June 25, 1978 apparent how this cost is broken down, i.e., if it includes labor as well as gasoline and maintenance costs of the trucks and any capital amortization for the cost of the trucks. Fink also testified that it might be necessary in quarrying flagstone to quarry 400 to 500 tons to obtain 100 tons of 1 inch thick stone (Tr. 98). There is little probative evidence which would support a conclusion that the stone from the claims can be marketed at a profit. Contestees contend that they were prevented from establishing proof of the marketability of the stone because the Forest Service prevented them from doing so. The record shows a letter from Forest Service personnel to Lee Chartrand advising him that there was no locatable mineral on the claims and that he should not remove it (Ex. L). Chartrand testified that the access road to his claims was blocked and this prevented him from getting to the claims (Tr. 111-113). Witnesses of the Forest Service denied blocking the road but stated that a timber purchaser may have done so under the terms of his timber sale contract which contracts generally provide for closing roads built for timber sales after the timber is removed. Although Chartrand was offered a special permit to remove the material pending this contest with the money to be placed in escrow depending upon the outcome (Ex. 6), he refused to do so. The notice or warning by the Forest Service that the stone is a common variety does not relieve the claimants of the bur den of showing that the stone can be marketed at a profit. Cf. Barrows v. Hickel, supra, at 84, citing an earlier decision in the same case, United States v. Barrows, 404 F.2d 749, 752 (9th Cir. 1968), cert. den., 394 U.S. 974 (1969), which held that a court injunction preventing removal of material from a claim could not be permitted to prejudice the Government's asserted rights to a mining claim. It appears that the Judge and the majority of this Board have been swayed in their conclusion in part, although not expressly articulated, by this alleged thwarting of the sale of the 100 tons of stone under the alleged arrangement with Butler. Lee Chartrand refused to go into any type of arrangement with the Forest Service to permit him to remove the stone with the money to be placed in escrow, stating that this would be an admission that the stone is not locatable. Where there is a controversy as to whether a stone deposit is of a common or an uncommon variety, we would not consider a claimant who enters into such a contractual arrangement with the Forest Service pending resolution of a contest as admitting that the stone is a common variety. Such an arrangement would be advantageous because the claimant could extract and sell the stone about which there is a controversy and by his sales have evidence as to the value of the stone on the market place. In view of the difficulties of proof inherent in a determination as to "distinct and special value" such an arrangement might well afford a claimant an opportunity to establish clear proof of value in the market place. If the variegated coloring of this stone is so highly desirable that it can actually capture a higher price in the market place, I believe a further hearing in this case would be useful to afford the claimant the further opportunity of making an arrangement with the Forest Service to remove the stone and market it to establish the "distinct and special value." A further hearing would also afford the parties the opportunity to supply the deficiencies in the proof concerning profitability of the operations, and concerning whether the land is chiefly valuable for the building stone. I cannot, however, on the basis of the present record sustain the Judge's findings on these matters, nor can I conclude that the claimant has met his burden of proof by establishing a preponderance of evidence on the crucial issues in this case. The credibility of the witnesses' testimony and the weight to be given to that testimony in this case is not fully dependent upon their demeanor. Furthermore, review by federal administrative agencies of their Judges' (hearing examiners) decisions is not the same as federal appellate court review of lower court findings, and the administrative agency may weigh all of the evidence to make its decision and reverse a Judge's findings on the evidence even where credibility and demeanor of witnesses are involved. F.C.C. v. Allen town Broadcasting Co., 349 U.S. 358, 364 (1955). I would not defer to the Judge's findings in this case where there is so little basis to support them and where there is an absence of findings and reasons on some of the material issues of the case. Furthermore, I cannot concur in the majority's findings for the same reason. This Department has recognized many times that the sale of minor quantities of material at a profit does not demonstrate the existence of a market for the material which would induce a man of ordinary prudence to expend his means in an effort to develop a valuable mine on the claim. United States v. Edwards, 9 IBLA 197 (1973), and cases cited therein. In this case not only is the evidence lacking that the few sales were made at a profit, but the actual sales did not establish that the stone commanded a higher price in the market place as required to establish that it is an uncommon variety of stone. I would not rest a determination that the stone in this case has a distinct and special value and is marketable at a profit merely upon conjectural and speculative opinions, contradicted by other opinion and by specific proof of sales. I would require the claimants in order to meet their burden of proof in this case where value is dependent upon aesthetic tastes and not upon any firm marketplace standards to show more definite evidence of actual market transactions which would corroborate the opinions expressed that it could be sold for higher June 25, 1973 prices than common varieties of stone and to show more evidence as to profitability. In the absence of such proof, I would conclude the claimants have not established their preponderance of evidence in a case of this type. Therefore, I would reverse the Judge's decision as to the 40 acres for the reason the claimants have not met their burden of proof. Alternatively, in view of the ambiguities in the proof as to other issues and the claimant's alleged inability to consummate a sale of the stone because of the blocking of the road and Forest Service warnings, I would remand the case for a further hearing on all of the material issues which must be resolved before a final determination that any of the claims is valid. JOAN B. THOMPSON, Member. I CONCUR: MARTIN RITVO, Member. Mr. Frishberg, dissenting in part: I concur in that part of the majority and dissenting opinions affirming Judge Luoma's decision holding Picture Rock Claims Nos. 1 through 7, Arizona Picture Rock Claims 1, 3 and 4, and portions of Arizona Picture Rock Claims 2 and 5 null and void. I also agree with the majority's conclusions that the building stone found in that 40 acres possesses a property giving it a distinct and special value and, hence, is locatable. 30 U.S.C. § 611 (1970). However, I dissent from the majority's affirmation of the holding below that 40 acres within Arizona Picture Rock Nos. 2 and 5 contain a discovery of a valuable mineral deposit. I share the dissatisfaction of Mrs. Thompson and Mr. Ritvo with the majority's treatment of the failure of the Judge to find that the land is chiefly valuable for building stone. As pointed out in the dissent, such a conclusion is required by 30 U.S.C. § 161 (1970). Contestant alleged that the land is not chiefly valuable for building stone. Accordingly, once the Judge held that the building stone on 40 acres was locatable and that such stone could be marketed at a profit, he was required to find that the land was chiefly valuable therefor before concluding that a discovery existed. He did not do so, nor does the record support such a conclusion. Accordingly, I would reverse the decision below as to the 40 acres in question and remand for further hearing, directing that the parties be ordered to present detailed evidence on 1) the highest value of the 40 acres involved for other purposes, including but not necessarily limited to the value of the timber thereon, and 2) the value of the locatable building stone thereon. In order to determine the latter, it is necessary to ascertain the amount of such stone on the claims, the cost of its extraction, removal and sale, and its selling price. While there is evidence as to the selling price of the stone, there is little in the record, as 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. More 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 tes over, their lack of finality is highly timony of the Bureau of Mines Inspec 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. NEWTON FRISHBERG, Chairman. 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.) tor 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. OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS Procedural and Factual Back- 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: 1 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. §§ 801-960 (1970). June 29, 1973 A hearing on the merits was held on December 12, 1972, and a decision was issued on February 7, 1973, which involved the subject Notice of Violation, as well as numerous others. With respect to this Notice the Decision states at page 7: * He [the inspector] stated that the condition was abated and the accumulations of float coal dust were rendered inert by the application of additional rock dust. Presumably, the accumulations of float coal dust were not such as to warrant a clean-up operation. Discussion of the Issue The Board believes that the Decision misconstrues the requirements of 30 CFR 75.400 to the extent that it lays decisional emphasis upon the method of "abatement" of the condition rather than on the facts associated with the condition itself. The primary issue for determination is whether an accumulation of coal dust or float coal dust had been permitted in an active 230 CFR 75.400 contains the standard expressed in section 304 (a) of the Act, which is set out infra. 3 Premium Coal Company, appellee in this case, has not participated in the appeal. working by the operator. Section 75.400 of Part 30 CFF, which pertains to this point, contains the following standard: Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein. (Italics supplied.) The inspector observed the following conditions near the No. 3 belt conveyor: an excessive amount of float coal dust deposited on top of the rock-dusted surface. *** [It] was quite heavy at the belt conveyor drive. * * * [I]t got a little lighter for a distance of 100 feet. (Tr. 12.) He surmised that the conveyor belt, itself, was the source of the float coal dust, and he differentiated the float coal dust from the underlying rock dust by "tracing through the accumulation" and observing the lighter color beneath. (Tr. 13). He stated that visual observation by an inspector is the only available method to determine the presence of float coal dust, unless the accumulation is deep enough to permit sampling and testing. (Tr. 18.) The inspector's testimony was unrefuted by Premium. The Board concludes from the foregoing that the Bureau proved by a preponderance of the evidence that a violation of 30 CFR 75.400 had occurred. Section 109 (a) (1) of the Act requires that in determining the amount of the appropriate civil |