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<br />States Mining laws.' Paragraph 601, supra. McClarty, locating <br />a claim in accordance with the mining laws, was rightfully on <br />the property." <br />Further it is stated at Page 487: <br />"In any event, a special use permit issued to a governmental <br />agency for the free use of material (unlike a material site <br />right-of-way issued pursuant to the Federal-Aid Highway Act) <br />does not create a withdrawal of the land or serve to segregate <br />the land from appropriation under the mining laws." <br />At Page 495 it is stated: <br />"The problem is more complex and troublesome where we are <br />concerned with the same deposit rather than intermingling <br />deposits of common and uncommon varieties. <br />"We must presume that when this Department or the Forest <br />Service issues a permit or makes a sale under the Materials <br />Act for a common variety of material it makes a determination <br />that the deposit of material is, in fact, not an uncommon <br />variety locatable under the mining laws. Cf. Diamond Coal Co., <br />v. United States, 233 U.S. 236, 239 (1914). Where no mining <br />claim has been located and the administering agency issues a <br />permit or makes a sale because the facts known at the time do <br />not establish that the deposit has a property giving it a <br />special and distinct value, the permit or sale is lawful. If, <br />subsequently, facts become established which tend to prove <br />that a property in the deposit may give it a special and <br />distinct value, that does not establish that the initial <br />determination was unlawful or improper where the deposit did <br />not then have a known special and distinct value. Of course, <br />upon a determination that the deposit is an uncommon variety, <br />no new sales of the materials or permits for free use could <br />thereafter be made as long as the deposit is deemed locatable <br />under the mining laws. See 43 CFR 3601.1." <br />Here the BLM acknowledges and recognizes that the deposit is <br />locatable and is of an uncommon variety. <br />We also call attention to United States v. Coleman, 390 U.S. <br />599, 20 L.Ed.2d 170, 88 S. CT 1327, the United States Supreme Court <br />at Page 174 of 20 L.Ed.2d, states: <br />"Under the mining laws Congress has made public lands <br />available to people for the purpose of mining valuable mineral <br />deposits and not for other purposes." <br />The case at Page 175 states: <br />"The legislative history makes clear that this Act (30 USC <br />8 <br />