A. Mary Magdoline. Q. What was your father's name? A. Stanislaus. (Tr. 9) Q. Do you have any brothers and sisters? A. Yes, I have a sister Lucy, Lucy Sanchez. Q. Mary and your father were brother and sister? A. Yes, they are, yes. (Tr. 10) Under the laws of descent in force in the State of Idaho at the decedent's death on August 29, 1969, Felix Aripa and Lucy Sanchez could not be heirs of the decedent as they were not of his blood. They were related to him by marriage only. We find that the record is incomplete, and that a proper determination cannot be made on the evidence before us. Therefore, we remand this case to the Administrative Law Judge for a hearing de novo, which shall include inter alia, proper notification of all interested parties, a transcript incorporating all relevant testimony and documentary evidence admitted at the hearing and a decision including therein, findings of fact and conclusions of law. See 5 U.S.C. § 557 (a) (3) (1970). NOW, THEREFORE, by virtue of the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 CFR 4.1, we REVERSE the Order Denying the Petition for Rehearing and REMAND the matter to the Administrative Law Judge for hearing de novo to determine heirs, to approve or disapprove wills and to determine creditors rights, if any. DAVID J. MCKEE, Chairman. MITCHELL J. SABAGH, Member. UNITED STATES V. KOSANKE SAND CORPORATION (ON RECONSIDERATION) 12 IBLA 282 Decided August 3, 1973 Reconsideration of Board decision of September 3, 1971, 3 IBLA 189, which reversed in part a decision of Administrative Law Judge Graydon E. Holt, dated September 16, 1970. Board decision of September 3, 1971, set aside and case remanded. National Environmental Policy ActMining Claims: Contests-Mining Claims: Patents It is not necessary for the Government to prepare an environmental impact statement before issuing a patent to a mining claim, as the patenting of a mining claim is not a "major Federal action" within the ambit of section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332 (1970). Mining Claims: Discovery: Generally-Mining Claims: HearingsRules of Practice: Hearings The Board of Land Appeals will set aside its former decision and remand a contest proceeding for further hearing where on reconsideration of such decision it finds additional evidence is necessary for a final determination. (ON RECONSIDERATION) APPEARANCES: Steven P. Kosanke, OPINION BY MR. FRISHBERG APPEALS On September 3, 1971, the Board of Land Appeals, in United States v. Kosanke Sand Corporation, 3 IBLA 89, 78 I.D. 285, reversed a decision of Administrative Law Judge Graydon E. Holt, dated 1 The change of title of the hearing officer from "Hearing Examiner" to "Administrative Law Judge" was effectuated pursuant to order of the Civil Service Commission, 37 F.R. 16787 (August 19, 1972). September 16, 1970, which had held null and void for lack of a discovery the N12 of Earache No. 2, Earache Nos. III and 5, Pete, and the N12 of Jeff placer mining claims embracing the N2NWNE1⁄4, N1⁄2 NW4, SW4NW1⁄44, N1⁄2SE NW4, sec 8, T. 1 N., R. 1 E., M.D.M., California. The Judge had premised his decision on the failure. of the contestee to demonstrate the marketability of the silica sands for which the claims were located. The Board reversed, holding that while the Government had presented a prima facie case as to the invalidity of the claims, the contestee had presented sufficient evidence so as to meet its burden of proof. Subsequently the contestant and other parties petitioned for reconsideration of the Board's decision and submitted briefs in support of their petitions. On May 15, 1972, oral argument was held before the Board sitting en banc. Having carefully considered all aspects of the case, it is the decision of the Board that the opinion of September 3, 1971, be vacated, and that the case be remanded for further hearing. We take this action with reluctance. Additional proceedings will entail time and money. Yet the Department is required, before issuance of a patent, to examine each claim "to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved." Cameron V. United States, 252 U.S. 450, 460 (1920). We are thus obliged to de termine, with as great a degree of certitude as is possible, whether a discovery of a valuable mineral deposit has been made on these claims. On the record before us, we find that such a determination is imposssible. Before a final decision can be made a new hearing must be held to elicit evidence on various factors, which shall be set out below. Following our initial decision, a number of parties which had not formerly participated in the case petitioned for leave to file briefs in support of the Government's petition for reconsideration. These were the East Bay Regional Park District, Contra Costa County, the Environmental Defense Fund, Inc., the California Native Plant Society, and the Sierra Club. They were granted permission to participate as amici curiae. These parties, in addition to alleging a lack of discovery on the contestee's part, argued that the National Environmental Policy Act [NEPA], 42 U.S.C. §§ 4321 et seq. (1970), requires the filing of an environmental impact statement. They also contended that NEPA and the General Mining Act of 1872, 30 U.S.C. §§ 21-54 (1970), require that the land be chiefly valuable for the mineral therein as a prerequisite to discovery. We hold that the law does not require the preparation of an environmental impact statement in the case before us. Section 102 of NEPA, 42 2 The American Mining Congress filed an amicus brief in opposition to the environmental position espoused by the other amici curiae and appeared at the oral argument. 8 Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment, Guidelines, 36 F.R. 7724 (April 23, 1971). Issuance of the Guidelines to federal agencies for guidance in preparation of environmental impact statements was directed by Exec. Order No. 11514 § 3(h), 3 CFR 526, 42 U.S.C. § 4321 (1970). Although the Guidelines do not have the effect of a statute or regulation, they are nevertheless to be accorded "great deference [as] the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16 (1965). (ON RECONSIDERATION) August 3, 1973 meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible. (Section 105 of the Act provides that "The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.") Guideline No. 4, 36 F.R. 7724 (April 23, 1971). (Italics added.) It is our conclusion that "existing law applicable to the agency's operations," viz., the General Mining Act of 1872, as amended, supra, under which the claims herein involved were located, and which opens to location and purchase, "[e]xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States, *** and the lands in which they are found * * * ”" *"30 U.S.C. § 22 (1970), "makes compliance impossible." The purpose of the new language [i.e., "to the fullest extent possible"] is to make it clear that each agency of the Federal Government shall comply with the directives set forth in such subparagraphs (A) through (H) [of clause (2) of section 102] unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. ** "H.R. REP. No. 91-765, 91st Cong., 1st Sess. 9 (1969). In Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C. 1971), the court stated: "Thus the Section 102 duties are not inherently flexible. They must be complied with to the fullest extent, unless there is a clear conflict of statutory authority. Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance." Id. at 1115 (footnote omitted). This comports with the position of the Department when it reported in 1971 to the Council on Environmental Quality that the General Mining Act of 1872 "do[es] not admit of environmental considerations." 5 Section 103 of the NEPA (42 U.S.C. § 4333) provides : "All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter." In compliance with this mandate, the Deputy Solicitor, Department of the Interior, in a letter to the Chairman, Council on Environmental Quality, dated July 1, 1971, stated: "On September 1, 1970, we submitted a report under section 103 of the National Environmental Policy Act. This letter is intended to supplement that report insofar as it pertains to the agency jurisdiction of the Bureau of Land Management (BLM). "The so-called location and settlement laws leave BLM without authority to consider environmental factors in their administration. In Alaska particularly, the homestead settlement laws [43 U.S.C. § 270 (1970)], the native allotment law [Acts of May 17, 1906, c. 2469, 34 Stat. 197, and August 2, 1956, c. 891, 70 Stat. 954, repealed by Act of December 18, 1971 (Alaska Native Claims Settlement Act), § 18 (a), 43 U.S.C.A. § 1617 (a) (1973)], and the purchases authorized for headquarters. trade and manufacturing or homesites [43 U.S.C. §§ 687a to 687a-6 (1970)] permit entry without prior approval of the BLM. A similar situation arises throughout the United States under the mining laws (30 U.S.C. § 21 et seq.). The Department has no control over entries made pursuant to these laws and the basic statutes under which the entries are made do not admit of environmental considerations. New legislation is required, and the Department has consistently recommended such legislation." (Italics added.) The discovery of a valuable mineral deposit within its limits validates a mining claim located on public land in conformance with the statute, and its locator acquires an exclusive possessory interest in the claim, a form of property which can be sold, transferred, mortgaged, or inherited, without infringing the paramount title of the United States. 30 U.S.C. § 26 (1970); Wilbur v. Krushnic, 280 U.S. 306, 316 (1930); Cole v. Ralph, 252 U.S. 286, 295 (1920); Forbes v. Gracey, 94 U.S. 762, 767 (1877). Such an interest may be asserted against the United States as well as against third parties, Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885), and may not be taken from the claimant by the United States without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co., supra. The holder of a valid mining claim has the right, from the time of location, to extract, process and market the locatable mineral resources thereon. Upon satisfaction of the requirements of the statute, the holder of a valid mining claim has an absolute right to a patent from the United States conveying fee title to the land within the claim, and the actions taken by the Secretary of the Interior in processing an application for patent by such claimant are not discretionary; issuance of a patent can be compelled by court order. Wilbur Wilbur v. Krushnic, supra, at 318-19; Roberts v. United States, 176 U.S. 221, 231 (1900). The patent may contain no conditions not authorized by law. Deffeback v. Hawke, 115 U.S. 392, 406 (1885). The claimant need not, however, apply for patent to preserve his property right in the claim, but may if he chooses continue to extract and freely dispose of the locatable minerals until the claim is exhausted, without ever having acquired full legal title to the land. Union Oil Co. of California v. Smith, 249 U.S. 337, 348-49 (1919); United States v. Carlile, 67 I.D. 417, 421 (1960). The patent, if issued, conveys fee simple title to the land within the claim, but does nothing to enlarge or diminish the claimant's right to its locatable mineral resources. In order that an environmental impact statement be required under NEPA, there must be contemplated "major Federal action (s) significantly affecting the quality of the |