May 29, 1973 in light of the conclusions that have been reached above. Appellants have failed to prove a discovery on any of their claims. laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following Failure To Locate in Compliance requirements: The location must be dis With Mining Laws Even if appellants had proved a discovery on each claim, appellants have not proved that any specific claim was located in compliance with the mining laws. One of the two original charges in the complaint filed by the Government in Colorado Contest 441 was that the mining claims had not been located in accordance with the mining laws. Appellants argue that locating mining claims by legal subdivisions on surveyed land was sufficient to satisfy the federal mining law and that the requirements of Colorado state law need not be complied with. The federal law governing location of mining claims is as follows: 30 U.S.C. § 22 (1970) provides, in part [A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, * * * under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. (Italics added.) tinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims made after May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. *** (Italics added.) Departmental regulation, 43 CFR 3401.1 (1966) [now 43 CFR 3831.1], provides, in part Rights to mineral lands, owned by the United States, are initiated by prospecting for minerals thereon, and, upon the discovery of mineral, by locating the lands upon which such discovery has been made. A location is made by staking the corners of the claim, posting notice of location thereon and complying with the State laws, regarding the recording of the location in the county recorder's office, discovery work, etc. As supplemental to the United States mining laws there are State statutes relative to location, manner of recording of mining claims, etc,. in the State, which should also be observed in the location of mining claims. *** (Italics added.) Appellants, citing Reins v. Murray, 22 L.D. 409, 411 (1896), and the instructions issued by the Department, Location of Oil Shale Placer Claims, 52 L.D. 631 (1929), argue that the Department does not re 30 U.S.C. § 28 (1970) provides, in quire compliance with state or local part The miners of each mining district may make regulations not in conflict with the regulations when placer mining claims are located by legal subdivisions on surveyed lands. The 1929 instructions issued by the Assistant Secretary are limited. They refer to oil shale placer claims located prior to February 25, 1920, by legal subdivision on surveyed lands, without having the claim boundaries otherwise marked. The instructions stress the fact that particular mining claimants had relied on previous Departmental decisions. Under the instructions, the claims were to be considered valid as against the federal government within the meaning of section 37 of the Mineral Leasing Act, if they otherwise met the requirements of the section. In such case the Department would not inquire about the claimant's compliance with state or local regulations regarding marking of claims on the ground. Here, there was no reliance by appellants on prior Departmental decisions because Zweifel testified that he staked the corners of each of the claims herein (Tr. 188). not necessary to mark the boundaries of the claim. Reins involved land in Montana and made no mention of state requirements. The events concerned therein occurred prior to promulgation of Departmental regulation 43 CFR 3401.1 (1966), now 43 CFR 3831.1, which requires staking the corners of the claim. We find that the Departmental regulation is controlling and that compliance therewith was required in the location of the mining claims, herein. The procedure that was followed in locating the 2,910 claims was elicited from Merle I. Zweifel at the hearing. Zweifel testified that he initially went to the Rio Blanco County courthouse in Meeker, Colorado, and obtained a county map (Tr. 120; Exh. B-65). He described his location methods by testifying: A. (The Witness) When I left the courthouse and had what I considered to be sufficient information to locate the claims, I went back out to the ground and I would examine, and I did examine, to determine that there were no other stakes or other claiming in the area, to the best of my ability. And then I would take the map which has been referred to as Exhibit 65 and I would — there are no Reins involved the Departmental interpretation of Rev. Stat. § 2324, as amended, 30 U.S.C. § 28 (1970), and Rev. Stat. §§ 2329 and 2331, as amended, 30 U.S.C. § 35 (1970). The conclusion was that when placer claims are located by legal county roads in the area, no section lines, subdivision on surveyed land, it is Section 37 of the Mineral Leasing Act of February 25, 1920, as amended, 30 U.S.C. § 193 (1970), reads: Sec. 37. "The deposits of coal, phosphate, sodium, potassium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, *** shall be subject to disposition only in the form and manner provided in this chapter except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." and I would try to determine, and I did determine by the confluence of washes and streams shown on this map where I was, and to the existing roads in the area where they may have crossed a stream or intersected a stream or where there were any other pertinent (Tr. 186.) A. Then I would determine by the speedometer of the truck how far I had moved, and by those principal means I 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.) 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.) In the early stages of the hearing Zweifel stated that he did not recall seeing any brass caps or rock monuments marking survey corners (Tr. 146). Yet at one point he testified that he had put stakes on the quarter corners of the claims (Tr. 188). Later he reversed himself stating that he did not stake or post the four corners of the claims (Tr. 221). As to the posting of location notices Zweifel testified: Q. And did you put up a location notice? A. Yes, sir; I put up a notice. A. Anywhere on that 160-acre claim. (Tr. 188.) 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 Shawnee, that is correct. I took them to Shawnee and I had them drawn up, and when we posted the balance we would bring them back to the claim and post them on the claims. As you know, I made many trips back and forth to Colorado and I do this, I would do this work as I went to Colorado and beyond. (Tr. 191.) A. *** I would take these claims to the office and they were being prepared, and were prepared; they were mailed to our people, our co-locators, for their signature which they mailed directly to the county courthouse; and I would return then and place the location notices on the claim and do the sampling. (Tr. 192.) * Q. You mean the location certificates? A. They have always been executed at Shawnee and mailed to the co-locators for their signature. Then we would post a copy on the claim. (Tr. 193–94.) Subsequently at the hearing Zweifel's testimony was contradicted by the testimony of Mrs. Jo Beamer, admission of which was stipulated (Tr. 828). Mrs. Beamer's evidence is that Zweifel would telephone the office in Shawnee, Oklahoma, while he was purportedly locating claims in Colorado; each time Zweifel called he would report the claims, descriptions, and colocator names so she could prepare location certificates (Tr. 827-28). Zweifel then testified that he spent the majority of his time in the field doing location work and that he telephoned the necessary information to his Shawnee office (Tr. 859-60). This testimony is at variance with his prior statements that after scouting the available areas in the Piceance Creek Basin he would return to Shawnee, draw up the location notices, and return to Colorado to post them on the claims (Tr. 191-92; 202-03). The Government presented the testimony of four Bureau of Land Management Area Resource Managers, Robert L. Kline, Stanley G. Colby, L. Duane Hillberry, and Caroll Leavitt, who administer the areas encompassing the claims. Klein's area covers portions of the Agate, Nose, and Tag claim groups located in Garfield County. This area represents a very small part of the total area encompassed by the 2,910 claims in the contest (Tr. 328; Exh. B-6). Kline testified that he patrolled the area at least once a week in the summer but during the winter it was inaccessible (Tr. 337). He said he never observed any staking, nor any location notices, nor any evidence of mining in 1966, 1967 or 1968 (Tr. 338-39). The topography in the northern part of his area is very steep, with deep canyons and in some places rimrock escarpments (Tr. 330). The survey corners are marked by brass caps or rock monuments (Tr. 332). He stated that he did not believe one could accurately determine distance by the use of an odometer (Tr. 331). Colby administers the largest part of the areas here involved, including all of the area covered by Exhibit B-6 other than that within Kline's area (Tr. 350). He travels various parts of the Piceance Creek Basin about every two or three weeks (Tr. May 29, 1973 352). He never observed any mining posts, stakes or notices that contained any reference to Zweifel or Zweifel International Prospectors (Tr. 353). The terrain is mountainous, ranging from steep canyons to foothills with a few escarpments in some places (Tr. 354). He traversed the Piceance Basin in 1966 and 1967 and observed no mining activity on any of the areas occupied by the claims (Tr. 356-57). He gave detailed testimony as to the roads that would have to be traveled and the routes necessary to set foot on the claims shown on Exhibit B-6 (Tr. 361-406). He stated that attempting to locate the governmental subdivisions strictly by use of a pickup truck odometer might result in mistakes. He attributed this to the curves and bends in the road and the general terrain itself (Tr. 360). It was also his opinion that given a pickup truck with an accurate odometer and the map used by Zweifel, he could not with accuracy stake the corners of the claims involved herein (Tr. 444). ing. The access is good throughout (Tr. 455). The terrain in Leavitt's area is "fairly level, generally rolling sagebrush country, deep washes.” (Tr. 465.) Zweifel testified about certain photographs which purportedly depict his sampling and staking work in the Piceance Creek Basin (Exh. C-13 through C-70; Tr. 882). He said he was unable to identify the pictures of stakes to any particular claim (Tr. 879), but he did identify them to certain claim groups. A red figure on the back of each photograph represented a correspondingly numbered area on Exhibit B-6, at which place the photograph was allegedly taken (Tr. 884). On cross-examination Zweifel was asked: Q. Now, upon which basis, sir, did you identify this Exhibit C-13 with a red 13? I think you testified you took it off of this plat? A. This is correct. Q. How did you get the figure 13 to put on the plat? A. Well, we just laid the pictures out and I identified where I had been doing my stake work. Q. All you had to look at was the A. That is correct. Q. Are you intending to testify under oath by looking at that piece of ground you can tell exactly where it was? A. Yes, I do. Hillberry's and Leavitt's areas of responsibility lie in Moffat County, picture? involving only a small part of the total claimed area (Exh. B-7). Both visited their areas frequently in 1966 and 1967. Hillberry observed no mining activity nor any mining location notices (Tr. 454-55). Leavitt found location notices posted in his areas but he found none of Zweifel's. In Hillberry's area the topography is ridges from moderate to moderately steep and the valleys are from moderate to gently slop Q. It that true of all these other pictures? A. Yes, that is true. (Tr. 970-71.). The fact that Zweifel could remember the location at which these photographs were taken and identify them to a claim group is unusual in light of his lack of ability |