3

6

10

11

12

13

14

15

constitute

mineral discovery, something more than conjecture, hope or even indication of mineralization is essential; there Bust be for a lode claim discovery within rock in place of mineral having actual or potential value ΟΙ of such a character that a person

means

of ordinary prudence would be justified in
the further expenditure of his labor and
on the particular claim, with a
reasonable prospect of success in developing
a valuable mine. And while liberality in
applying these rules will be indulged in
determining superiority of rights as between
private claimants, and there may be taken
into account the geological indications and
other discoveries in adjacent areas, as well
as utilization made of developing technological
aids, these of themselves may not be
substituted for discovery of minerals within
the exterior of boundaries of the claim in
question, as that discovery may be so aided.

❤

Ranchers Exploration and Development Co.. 248 F.Supp. 708, 714-15 (D. Ut. 1965). These rules apply equally to placer claims. Where discovery is to follow location, the location dates from the time of discovery. 2 American Law of Mining $ 35.08[4] at 35-22 16 (1984); see also Creede and Cripple Creek Mining and Milling Co. V. Vinta Tunnel Mining and Transp. Co., 196 U.S. 337, 348-49

17

(1905).

Amax has not proven a discovery of gold or silver within the exterior boundaries of any of its claims at issue. John Wood conceded in rebuttal that Ex. 6A does not represent any discovery. Gold was detected on many samples. Anomalous gold silver mineralization has been found through shallow pit sampling on its NA placer claims: Gold: 108 (GR 21,22); 131 (A&R 2); 136 (A&R1); 138 (h&R 1); 145 (A&R 5); 150 (A&R 4); 151 and 154 (A&R 3); Silver:

and

135 (A&R 1). Similar

mineralization

1

2

3

4

5

7

has

been found at drillhole 76 on Sleeper lode claim 60 (A&R 6). Combined with this direct sampling method, Amax geologists employed a variety of other approaches, namely, biogeochemical and geomicrobial sampling, resistivity/inverse-polarization

geophysical testing, ground magnetic testing and gravimetric 6 testing. Interpreted in light of proven deposits in Section 21, Amax senior staff geologist Donald Ranta extrapolates a geologic inference that there is excellent potential for discovery of mineable deposits to the north and south of Section 21. At 10 best, this means the area has promising potential for exploration.

8

9

11

12

13

714-15 (D.Ut.

That falls short of a legal discovery on each Amax claim. Ranchers, Exploration & Development Co. V. Anaconda Co., 248 F.Supp. at 1965); Barton V. Morton, 498 F.2d 288 (9th Cir.

12 Jr. stati

13 keep tra

14 Fraijo 1

15 claims g

15

16

17

18

One problem is their claim-connecting evidence.
took pit samples from various places on the property on a somewhat
basis since 1981.
regular

"But a mineralized vein is not the equivalent of a deposit of mineable ore. Such a vein may not contain material of substantial value. In this case, as the Department pointed out, '[i]t is nowhere suggested that any quantity of material of the quality of th vein matter thus far disclosed would constitute a mineable body of ore. The evidence does not, in fact, establish any mineral qualit of any consistent extent. Although appellants have found ore sang with indicated values exceeding $70 per ton, the record does not support a finding that they have found a deposit yielding ore or that quality, or of any other quality, the exploitation of which m be contemplated. The evidence of record indicates that the valves thus far found are spotty, and appellants do not argue otherwise' (emphasis in original." Id. at 291.

1

2

3

to identify samples by clair number, but the assayers could not

attest to whether the identifying numbers were in fact the numbers

corresponding to the claims sarpled.

Reason to doubt the veracity

7

doubt is also generated by the April 13, 1982 report on A & R

10

11

which claims

were

general impression that nobody understood the importance of knowing Ross Mosher,

being sampled. For instance,

keep track

of "what

what."
was
sampling expeditions.

try stated that when he assisted in sampling he did not Mosher, Sr. and They testified

to

Ross

Roland

that

15

16

17

No one of the

claims generally were sampled on certain dates. defendants ever discussed sampling date-by-date, claim-by-claim. No field notes were introduced. It was a haphazard operation. For these reasons, we doubt the sample locations in Jerome's 19 December 1981 and January 2, 1982 reports and on the large map The same is true of the Christensen

Some assay reports listed results by legal subdivisions. The problem with these insofar as the claims at issue are concerned an assay result will identify a sampling area

23

24

is that

where two

25 or more claims exist. The precise claim from which the sample

26

was taken is not specified.

For instance, in a March 1982 report

1

(curiously titled for the GP group), the ninth and tenth samples

5

a June 1982 report. An April 6, 1985 report, the fourth sample

6

suffers from the

same

defect.

In addition the third sample for

7

29 SW 1/4" could fall in any of GR claims 21-24.

The last sample

8

9

6.

1985 Jerome's June

10

11

This failure to pinpoint claims is

of that report for 28 NW 1/4" could be from either A&R 5 01 flowsheet test from the section 29 GR'S could represent a sample from any one of the GR claims in dispute. fatal

12

above samples.

It

also manifests a

less

to the assays of thes than diligent effort

by defendants to prove mineralization on each claim in dispute. Beyond the claim-identification problem, the fire assay

Amax conducted a rathe:

results of William Jerome are suspect.
regimented sampling endeavor and failed to come up with consisten:
high assay values for its placer samples on the claims at issue
Amax geologists have explained that the surface geology in the
disputed
sand and slop
area consists primarily of windblown
wash which has, over geologic time, buried those areas containin
valuable mineralization. As a result, although detectable gol
exists at the surface, economic deposits will necessarily remai
concentrated closer to the bedrock and in the bedrock itself
This explains the relatively low values associated with the Ama
surface samples. The assay values assigned are credible. Nothin
in the record gives the court cause to doubt the integrity c

Arax sampling or the accuracy of the assay values obtained for

1

2

these samples.

With this information, Amax geologist Wood opined

3 that Jerome's assay results are beyond the realm of geologic

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

possibility. The court agrees.

assays.

Defendants called a metallurgist, Robert Schumaker,

to testify, apparently hoping to give support to Jerome's fire The witness was unfamiliar with the geology of the disputed property. Without that knowledge, he could not attest to the best sampling method for the property, and he would in any event have to rely as a metallurgist on a geologist for advice on an appropriate sampling method. Tonnage of a placer deposit, is an appropriate sample, according to Schumaker. The method utilized by Amax geologists on placer pits involved removal of typically three cubic feet of dirt by backhoe. Defendants sampleċ with posthole diggers and hand-held tools. According to Schumaker, samples are only as good as the sampling method itself.

Schumaker never observed Jerome perform a fire assay. Jerome's education in the process consisted of attendance at a, two-day rudimentary seminar. Schumaker reviewed the seminar manual and concluded it was a simplified but workable summary

21 of fire assaying technique and that a layman could use it

tc

It is difficult to pinpoint

the exact purpose of Schumaker's testimony, but he did state

The court does not believe desert floor at issue coule

values in

Jerome's reports.

Commercia: