MINING CLAIMS-Con.

COMMON VARIETIES OF MIN-

ERALS-Con.

Special Value-Con.

stone being mined,
crushed, sold, and used
for roofing rock, the de-
posits are common varie-
ties of stone and are not
subject to location under
the mining laws after July
23, 1955, where it is
shown that similar vol-
canic stone is of wide-
spread occurrence and
that the claimants obtain
the same price in the
market for the stone as
their competitors who
produce and sell similar
naturally colored volcanic
stone. It is not enough to
remove the stone in issue
from the common varie-
ties category merely to
show that it sells for a
somewhat higher price
than other commonly
occurring rocks used for
the same purpose that are
less attractively colored,
such as crushed granite,
limestone and pea gravel.

CONTESTS

1. A mining claimant is the pro-
ponent of the validity of
his claim under the Ad-
ministrative Procedure
Act, 5 U.S.C. §§ 551 et
seq. (1970), and has the
burden of overcoming by
a preponderance of evi-
dence the Government's
prima facie case of failure
to comply with the loca-
tion requirements of the
mining law and of lack of
discovery of a valuable
mineral deposit..........

2. Despite the fact that the
Government's witnesses

were not present on each

MINING CLAIMS-Con.

CONTESTS-Con.

claim in contest, their
testimony taken with the
testimony of the princi-
pal contestee, called as
part of the Government's
case in chief, may be suffi-
cient to establish a prima
facie case that the mining
claims are invalid.__.

3. When a mining claimant has
failed to answer a com-
plaint in a mining con-
test, the allegations are
deemed admitted under
43 CFR 4.450-7 and the
Manager will decide the
case without a hearing_ _ _
4. When, pursuant to 43 CFR

4.450-7, a Manager has
decided a mining contest
against a defaulting con-
testee and no timely ap-
peal was taken there-
from, a late appeal will
be dismissed under 43
CFR 4.411(b) ----.
5. A defaulting contestee cannot
rely on an answer filed by
a co-claimant when such
answer never purported
to be on the defaulting
contestee's behalf_______
6. A mining claimant is not
denied due process mere-
ly because of prehearing
publicity where he fails
to show that there was
any unfairness in the
contest proceeding itself.
7. The failure of the Govern-
ment to contest other un-
patented mining claims
in a given area cannot
support a charge of dis-
crimination when a min-
ing claimant fails to show
that such action was
arbitrary or prejudiced

Page

324

324

324

324

325

his rights in any way--- 325

MINING CLAIMS-Con.

CONTESTS-Con.

8. 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 sec-
tion 102 of the National
Environmental Policy

Act, 42 U.S.C. § 4332
(1970)--

9. Where a prima facie case rests
upon the establishment of
a negative fact, but the
other party has peculiar
knowledge or control of
the evidence as to such
matter, the burden rests
upon him to produce such
evidence of sufficient
weight and credibility,
and failing, the negative
will be presumed to have
been established. This
principle applies in a
mining claim contest to
the extent that where the
Government has made a
prima facie case of non-
marketability, and the
contestee only testifies
that he made sales but
fails to buttress that
testimony with specific
data as to the sales
or provide corroborating
evidence thereof, he will
be deemed to have failed
in his burden of proof___

DETERMINATION OF VALIDITY

1. Where mining claims are

located after enactment
of the Act of July 23,
1955 for deposits of na-
turally colored volcanic
stone having various
colors, the stone being
mined, crushed, sold, and

MINING CLAIMS-Con.

DETERMINATION OF
ITY-Con.

2. The

VALID-

used for roofing rock, the

are

common

deposits
varieties of stone, and
are not subject to loca-
tion under the mining
laws after July 23, 1955,
where it is shown that
similar volcanic stone is
of widespread occurrence
and that the claimants
obtain the same price in
the market for the stone
as their competitors who
produce and sell similar
naturally colored volcanic
stone. It is not enough to
remove the stone in issue
from the common vari-
eties category merely to
show that it sells for a
somewhat higher price
than other commonly oc-
curring rocks used for the
same purpose that are less
attractively colored, such
as crushed granite, lime-
stone and pea gravel...
Department of the
Interior has been granted
plenary power in the
administration of the pub-
lic lands, and it has
authority, after proper
notice and upon adequate
hearing, to determine the
validity of an unpatented
mining claim.......

3. Where a mineral claimant has

located a group of claims,

MINING CLAIMS-Con.

DISCOVERY-Con.

to establish an absence
of a discovery as to the
whole claim as the locator
may still have a valuable
mineral deposit on that
portion of the claim not
challenged by the Gov-

ernment_

Generally

1. A mining claimant is the
proponent of the validity
of his claim under the
Administrative Proce-

dure Act, 5 U.S.C.
§§ 551 et seq. (1970), and
has the burden of over-
coming by a preponder-
ance of evidence the
Government's prima facie
case of failure to comply
with the location re-
quirements of the mining
law and of lack of dis-
covery of a valuable
mineral deposit----
2. Where a mining claimant's
testimony as to location
and discovery is super-
ficial and implausible, it
is reasonable for the
Administrative Law
Judge to conclude from
the evidence and the
testimony of other wit-
nesses that none of the
claims was located ac-

cording to the require-
ments of the mining laws
and that no discovery
was made thereon _ _ _ _ _

discovery exists within

the meaning of the min-
ing laws....

4. 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 addi-
tional evidence is neces-
sary for a final determina-
tion...

5. Where minerals have been
found and the evidence
is of such a character that
a person of ordinary pru-
dence would not be justi-
fied in the further ex-
penditure of his labor and
means, with a reasonable
prospect of success in
developing a valuable
mine, a discovery does
not exist within the mean-
ing of the mining laws....

6. To verify whether a dis-
covery of a valuable
mineral deposit has been
made, a government min-
eral engineer need not
explore or sample beyond
those areas which have
been exposed by the
claimant; he is not re-
quired to do the dis-
covery work for the
claimant..

7. Testimony by a government
mineral engineer that he
examined the mining
claims and the workings
thereon and sample the
area recommended by the
claimant but found no
evidence of a valuable
mineral deposit which
would have in the past or

2. The fact that alumina, the
raw material from which
aluminum is produced, is
present in the area of a
group of mining claims
does not satisfy the mar-
ketability test of dis-
covery when there is no
known process by which
aluminum may be ex-
tracted from the par-
ticular alumina-bearing
mineral compounds on a
profitable basis_ _ _ _.

3. In applying the prudent-man
test a critical factor to be
considered, especially in
the case of widespread
nonmetallic mineral, is
whether the claimed ma-
terial is marketable. To
establish the market-
ability of a widespread

nonmetallic mineral a

MINING CLAIMS-Con.

DISCOVERY-Con.

Marketability-Con.

contestee must show that
by reason of accessibility,
bona fides in develop-
ment, proximity to mar-
ket, existence of present
demand, and other
factors, the deposit is of
such value that it can be
mined, removed and dis-
posed of at a profit - - - -
4. Where a prima facie case rests
upon the establishment of
a negative fact, but the
other party has peculiar
knowledge or control of
the evidence as to such
matter, the burden rests
upon him to produce such
evidence of sufficient

weight and credibility,
and failing, the negative
will be presumed to have
been established. This
principle applies in a min-
ing claim contest to the
extent that where the
Government has made a
prima facie case of non-
marketability, and the
contestee only testifies
that he made sales but
fails to buttress that tes-
timony with specific data
as to the sales or provide
corroborating evidence
thereof, he will be deemed
to have failed in his bur-
den of proof-----
5. To satisfy the requirements
for discovery on a placer
mining claim located for
common varieties of sand
and gravel before July 23,
1955, it must be shown
that the materials within
the limits of the claim, by
reason of accessibility,
bona fides in develop-
ment, proximity to mar-