NEWTON FRISHBERG, Chairman.

WE CONCUR:

JAMES M. DAY, Director,

Ex Officio Member.

FREDERICK FISHMAN, Member.

DOUGLAS E. HENRIQUES, Member.

MR. STUEBING CONCURRING IN PART, DISSENTING IN PART.

I am in full agreement with those portions of the majority opinion which hold (1) that the accomplishment of an environmental analysis and statement as contemplated by section 102 (C) of the National Environmental Policy Act of 1969 is not a prerequisite to the issuance of a patent to a valid mining claim located in compliance with the Act of May 10, 1872, as amended, and (2) that the law does not provide that claims so located may be found to be invalid by weighing the prospective value of their anticipated mineral yield against the present or prospective value of the land for other purposes.

However, I do not agree with the majority that the state of the record

is so deficient that it will not support the conclusion reached in the decision of September 3, 1971 (3 IBLA 189). Accordingly, I adhere to that decision.

EDWARD W. STUEBING, Member.

I CONCUR:

ANNE POINDEXTER LEWIS, Member.

MRS. THOMPSON CONCURRING IN PART, DISSENTING IN PART

I agree that this case must be remanded for a further hearing to resolve adequately the question of the validity of the claim and entitlement to patent.

I disagree with Mr. Frishberg's opinion with regard to the question relating to a comparison of mineral and other land values. I believe his opinion sweeps unnecessarily and too broadly in ruling on the materiality of comparative values. He recognizes that evidence of nonmineral values may be admitted for the purpose of evaluating the claimant's good faith and in assessing the weight and credibility of his testimony. With this I agree. However, I disagree with the attempt to resolve the broader question as to the application of the comparative value test on the validity of mining claims in other respects. There are conflicting precedents and viewpoints in applying such a balancing test. A ruling of such importance is best made after all of the facts are

known. It may be that this case will be resolved on further hearing without the necessity of deciding this question. Therefore, a ruling now is premature. Evidence on comparative values may be admitted, in any event, although cast in a different complexion.

Accordingly, I would defer a final ruling on the scope of the applicability of comparative values in evaluating the validity of a mining claim, and the mineral character of the land embraced thereby, until resolution of the question is required after the complete factual record has been made. This obviates any reason for discussing the principles involved and my viewpoints on this question at this time.

JOAN B. THOMPSON, Member.

WE CONCUR:

MARTIN RITVO, Member.

JOSEPH W. Goss, Member.

UNIFORM RELOCATION ASSISTANCE APPEAL OF MALDRUS AND GERALDINE EASLEY

1 OHA 18

Decided August 3, 1973

Appeal from a determination dated October 10, 1972, by the Regional Director of the Southwest Region of the Bureau of Reclamation, concurred in by the Commissioner of the Bureau of Reclamation, disallowing, in part, a claim for relocation assistance benefits in connection with the acquisition by the United States of Tract No.

1-35-417, Mountain Park Project, Oklahoma.

Affirmed.

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970: Uniform Relocation Assistance: Moving and Related Expenses: Payment for Moving Expenses: Generally

A claimed loss in appraised value of a dwelling property which serves as the headquarters for a farm operation, and the expense incurred in obtaining the appraisal, being unrelated to the transaction in which the United States acquired one of two disconnected tracts comprising the farm operation, one of which was situated approximately 8 miles north of the dwelling site property and the other approximately 5% miles southwest of it, are properly disallowed as not compensable.

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970: Uniform Relocation Assistance: Moving and Related Expenses: Payments in Lieu of Moving and Related Expenses: Fixed Payment: Partial Taking of Farm Operation

A claim for a fixed payment in lieu of actual moving and related expenses is properly disallowed in the case of a partial acquisition of a farm operation where the farm met the definition of a farm operation prior to the acquisition and the property remaining after the acquisition also meets that definition.

APPEARANCES: Maldrus and Geraldine Easley, pro se; Alvertus V. Rasco, Jr., Esq., Office of the Field Solicitor, U.S. Department of the Interior, Amarillo, Texas, for the Bureau

of Reclamation.

operation and an economic farm unit remained.

A hearing on the appeal was held on April 12, 1973, at Altus, Oklahoma, before Administrative Law Judge John F. Curran.

The record discloses that prior to the acquisition of the 80 acres by the Government, 202.5 acres of the 240-acre farm operation were used for agricultural purposes, 76 acres of the 80-acre tract, or approximately 37 percent of the total tillable acreage, being so used. Cotton, wheat and other grains were the usual agricultural products of the farming operation. In addition, the operation supported the raising of an average of 50 cattle. The cattle were grazed on each of the tracts. Farm machinery and other equipment used in the operation were maintained at the Easley dwelling site property in Snyder and moved to the components of the farming operation as required, on the average a dozen times a year. There was no house, barn or other such improvement on the 80-acre tract; there was constructed on the tract, however, a cattle corral and a dirt watering tank. In transactions with the Agricultural Stabilization and Conservation Service of the U.S. Department of Agriculture, the 240 acres were shown on work sheets and payments as one farm in Tillman County, wherein the major portion of the land in the farming operation was situated. Copies of Federal income tax returns of the Easleys for the years 1970–1971, submitted by them for the record,

show that the 80-acre tract was operated at a net loss for both years.

With respect to moving and related expenses, subsection 202 (a) (1) of the Act provides, pertinently, for reimbursement to a displaced person for "actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property," and subsection 202 (a) (2) provides that such person may be reimbursed for "actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property." (Italics supplied.) In lieu of such payments and of "actual reasonable expenses in searching for a replacement business or farm," authorized by subsection 202 (a) (3), the Act provides in subsection 202 (c) for "a fixed payment in an amount equal to the average annual net earnings 1 of the business or farm operation, except that such payment shall be not less than $2,500 nor more than $10,000."

It is clear that the appellants' claims (1) and (2) do not fall

1 "Average annual net earnings" as used in subsection 202(c) of the Act means onehalf of any net earnings of the farm operation, before Federal, State, and local income taxes, during the two taxable years immediately preceding the taxable year in which such farm operation moves from the real property acquired, or during such other period as the displacing agency determines to be more equitable for establishing such earnings, and includes any compensation paid by the farm operation to the owner, his spouse, or his dependents during such period.