Additionally, if the claim has 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 decision to 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 shale claims, many of which are subject to the old decisions.

If the Secretary has authority to set aside the old decisions and chooses to do so, he must first give notice and an opportunity for a hearing 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 null and void. The United States, by virtue of the provisions of the Mineral Leasing Act, has the standing, apparently, of an adverse intervening right holder to the lands and minerals within the claim that has been declared null 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 shale 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 shale lands are situated has a legal or equitable right sufficient enough to require the Secretary to give notice and an opportunity to be heard to that State before final action is taken by the DOI purporting to set aside GLO and DOI decisions which declared claims null and void years ago on the charge of failure to do annual 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 25, 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 unpatented mining claims covering about 2,884,019 acres of Federal oil shale lands in Colorado, Utah and Wyoming had been declared null and void on the charge of failure to do annual assessment work (and possibly on other additional charges) by the GLO and the Interior Department. (See pertinent Annual Reports of the Secretary of the Interior 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 Interior plan described in the letter dated December 6, 1988 to issue patents to purported oil shale mining claims, many of which, no doubt, are subject to such old decisions.

(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 null 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 hearing 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 had been declared null and void in old GLO mining contests. We believe that BLM and DOI should not permit adjudicators or their supervisor to execute the first part of the final certificate on claims which thentofore had been declared null and void in a legal proceeding i.e., had been extinguished.

If the claim is subject to an old decision which declared the claim null 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 nearest 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 grazing 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 under 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 on 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, Denver. 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 correctly in Cason's letter. In the latter case, a claimant had 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 appeal 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 null and void for failure to do assessment work.

We have not reviewed the case records underlying Wilbur v. Krushnic and Virginia-Colorado Development to determine whether the Justice Department made a real effort 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 shale 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

Secretary possessed authority, long prior to Hickel v. TOSCO, and even prior to Krushnic, to declare claims null and void for failure to perform substantial annual assessment work. In other words, the holdings in these two earlier decisions were limited or confined by Hickel v. TOSCO to the precise facts involved in those decisions.

There exists no language in Hickel v. TOSCO to indicate in any way that the old GLO and DOI decisions discussed above are without effect.

The unresolved question remains, however, after Hickel whether the U.S. should be barred by Laches and Estoppel from invoking such old decisions in the administration of the U.S. mining laws. We believe that the U.S. cannot be bound or estopped by the longstanding erroneous practice in the DOI from the middle 1930's to the early 1960's of treating the old decisions as having no legal effect, notwithstanding the finality of such old decisions and the failure of the claimants to preserve their rights by appropriate appeals, etc. and thereafter in the courts.

In light of Hickel v. TOSCO and regardless of anything to the contrary in these two earlier Supreme Court decisions, it would seem that the body of law as enunciated by the Attorney General as well as by DOI in various cases pre-Krushnic and pre-Virginia Development involving situations where claimants failed to do the annual assessment work, the claims lapsed and certain withdrawals attached to the lands in such lapsed claims should be given greater weight.

We believe that DOI could declare a claim null and void on a charge that the claim lapsed in certain past years and the lands within the claim reverted to public domain when the present patent applicants' predecessors failed to do the annual assessment work, especially in those situations where the claim had not earlier been declared null and void.

We are not aware of any contest proceeding where this suggested charge was used, but the failure of DOI to use this charge does not reflect that the charge is not well founded.

The above suggested charge would be consistent with the intent and spirit of the Mineral Leasing Act, since the Mineral Leasing Act certainly must have had some operative effect on the application of the mining law, as amended, to oil shale mining claims.

We believe that Krushnic and Virginia-Colorado Development Co. decisions are inconsistent with the purposes and provisions of the Mineral Leasing Act.

Hickel v. TOSCO, on the other hand, provided an opportunity to the United States to protect its rights in oil shale lands consistent with the intents and purposes of the Mineral Leasing Act, but that opportunity was wasted when DOI and the Department of Justice failed to perfect a bona fide appeal to the 10th Circuit Appeals Court in Tosco v. Hodel, and, if necessary, taking the 524 claims to the Supreme Court for the ultimate determination of their validity or invalidity based on the record made in the courts and the administrative proceedings involving the 524 claims in the Department of the Interior.

(7). Are there other usable charges that were not mentioned in Cason's letter on which to contest oil shale claims? Yes! First, we believe that most if not all oil shale claims were abandoned by claimants many years ago. If a claim has been abandoned there is no way that some speculator can breathe life into an abandoned claim by acquiring a quit-claim deed from a claimant and then forfeiting out other purported co-owners of the claim by way of provisions found in 30 USCA 28.

Persons succeeding to the purported title of dummy locators hold the claims subject to all the defects of their predecessors in interest and subject to all the equities in favor of the United States. In other words, there can be no bona fide purchaser for value to an interest in an unpatented mining claim. See Hawley v. Diller, 178 U.S. 476 (1900); United States v. Brookshire Oil Company, 242 Fed. 718, 722 (1917); United States v. Laam, 149 Fed. 581 (1906); United States v. California Midway Oil Company, 259 Fed. 343, 351 (1919).

It should be noted that in the old contest proceedings in the 1920's and 1930's, many claimants failed to answer charges in complaints, so that this failure would constitute persuasive evidence that the claims had been abandoned. Also failure to do the required assessment work by the claimants (contes:ees) would constitute very good evidence that the claimant or claimants abandoned their claims. See Hickel v. Tosco, 400 U.S. 48 at 56, citing Union Oil Co. v. Smith, 249 U.S. 337, 349; Donnelly v. United States, 228 U.S. 243, 267, with reference to abandonment and to rights of the United States, where a claim is abandoned, in retrieving the lands under the Mineral Leasing Act. There exist in the possession of the BLM old GLO investigation reports which can be used as evidence to support charges in contest proceedings of abandonment, fraud in location, location for speculative rather than bona fide mining purposes, and other charges.

Second, failure to produce minerals (i.e. shale oil) in commercial quantities and profitably from each of the claims from 1920 to the present would constitute circumstantial evidence that the claims had been abandoned, that a valid discovery to satisfy the requirements of the mining laws had never been perfected prior to 1920, or that if a discovery had been perfected, the discovery was lost on each of the claims because of long run economic changes in the American economy_that made profitable shale oil production impossible on each and every claim. Failure to produce shale oil from each claim since 1920, if not before, would also provide convincing evidence that the lands within each of the claims were non-mineral in character within the purposes of the mining law. Thus such lands prior to February 25, 1920 would not have been subject to location and disposal under the provisions of the mining laws. We believe that oil shale claims can be declared null and void in appropriate proceedings on the charge that the lands within each claim was nonmineral in character as of the date of enactment of the Mineral Leasing Act, and certainly also at present.

On the issue of whether oil shale lands should be deemed non-mineral character, please see the tests used to determine this in U.S. v. Strauss, et al., 59 I.D. 129 [1945], John M. Debevoise, 67 I.D. 177 [1960], and State of California v. E. O. Rodeffer, 75 T.D. 177 [1968]. Since no oil shale has been mined, retorted, refined, and the oil from it put into the market place profitably during the last 69 years from each of the remaining unpatented claims (covering up to 250,000 acres in Colorado, Wyoming and Utah), how can anyone rationally contend that the oil shale lands included within each of the claims were mineral in character either in 1920 or

now? There must be a limit on how long public land can be encumbered by purported mining claims which are not productive.

Therefore, an effort should be made to review all DOI decisions published in the L.D.'s, I.D.'s and certain court decisions involving the issue of what differentiates mineral from non-mineral lands under the mineral laws.

Third, we believe that pre-1920 unpatented claims can be contested on the charge that the U.S. eliminated each claim by adverse possession for a period in excess of 20 years. The lands within many of the claims, in the conduct of GLO contests, were effectively repossessed by the U.S., and notices were staked on the land by DOI agents stating that the land was repossessed by the United States under the Mineral Leasing Act. Thereafter, the U.S. for many years up to the present administered the land in such claims for oil and gas, grazing, recreation, etc. The adverse possession charge, among other charges, was stated in Contest 260, U.S. v. E.R.T.L., Inc. (BLM, Colorado). This contest was instituted in 1961, but in 1981 the contest complaint was apparently amended to eliminate the adverse possession charge. Under FOLA, anyone can request the BLM State Director in Colorado to provide a copy of the 1961 complaint in Contest 260 and the 1981 amended complaint. The State Director should be asked why the 1961 complaint was amended in 1981 and at whose direction.

The printed hearings of hearings held on oil shale claims on October 16, 1987 and April 22, 1988 before the Senate Subcommittee on Mineral Resources, Development, and Production can be obtained from the Subcommittee staff ((202) 224-2383). The October 16th hearing record contains a letter from Michael S. March to Chairman Rahall of the House Subcommittee on Mining and Natural resources, dated September 4, 1986, detailing other charges that can be used to contest claims.

Some additional comments. Since Congress has failed to properly investigate everything underlying and related to the August 4, 1986 Settlement Agreement in the TOSCO v. Hodel litigation, and its associated disposals of 82,000 acres of oil shale lands in Colorado containing 42 billion barrels of recoverable shale oil, we believe that legislation in the form of the present bills H.R. 643 and S. 30, at the present time is totally unwarranted for enactment into law. It is first necessary for Congress to carry out full-scale investigations of all matters relating to the administration, management, and disposals of oil shale lands under the guise of pre1920 umpatented claims, from February 25, 1920 to the present. During this period, and excluding the 82,000 acre disposal, approximately 300,000 acres in Colorado alone were patented under similarly defective procedures and practices. Issuance of patents on pending oil shale claims should be embargoed by Congress until Congress authorizes the Secretary to proceed on pending claims.

Congress has failed in hearings held so far to properly develop for the record the sweep and thrust of the whole body of law, including DOI and court decisions, applicable to oil shale claims. If the claims are, in fact, invalid as we believe many are, then it could be said that Congress is taking steps to perpetrate more giveaways under H.R. 643 and S. 30, similar to those that would have been accomplished by H.R. 1109 and S. 2089, (100th Congress) if enacted into law, instead of stopping oil shale and associated mineral giveaways.