motion for severance and thereby hear and decide issues regarding each individual claim. (16) Colorado Contest 441 was barred by laches. (17) It was discriminatory for the Government not to proceed against other holders of unpatented mining claims in the Piceance Creek Basin. (18) The Judge erred in failing to rule on all of appellants' proposed findings of fact and conclusions of law. Discovery In order for a mining claimant to establish the validity of one or more mining claims he must show the discovery of a valuable mineral deposit within the limits of each claim; therefore, a discovery on one claim cannot serve to validate a group of claims. United States v. Bunkowski, 5 IBLA 102, 79 I.D. 43, 51-2 (1972). The requirement of a discovery on each claim is admitted in the brief for certain appellants filed by Clement Theodore Cooper, Esq., on May 15, 1972, at page 47. Appellants' arguments relating to discovery are: 1) The evidence adduced at the hearing clearly shows that appellants had a discovery of a valuable mineral deposit on each and every claim. 2) Alumina is an intrinsically valuable mineral and as such a market is deemed to exist, and a claimant may continue to develop his claim with a prospective anticipation of profit. 3) Appellants proved the validity of each and every claim under the doctrine of known geological facts. 4) Appellants were restrained from developing their discovery because to do so would have damaged the federally owned oil shale deposits. The "prudent man rule" has been established by the Department as the test for determining what constitutes a discovery of a valuable mineral deposit. This test was first laid down in Castle v. Womble, 19 L.D. 455, 457 (1894), in which the Secretary stated: ** [W]here 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 labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met. The Supreme Court has expressed its approval of the rule in a number of decisions. United States v. Coleman, 390 U.S. 599, 602 (1968); Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335-36 (1963); Chrisman v. Miller, 197 U.S. 313. 322 (1905). Another test to complement the prudent man rule was approved in Coleman, supra. It is the so-called "marketability test." The Court said at pp. 602–03: *** Minerals which no prudent man will extract because there is no demand for them at a price higher than the cost of extraction and transportation are hardly economically valuable. Thus, profitability is an important consideration in applying the prudent-man test, and the marketability test which the Secretary has used here merely recognizes this fact. The marketability test was explained further in Barrows v. Hickel, 447 F.2d 80 (9th Cir. 1971). The court felt present marketability was necessary. It stated at 83: May 29, 1973 Thus it is not enough that a mineral deposit found within the limits of a claim may some day in the future, due to advancements in technology, become valuable. To satisfy the test, one must show that the minerals have a present value, and locations based on the speculation that improved mining and processing technology will make the mineral marketable in the future cannot be sustained. United States v. Wurts, 76 I.D. 6 (1969). The lands herein involved were withdrawn from metalliferous location by Public Land Order 4522, 33 F.R. 14349, filed September 23, 1968. They were segregated from location and entry under the mining law when the Bureau of Land Management filed an application to withdraw on January 27, 1967. See 43 CFR 2351.3(a) and 43 CFR 2091.2-5 (a). Therefore, for the claims to be valid, appellants must show a discovery on each claim prior to the date of the application for withdrawal. See Udall v. Snyder, 405 F.2d 1179 (10th Cir. 1968); United States v. Wurts, supra, at 9. Appellants claim that they have made a discovery of alumina on each claim involved herein. Although alumina (Al2O3) is the source compound of aluminum metal, it does not occur freely in nature. It is found as a constituent oxide of other minerals (T. 634). In the Piceance Creek Basin where most of the subject claims lie, alumina is found most abundantly in a carbonate of aluminum and sodium (NaAl(OH)2CO3) called dawson ite. Alumina is also found in gibbsite, nahcolite, and halite (Exh. C-5). Dawsonite and the other alumina-bearing mineral compounds are found mixed with kerogen-bearing dolomites termed "oil shales" in the Green River Formation which underlies most of the Piceance Creek Basin. Appellants' belief that they have proved a discovery on each claim is based on the testimony of Merle I. Zweifel. Zweifel stated a number of times that he took surface samples from each and every claim (Tr. 247, 321, 736). The samples were never segregated as to individual claims and were merely thrown into the back of Zweifel's pickup truck for later identification (Tr. 230-32, 715-16). There were only about 20 assays performed on the 2,910 samples claimed to have been taken (Tr. 137-40). None of the assays could be identified to any particular claim, but only to claim groups (Tr. 14044). The groups sometimes comprise 70 or 80 claims (Tr. 144). The assay reports (Exh. B-70 through 78, 80, 81) are spectrographic analyses of oil shale samples. Generally they show 10 percent aluminum. John Ward Smith* testified for contestant that spectrographic analysis is only semi-quantitative, and a 10 percent figure of aluminum content might actually be anything between 2 and 20 percent. Mr. Smith is a research chemist and project leader with the United States Bureau of Mines at the Laramie, Wyoming. Energy Research Center. The function of the Center is the study of oil production from oil shale (Tr. 510-11). (Tr. 544). Edmund E. Phillips, a chemist-assayer who tested the samples and prepared the reports, believed the 10 percent analysis of aluminum content could represent somewhere between 7 and 15 percent, as outside limits (Tr. 894). The assay reports do not indicate in what form the aluminum is found or whether or not it would be recoverable (Tr. 550, 901). Even conceding that aluminum may be present throughout the oil shale, it may not be in a form which is extractable (Tr. 551). The assay reports are of no probative value in determining the existence of a discovery on any particular claim. Appellants argue that alumina is an intrinsically valuable mineral and as such by its very nature meets the marketability test. Appellants cite as support for this proposition Solicitor's Opinion, 69 I.D. 145 (1962). At 146 the Solicitor stated: An intrinsically valuable mineral by its very nature is deemed marketable, and therefore merely showing the nature of the mineral usually meets the test of marketability. *** (Italics added.) The inference to be drawn from the Solicitor's statement is not that an intrinsically valuable mineral need not meet the marketability test, but rather that the probability of such a mineral meeting the test is greater. The question of whether the marketability test is applicable to intrinsically valuable minerals was laid to rest in Converse v. Udall, 399 F.2d 616, 621 (9th Cir. 1968), cert. den., 393 U.S. 1025 (1969), where the court stated that the mar ketability test, including the profit factor, was applicable to all mining claims including those containing precious metals. The record clearly shows that appellants have failed to establish that alumina from any of their claims could be presently marketed at a profit. At the hearing Smith testified that approximately 100,000 samples had been taken from 640 to 650 sample sites located throughout the Piceance Creek Basin. Of that number 98,000 to 99,000 have been analyzed by the Bureau of Mines and found to contain oil shale (Tr. 515-16). The non-hydrocarbon elements present in the oil shale samples resemble the elemental composition of the earth's crust and are present in very nearly the same proportion (Tr. 563). Despite the fact that aluminum constitutes roughly eight percent of the earth's crust (Tr. 593), only bauxite ore, in which alumina is concentrated by a weathering process, has qualified commercially as a source of aluminum. At present the majority of the bauxite ore used in the United States is imported from tropical countries (Tr. 564; Exh. C-3). Smith testified that aluminum cannot be presently economically extracted and produced from any of the alumina-bearing compounds in the area of the claims (Tr. 619, 628, 640). He felt the investment necessary to commence and maintain commercial operation would continue to be, as it has been, a prohibitive factor (Tr. 646). May 29, 1973 Appellants assert that alumina is always found in oil shale and contend that each and every claim is valid under the doctrine of "known geological facts," citing Freeman v. Summers, 52 L.D. 201 (1927). The Freeman case involved the sufficiency of a discovery of oil shale on the surface and in shallow workings in the Green River Formation in Colorado. It was claimed that the formation consisted of one massive homogeneous deposit of oil shale which was capable of being commercially developed. It was also argued that oil shale found on the surface and in shallow workings on the formation was an integral part of the mass below and discovery of the surface shale was sufficient to satisfy the requirements of the law. In Freeman the Secretary held at 206: While at the present time there has been no considerable production of oil from shales, due to the fact that abundant quantities of oil have been produced more The Secretary then concluded: In other words, having made his initial discovery at or near the surface, he may with assurance follow the formation through the lean to the richer beds. Since Freeman was decided, the courts, e.g., United States v. Coleman, supra, and Converse v. Udall, supra, have approved the Department's refinement of the prudentman test to include the requirement of a showing of present marketability. This Board has held that Freeman is not applicable to sand and gravel claims. United States v. Clear Gravel Enterprises, Inc., 2 IBLA 285, 300 (1971). Freeman involved oil shale mining claims, and the precedential value of Freeman is now being considered by the Board in another appeal. As to the alumina claimed herein, it is clear that Coleman and Converse are controlling. At the hearing Smith testified that he felt alumina could eventually be produced economically from dawsonite (Tr. 603, 639). However, at present there is no known process cheaply from wells, there is no possible by which alumina may be produced doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people. The evidence in this case shows that in this particular area of Colorado the lands contain the Green River formation, and that this formation carries oil shales in large and valuable quantities; that while the beds vary in the richness of their content, the formation is one upon which the miner may rely as carrying oil shale which, while yielding at places comparatively small quantities of oil, in other places yields larger and richer quantities of this valuable mineral. 508-212-73-3 from dawsonite-bearing oil shale on a commercial basis (Tr. 603, 620, 628). Whether appellants' assertion that alumina is always found in oil shale is true is not the important issue; as Smith testified, the real question is what part of the alumina is economically extractable (Tr. 620). Appellants' witness, John Stevenson, stated that he did not have the expertise to testify as to whether reduction processes can be used economically (Tr. 820). The evidence is not, therefore, that economically recoverable alumina exists in all oil shale or under all the contested claims. The evidence is that aluminum is an element universally present in the earth's crust. It is found in alumina-bearing compounds throughout the oil shale of the Piceance Creek Basin, but there is no evidence that all of such oil shale, or the shale which is on the claims concerned, contains economically recoverable alumina from which aluminum may be commercially extracted. As to whether there has been a discovery of any other valuable minerals, Government witness Smith was asked, in connection with the analysis of the nearly 100,000 samples taken in the area of the claims, whether any of the elements in the samples (excluding aluminum, kerogen from oil shale and sodium) exist in sufficient quantities to be classified as a valuable mineral deposit. He responded that they did not (Tr. 563). According to section 21, as amended [43 U.S.C. § 241 (1970)], and section 23, as amended [43 U.S.C. § 261 (1970)], of the Mineral Leasing Act of February 25, 1920, oil shale and sodium, respectively, are subject to disposition only by leasing and, as such, are not locatable under the general mining laws. Therefore, the only mineral upon which appellants can be basing a discovery is alumina, the source compound of aluminum. Appellants made no attempt to pinpoint any claim and assert that it contained economically extract able aluminum by showing reliable evidence as to the cost of extraction and marketing. In arguing that they were restrained from developing their discovery, appellants cite a letter to Zweifel (Exh. C-97) dated December 13, 1966, from the Solicitor for the Department. Zweifel testified that he felt the letter restrained him from making any further development on the claims, other than surface sample operations (Tr. 95152). The letter did not have the effect of a court order enjoining appellants from taking any further actions with respect to the claims; rather it merely informed Zweifel that if any action was taken which damaged the oil shale, the Government would then move to restrain such activity. The Solicitor further stated that development work which was not harmful to the oil shale could, of course, be performed. Appellants' argument that the letter restrained them from pursuing their discovery work is lacking in merit. We, therefore, find that appellants have failed to prove a discovery of a valuable mineral deposit on any of their claims and for that reason their claims are null and void. Alumina as a Locatable Mineral Appellants' argument that alumina, as found in the aluminabearing compounds commingled with leasable oil shale in the Piceance Creek Basin, is a locatable mineral within the meaning of the mining law need not be considered |