the Hearings to be held on February 28, 1989.

The brief, filed in Contests 359 and 360, makes it quite clear that the DOI in issuing oil shale claims to patent seems to have followed standards (actually nonstandards) similar to those proposed by Mr. Cason in his December 6, 1988 letter. In other words, DOI employees really never followed any standards in the 1940's and the early 1950's to really get down to the question of whether claims were valid. In effect, Cason's letter represents a return or retreat to the erroneous practices followed in the DOI which were severely criticized and exposed in the 1600 page brief and its appendices. See particularly pp. 357 and 358 and 366 of Vol. I of the Post Hearing Brief and Appendix for the Contestant in Contests 359 and 360.

Since the TOSCO v. Hodel decision has been vacated by the U.S. Circuit Court of Appeals, 10th Circuit, we do not agree with Mr. Sokoloski's conclusion that certain I.B.L.A. decisions (though not identified by him in the memo he signed on 12/07/88), were mooted by the Settlement Agreement of August 4, 1986 (which led to the disposal of approximately 82,000 acres of Federal oil shale lands subject to the terms of the agreement) for certainly the Settlement Agreement did not operate to overrule the I.B.L.A. decisions, which, notwithstanding anything to the contrary in the Settlement Agreement, may be used as a precedent until overruled by the Secretary, if applicable, to the proper handling of unpatented oil shale mining claims in the Interior Department.

(3). Is Freeman v. Summers in error as to facts and the law? Yes! This assertion is confirmed in the briefs referred to in (2) above, in which briefs the errors of this decision are exposed at length with solid documentation.

We believe that Freeman v. Summers certainly should not be used as precedent in DOI in determining the validity or invalidity of as yet unpatented claims. The decision is totally inconsistent with the provisions of the Oil Placer Act, which Act is still applicable to oil shale claims, even though the Act was superceded for any new claims by the enactment of the Mineral Leasing Act. Freeman v. Summers erroneously determined and misdescribed the composition of the Green River formation and stated, in effect, that it was minable in its entirety from the top to the bottom of the formation, the lean beds and rich beds alike.

Mr. Ralph S. Kelley, then Chief, Field Division of GLO, Denver, and his two mining engineers, subsequent to the issuance of Freeman v. Summers, prepared a petition intended for the Secretary of the Interior (but which was held back by then First Assistant Secretary from the Secretary), setting forth and describing the correct composition of the Green River formation covered by the claims involved in Freeman v. Summers. Mr. Kelley exposed in the old New York World (early 1930's) in his oil shale series matters relating to Freeman v. Summers and its consequences, and other wrongdoing on oil shale matters in DOI and the Justice Department.

The Senate Public Lands Committee held hearings under Senate Resolution 379, 71st Congress, in 1931, but the Senate Committee failed to develop in the hearings the full body of mining law, including DOI and court decisions, applicable to oil shale claims and oil placer mining claims. By doing this, the Senate Committee members failed to determine whether Freeman v. Summers was correctly decided. The Senate Committee even failed to insert into the record of its Hearings the

Kelley articles and did not give him an opportunity to testify regarding the substance of his criticisms of DOI handling of oil shale lands. Freeman v. Summers notoriously failed to discuss the content of DOI's own Instructions of May 10, 1920, 47 L.D. 548, and the then recognized body of law of discovery applicable to oil placer mining claims.

Freeman v. Summers is so patently erroneous as to require Congress to overrule it by law, so that the DOI can no longer rely on this decision as a basis to give away oil shale lands, contrary to and in violation of law. Certainly, by no stretch of imagination can any Court properly hold that the decision modified, repealed, or amended the provisions of U.S. mining laws, the Oil Placer Act, and the Mineral Leasing Act. For a more thorough understanding of the case of Freeman v. Summers, see pp. A-1153 through A-1267 in Vol. 5 of the Post Hearing Brief and Appendix for the Contestant, Contests 359 and 360.

The standards of discovery for a valuable oil shale deposit for a claim as set forth on the first page of Cason's December 6, 1988 letter appear to be a modification on the standard formulated in Freeman v. Summers, which would have the effect of validating more claims.

The findings of fact concerning the nature of the Green River Formation in Freeman v. Summers appear to be as follows:

1). That it is a massive, homogeneous deposit consisting of single stratum or bed or some 2,700 feet from the rich mahogany beds to the surface.

2). That all of its stratigraphic column contained material that would yield oil upon destructive distillation.

3). That the whole body could be commercially developed and that shale found on the surface was an integral part of the mass below.

4). That a prospector could physically follow a mineral-bearing body from the top to the richer beds below.

Mining engineers and other experts in the employment of the BLM, Bureau of Mines, and U.S. Geological Survey, know or should know that the above four factual premises of the Freeman v. Summers decision were, in fact, erroneous as to the claims in the Freeman v. Summers decision. That decision should never have been applied by DOI to other unpatented mining claims.

In response to a lengthy memorandum from the Office of the Regional Solicitor, Denver, to the Solicitor, dated March 10, 1961, which reviewed oil shale problems facing the Regional Solicitor's Office, the BLM in Colorado, and the Department, and which memo outlined positions taken on these problems from the creation of the Regional Solicitor's Office in 1954 to March 10, 1961, then Solicitor Frank J. Barry stated in a memo dated June 1, 1961 to the Regional Solicitor in Denver, in part as follows:

"The Freeman v. Summers decision stands as Department precedent until it is overruled. However, in my view it is governing precedent only to the extent that the facts and geological data upon which it was decided in 1927 are the same as

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 than 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 there 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 pending 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 hearing record then before the Department."

In United States v. John W. Savage, BLM (Colorado) Contest 147 a trial-type hearing was held in 1960 and a record was made that should justify overruling the Freeman v. Summers decision. After the Hearing Examiner issued his decision in Contest 147, 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 had made erroneous findings of fact 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 unpatented 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 Contest 147 to ascertain the facts in said contest 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 has been said above on Freeman v. Summers, it would be manifestly unjust 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 unpatented oil shale mining claims to support the conclusion that a timely discovery was perfected on each of the unpatented claims and that there now exists a valid discovery of a valuable mineral deposit on each unpatented mining claim to satisfy the discovery requirement of the U.S. mining laws (as amended by the Oil Placer Act of 1897, 29 Stat. 526, and the provisions of the Mineral Leasing Act of February 25, 1920).

If each of the Federal courts considering Freeman v. Summers were directly put on 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.

In light of the above, it would seem appropriate for the Secretary of the Interior, 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 uncovered 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 unpatented 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 Appendix to the hearing 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 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 hearings on Freeman v. Summers referred to in Andrus, operated, in our belief, to perpetrate a fraud 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.

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. Bennett Johnston, Chairman of Senate Energy and Natural Resources Committee, with copies to Chairman Morris Udall and

Chairman Nick Joe Rahall, both on the House Interior and Insular Affairs
Committee.

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 flatly in error because the purposes, intents, and requirements of the above major Federal acts have been effectively circumvented by these decisions. These decisions have 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 briefs filed 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 null 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 no 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. In 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 44 L.D. 580 [1916], 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 authority under present law to set aside such prior final decisions which had declared claims null 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 null and void. (See Brookhaven Oil Co., A-27439, 7/29/57, State of Louisiana, 61 I.D. 170 [1955], U.S. v. U.S. Borax Co., 58 I.D. 426, 430 [1943], H. W. Rowley, 58 I.D. 550 (11/24/43], Gabbs Exploration Co., 67 I.D. 165, 166 [1960]). Also, carefully study Hickel v. Oil Shale Corp., 400 U.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.