## Facts

- Kenneth McClarty located a federal mining claim on public land for a deposit described as “building stone.”
- McClarty asserted the stone naturally fractured into regular shapes, making a large portion immediately usable in construction with minimal cutting or shaping.
- McClarty asserted the material was easier and faster to lay than other stone and commanded a substantially higher market price than ordinary rock.
- In administrative proceedings, the Department of the Interior declared the claim invalid, treating the deposit as a nonlocatable “common variety” under the Common Varieties Act (30 U.S.C. §§ 601–615).
- McClarty sought judicial review; the district court granted summary judgment for the Secretary of the Interior, upholding the agency invalidation.
- While the appeal was pending, controlling law and agency policy changed: the Supreme Court clarified that building stone is excluded as “common varieties” unless it has a “distinct and special value,” and Interior issued guidelines for separating common from uncommon building stone.

## Issues

1. Whether the agency’s invalidation of McClarty’s building-stone claim applied the correct legal standard distinguishing nonlocatable “common varieties” from locatable building stone with “distinct and special value.”
2. Whether, given intervening legal and administrative developments, the proper appellate disposition was to affirm on the existing record or remand for reconsideration under the clarified standard.

## Decision

- The Ninth Circuit vacated the district court’s summary judgment for the Secretary.
- The court remanded for the Secretary to reconsider the claim under the clarified “distinct and special value” standard and the agency’s post-decision guidelines.
- The court declined to decide, on the existing record, whether McClarty’s deposit qualified as an uncommon variety.

## Legal Principles

- Under the Common Varieties Act, common varieties of stone are not locatable under the mining laws, but building stone remains locatable when it possesses a property that gives it a “distinct and special value” (consistent with 30 U.S.C. § 161 as applied after Supreme Court clarification).
- A reasonable framework for evaluating “distinct and special value” in building-stone claims includes: (1) comparison with other deposits generally; (2) identification of a unique property; (3) a showing that the unique property confers distinct and special value; (4) if the value relates to ordinary uses, proof of distinct and special value for those uses; and (5) market evidence, including a higher price reflecting that special value.
- When intervening authoritative legal standards materially affect an agency’s governing test, the appropriate course may be remand to the agency for application of the correct standard in the first instance rather than appellate fact-finding.

## Conclusion

The court set aside the judgment upholding invalidation of McClarty’s building-stone claim and required the Secretary to reevaluate the claim under the post-clarification test for whether building stone is an uncommon variety with a distinct and special value reflected in the marketplace.


McClarty v. Sec’y of the Interior, 408 F.2d 907 (9th Cir. 1969)