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UNITED STATES

v.

ALASKA EMPIRE GOLD MINING COMPANY

A-30082

Decided July 16, 1964

Mining Claims: Location—Mining Claims: Lode Claims—Mining Claims:

Mineral Surveys Because Revised Statute 2320 provides that no lode mining claim shall

extend more than 300 feet on each side of the middle of the vein at the surface, a patent applicant should indicate the direction of the vein and adjust his survey accordingly if the course of the vein diverges from a line through the center of the claim and one of the side lines is more than 300

feet from the center of the vein. Mining Claims: Lode Claims—Mining Claims: Patent The Department has no power to issue a mineral patent to any surface

ground exceeding 300 feet in width on each side of the middle of the vein or lode, and a patent so issued is void as to the excess over 300 feet and is subject to collateral attack.

Star Gold Mining Co., 47 L.D. 38 (1919), distinguished.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

The Forest Service, United States Department of Agriculture, has appealed from a decision of the Assistant Director, Bureau of Land Management, dated June 4, 1963, vacating a decision issued by the Anchorage land office requiring the Alaska Empire Gold Mining Company to amend its locations and resurvey four of its mining claims so that the side lines of the claims do not extend beyond 300 feet from the middle of the vein found at the surface of each claim. The land office decision stated that the company's patent application for the four claims would be rejected and the cases closed for failure to proceed with diligence unless it acted within 30 days from the day it received that decision.

The record shows that on June 16 and 17, 1959, a hearing was held to determine the validity of a number of the company's mining claims, including the four claims identified above. In a decision dated October 26, 1959, the hearing examiner, who conducted that hearing, made the following findings of fact:

The evidence at the hearing submitted by both parties regarding the Batella

1 The four mining claims, Batella No. 1, Williams Nos. 4 and 7, and Golden Bear No. 1, are lode mining claims situated on the Mansfield Peninsula of Admiralty Island, Harris Mining District, Juneau Recording Precinct, Alaska, and within the boundaries of the Tongass National Forest.

No. 1, Williams No. 4 and Williams No. 7 was to the effect that the Williams Vein with a strike of approximately South 10° West had been identified on each of the three claims, that the vein contained considerable mineral value, that if the vein were extended it would cross the South end line and East side line of the Batella No. 1, the North end line and the West side line of the Williams No. 4 and side lines of the Williams No. 7. In regard to the Golden Bear No. 1, the evidence was that the Iron Swamp Vein with the same strike of approximately South 10° West was within the boundaries of the claim, that this vein contained considerable mineral values, and that if the vein were extended it would cross the side lines of the Golden Bear No. 1. There was no evidence by either party that any of the four claims contained valuable mineral deposits in veins other than the Williams Vein or the Iron Swamp l'ein.

Upon the basis of these findings of fact and Rev. Stat. § 2320 (1875), 30 U.S.C. § 23 (1958), the examiner made the following conclusions of law:

Accordingly, I find that the Batella No. 1, Williams No. 4 and Williams No. 7 are valid claims to the extent of 300 feet on each side of the Williams Vein and that Golden Bear No. 1 is valid to the extent of 300 feet on each side of the Iron Swamp Vein. Therefore, the patent Contestee is required to ammend [sic] the locations and patent application to embrace only the valid portions of the four claims as established herein.

An attempted appeal to the Director, Bureau of Land Management, from this decision was summarily dismissed on procedural grounds, and the Director's decision was subsequently affirmed by the Department.

Pursuant to the conclusions in the examiner's October 26, 1959, decision, the company was advised by the land office by a letter dated March 1, 1962, of the necessity of prosecuting its patent application to completion. The company replied on March 7, 1962, to the effect that it would take no action to amend its locations. Subsequently, the land office declared, in a decision dated September 24, 1962, that, because over two years had elapsed since the Department's May 11, 1960, decision, the company had demonstrated a lack of diligence in complying with the requirement of the examiner's decision regarding the resurvey of the four claims involved in this case. It allowed the company 30 days from the receipt of the land office decision within which to initiate action toward the relocation and resurvey of the claims. It stated that the company's mineral patent application would be closed without further notice if it failed to comply with the decision. An appeal from that decision resulted in the Assistant Director's decision of June 4, 1963.

Relying on the decision in Star Gold Mining Co., 47 L.D. 38 (1919), the Assistant Director concluded that a mining claimant who has in

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3 Alaska Empire Gold Mining Co., Contest Nos. J-4, J-5, J-6 (Alaska) (March 1, 1960). 3 United States v. Alaska Empire Gold Mining Company, A-28419 (May 11, 1960).

July 16, 1964 good faith staked and marked a mining claim should not be required

a to relocate and resurvey his claim as a prerequisite to obtaining a patent even if it is demonstrated that the discovery vein materially deviates from a central course through the claim. In its appeal, the Forest Service contends that the facts of the Star Gold case, supra, are distinguishable from those of the instant case and that it is not controlling here.

In the Star Gold case, supra, a mining claimant had filed a patent application for a group of six lode mining claims. As a result of adverse proceedings, part of one of the claims upon which the discovery had been made was lost to the adverse claimant. Subsequently, the mining claimant established a discovery on the remainder of the claim. However, although the newly discovered vein crossed both end lines of the shortened claim, it was not exactly in the center of the claim. The Commissioner of the General Land Office decided, for this reason, that the north side line of the claim would have to be drawn in to within 300 feet of the vein, which would render the claim noncontiguous to the remainder of the group of claims included in the patent application and would lead to the rejection of the claim. The Department reversed the Commissioner's decision, stating that the adverse consequences flowing from that decision should not be pressed to such an extreme in view of "the facts and circumstances here disclosed.”

It is clear, therefore, that the facts of the Star Gold case are significantly different from those of the instant case where the hearing examiner found that the discovery veins cross from end line to side line on two of the claims and from side line to side line on two claims.

Moreover, at page 42, the Star Gold decision reads as follows: * * * Even where it may be demonstrated that the discovery vein deviates materially from a central course through the claim, the location as originally staked and marked in good faith will stand. * * *

The Assistant Director interpreted this to mean that such a claim may be patented without an amendatory survey. That this is not its intent is demonstrated by the following excerpt from the case of Harper v. Hill, 113 Pac. 162, 164, 165 (Calif. 1911), cited in the Star Gold decision in support of the above-quoted statement :

* * That the location, as made, may not be binding on the United States, and that in making the survey for a patent the Surveyor General may ascertain and locate the true line of the apex to fix the boundaries, may be conceded. * * * But it is the clear intent of the statute that in the meantime, and as against all others, the locator who has in good faith made the discovery and marked the boundaries with regard to the position of the apex as he then finds and believes it to be shall be protected in the possession of the surface thus

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ascertained, and that the monuments he then sets shall control the location of the claim. * * *

The law regulating the width of a lode mining claim is clear. Section 2320 of the Revised Statutes of the United States, supra, reads in part as follows:

*** A mining claim located after the 10th day of May, 1872, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; * * * No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface * * *.

Accordingly, the Department has held that a patent applicant should, if the course of the vein on the mining claim for which he seeks a patent diverges, at the surface, from a straight line, indicate the direction of the vein and adjust his survey accordingly. Bi-Metallic Mining Company, 15 L.D. 309 (1892).

In accord is 2 Lindley on Mines SS 362 and 366 (3d ed. 1914). Section 362 reads in part:

* * * Where the locator mistakes the course of his vein and locates across instead of along it, an excess of lateral side-line surface results and should be cast off. His surface rights resting on location would properly be defined by lines drawn three hundred feet on each side of the center of the vein as it actu. ally ran.

The validity of such a location is not affected, however, and it has been held that a relocator is not permitted to determine for himself the excess in width and relocate it. The original locator is entitled to possession of the claim as located until he readjusts his lines voluntarily or is called upon to do so by the land department in a patent proceeding. A portion of section 366 reads:

It must be presumed for executive purposes that the lode proceeds in a straight line in the center of the plat of patent survey, unless evidence be submitted showing a different direction. If the course of the vein (at the surface) diverges from a straight line, the applicant for patent should indicate the direction and adjust his survey accordingly.

The Department has, moreover, held that it has no power to issue a mineral patent to any surface ground exceeding 300 feet in width on each side of the middle of the vein or lode, and a patent so issued is void as to the excess over 300 feet and is subject to collateral attack. United States v. Arthur Curlee, A-22301 (December 22, 1939). Cited as authority for this conclusion was the case of Lakin v. Dolly, 53 Fed. 333 (C.C.N.D. Cal. 1891), aff'd, Lakin v. Roberts, 54 Fed. 461 (9th Cir. 1893), cert. denied, 154 U.S. 507 (1893). At page 337 of Lakin v. Dolly, supra, the court made the following observations:

This entire section (Rev. Stat. § 2320) seems to be clear, definite, and certain. It provides that all mining claims upon quartz lodes * * * located after May 10,

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July 22, 1964

1872, “may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode." So far the section relates solely to the question of the length of the lode that may be located. It next takes up the question as to how much surface ground will be allowed to the locator of a quartz lode, and says that "no claim" * * * “shall extend more than three hundred feet on each side of the middle of the vein at the surface." * * * After the passage of the act of which this section forms a part, it seems very clear, to my mind, that the land department had no jurisdiction, power, or authority to issue a patent for a quartz lode to any surface ground exceeding 300 feet in width on each side of the middle of the vein or lode, and that any patent which is issued for more than that amount of surface ground is absolutely null and void as to the excess over 300 feet, and can be collaterally attacked in a court of law.

It must, therefore, be concluded that the Assistant Director's decision is incorrect.

Accordingly, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4)(a); 24 F.R. 1348), the Assistant Director's decision is reversed and the case is remanded for further appropriate action consistent with this decision.

ERNEST F. HOM,

Assistant Solicitor.

TIDEWATER OIL COMPANY

A-30087

Decided July 22, 1964

Oil and Gas Leases: Applications
A protest against a noncompetitive oil and gas lease offer for acquired

land is properly sustained where the offer is signed by an attorney in fact for a corporate offeror and is accompanied only by a statement of the attorney in fact as to the nonexistence of an agreement between the attorney in fact and the offeror whereby the attorney in fact will acquire an interest in any lease to be issued and by a statement by the offeror that a third party will have an interest in the lease and there is not filed any statement by the offeror as to whether the attorney in fact will acquire any interest in the lease.

Oil and Gas Leases: Applications—Oil and Gas Leases: Description of Land Where only one copy of an oil and gas offer for acquired lands is filed

and thereafter within the time allowed the additional copies required are filed but such additional copies vary from the first copy in a portion of the land description, the offer is not fatally defective and the first copy filed is deemed to be controlling despite the fact that it was not marked as the "original" copy by either the offeror or the Bureau of Land Management.

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