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June 25, 1973 apparent how this cost is broken den of showing that the stone can be down, i.e., if it includes labor as well marketed at a profit. Cf. Barrows V. as gasoline and maintenance costs Hickel, supra, at 84, citing an earlier of the trucks and any capital amor- decision in the same case, United tization for the cost of the trucks. States v. Barrows, 404 F.2d 749, 752 Fink also testified that it might be (9th Cir. 1968), cert. den., 394 U.S. necessary in quarrying flagstone to 974 (1969), which held that a court quarry 400 to 500 tons to obtain 100 injunction preventing removal of tons of 1 inch thick stone (Tr. 98). material from a claim could not be There is little probative evidence permitted to prejudice the Governwhich would support a conclusion ment’s asserted rights to a mining that the stone from the claims can claim. be marketed at a profit.

It appears that the Judge and the Contestees contend that they were majority of this Board have been prevented from establishing proof swayed in their conclusion in part, of the marketability of the stone be- although not expressly articulated, cause the Forest Service prevented by this alleged thwarting of the them from doing so. The record sale of the 100 tons of stone under shows a letter from Forest Service the alleged arrangement with Butpersonnel to Lee Chartrand advis- ler. Lee Chartrand refused to go ing him that there was no locatable into any type of arrangement with mineral on the claims and that he the Forest Service to permit him to should not remove it (Ex. L). remove the stone with the money to Chartrand testified that the access be placed in escrow, stating that this road to his claims was blocked and would be an admission that the this prevented him from getting to stone is not locatable. Where there the claims (Tr. 111-113). Witnesses is a controversy as to whether a of the Forest Service denied block- stone deposit is of a common or an ing the road but stated that a timber uncommon variety, we would not purchaser may have done so under consider a claimant who enters into the terms of his timber sale contract such a contractual arrangement which contracts generally provide with the Forest Service pending resfor closing roads built for timber olution of a contest as admitting sales after the timber is removed. that the stone is a common variety. Although Chartrand was offered a Such an arrangement would be adspecial permit to remove the ma- vantageous because the claimant terial pending this contest with the could extract and sell the stone money to be placed in escrow de- about which there is a controversy pending upon the outcome (Ex. 6), and by his sales have evidence as to he refused to do so. The notice or the value of the stone on the marwarning by the Forest Service that ket place. In view of the difficulties the stone is a common variety does of proof inherent in a determinanot relieve the claimants of the bur- tion as to “distinct and special

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value” such an arrangement might town Broadcasting Co., 349 U.S. well afford a claimant an opportu- 358, 364 (1955). nity to establish clear proof of value I would not defer to the Judge's in the market place. If the varie- findings in this case where there is gated coloring of this stone is so so little basis to support them and highly desirable that it can actually where there is an absence of findings capture a higher price in the market and reasons on some of the material place, I believe a further hearing in issues of the case. Furthermore, I this case would be useful to afford cannot concur in the majority's findthe claimant the further opportu- ings for the same reason. nity of making an arrangement This Department has recognized with the Forest Service to remove many times that the sale of minor the stone and market it to establish quantities of material at a profit the “distinct and special value.” A

does not demonstrate the existence further hearing would also afford of a market for the material which the parties the opportunity to sup

would induce a man of ordinary ply the deficiencies in the proof con- prudence to expend his means in an cerning profitability of the opera

effort to develop a valuable mine on tions, and concerning whether the

the claim. United States v. Ed. land is chiefly valuable for the wards, 9 IBLA 197 (1973), and building stone.

cases cited therein. I cannot, however, on the basis of In this case not only is the evithe present record sustain the dence lacking that the few sales Judge's findings on these matters, were made at a profit, but the actual nor can I conclude that the claimant sales did not establish that the stone has met his burden of proof by es- commanded a higher price in the tablishing a preponderance of evi- market place as required to estabdence on the crucial issues in this lish that it is an uncommon variety case. The credibility of the wit- of stone. I would not rest a determinesses' testimony and the weight to nation that the stone in this case has be given to that testimony in this a distinct and special value and is case is not fully dependent upon marketable at a profit merely upon their demeanor. Furthermore, re- conjectural and speculative opinview by federal administrative ag- ions, contradicted by other opinion encies of their Judges' (hearing and by specific proof of sales. I examiners) decisions is not the would require the claimants in order same as federal appellate court re- to meet their burden of proof in this view of lower court findings, and case where value is dependent upon the administrative agency may

aesthetic tastes and not upon any weigh all of the evidence to make firm marketplace standards to show its decision and reverse a Judge's more definite evidence of actual findings on the evidence even where market transactions which would credibility and demeanor of wit- corroborate the opinions expressed nesses are involved. F.C.C. v. Allen- that it could be sold for higher

June 25, 1973

of this type.

prices than common varieties of (1970). However, I dissent from the stone and to show more evidence as majority's affirmation of the holding to profitability. In the absence of below that 40 acres within Arizona such proof, I would conclude the Picture Rock Nos. 2 and 5 contain a claimants have not established their discovery of a valuable mineral preponderance of evidence in a case deposit.

I share the dissatisfaction of Mrs. Therefore, I would reverse the Thompson and Mr. Ritvo with the Judge's decision as to the 40 acres majority's treatment of the failure for the reason the claimants have of the Judge to find that the land is not met their burden of proof. Al- chiefly valuable for building stone. ternatively, in view of the ambigui- As pointed out in the dissent, such a ties in the proof as to other issues conclusion is required by 30 U.S.C. and the claimant's alleged inability § 161 (1970). Contestant alleged to consummate a sale of the stone that the land is not chiefly valuable because of the blocking of the road for building stone. Accordingly, and Forest Service warnings, I once the Judge held that the buildwould remand the case for a further ing stone on 40 acres was locatable hearing on all of the material issues and that such stone could be marwhich must be resolved before a keted at a profit, he was required to final determination that any of the find that the land was chiefly valuclaims is valid.

able therefor before concluding that

a discovery existed. He did not do Joan B. THOMPSON, Member. so, nor does the record support such

a conclusion. I CONCUR:

Accordingly, I would reverse the MARTIN Ritvo, Member.

decision below as to the 40 acres in question and remand for further

hearing, directing that the parties Mír. Frishberg, dissenting in part: be ordered to present detailed evi

I concur in that part of the ma- dence on 1) the highest value of the jority and dissenting opinions af- 40 acres involved for other purposes, firming Judge Luoma's decision including but not necessarily holding Picture Rock Claims Nos. 1 limited to the value of the timber through 7, Arizona Picture Rock thereon, and 2) the value of the Claims 1, 3 and 4, and portions of locatable building stone thereon. In Arizona Picture Rock Claims 2 and order to determine the latter, it is 5 null and void. I also agree with the necessary to ascertain the amount of majority's conclusions that the such stone on the claims, the cost of building stone found in that 40 its extraction, removal and sale, and acres possesses a property giving it its selling price. While there is evia distinct and special value and, dence as to the selling price of the hence, is locatable. 30 U.S.C. $ 611 stone, there is little in the record, as

Decision Modified.

Federal Coal Mine Health and Safety Act of 1969: Hearings: Decisions

A Notice of Violation of 30 CFR 75.400 will be upheld where the unrefuted testimony of the Bureau of Mines Inspector shows an accumulation of float coal dust in a belt conveyor entry.

APPEARANCES: William H. Woodland, Esquire, in behalf of appellant, U.S. Bureau of Mines.

pointed out by Mrs. Thompson, as to its total amount or as to the cost of marketing it.

I am aware of the hardship imposed by a remand. Hearings and appeals cost time and money. Moreover, their lack of finality is highly frustrating. Nevertheless, before the Secretary may divest the Government of its land, he must satisfy himself that all statutory standards are met. So too, therefore, must this Board and the Administrative Law Judge. That the contestee preponderates or is more persuasive than the contestant does not necessarily mean that all statutory requirements are met. Were this a proceeding wherein only the contestee appeared, he would still be required to present evidence sufficient to satisfy the pertinent statute before a patent could issue. He has not done so, nor has he been required to do so in this case.

OPINION BY THE BOARD INTERIOR BOARD OF MINE

OPERATIONS APPEALS

Procedural and Factual Back

ground

NEWTON FRISHBERG, Chairman.

On April 7, 1971, Bureau of Mines Inspector Jensen L. Bishop conducted a spot inspection of Premium Coal Company's (Premium) Soldier Canyon Mine pursuant to the Federal Coal Mine Health and Safety Act of 1969 (hereinafter the Act). The inspector issued Notice of Violation No. 1 JLB after discovering float coal dust deposited on the top of rockdusted surfaces at the No. 3 belt conveyor drive. The Notice contained the following:

PREMIUM COAL COMPANY

2 IBMA 148

Decided June 29, 1973

Bureau of Mines appealing an initial decision issued on February 7, 1973, to, the limited extent that it vacated a Notice of Violation of 30 CFR 75.400 alleged in a section 109(a) proceeding under the Federal Coal Mine Health and Safety Act of 1969. (Docket No. below DENV 73-24_P.)

Dangerous amounts of float coal dust were present around No. 3 belt conveyor drive and for a distance of approximately 100 feet along the belt conveyor entry.

1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. 88 801-960 (1970).

June 29, 1973

A hearing on the merits was held working by the operator. Section on December 12, 1972, and a deci- 75.400 of Part 30 CFR, which persion was issued on February 7, tains to this point, contains the fol1973, which involved the subject lowing standard: Notice of Violation, as well as nu

Coal dust, including float coal dust demerous others. With respect to this posited on rock-dusted surfaces, loose Notice the Decision states at page coal, and other combustible materials, 7:

shall be cleaned up and not be permitted

to accumulate in active workings, or on He (the inspector] stated that the

electric equipment therein. (Italics supcondition was abated and the accumula

plied.) tions of float coal dust were rendered inert by the application of additional rock

The inspector observed the foldust. Presumably, the accumulations of lowing conditions near the No. 3 float coal dust were not such as to war

belt conveyor: rant a clean-up operation. Accordingly, I conclude that there was

** an excessive amount of float coal not a violation of 30 CFR 75.400.' The

dust deposited on top of the rock-dusted notice of violation is vacated.

surface. * **

[It] was quite heavy at the belt conCounsel for the Bureau of Mines

veyor drive. filed a Notice of Appeal with the [I]t got a little lighter for a distance Board on February 28, 1973. The

of 100 feet. (Tr. 12.) Bureau's brief was timely filed.3

IIe surmised that the conveyor belt,

itself, was the source of the float Issue Presented on Appeal coal dust, and he differentiated the

float coal dust from the underlying Was the Notice of Violation of 30

rock dust by "tracing through the CFR 75.400 properly vacated?

accumulation” and observing the Discussion of the Issue

lighter color beneath. (Tr. 13). He

stated that visual observation by an The Board believes that the De- inspector is the only available cision misconstrues the require- method to determine the presence ments of 30 CFR 75.400 to the ex- of float coal dust, unless the accutent that it lays decisional emphasis mulation is deep enough to permit upon the method of "abatement” of sampling and testing. (Tr. 18.) The the condition rather than on the inspector's testimony was unrefuted facts associated with the condition by Premium. itself. The primary issue for deter- The Board concludes from the mination is whether an accumula- foregoing that the Bureau proved tion of coal dust or float coal dust by a preponderance of the evidence had been permitted in an active that a violation of 30 CFR 75.400

had occurred. 2 30 CFR 75.400 contains the standard expressed in section 304(a) of the Act, which is Section 109(a) (1) of the Ict reset out infra. 8 Premium Coal Company, appellee in this

quires that in determining the case, has not participated in the appeal. amount of the appropriate civil

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