Appropriate investigations and hearings in Congress on oil shale scandals, past and present, may disclose that the solution to these problems is the institution by Interior of mining contests on all available charges, the proper preparation of contests, proper representation of the United States in the contests, and the proper representation of the U.S. in the courts, if judicial review is sought by claimants. In addition, the government must first ascertain what remedies may exist for dealing with the 82,000 acre giveaway in 1986; this would similarly require complete and thorough investigations, including the testimony of present and former DOI and Justice Department officials, under oath; production of documents by Interior and Justice to Congress, including production of documents by private parties relevant to the 524 claims that became the matter of the August 4, 1986 settlement agreement. Congress as the ultimate trustee for the people of the United States, of the Federal oil shale lands, must act to investigate all matters and events underlying the 1985 settlement agreement and the resulting disposals of 82,000 acres of their Federal oil shale land, including Interior's plan for further oil shale land disposals as set forth in the December 6, 1988 letter to then Chairman Melcher. Congress should not act to cover up the Federal oil shale land scandals in Interior and Justice by hastily enacting either H.R. 643 or S. 30 into law without first making appropriate investigations and holding thorough hearings to ascertain the deficiencies to be corrected in public-land-law administration in our Federal Government pertaining to Federal oil shale law-- and to ascertain what legislation, if any, needs to be enacted into law to clean up the longstanding oil shale mess in our Federal Government. A copy of the U.S. Supreme Court's decision in Hickel v. Oil Shale Corp., 400 U.S. 48 (1970) is attached hereto to highlight the importance of the old GLU and DOI decisions which declared oil shale mining claims null and void on the charge of failure to do required annual assessment work. Interior, and even Congress itself, on shale claim matters has been, in our view, totally misapplying and/or circumventing or disregarding the law as clarified in Hickel v. Oil Shale Corp. Congress must handle oil shale matters on the merits or else future generations of Americans will recognize and remember for decades and even centuries into the future the breach of their trust owed to the American people if oil shale matters are not handled on their merits, in Congress, in the Executive Branch, and in the Courts. By this statement, I respectfully request the Secretary of the Interior, The Honorable Manuel Lujan, Jr., and the Congress not to disregard or undercut the interests of the American people in the Federal oil shale lands. I respectfully submit that H.R. 643 will precisely undercut the interests of the American people in up to 250,000 acres of Federal oil shale lands. The bill, in our view, is defective and unworkable to properly resolve oil shale matters in our Federal Government in connection with unpatented oil shale mining claims, containing up to 100 billion barrels of recoverable shale oil. In cur view, it would be a tragic mistake or blunder for Congress to enact a bill which might be used by the Department of the Interior to promulgate regulations designed to circumvent the present requirements of the U.S. Mining Laws in a manner as to validate pre-1920 unpatented oil shale mining claims. Gifts in the magnitude of billions of dollars by way of legislation on the part of Congress to purportedly settle oil shale claim controversies would, indeed, not be acceptable to the American people if the facts are made fully known to them. February 27, 1989 This is to inform you that the Department of the Interior intends to begin the further processing of oil shale mining claime patent applications pending in the Colorado and Utah State Offices of the Bureau of Land Management (BLX). We have decided to end our self-imposed delay on further processing these patent applications, including verification of whether the claise in question meet the test of discovery of a valuable mineral deposit within the meaning of the mining laws, and whether such claimants have substantially complied with the assessment work requirements. We had hoped to reach a consensus with Congress on these issues prior to deciding to go forward with the task of making these determinations. Now that the 100th Congress has adjourned without enacting oil shale legislation, the Department feels compelled to carry out its duties under the Mining Law of 1872 to adjudicate the validity of mining claims for which a mineral patent de' sought. As you know, two of the applications in Colorado have been pending since 1982. Our policy will be to expeditiously process mineral patent applications and either issue patent to the successful claimant or contest the claims the BLM alleges to be invalid. Our standards for the determination of validity of these oil shale claims shall be consistent with the statutes as interpreted by the U.S. Suprem Court. The standard of discovery of a valuable oil shale deposit shall be: An exposure of the prospectively valuable rich beds of oil shale of the This standard was formulated in Freeman v. Summers (1927), and subsequently held to be the correct interpretation on discovery by the V.3. Supreme Court in Andrus v. Shell 011 Co. (1980). The standard for measuring substantial compliance with assessment work requirements of the mining law shall be: A mining claimant shall annually perform not less than $100 worth of labor or make improvements valued at not less than $100 per claim in an effort to develop a valuable sine. A lapse of qualifying assessment work performance of two or more years duration is sufficient basis upon which the United States may contest the validity of the mining clain, except that resumption of assessmat vork prior to the initiation of a challenge is abealute defense in a contest brought on that basis. This criterion is the result of several cases interpreting the Federal Government's role in policing assessment work performance. In Mickal v. TOSCO (1970), the Court held that the United States could content mixing claim for which only insubstantial or "token" assessment work was alleged to have been performed, but let stand earlier rulings which greatly limit the basis upon which such challenge could be made. Wilbur v. Krushnie (1930) bolds that the resumption principle of the mining law (30 USC_128) bars challenge of mining claims by the Government as well as by rival clainants after assessment work is resumed. Virginia-Colorado Development Corp. v. Ickes (1935) holds that a lapse of one year in duration is not sufficient to support a contest by the Government. As always, we remain available to discuss our views on these issues. Should Congress continue to feel compelled to propose legislation to address oil shale claims, we would be pleased to participate in the process to ensure that reasonable, equitable legislation is forthcoming. Sincerely, :: Jams & eputy Abbistant Secretary - Land and Message 483-1060 12/16/88 Subj: Memorandum regarding the processing of oil shale patent applications The purpose of this memorandum is to provide guidance for the disposition of mineral patent applications for oil shale placer mining claims. The timing of this guidance is prompted by the attached letter to Senator Melcher from Principal Deputy Assistant Secretary Cason. This letter also contains the standards by which the Bureau is to adjudge the existence of a valuable oil shale deposit, and whether there has been substantial compliance with assessment work requirements, including the application of the resumption principle of the mining law (30 U.S.C. $28). Tining and Procedures Work on the further processing of the pending patent applications is to commence as soon as possible. Applications should generally be processed in the order that they have been received, with the exception that where a mineral report on a clain group can be prepared without resort to additional field work the processing of that application should be a priority. Because of the continuing Congressional interest in these oil shale clains, please notify the Director (100) prior to the issuance of any patents. It will not be necessary to routinely supply documentation to the Beadquarters Office of the proposed action. The decision to patent or contest mining clains remains delegated to State Directors. To be able to respond to inquiries better in the Washington Office, please provide by December 23, 1988, your best estimate as to when the necessary mineral reports can be finalized for those patent applications for which the first part of the Final Certificate has already been issued, or for which some field work to verify discoveries and assessment work compliance has already been performed. We will rely upon the semi-annual patent application report to track the progress of the never applications still undergoing adjudication. Validity Standards The standards to be applied in the preparation of mineral reports on these oil shale claims are as stated in the attached letter. While we are not required to have promulgated these standards as rules (because the conflicting IBLA precedents were Booted in the negotiated settlement of the TOSCO v. Bodel litigation) you should be aware that an effort to publish draft regulations is indeed underway. The preamble to the proposed rules describes in detail the rationale for these standards. |