admissions against interest. Such a qualification of the Langevin principle, however, obviously could have no application to a situation, like the one here in question, where the contracting officer has made no finding to the effect that delays were caused by the Government. The Court of Claims in a recent decision not only recognized that there is no reason to depart from the Langevin principle in a situation of the present type, but also reaffirmed the soundness of that principle as a matter of public policy, saying:

We think it decidedly unwise to give almost-conclusive weight to the contracting officer's decision to grant extra time, for such a rule would tend to foster a policy which will ultimately work to the detriment of all contractors. In doubtful cases, contracting officers would be quite wary of granting additional time for fear that their decisions may later become the foundation for a breach of contract action."

We believe that the line of reasoning developed in Utah Construction Company is both sound and applicable to the matters now in dispute. The fact that there the contracting officer had disclaimed any jurisdiction to consider the claim for additional compensation was not so material to the decision as to necessitate the reaching of a different result here. Accordingly, we held that the present appeals present no justiciable issue of law or fact.

The appeals are dismissed.

A mill site claim is properly declared invalid where the claim is not occupied or used for mining or milling purposes.

Mining Claims: Mill Sites

The use of a rehabilitated structure on land embraced in a mill site claim as a base for occasional prospecting activities on nearby patented lode

George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 93-94 (1947); James Stewart & Co. v. United States, 105 Ct. Cl. 284, 329–30 (1946); Irvin & Leighton v. United States, 101 Ct. Cl. 455, 475-76 (1944).

Robert N. Lee & Co. v. United States, Ct. Cl. No. 252-60 (January 24, 1964).

October 15, 1964

claims and the intention to use the land in the future for workmen's housing and an assay office presumably when the claims are developed are not sufficient to comply with the requirements of section 2337 of the Revised Statutes for obtaining a mill site.

Administrative Procedure Act: Adjudication-Administrative Procedure Act: Hearings

Where a hearing has been held in a contest, the record made at the hearing shall be the sole basis for a decision and evidence submitted at a later date cannot be considered in deciding the case on the merits.

Rules of Practice: Appeals: Generally

The oral argument which is authorized on an appeal to the Secretary is not a hearing at which evidence may be submitted but an opportunity to present argument orally on the case record as previously made.

Rules of Practice: Evidence-Rules of Practice: Hearings

Evidence submitted outside a hearing in a contest case cannot be considered in deciding the case on the merits but can be considered to determine whether or not a further hearing is warranted.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Gilbert C. Wedertz has appealed to the Secretary of the Interior from a decision of the Assistant Director, Bureau of Land Management, dated August 12, 1963, vacating a hearing examiner's decision and declaring null and void the Bokee mill site, situated in sec. 19, T. 1 N., R. 25 E., M.D.M., Mono County, California, a part of the Inyo National Forest.

At the request of the Forest Service, Department of Agriculture, a contest was brought by the United States against the mill site on the grounds that the mill site is null and void because there is no quartz mill or reduction works on it, and it is not used or occupied for mining or milling purposes. In a decision dated March 9, 1962, the hearing examiner held that, as the Bokee mill site is located in a remote area, miles from any habitation, the rehabilitation on it of a dwelling house is a substantial use and improvement of the land, and that, as the house was rehabilitated for workmen employed in connection with a mine, the mill site is used for mining purposes. For this reason, he dismissed the contestant's complaint.

A subsequent decision by the Assistant Director, Bureau of Land Management, vacated the hearing examiner's decision, declared the mill site to be null and void, and rejected the patent application Wedertz had filed for the mill site. The Assistant Director held that

the evidence of record does not support a finding that the mill site claimant is entitled to a patent at this time because he has not shown a present occupation or use of the tract as would satisfy the requirements of section 2337 of the Revised Statutes (1875), 30 U.S.C. § 42 (1958). Specifically, the Assistant Director found that the evidence compiled at the hearing does not show that the mill site is being used as the present living quarters for a crew engaged in operating the Wedertz mining property or an office or storage place in connection with the operation of a mine as alleged in the patent application. He found that the only present use being made of the mill site is as a storage place for material to repair two cabins which were on the land when Wedertz acquired it, and as a place for a consulting geologist to spend three to five nights a year while exploring a tunnel leading to a mine, but not operating a mine.

In his appeal to the Secretary, Wedertz has expressed general disagreement with the Assistant Director's decision.

The record compiled at the hearing conducted in the instant case has been carefully reviewed. That record does not support a finding that the appellant is entitled to a patent to the Bokee mill site at the present time.

Section 2337 of the Revised Statutes, supra, permitting entry of mill sites, reads as follows:

Where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such nonadjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such nonadjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith may also receive a patent for his mill site, as provided in this section.

This section provides for two classes of claims. The second class is not pertinent in the instant case as it makes the right to patent a mill site dependent upon the existence on the land of a quartz-mill or reduction works, of which there is none. In the first class, however, the use or occupation of the land "for mining or milling purposes" is the only prerequisite to a patent. It is under this class that the appellant seeks a patent for the Bokee mill site.

The use or occupancy contemplated by the Revised Statute section 2337, supra, was discussed in Alaska Copper Company, 32 L.D. 128 (1903). At page 131 of that decision the Department said:

October 15, 1964

A mill site is required to be used or occupied distinctly and explicitly for mining or milling purposes in connection with the lode claim with which it is associated. This express requirement plainly contemplates a function or utility intimately associated with the removal, handling, or treatment of the ore from the vein or lode. Some step in or directly connected with the process of mining or some feature of milling must be performed upon, or some recognized agency of operative mining or milling must occupy, the mill site at the time patent thereto is applied for to come within the purview of the statute. * *

There is no contention by the appellant that the mill site is being used for milling purposes. The only question is whether it is being used for mining purposes. A careful reading of the transcript of the hearing reveals the following:

In 1954 Wedertz bought at a tax sale 5 lode claims which had been patented in the early 1880's (Tr. 22-23, 34). The claims are located high on a ridge and a tunnel was driven into the claims at a level several hundred feet lower. The tunnel was driven in a distance of 2300 feet (Tr. 37), apparently the last 750-800 feet in the period 1932– 1937 (Tr. 40) and the first portion in the 1880's (Tr. 34). The Bokee mill site is located on a bench a short distance beyond the tunnel portal. The mill site was the site of the town of Bennettville which was constructed in order to drive the tunnel in the 1880's (Tr. 34).

Located on the mill site are two wood buildings. The Government's sole witness, a mining engineer, testified that they were of considerable age, the smaller one being in a poor state of repair. The larger one, a 2-story structure, approximately 25 by 30 feet, was also weatherbeaten but had been repaired. It was locked so he could not see inside but at the time of his visit he observed no use being made of the mill site. (Tr. 10-12, 14.)

Wedertz testified that after he purchased the claims, he wanted to examine, explore, and develop the mines so he engaged a geologist, Elmo W. Adams, to check the property (Tr. 23). He had Adams prospect the surface of the claims and Adams and another person entered the tunnel, using oxygen equipment (Tr. 27-28). Adams' reports on mineral content seemed promising (Tr. 29), and Wedertz intended to develop and explore the property (Tr. 30). However, money was the factor and he hoped that once he had a patent to the mill site Adams would be able to help find people who would be interested in developing the property. Also the current prices of gold and silver had a bearing and he anticipated there might be a change. in the situation. (Tr. 30.) He thought the mine was last actively worked in the 1930's, that only nominal amounts of materials had

been removed since, and that the mine had not actually produced any mineral in quantity (Tr. 32).

Adams testified that there is a lot of mineralization on the claims but that he could not see millions of dollars of ore in sight, "nor thousands of dollars, even" (Tr. 36). His opinion was that the claims should be explored through the tunnel, that samples should be taken from the tunnel "with the point in mind that we want to sample to find further prospecting and that will be a long laborious job" (Tr. 37). He said that the property could not be explored without the mill site, that "it would multiply the costs of exploring this mine and developing the mine tremendously without a mill site-without a place in which to stay, and so on" (Tr. 39).

As for the two buildings on the mill site, Wedertz said he had strengthened the smaller one "which originally is believed to have been the assay office, and which I intended to use as an assay office" (Tr. 26). He said he had equipped the larger building with a wood stove for cooking and heating, and that there are cooking utensils, a bed and mattress there "and everything" (Tr. 30-31). He stored shingles in it for further repair of the buildings and tools-shovels, picks, hammer, saw (Tr. 31-32).

Adams testified that since 1955 he had probably spent 3 to 5 nights a year in the larger building (Tr. 39).

Wedertz testified that he had cut a trench to drain water from the mine entrance, rebuilt the framework around the mine, and bought 3 ore cars one of which was in the tunnel. (Tr. 27–28).

This summary of the evidence shows that there has been no mining of any ore from the claims since Wedertz acquired them and located the mill site in 1954. Only the larger building on the mill site has been used in any way and that has been insubstantial—as very infrequent overnight accommodations for Adams and as a storage place for some hand tools and some supplies. The use of the tools was not specified; they may have been used to cut the drainage trench and rebuild the tunnel framework but may have been used as much or more to repair the two buildings.

All the work done on the claims has been in the nature of exploration, to find substantial mineralization; no work has been done in the way of developing any production. Apparently production will have to wait upon interesting others to invest and possibly upon increases in the prices of gold and silver.

The testimony at the hearing therefore falls considerably short of substantiating the statements in the amended application for patent of the mill site that it and the buildings on it have been used as