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those upon which the cases presently before the Department are to be decided. We feel there can be no objection to putting the conclusion reached in Freeman v. Summers to the test of new or different facts, or new or more accurate geological data then was in the record when the case was considered. Certainly, if the Freeman case was decided on the basis of erroneous geological data, the conclusion were reached not only can but should be tested with correct data. It is noted that you have already attacked the Freeman v. Summers decision in the peading Contest No. 147 (Colorado), United States v. Savage, involving the Hoffman No. 11-14 oil shale mining claims. We have no objection to your doing so in any other case where justified by the particular facts or circumstances. In this manner, the Freeman v. Summers doctrine will undoubtedly be reviewed by the Department in the Savage case, or in other pending cases, and a determination eventually made as to whether it should be applied under the facts and circumstances set forth in the bearing record then before the Department."

In United States v. John W. Savage, BLM (Colorado) Contest 147 a trial-type bearing was held in 960 and record was made that should justify overruling the Freeman v. Summers decision. After the Hearing Examiner issued his decision in Coatest 177, both sides appealed to the Director of BLM. It is believed that in the early part of 1963 the Regional Solicitor's Office, Denver, filed a brief with the office of the Director, BLM, Washington, D.C., urging that the Department to overrule Freeman v. Summers as the Department in that decision bad made erroneous Tindings or Tact as to the nature of the Green River Formation. It is also believed by some that in order to render Contest 147 moot and thereby deny the Department an opportunity and subject matter of a case in which to overrule the erroneous Freeman v. Summers, Mr. Savage quit-claimed the wpatented claims in the contest to the United States and then the BLM dismissed his appeal as the case became moot. The Secretary of the Interior, as well as Congressional Committees, should carefully study the entire record in Coatest 147 to ascertain the facts is said coatest record and the evidence the attorney for the United States put into the record in Contest 147 to prove the factual findings in Freeman v. Summers as to the nature of the Green River formation to be entirely in error.

The application of the "prudent man rule" for discovery to erroneous geologic "facts" as set forth in the Freeman v. Summers decision would seem to vitiate the precedent, if any, set by the decision in Freeman v. Summers, as being a mistake of law and fact resulting in a constructive fraud on the United States and the then homesteader. In this connection, for a reference to words, "resulting in constructive fraud", see Standard Oil Company of California v. United States, 107 F.2d 402, at 414 (1940).

In view of what bas been said above on Freeman v. Summers, it would be manifestly im just for the Department of Interior to apply an erroneous precedent, based on erroneous findings of fact as to the nature of the Green River Formation, to remaining umpatented oil shale mining claims to support the conclusion that a timely discovery was perfected on each of the impatented claims and that there now exists a valid discovery of a valuable mineral deposit on each umpatented mining claim to satisfy the discovery requirement of the U.S. mining laws (as amended by the Oil Placer Act of 1897, 29 Siat. 526, and the provisions of the Mineral Leasing Act of February 25, 1920).

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If each of the Federal courts considering Freeman v. Summers were directly put do notice of erroneous geologic findings as to the nature of the Green River Formation in Freeman v. Summers, decisions by the Federal judiciary which breathe life back into the erroneous Freeman v. Summers decision, might be deemed to perpetrate a fraud upon the United States.

Lo light of the above, it would seem appropriate for the Secretary of the Loterior, on his own motion to exercise supervisory authority based on the records made in Contests 359 and 360, Contest 147 and in the record made in the administrative proceedings leading to the Freeman v. Summers decision, and the facts icovered in the Hearings of the Senate Public Lands Committee pursuant to S. Res. 379, 71st Congress, to issue a decision to overrule Freeman v. Summers as Department precedent. The Secretary may take official notice of facts established in U.S. Geological Survey Bulletins as to the nature of the Green River Formation and its composition. The remaining question is whether some impatented oil shale mining claims can meet the discovery standards in Freeman v. Summers if it is Strictly applied.

It is noted here that Mr. Cason's letter of December 6, 1988 does not even discuss the timeliness of discovery for oil shale claims and other related issues, such as the loss of discovery, pertinent to the proper application of the discovery requirement to oil shale mining claims.

(4). Is Andrus v. Shell Oil Co. in error on facts and the law? Yes! See pp. 269-285 in the appendū to the bearing held on April 22, 1988 on the then proposed oil shale mining claims Conversion Act, Senate Hearing 100-744, before the Subcommittee on Mineral Resources, Development, and Production, Committee on Energy and Natural Resources.

We believe that Andrus should be used as precedent only as to the claims that became the matter of this decision rendered by the Supreme Court.

Further, we believe that Andrus is premised on the notoriously erroneous Freeman v. Summers decision which has made the administration of the applicable Federal laws mentioned above a pure mockery, an invention designed to transfer into private ownership under the guise of valid claims" valuable Federal oil shale

Esm lands. The story told in the above-mentioned briefs which exposed Freeman is a "must-read" by all those who wish to have a better understanding of the breakdown in our Federal Government's operations on oil shale claim matters. For the Supreme Court to premise its decision in Andrus largely on Freeman v. Summers, as purportedly ratified by the Senate and House as a result of certain bearings on Freeman v. Summers referred to in Andrus, operated, in our belief, to perpetrate a Traud on the American people, particularly if the Justice Department briefs presented to the appellate Courts in Andrus exposed the errors of fact and law in Freeman v. Summers.

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On the issue of possible fraud which was raised as to whether it would be a fraud on the U.S. for DOI and BLM to apply the criteria in TOSCO v. Hodel and to issue oil shale patents on the basis of those criteria see the questions posed in the letter from the Rocky Mountain Chapter of the Sierra Club dated August 25, 1987 addressed to the Honorable J. Benneti Johnston, Chairman of Senate Energy and Natural Resources Committee, with copies to Chairman Morris Udall and

Chairman Nick Joe Rahall, both on the House laterior and Insular Affairs

Congress should overrule Freeman v. Summers, TOSCO v. Hodel, and Andrus v. Shell by an appropriate statutory

provision. Otherwise it could be said that Congress itself is perpetrating a fraud on the American people: It knows or should know that these decisions are flady in error because the purposes, intents, and requirements of the above major Federal acts have been effectively circumvented by these decisions. These decisions bave been used by the DOI to give away vast acreages of oil shale lands. In our view, it was certainly irresponsible, if not fraudulent, for DOI and the Department of Justice not to have appealed TOSCO v. Hodel, for example, in light of the contents of the Draft Appeal Brief for use in TOSCO v. Hodel appeal, mentioned above, and in light of the content of the other legal briets Tiled by the Regional Solicitor's Office in above mentioned contests.

Mr. Cason's letter totally disregards the effect of GLO and DOI decisions which declared claims pull and void in the 1920's and 1930's on the charge of failure to do annual assessment work. Although we do not know how many of the claims in pending patent applications before the BLM are the subject matter of such prior final decisions by DOI or GLO, it is necessary for someone to find out as a fact whether the DOI and the BLM are treating such prior final decisions as having Do legal effect.

It is our view that the DOI and BLM are without authority to disregard the old decisions, unless perhaps defective service of complaints in earlier proceedings is established, since it appears to us that when a claim has been declared null and void for failure to do assessment, the lands within the claim reverted retroactively to public domain at the end of the annual period for doing the required work-- and at that point of time the Mineral Leasing Act attached to the land and to oil shale within the former claim by operation of law. Lo light of the content of Hickel v. Oil Shale Corp., 400 U.S. 48 (1970), administrative positions reflected in decisions Pre-Krushnic, must be given greater weight for their logic, rationale and interpretation of law. (See A L.D. 580 11916), 32 L.D. 387. 50 L.D. 262 (1924), 52 L.D. 282 (1927). and 52 L.D. 295 (1928]). Also see relevant decisions of the Courts relative to the effect of failure to do annual assessment work, quoted or mentioned in the Draft Appeal Brief for use in appealing TOSCO v. Hodel, but which Draft Appeal Brief of 182 pages in length was apparently not used for this purpose in Interior and Justice in Washington.

Consequently, we question whether the Secretary of the Interior has the arthority under present law to set aside such prior final decisions which had declared claims mull and void in a manner as to circumvent the provisions of the Mineral Leasing Act so that patents may be granted under the U.S. Mining Laws to lands within claims previously declared null and void. This is especially true in situations where rights of third persons intervened to the land, even where the rights of the United States intervened after the claims were declared pull and void. (See Brookhaven Oil Co., A-27439, 7/29/57, State of Louisiana, 61 I.D. 170 (1955). Ù.S. v. U.S. Borax Co., 58 1.D. 426, 430 (1943), H. W. Rowley, 58 I.D. 550 (11/2/43), Gabbs Exploration Co., 67 I.D. 165, 166 (1960]). Tiso, carefully study Hickel v. Oil Shale Corp., 400 V.S. 48 at 55 (1970) on how failure to do required assessment work should result in defeasance of a claim to the benefit of the United States, owner of the fee.

Additionally, if the claim bas been declared null and void, it is our view that the Secretary, DOI, is without authority of law to dispose of the lands in such former claims under the U.S. Mining Laws (as amended). Again, we direct your attention to all the legal briefs prepared by the Regional Solicitor's office pertaining to all matters then in litigation which finally became the subject matter of Hickel v. TOSCO, a favorable deci the U.S. written by Justice William O. Douglas. However, the major point that was left unresolved by the decision relates to the issue as whether or not the U.S. should be barred by Laches and Estoppel from invoking such prior final GLO and DOI decisions in the administration of the laws affecting oil sbale claims, many of which are subject to the old decisions.

If the Secretary bas authority to set aside the old decisions and chooses to do so, be must first give ootice and an opportunity for a bearing to all third parties who have vested intervening rights of record with the BLM to the lands and minerals embraced in oil shale claims which have been declared mull and void. The United States, by virtue of the provisions of the Mineral Leasing Act, bas the standing, apparently, of an adverse intervening right holder to the lands and minerals within the claim that has been declared pull and void. It could be a breach of trust for the Secretary to set aside such old decisions without first making some sort of arrangement within DOI for lawyers in the Regional Solicitor's Office, Denver, or for the U.S. Department of Justice to represent the U.S. in any proposed proceedings to set aside such old decisions and to protect the rights of the U.S. in the oil sbale resource.

By virtue of the provisions of FLPMA for the sharing of revenues from Leasing Act substances, if the lands were held in Federal ownership, it would appear that each State in which oil sbale lands are situated bas a legal or equitable right sufficient enough to require the Secretary to give notice and an opportunity to be beard to that State before final action is taken by the DOI purporting to set aside GLO and DOI decisions which declared claims pull and void years ago on the charge of failure to do manual assessment work. It would be appropriate to comment that, in our view, any State which fails to protest any action by DOI to set aside the old decisions would be breaching its trust to that State's public, present and future. In any event, the BLM Director does not have authority to set aside prior final decisions of DOI.

Approximately 30,000 oil shale mining claims were purportedly located, prior to the enactment of the Mineral Leasing Act of February 23, 1920, covering about 4,000,000 acres of public domain in Colorado, Utah, and Wyoming. Between January 1930 and the end of fiscal year 1933 approximately 23.245 umpatented mining claims covering about 2,884,019 acres of Federal oil shale lands in Colorado, Utah and Wyoming had been declared pull and void on the charge of failure to do angual assessment work (and possibly on other additional charges) by the GLO and the Laterior Department. (See pertinent Annual Reports of the Secretary of the laterior in this period.) Thus it would seem appropriate to conclude that the BLM and the Department of the Interior are making a calculated effort to circumvent the effect of decisions which declared claims null and void years ago in the laterior plan described in the letter dated December 6, 1988 to issue patents to purported oil sbale mining claims, many of which, no doubt, are subject to such old decisions.

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(5). What is the effect of DOI's allowing the first part of the issuance of the final certificate to proceed? It appears that the BLM adjudicators or their superior in the State Director's Office, BLM, in Colorado have executed the first part of the final certificates to claims that have been declared mill and void on the assessment work charge decades ago. For instance, see the responses to additional Committee questions, pp. 209-224 of the 4/22/88 bearing before the Senate Subcommittee on Mineral Resources, Development, and Production (Senate Hearing 100-744, "Oil Shale Mining Claims Conversion Act"). The questions asked by the Committee failed to elicit whether claims bad been declared pull and void in old GLO mining contests. We believe that BLM and DOI should not permit adjudicators or their supervisor to mecute the first part of the final certificate on claims which theatofore bad been declared pull and void in a legal proceeding i.e., had been extinguished.

If the claim is subject to an old decision which declared the claim pull and void, we believe that it is improper and irregular for the BLM and DOI to proceed to publish a notice of patent application for such a claim in a newspaper dearest the lands pursuant to 30 U.S.C. 29. Although we feel that the publication for the requisite statutory period of the notice may cut off rights in third parties, such as frazing and oil and gas lessees, unless such third parties file an adverse claim in a timely manner, we believe the United States should not have its rights cut off in land embraced in such a claim, particularly where officers and employees of the BLM and DOI are acting more in the nature of agents for relinquishment of Federal oil shale lands to private parties, rather than carrying out their stewardship responsibilities wder law. The issuance of the first part of the final certificate to the patent application means that the applicant no longer has to perform annual assessment work as claims in the application. BLM should have the lawyers in the Regional Solicitor's Office, Denver, review the propriety and legality of what is being done on oil shale claims in BLM, Deaver. The legal work on claims appears to be done in Washington, D.C., since 1986 and we are not sure whether it is of good quality and dedicated to the public interest.

(6). What is the real significance of Wilbur v. Krushnic, 280 U.S. 306 (1930), and Ickes v. Virginia-Colorado Development, 295 U.S. 639 (1935)? To the best of our knowledge, the significance of both cases was not stated correcty in Cason's letter. In the latter case, a claimant bad made arrangements for someone else to do the annual assessment work on the claim for the claimant prior to GLO serving the claimant with the contest complaint. The claimant preserved his rights by sppeal up through the DOI in accordance with the then rules of practice and then sought judicial review to the Department's final decision in the District Court in D.C. When the claims involved got to the Supreme Court, the Court, based on the facts, concluded that the Secretary was without authority to have the claim(s) declared pull and void for failure to do assessment work.

We bave not reviewed the case records underlying Wilbur v. Krushnic and Virginia-Colorado Development to determine whether the Justice Department made a rea crtort in these cases and in the litigation in the lower courts to really win for the U.S. Considering the Depression circumstances then existent, it is likely that the courts leaned over backward on the assumption that they were protecting downand-out miners in the oil sbale country.

Hickel v. TOSCO, 400 U.S. 48 (1970), cleared up some of the obfuscation created by these above two Supreme Court decisions, and made it clear that the

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