DISSENTING OPINION BY MR. RITVO I would reverse the Colorado Land Office decision and return the case to it for adjudication of the Meinhart-Rubenstein offer. The sole issue in the case is the interpretation of the regulation governing the mineral leasing of acquired lands. The pertinent provision reads: An offer for a fractional present interest noncompetitive lease must be executed on a form approved by the Director and it must be accompanied by a statement showing the extent of the offeror's ownership of the operating rights to the fractional mineral interest not owned by the United States in each tract covered by the offer to lease. Ordinarily, the issuance of a lease to one who, upon such issuance, would own less than 50 percent of the operating rights in any such tract, will not be regarded as in the public interest, and an offer leading to such results will be rejected. 43 CFR 3130.4-4. The case turns upon the narrow issue of whether the statement by an applicant that he does not own a "mineral lease” or land is the equivalent of a statement that he does not own any "operating rights" in that land. As the majority decision recognizes, the Department held that it is not. Merwin E. Liss, 67 I.D. 385 (1969). There the regulation, 43 CFR 1954 ed. rev., 200.7, required, in addition to the one the current regulation asks for, a statement of the names of other parties who own operating rights in the fractional interest not owned by the United States. One offeror stated that one such party owned a 25% interest in the oil and gas. Another offeror The Department held both statements deficient for the reason that the owners of a fractional interest in oil and gas deposits underlying a tract of land may dispose of the operating rights without divesting himself of his mineral interest or through some device other than a lease. It pointed out that the regulation required only a simple direct statement and that the response should be direct and specific. A response, it held, which leaves the Department to infer the answer it requested is not enough. The majority opinion, while overruling Liss, does not point out wherein it is in error. It contents itself with an assertion that “normally" an operating interest is created by a mineral lease, and that absent any evidence to the contrary, it is reasonable to conclude that a statement that a person does not own a mineral lease is intended to mean that he does not own any interests in the oil and gas. By relying on the "normal" situation the majority recognizes that there are situations in which one who does not own an oil and gas lease can own the operating rights. Thus, it acknowledges that Rick's statement is not necessarily responsive to the mandatory requirement of the regulation and that there are situations in which one who owns the operating rights may not own an oil and gas lease. If, for example, June 12, 1973 Ricks owned the oil and gas rights, his statement that he did not own a lease would be technically accurate, yet it could be completely misleading as to his interest in the operating rights. That the regulation is mandatory is unquestioned. Liss, supra, and cases cited at 388; see also Arthur E. Meinhart, 6 IBLA 39 (1972).1 The aside in the majority opinion that Ricks' statement would be defective if there were evidence that he had an interest in the operating rights highlights its inadequacy. There is nothing in the regulation to require any junior offeror to produce evidence that a recent offeror has in fact some ownership interest in operating rights when the latter's statement on its face does not exclude the possibility that he may have. Since the regulation is mandatory, Ricks' offer did not earn prior ity until the defect was cured. The appellants, having filed a proper offer before then, are entitled to have their offer considered first and have a lease issued to them, if all else is regular. Arthur E. Meinhart, supra. The majority also stresses that since the United States owns 75 percent of the mineral interest in the land applied for, nothing of conse 1 For other recent cases in which the Board has enforced a requirement made mandatory by similar language: see Duncan Miller, 10 IBLA 208 (1973); Apollo Drilling and Exploration, Inc., 10 IBLA 81 (1973); William Tate, 10 IBLA 78 (1973); James V. McGowen, 9 IBLA 133 (1973); Read and Stevens, Inc., 9 IBLA 67 (1973); James Monteleone, 9 IBLA 53 (1973); The Polumbus Corporation, 8 IBLA 84 (1972). quence would flow from whatever interest or absence of interest Ricks had in the operating rights. This argument would be just as persuasive if Ricks had neglected to file any statement at all or if his statement had consisted of some even more irrelevant assertion than he actually made, for example that he owned no oil and gas rights in adjoining land. A mandatory requirement of a regulation ought not to be treated so cavalierly. Finally, the reference to the past practice of the Bureau of Land Management is supported by citation of Gussie Rodsky, BLM-A 079982 (Miss.) (May 16, 1966). Rodsky and the cases it cited permitted the successful drawee at a drawing held to determine priority under the simultaneous filing procedure, who had not filed the required statement with his entry card-offer, to file one thereafter. It is not clear whether the decision rests upon the conclusion that the simultaneous filing regulation did not plainly require that the statement be filed with the entrycard (see John J. King, A-30472, February 28, 1966), or that the failure to file the statement was of no importance because a lease could be issued to an offeror who had no interest in the operating rights so long as the United States owned a 50 percent or larger interest in the fractional mineral interest. Since we do not have an entry-card offer situation here, the first ground is inapplicable. The second, of course, is in complete disregard of a clear re quirement of the regulation. I note that neither Rodsky, nor the cases it cites, refer to the Liss case. That decision then, does not help in the resolution of the problem presented by this appeal.2 In my opinion, we are left with an offeror who failed to comply with a mandatory requirement of a regulation. The majority gives him priority over a junior offeror who filed a proper offer. This, I submit, is in error. MARTIN RITVO, Member. WE CONCUR: EASTERN ASSOCIATED COAL CORPORATION 2 IBMA 128 Decided June 13, 1973 Bureau of Mines appealing decision dated January 26, 1973, of Administrative Law Judge Moore vacating an Order of Withdrawal issued pursuant to section 104 (a) of the Federal Coal Mine Health and Safety Act of 1969, and regulations promulgated thereunder (Docket No. MORG 73-118). 2 Rodsky also cites, without discussion, 43 CFR 1821.2-2, a regulation permitting the late filing of documents in certain situations. It is enough to point out that it is wery doubtful that the late filing of a statement that is required to be filed with an entry-card can be waived in an entry-card drawing and it is plain that it cannot be relied upon in a conflict between two over-the-counter filings. Reversed. Federal Coal Mine Health and Safety Act of 1969: Imminent Danger The statutory definition of "imminent danger" (section 3 (j) of the Act) must be read in its entirety without picking out individual words or phrases and also must be construed in conjunction with section 104(a) of the Act providing for the issuance of imminent danger orders. Federal Coal Mine Health and Safety Act of 1969: Imminent Danger An "imminent danger" exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if nor mal mining operations were permitted to proceed in the affected area of the coal mine before the dangerous condition is eliminated; thus, the dangerous condition cannot be divorced from the normal work activity. Federal Coal Mine Health and Safety Act of 1969: Closure Orders: Imminent Danger Where a Bureau of Mines inspector observed an "imminently dangerous" condition, immediately issued an order of withdrawal pursuant to section 104 (a) of the Act, remained on the scene until in his judgment the danger was eliminated, and then lifted the order so that normal mining operations could be resumed, he acted in a reasonable, proper and lawful manner. APPEARANCES: Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, Madison McCulloch, Trial Attorney, in behalf of appellant, U.S. Bureau of Mines; Thomas E. Boettger, Esquire, in behalf of Eastern Associated Coal Corporation; Charles Widman, Esquire, in behalf of the United Mine Workers of America. June 13, 1973 DECISION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS Procedural Background On April 24, 1972, the Bureau of Mines (hereinafter Bureau) issued an Order of Withdrawal No. 1 CJT to Eastern Associated Coal Corporation (hereinafter Eastern) for an "imminent danger" at its Joanne Mine in Rachel, West Virginia, pursuant to the authority vested in the Secretary by section 104 (a) of the Federal Coal Mine Health and Safety Act of 1969 (hereinafter the Act).1 An Application for Review was timely filed by Eastern pursuant to section 105 (a) (1) of the Act. The Bureau filed its answer to and denial of Eastern's allegations and moved for dismissal of the Application. The United Mine Workers of America (hereinafter UMWA), as representative of the miners, also miners, also timely filed through counsel its opposition to Eastern's Application. A hearing was held on September 21, 1972, and proposed findings of fact and conclusions of law were submitted to the Judge by the UMWA and Eastern. The Decision and Order of the Judge, vacating the subject Order of Withdrawal was issued January 26, 1973. Notice of Appeal to the Judge's Order was filed with this Board by the Bureau, and Eastern timely filed its brief and request for oral argument. After time for filing briefs 1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. $$ 801-960 (1970). had expired, the UMWA moved the Board to permit late filing of a brief in support of the Bureau's appeal, which was opposed by Eastern. The Board's Order Scheduling Oral Argument, issued April 11, 1973, allotted time to the Bureau, Eastern, and the UMWA. Oral argument was held before the Board en banc on April 26, 1973, at which all parties, including UMWA, participated. The Board held in abeyance its ruling on the motion of UMWA and Eastern's opposition therto. The Board has now considered the motion of UMWA for acceptance of its late-filed brief and the opposition of Eastern and concludes that the Eastern opposition is well taken and that UMWA forfeited its right to participate in this appeal by failure to file a timely notice of appeal or timely brief in support of the Bureau's appeal. Therefore, the Board has not considered either the UMWA brief or oral presentation in reaching its decision in this case. Factual Background The Bureau Inspector, C. J. Thomas, entered the Joanne Mine for a spot inspection early on the morning of April 24, 1972, and proceeded to an area of the mine described as the No. 4 Entry. He was accompanied by another Bureau inspector and by Eastern's safety supervisor. At the time of the inspection, there was no mining activity or movement of equipment taking place. In this mine, shuttle cars are loaded by a continuous miner and coal is dumped directly into mine cars. In order to allow the boom of the shuttle car to be raised above the edge of the mine car so that the coal can be loaded, the roof in the loading-point area is "shot out" or otherwise raised and the area where the roof is thus raised is called the "boom hole." The brow of the boom hole is the edge farthest away from the mine car and closest to the face area. When the Bureau inspector arrived at the loading point, he discovered an unmanned shuttle car parked in the entry on top of an accumulation of loose rock and coal, so that there was very little clearance between the top of the shuttle car and the roof inby the brow of the boom hole. The inspector also observed that there were two loose roof bolts extending downward about six inches from the ceiling above the shuttle car, apparently dislodged by contact with passing cars. It appears that Eastern's section boss, Mr. Root, also had observed this condition and had ordered his crew to remove the shuttle car and clean up the area. Upon observing the condition himself, Inspector Thomas orally issued an order of withdrawal from the No. 4 Entry for the reason that he considered that in any movement of the shuttle car there was an imminent danger to a car operator because of the lack of clearance and because of the two loose roof bolts which were hanging down and could cause serious physical harm to the car operator. Eastern's section crew in the area at the instruction of the section boss had set out to abate the dangerous condition by driving the shuttle car out of the area and removing the material which clogged the roadway. Inspector Thomas remained on the scene during the period of abatement until the danger was eliminated to his satisfaction. Upon returning to the surface, the inspector issued his written order of withdrawal which described the condition or practice constituting the imminent danger as follows: There is an excessive accumulation of loose coal and rock on the floor in No. 4 Entry, 8 feet inby 16 left section loading point extending for a distance of 25 feet. The vertical clearance is restricted to 54 inches. The shuttle cars have rubbed the roof and dislodged two roof-bolt which are hanging down 6 inches at the brow of the boom hole. This is a hazard to the shuttle car operators. The Administrative Law Judge held that there could be no doubt that a danger existed in the No. 4 Entry of the mine at the time the order of withdrawal was issued, and that it was clear that it was a type of danger which could reasonably be expected to cause death or serious physical harm; however, it was his further view that the danger did not meet the definition of "imminent danger" as defined in section |