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Assessment Work-Before and After the Oil Shale Case

William H. Nelson, Proceedings of 17th Annual Rocky Mountain Mineral Law Institute (1971)

A few years ago rumors spread through the mineral law fraternity to the effect that the Department of Interior was litigating a building stone case in southern California which had the prospects of changing the marketability test for discovery. Many hardrock miners and their lawyersparticularly those in the Rocky Mountain statesthought it was a take-off on the old Chicken Little bit; but the sky did fall! What many thought would be a case of marketability in order to have a discovery in building stone casesor for that matter in non-metalliferous casesturned into the Coleman case.1 Coleman, as we all know, has now been employed to contest substantially all categories of mining claims. The law of discovery clearly includes a test of marketability, complete with the specter of discovery today and no discovery tomorrow as Dame Fortune spins her wheel of economic roulette and the alchemists turn profitable, recoverable ore bodies into rock piles and vice versa.

It looks like the same kind of thing has happened again.2 What started out as a case involving a narrow [436] question relating to oil shale placers and the Mineral Leasing Act of 1920 may have ended up with a sudden unexpected shift in the mining law. The Oil Shale Case3 can affect all mining claims. It has put another arrow in Interior's quiver, and at this time, like Coleman, you won't know it's happened to you u