of these experts for the mineral claimants developed, at least, that these opinions as to the origin of the deposit are no more than theory and assumption and in no way proved, and gives rise to doubts whether the known data are sufficiently adequate or entirely reconcilable with the deductions made. But it is also only a competitive theory, namely, that the borax was originally laid down with the clay sediments of the lake and was subsequently melted by heat from some source, and where there was no escape of the water of crystallization the fused borax solidified into the massive borax now found, and where such water did partially escape, kernite resulted from partial dehydration. If it be conceded that the latter theory seems the more probable and plausible, nevertheless, to adopt it as an established fact of the case would be to run counter to the conclusions of eminent scientists on a highly technical question, and subject a claimant under the mining law to the probable loss of all benefits from his exploration and development at large cost, made on the faith of an opposite view of the form and character of the deposit, by favoring a conflicting hypothesis which on more complete study and investigation may be rejected as erroneous. For the reasons stated it is held upon the evidence in this case that the deposits of sodium borate on the tincal claims are not within the provisions of Sec. 23 of the Leasing Act at the time such deposits were found.

As to the claims of the United States Borax Company, it is shown that only valuable deposits of colemanite and ulexite, subject to location under the Mining Law, were actually found in commercial quantity, and under the view above stated as to form and character of the sodium borate deposits, it becomes immaterial whether the company had knowledge or had good reason to believe that the sodium borates found in the field underlay such deposits. It is also unnecessary for the same reason to consider whether or not the fact that the Western Borax Company first encountered deposits of ulexite and colemanite in the drill holes which were continuously sunk and which disclosed the underlying much more valuable deposits of sodium borates, which they proceeded solely to mine and extract, would invest them with any rights under the mining laws based on asserted discoveries of ulexite and colemanite, irrespective of whether the sodium borates encountered were or were not within the purview of Sec. 23 of the Leasing Act.

The evidence in the case is to the effect that the kernite deposit and associated minerals are in the nature of a lode having definite hanging and foot walls. But evidence as to the form and character of colemanite and ulexite deposits has heretofore been presented to the Land Department equally justifying their characterization as

lodes, either in application for patents for such deposits as lodes, or in challenge of the right to acquire them under placer location. It appears, however, to be the uniform practice to permit the patenting of claims for such deposit solely as placer locations. It is therefore believed that mineral claimants who have made their locations in reliance upon this practice should not have their rights assailed because the deposits claimed might more appropriately be deemed lode in form and character.

For the reason above stated the decision appealed from is

Affirmed.

LANGDON H. LARWILL

Decided March 8, 1933

OIL SHALE LANDS--OIL AND GAS LANDS--PROSPECTING PERMIT-METALLIFEROUS MINERALS WITHDRAWAL.

Executive order No. 5327 of April 15, 1930, under which certain oil-shale lands were temporarily withdrawn for the purpose of investigation, examination, and classification, constituted a withdrawal from every form of claim except for metalliferous minerals, and a permit to prospect lands within the withdrawn area for oil and gas was not allowable as long as the order remained unmodified or unrevoked by another Executive order or by act of Congress.

EDWARDS, Assistant Secretary:

By decision of September 14, 1932, the Commissioner of the General Land Office held for rejection the oil and gas prospecting permit application of Langdon H. Larwill, filed April 6, 1932, for all of Secs. 18, 19, 30, and 31, T. 4 S., R. 97 W., 6th P. M., Colorado, on the ground that all of said township was embraced in an oil-shale withdrawal under Executive Order of April 15, 1930, and that the land applied for was therefore not subject to prospecting permit.

The applicant has appealed, stating, first, on information and belief, that "said alleged Executive Order of April 15, 1930, was never promulgated and never became binding and effective," and, second, that the leasing of lands for oil and gas is not necessarily in conflict with the use of the same lands under leases for oil shale. The appellant further states:

If the withdrawal in question, as construed by said Circular No. 1220, had ever been promulgated and become effective, then applicant submits that same would have prevented the acceptance of surface homesteads; but the facts are, as the records of the General Land Office will disclose, that surface homesteads have been allowed since the date of the withdrawal order on numerous tracts of oil-shale land within the area in question.

The position of the applicant is, therefore, that for some reason unknown to the applicant, the withdrawal order was either never promulgated or in some o'her way never became effective.

The appellant offers to prove, if such proof should be deemed material, that the geological horizons where oil and gas deposits may be expected in these lands lie far below the horizons where oil shale exists, that oil and gas, if found, would be withdrawn in a short time and thereafter the mining of oil shale could and would proceed over a longer period; that these lands lie along the summit of a considerable ridge or swell, and that the more valuable deposits of oil shale do not outcrop here but rather outcrop a number of miles away in the sides of canyons, so that mining oil shale on these lands will in all probability be deferred many years.

The cited circular, No. 1220, dated June 9, 1930 (53 I.D. 127), was a promulgation of Executive Order No. 5327 of April 15, 1930. Maps showing the withdrawn areas were signed by the Secretary of the Interior and copies thereof were sent to the local land offices. It does not appear that there is any ground for questioning the regularity or effectiveness of the order of withdrawal.

If surface homestead entries have been allowed for withdrawn oilshale lands, that has been done pursuant to the act of February 28, 1931 (46 Stat. 1454). In Circular No. 1244 of April 3, 1931 (53 I.D. 346), under said act, it is stated:

The act is construed to permit stock-raising homestead applications to be made for lands containing deposits of oil shale which lands and deposits by Executive Order of April 15, 1930, No. 5327, were temporarily withdrawn from lease or other disposal and reserved for the purpose of investigation, examination, and classification.

Said Executive order has been construed as a withdrawal from every form of claim except for metalliferous minerals. Even for the allowance of a railroad right of way across certain of these withdrawn lands Executive orders modifying the order of April 15, 1930, have been necessary. See Executive orders Nos. 5708, 5723, and 5772.

There has been no allegation that the land does not contain oil shale. Under these circumstances the appellant's argument that the granting of an oil and gas prospecting permit will not interfere with any use that may be made of the oil shale is without effect. The temporary withdrawal is a complete withdrawal, except against claims for metalliferous minerals, until modified or revoked by another Executive order or by act of Congress.

On February 6, 1933, Executive order No. 6016 was issued and it reads as follows:

Upon recommendation of the Secretary of the Interior, Executive Order No. 5327 of April 15, 1930, withdrawing certain lands for purposes of investigation, examination, and classification, is hereby modified to the extent of authorizing him to issue oil and gas permits and leases under the general leasing act of February 25, 1920 (41 Stat. 437-451), for any of the lands withdrawn by said order.

The Commissioner correctly held the application for rejection. Although there has since been a change in the status of the land, the application filed did not have the effect of segregating the land applied for or giving the appellant any right thereto. Hendricks v. Damon (44 L.D. 205); Keating v. Doll (48 L.D. 199); H. A. Hopkins (50 L.D. 213).

The decision appealed from is affirmed and the papers are returned to the General Land Office with instructions that the appellant be advised that he may file a duplicate of his application, or a new application, and that if there shall then be no intervening permit application filed since February 6, 1933, the matter of granting a permit to the appellant will be favorably considered.

The term "producing oil or gas field," as used in section 13 of the Leasing Act, must be construed to include areas in which there has been production and which will continue to produce oil or gas, and the fact that there has been a cessation of production and abandonment of wells in a given field is not of itself sufficient to warrant a redefinition of the structure or the revocation of the classification of the field in the absence of a proper showing persuasive that the area does not in fact contain valuable deposits of oil or gas.

OIL AND GAS LANDS-PROSPECTING PERMIT ERROR.

The issuance through oversight of an oil and gas permit for prospecting land within a producing oil field will not compel a subsequent erroneous classification of the field and the granting of another permit for prospecting other lands on the structure.

EDWARDS, Assistant Secretary:

By decision of December 13, 1932, the Commissioner of the General Land Office held for rejection as to the NW4SE the oil and gas prospecting permit application of Kermit D. Lacy, filed June 3, 1932, for the W2SE4 Sec. 32, T. 5 N., R. 19 W., S. B. M., California, for the reason that said NW14SE1⁄44 was within the limits of the Rose Oil Company's oil field, which was known to be a producing area long prior to the enactment of the General Leasing Act. An appeal on behalf of the applicant has been filed. He states, through his attorney, that he denies that the land is within any known oil structure; that he asserts that the oil alleged to have been discovered on said land was produced from shallow wells which have for a long time past been totally exhausted; that any future oil

will of necessity be found in deeper formations not now known to be oil-bearing; that he held a previous oil and gas permit for said. W2SE4; and that the issuance of said permit was prima facie evidence that the land was not within the limits of any known structure.

On November 3, 1932, the Géological Survey made a report as follows:

The records of the Geological Survey show that of the land involved in the application the NW14SE14 Sec. 32, T. 5 N., R. 19 W., is within the limits of the Rose Oil Company's oil field, definition not promulgated, which was known to be a producing area long prior to the enactment of the mineral leasing act, and is therefore not subject to filing under the prospecting provisions of the act.

It is true that on January 26, 1925, this appellant filed an oil and gas prospecting permit for the same land; that the Geological Survey reported on August 12, 1925, that the land involved was not within the known geologic structure of a producing oil or gas field, and that so far as relations to structure were concerned there appeared to be no objection to granting a permit; that a permit was granted September 5, 1925; and that said permit was canceled on June 17, 1929, for failure to comply with the terms thereof.

The fact that through oversight the land was reported as subject to prospecting permit in 1925 and a permit was then issued does not compel an erroneous classification at this time and the granting of another permit. It is shown that as of March 4, 1929, the State of California classified the N2N2SE1⁄4 said Sec. 32 as proven oil land, according to law, for the purpose of assessment. See "Summary of Operations, California Oil Fields," published by the Department of Natural Resources, Division of Oil and Gas, August, 1929.

In its unreported decision of March 24, 1924, in the case of John H. Moss v. A. D. Schendel (A-6287, Buffalo 021031-021033), the Department said:

The applicant Moss has appealed from this decision and alleges that the lands were not, at the time of his application, within a producing field, as all wells in that field which had produced either oil or gas, were not producing, but were exhausted, the wells abandoned and the casing pulled and the wells plugged.

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The records disclose that the Torchlight field was a known producing field long before the passage of the leasing act, and was so defined long prior to the filings by appellant or Schendel. The Department is also aware that large oil companies which have been operating in the field did abandon it in 1923, as alleged, but is not convinced that such abandonment warrants a redefinition of the structure or the revocation of the classification of the area as a producing field at this time. The term "producing oil or gas field" as used in section 13 of the leasing act must be construed to include areas in which there 182662-33-VOL. 54—13