 CFR 2511.3–1, which regulation the notice of location of settlement provides that applications for pubclaim for an additional homestead lic lands in Alaska subject to entry entry under the 1904 Act, Serial No. must be filed on a form approved by AA 2956. The notice described a the Director, and that homestead

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