4. Common earth to be used for road fills, earth dams, stock-watering reservoirs and similar uses.

5. Clay to be used for the manufacture of bricks, tile, pottery, and similar products. (S. Rept. No. 204, 80th Cong., 1st sess.)

The Department has restated its position several times. Mrs. A. T. Van Dolah, supra, fn. 2; cf. United States v. Everett Foster et al.; United States v. P. D. Proctor et al., A-27899 (May 4, 1959).

Thus, the Department has long construed the mining laws as not validating a mineral location based upon a deposit of sand and gravel merely because there is some market for it. A long continued and uniform administrative interpretation of a statute is entitled to great weight in its construction. United States v. Wyoming, 331 U.S. 440, 454 (1947); Lykes v. United States, 343 U.S. 118, 126-127 (1952); United States et al v. American Trucking Associations, Inc., et al., 310 U.S. 534, 549 (1940). Particularly is this so where Congress has accepted and acted upon the basis of the administrative interpretation. Brooks v. Dewar et al., 313 U.S. 354, 360, 361 (1941).

On the other hand, the Department has held that lands containing deposits of clay of an exceptional nature may be entered under the mining laws. United States v. Barngrover et al. (On Rehearing), 57 I.D. 533 (1942); Fred B. Ortman, 52 L.D. 467, 469 (1928); see also Mrs. A. T. Van Dolah, supra; Holman et al. v. State of Utah, supra.

The contestee's position on the law is not too clear. On the one hand, she seems to contend that even common clay is subject to location under the mining law so long as it is marketable. On the other hand, particularly in answer to the contestant's present appeal, she asserts that the clay deposit in question has a distinct and special value, as the Director found. Of course, if the first proposition is true, it would be unnecessary to determine whether the Mattey clay or shale possessed an uncommon value. All that would have to be ascertained is whether the clay is in present demand and is marketable.

For the first proposition, the contestee relies heavily upon Layman et al. v. Ellis, 52 L.D. 714 (1929), which overruled Zimmerman v. Brunson, 39 L.D. 310 (1910). In the Zimmerman case, the Department held that sand and gravel, which had no peculiar property or characteristic but had been used in making concrete for building purposes and whose chief value derived from its proximity to town, were not minerals subject to mining location. The decision cited, among other cases, Dunluce Placer Mine and King et al. v. Bradford, supra. Layman et al. v. Ellis also involved gravel deposits which had been sold for use in road and building construction on the State highway system. Holding that the deposits were subject to mining location, the Department pointed to the pronounced and widespread economic value of gravel and the fact that it is definitely classified

February 29, 1960

as a mineral product in trade and commerce. However, the Layman case did not rely upon marketability alone. The Department said:

Good reason also exists for questioning the statement [in the Zimmerman case] that gravel has no special properties or characteristics giving it special value. While the distinguishing special characteristics of gravel are purely physical, notably, small bulk, rounded surfaces, hardness, these characteristics render gravel readily distinguishable by any one from other rock and fragments of rock and are the very characteristics or properties that long have been recognized as imparting to it utility and value in its natural state. (52 L.D., at 720.)

In other words, the Department seemed to be indicating that gravel is a rock of special and distinct value because of its physical characteristics, and, therefore, that as a rock of peculiar value it is subject to mining location just as rock of special value for building purposes is subject to mining location.

However this may be, Layman et al. v. Ellis was confined to gravel and considerations pertaining to gravel. It did not in terms or by necessary implication overrule King et al. v. Bradford or Holman et al. v. State of Utah. In fact, in Mrs. A. T. Van Dolah, supra, decided many years after the Layman case, the Holman case was cited in support of the proposition that common clay cannot be located under the mining laws although clay of an exceptional nature may be.

In addition, it is clear from the terms of the Materials Act of July 31, 1947, its legislative history, and the Department's construction of the act, that common clay is not subject to disposition under the mining laws. It only remains then to determine whether the clay and shale deposit on which the appellant's claim is founded is a common clay or a clay of exceptional nature.

The only unusual qualities attributed to the deposit are that it contains certain "impurities" and is used in the manufacture of vitrified sewer pipe. The impurities, or flux materials, however, are merely the ordinary substances found in common clay. Indeed, it is their presence in appreciable amounts which differentiates the common clays from the less common clays (Tr. 119). There is nothing in the record to indicate that the Mattey shale contains flux materials in unusual combinations or that it is different in composition from any other common clay. The only comparison made was between the shale and common dirt as a bulk material for the clay mixture used in manufacturing the sewer pipe. The fact that there the advantages are in favor of using shale over common earth is hardly sufficient to warrant classifying the shale as uncommon.

Turning now to its use in the manufacture of sewer pipe, we must first note that sewer pipe is generally classified as a heavy clay product

See "Mineral Commodities of California," Bulletin 176, Division of Mines, Department of Natural Resources, State of California, 1957, pp. 143–148.

along with brick and drain tile; the clay used for such a purpose may well fall within the uses of clay which the discussion above demonstrated would not validate a mining claim. However, it is not necessary to rest on this ground because if the deposit is in itself of the type of clay not subject to location under mining laws, the fact that it is used in combination with purer clays cannot remove it from the proscribed category. In other words, the use to which a common clay is put cannot make the lands in which it is found subject to location. under the mining laws, if the use is not dependent upon any unusual characteristics of the clay itself. It would be different if a clay with unusual characteristics which could be used in the manufacture of ordinary brick were used to made a product for which its unusual characteristics were essential. In this case the Mattey shale has no qualities that it does not share with other comman clays and it is used only as any other common clay could be used.

Consequently, I cannot find that it is a mineral subject to location under the mining laws or that the land in which it is found is, because of it, mineral in character. Accordingly, I conclude that there has been no discovery of a valuable mineral on the claim, that the protest against the patent application was improperly dismissed, and that the patent application should be rejected and the claim held null and void. This conclusion makes it unnecessary to consider the contestant's allegations that under the act of July 23, 1955, supra, common clay is not a locatable mineral.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision of the Director of the Bureau of Land Management is reversed and the case is remanded for further proceedings consistent herewith.

EDMUND T. FRITZ,

Deputy Solicitor.

ALUMINA DEVELOPMENT CORPORATION OF UTAH ET AL.

A-28171

Decided February 29, 1960

Multiple Mineral Development Act: Verified Statement

The verified statement filed by a mining claimant pursuant to section 7 of the act of August 13, 1954, must be under oath.

Multiple Mineral Development Act: Verified Statement

Where an officer of a corporation filing a statement pursuant to section 7 of the act of August 13, 1954, subscribes his signature to a statement that he is making the statement under oath and a notary public signs and seals an acknowledgment of the officer's signature, the statement is considered to have been made under oath and thus verified.

February 29, 1960

Multiple Mineral Development Act: Verified Statement

Where a statement filed pursuant to section 7 of the act of August 13, 1954, does not on its face show that it was sworn to, yet in fact it was sworn to, the fact that the oath was administered may be shown by evidence outside the record.

Multiple Mineral Development Act: Verified Statement

The signature of a corporate officer to a verification of a statement filed pursuant to section 7 of the act of August 13, 1954, or the corporate seal stamped on each page of the statement is a sufficient signature to the statement, if a signature is necessary.

Mining Claims: Lands Subject to-Mining Claims: Special Acts

Mining claims are null and void where the claims are located after December 31, 1952, and prior to February 10, 1954, on lands then in outstanding oil and gas leases and the requirements of the act of August 13, 1954, under which the claims might have been validated, were not met.

Mining Claims: Lands Subject to

Land embraced in an oil and gas prospecting permit becomes subject to mineral location, all else being regular, as soon as the permit expires and not only when the notation of the expiration of the permit is made.

Mining Claims: Determination of Validity

Mining claims whose invalidity is demonstrated by matters of record are to be declared null and void by the manager of the land office without the necessity of further proceedings.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Alumina Development Corporation has appealed to the Secretary of the Interior from a decision dated May 21, 1959, of the Acting Director of the Bureau of Land Management which rejected in its entirety a "verified statement" filed by it pursuant to section 7 of the act of August 13, 1954 (68 Stat. 711; 30 U.S.C., 1958 ed., sec. 527).

The act was intended to relieve persons holding or seeking leases or permits of public lands under the Mineral Leasing Act (30 U.S.C., 1958 ed., sec. 181 et seq.) from the possibility that at some time in the future a mineral claimant might assert a prior valid mining claim to the same land which would deprive the lessee of his rights to the land covered by the mining claim. It provides, among other things, that at the request of a lessee, the Secretary, or his designated representative, shall have published a notice describing the public lands covered by the lease and that, upon the failure of any person claiming any interest in any leasing act minerals in the lands described in the published notice to file, within the time allowed, "a verified statement" setting out certain matters relating to his claim—

such failure shall be conclusively deemed,

(i) to constitute a waiver and relinquishment by such mining claimant of any and all right, title, and interest under such mining claim as to, but only as to, Leasing Act minerals, and * *, (iii) to preclude thereafter any assertion by such mining claimant of any right or title to or interest in any Leasing Act mineral by reason of such mining claim. 30 U.S.C., 1958 ed., sec. 527 (b).

Proceedings under section 7 were initiated by the Nicholas G. Morgan, Sr., Charitable Foundation, Inc., O. Preston Robinson, Seneca Oil Company, Ray L. Taylor, and Croff Oil Company, lessees of oil and gas leases Utah 07297, 08096, 09024, 09030, and 09040, respectively, and first publication was made in October 1956. It appears that in November 1956 Alumina submitted a letter and enclosures to the manager of the Salt Lake land office. In a letter dated November 26, 1956, the manager returned the enclosures to Alumina and said that if it was Alumina's intention to assert surface rights to the lands affected by its claims, it would have to comply with the provisions of the pertinent regulations, 43 CFR, 1954 rev., Part 186 (Supp.), a copy of which was enclosed. Alumina's attention was drawn to section 186.16 and to form 5 which, respectively, state the consequences of the failure of a mining claimant to file a verified statement and set out a form of verified statement.

On or about February 10, 1957, Alumina filed a document entitled "Verified Statement of Mining Claimant Pursuant to section 7 of the act of August 13, 1954 (68 Stat. 708)" in which it listed 33 mining claims in Ts. 17 and 18 S., Rs. 13 and 14 E., S.L.M., in conflict with 10 oil and gas leases, including those involved in this appeal.

The statement follows the form set out in the regulation. The paragraph numbered "1" states:

Under and by virtue of the hereinafter mentioned mining claims located prior to enactment of the act of August 13, 1954 (68 Stat. 708) the undersigned Alumina Development Corporatio[n] of Utah whose address is Price, Utah, 212 E. 1st N. St claims rights in Leasing Act minerals defined in said act. There is, however, no signature to the statement as such. Following the statement itself, there is a separate page which reads as follows:

VERIFICATION

State of Utah

County of Carbon. ss:

Joseph E. Forrester being duly sworn, deposes and says that he is an officer, to-wit: President of ALUMINA DEVELOPMENT CORP. 212 E. 1st N. St. Price, Utah the corporation, named in and whose name is subscribed to the foregoing Verified Statement of Mining Claim