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May 29, 1973

laws of the United States, or with the in light of the conclusions that have been reached above. Appellants

laws of the State or Territory in which

the district is situated, governing the have failed to prove a discovery on

location, manner of recording, amount of any of their claims.

work necessary to hold possession of a Failure To Locate in Compliance mining claim, subject to the following With Mining Laws

tinctly marked on the ground so that its

boundaries can be readily traced. All recEven if appellants had proved a

ords of mining claims made after May 10, discovery on each claim, appellants 1872

, shall contain the

name or names of have not proved that any specific

the locators, the date of the location, and claim was located in compliance such a description of the claim or claims with the mining laws.

located by reference to some natural

object or permanent monument as will One of the two original charges

identify the claim. * * * (Italics added.) in the complaint filed by the Government in Colorado Contest 441 Departmental regulation, 43 CFR was that the mining claims had not 3401.1 (1966) [now 43 CFR 3831.1], been located in accordance with the provides, in partmining laws. Appellants argue that

Rights to mineral lands, owned by the locating mining claims by legal sub

United States, are initiated by prospectdivisions on surveyed land was suf- ing for minerals thereon, and, upon the ficient to satisfy the federal mining discovery of mineral, by locating the lands law and that the requirements of upon which such discovery has been

made. A location is made by staking the Colorado state law need not be com

corners of the claim, posting notice of plied with.

location thereon and complying with the The federal law governing loca

State laws, regarding the recording of tion of mining claims is as follows:

the location in the county recorder's of

fice, discovery work, etc. As supplemental 30 U.S.C. § 22 (1970) provides, in

to the United States mining laws there part

are State statutes relative to location,

manner of recording of mining claims, [A]ll valuable mineral deposits

etc,. in the State, which should also be in lands belonging to the United States,

observed in the location of mining claims. both surveyed and unsurveyed, shall be

*** (Italics added.) free and open to exploration and purchase, and the lands in which they are

Appellants, citing Reins v. Murfound to occupation and purchase, *

ray, 22 L.D. 409, 411 (1896), and the under regulations prescribed by law, and

instructions issued by the Departaccording to the local customs or rules of miners in the several mining districts, so ment, Location of Oil Shale Placer far as the same are applicable and not in

Claims, 52 L.D. 631 (1929), argue consistent with the laws of the United

that the Department does not reStates. (Italics added.) 30 U.S.C. § 28 (1940) provides, in quire compliance with state or local part

regulations when placer mining

claims are located by legal subdiviThe miners of each mining district may make regulations not in conflict with the sions on surveyed lands.

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The 1929 instructions issued by not necessary to mark the boundathe Assistant Secretary are limited. ries of the claim. Reins involved They refer to oil shale placer claims land in Montana and made no menlocated prior to February 25, 1920, tion of state requirements. The by legal subdivision on surveyed events concerned therein occurred lands, without having the claim prior to promulgation of Departboundaries otherwise marked. The mental regulation 43 CFR 3401.1 instructions stress the fact that par- (1966), now 43 CFR 3831.1, which ticular mining claimants had relied requires staking the corners of the on previous Departmental decisions. claim. We find that the DepartUnder the instructions, the claims mental regulation is controlling and were to be considered valid as that compliance therewith was reagainst the federal government quired in the location of the mining within the meaning of section 37 of claims, herein. the Mineral Leasing Act, if they The procedure that was followed otherwise met the requirements of in locating the 2,910 claims was the section. In such case the Depart. elicited from Merle I. Zweifel at the ment would not inquire about the hearing. Zweifel testified that he claimant's compliance with state or initially went to the Rio Blanco local regulations regarding marking County courthouse in Meeker, Coloof claims on the ground. Here, there rado, and obtained a county map was no reliance by appellants on (Tr. 120; Exh. B-65). He described prior Departmental decisions be- his location methods by testifying: cause Zweifel testified that he

A. (The Witness) When I left the staked the corners of each of the

courthouse and had what I considered to claims herein (Tr. 188).

be sufficient information to locate the Reins involved the Departmental claims, I went back out to the ground and interpretation of Rev. Stat. & 2324, I would examine, and I did examine, to

determine that there were no other as amended, 30 U.S.C. § 28 (1970),

stakes or other claiming in the area, to and Rev. Stat. SS 2329 and 2331, as

the best of my ability. And then I would amended, 30 U.S.C. $ 35 (1970). take the map which has been referred to The conclusion was that when as Exhibit 65 and I would — there are no placer claims are located by legal county roads in the area, no section lines, subdivision on surveyed land, it is

and I would try to determine, and I did determine by the confluence of washes

and streams shown on this map where I 6 Section 37 of the Mineral Leasing Act of

was, and to the existing roads in the area February 25, 1920, as amended, 30 U.S.C. § 193 (1970), reads :

where they may have crossed a stream or Sec. 37. "The deposits of coal, phosphate,

intersected a stream or where there were sodium, potassium, oil, oil shale, and gas, any other pertinent

(Tr. 186.) herein referred to, in lands valuable for such minerals, * .. shall be subject to disposition only in the form and manner provided

A. Then I would determine by the in this chapter except as to valid claims existent on February 25, 1920, and thereafter speedometer of the truck how far I had maintained in compliance with the laws under

moved, and by those principal means I which initiated, which claims may be perfected under such laws, including discovery."

did locate these claims.

May 29, 1973

Q. At what point did you establish the legal descripttion?

A. Well, I would take that map and where the rivers and the roads intersected, when I would come to that point I would determine on the map whether that was Section 1, 2, or 3, or the Southwest or the Northwest Quarter.

Q. Well now, if it was the northwest quarter and you were driving along the west section line, you locate the northwest quarter rather easily, couldn't you? (Tr. 187.)

A. I'm not sure it would be easy but by the stream patterns shown on the map I did locate them, (Tr. 188.)

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Q. (By Mr. Longstreth) Mr. Zweifel, in going in through the area to locate these claims you obtained a map which showed roads; isn't that right?

A. Yes, sir; the existing roads.

Q. And you drove on those roads inso far as possible?

A. Yes, and sometimes there were trails that I would follow beyond the roads. (Tr. 241.)

Q. So in order to locate a claim some distance from the road you had to walk, didn't you?

A. No, no. In some instances you could drive out across the country up on well

Q. In all instances could you drive?
A. Not in all instances; no, sir.
Q. Did you see any fencing out there?

A. I do recall fences, yes. They were drift fences or Bureau of Land Management fences that were installed. I recall going through gates. (Tr. 242.)

Q. But now where you couldn't drive, Mr. Zweifel, how did you locate them?

A. We packed them where we couldn't drive.

Q. You mean you walked in?

A. Well, I wouldn't say walked in. We stopped the pickup and carried what we needed to go east, west, north, or south. (Tr. 243.)

A. This is a copy of the notice I left on the claims.

Q. Well, didn't I understand you to say I believe yesterday or today that you prepared your location certificates after you located and sent them out to your principal locator?

A. We would make arrangements to locate these claims and we would mail a certificate out to the locator, and I would take a copy and place on the claim.

Q. Would that copy be identical to this as to names?

A. Well, yes, each copy; I'm not referring to - there were many claims and there were many different names on many different claim groups.

Q. Did you put up your notice by claim group?

A. On each claim, yes.

Q. If you had 20 claims you would have 20 notices ?

A. That's correct, sir. (Tr. 190.)

Q. And now, the location certificate, certificate of location that you posted on the land didn't contain the names of all the locators, did they?

A. Yes, because I took them to Shaw- after scouting the available areas in nee, that is correct. I took them to

the Piceance Creek Basin he would Shawnee and I had them drawn up, and

return to Shawnee, draw up the when we posted the balance we would bring them back to the claim and post

location notices, and return to Colothem on the claims. As you know, I made rado to post them on the claims (Tr. many trips back and forth to Colorado 191-92; 202-03). and I do this, I would do this work as

The Government presented the I went to Colorado and beyond. (Tr.

testimony of four Bureau of Land 191.)

Management Area Resource Man

agers, Robert L. Kline, Stanley G. A. * * * I would take these claims to the office and they were being prepared, Colby, L. Duane Hillberry, and and were prepared; they were mailed to

Caroll Leavitt, who administer the our people, our co-locators, for their sig

areas encompassing the claims. nature which they mailed directly to the Klein's area covers portions of the county courthouse; and I would return

Agate, Nose, and Tag claim groups then and place the location notices on the

located in Garfield County. This claim and do the sampling. (Tr. 192.)

area represents a very small part of Q. You mean the location certificates ?

the total area encompassed by the A. Right, copies of the certificates.

2,910 claims in the contest (Tr. 328; Q. Were those all executed ?

Exh. B-6). Kline testified that he A. They have always been executed at patrolled the area at least once a Shawnee and mailed to the co-locators for

week in the summer but during the their signature. Then we would post a

winter it was inaccessible (Tr. 337). copy on the claim. (Tr. 193–94.)

He said he never observed any stakSubsequently at the hearing ing, nor any location notices, nor Zweifel's testimony

contradicted by the testimony of Mrs.

any evidence of mining in 1966,

1967 or 1968 (Tr. 338-39). The toJo Beamer, admission of which was stipulated (Tr. 828). Mrs. Beamer's

pography in the northern part of

his area is very steep, with deep canevidence is that Zweifel would tele

yons and in some places rimrock phone the office in Shawnee, Oklahoma, while he was purportedly escarpments (Tr. 330). The survey

corners are marked by brass caps locating claims in Colorado; each

or rock monuments (Tr. 332). He time Zweifel called he would report stated that he did not believe one the claims, descriptions, and co

could accurately determine distance locator names so she could prepare by the use of an odometer (Tr. 331). location certificates (Tr. 827-28).

Colby administers the largest part Zweifel then testified that he

of the areas here involved, including spent the majority of his time in the field doing location work and that

all of the area covered by Exhibit he telephoned the necessary infor

B-6 other than that within Kline's mation to his Shawnee office (Tr. area (Tr. 350). He travels various 859–60). This testimony is at vari- parts of the Piceance Creek Basin ance with his prior statements that about every two or three weeks (Tr.

was

May 29, 1973

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352). He never observed any mining ing. The access is good throughout posts, stakes or notices that con- (Tr. 455). The terrain in Leavitt's tained any reference to Zweifel or area is "fairly level, generally Zweifel International Prospectors rolling sagebrush country, deep (Tr. 353). The terrain is mountain- washes." (Tr. 465.) ous, ranging from steep canyons to Zweifel testified about certain foothills with a few escarpments in photographs which purportedly desome places (Tr. 354). He traversed pict his sampling and staking work the Piceance Basin in 1966 and 1967 in the Piceance Creek Basin (Exh. and observed no mining activity on C-13 through C-70; Tr. 882). He any of the areas occupied by the said he was unable to identify the claims (Tr. 356–57). He gave de- pictures of stakes to any particular tailed testimony as to the roads that claim (Tr. 879), but he did identify would have to be traveled and the them to certain claim groups. A red routes necessary to set foot on the figure on the back of each photoclaims shown on Exhibit B-6 (Tr. graph represented a correspond361-406). He stated that attempting ingly numbered area on Exhibit to locate the governmental subdivi- B-6, at which place the photograph sions strictly by use of a pickup was allegedly taken (Tr. 884). On truck odometer might result in mis

cross-examination Zweifel was takes. He attributed this to the asked: curves and bends in the road and

Q. Now, upon which basis, sir, did you the general terrain itself (Tr. 360). identify this Exhibit C-13 with a red 13? It was also his opinion that given I think you testified you took it off of this

plat? a pickup truck with an accurate

A. This is correct. odometer and the map used by

Q. How did you get the figure 13 to put Zweifel, he could not with accuracy

on the plat? stake the corners of the claims in- A. Well, we just laid the pictures out volved herein (Tr. 444).

and I identified where I had been doing

my stake work. Hillberry's and Leavitt’s areas of

Q. All you had to look at was the responsibility lie in Moffat County, picture? involving only a small part of the A. That is correct. total claimed area (Exh. B-7). Both Q. Are you intending to testify under visited their areas frequently in

oath by looking at that piece of ground

you can tell exactly where it was? 1966 and 1967. Hillberry observed

A. Yes, I do. no mining activity nor any mining

Q. It that true of all these other location notices (Tr. 454-55). Lea- pictures? vitt found location notices posted A. Yes, that is true. (Tr. 970–71.) in his areas but he found none of The fact that Zweifel could reZweifel's. In Hillberry's area the member the location at which these topography is ridges from moderate photographs were taken and idento moderately steep and the valleys tify them to a claim group is unare from moderate to gently slop- usual in light of his lack of ability

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