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penalty, the Secretary of the Inte- to the extent that Notice of Violarior shall consider six criteria. In tion No. 1 JLB IS REINSTATED, so doing, as delegate of the Secre- and that Premium Coal Company tary, we make the following find- IS ASSESSED $50 to be paid 30 ings of fact: (1) Premium Coal days from the date of this decision. Company does not have a significant history of prior violations of C. E. ROGERS, Jr., Chairman. the Act (Decision, hereinafter Dec. 5); (2) a penalty of $50 is appro

David DOANE, Member. priate with regard to the size of the business of the operator (Dec. 6); (3) the record is inadequate to de

SPRING BRANCH COAL COMPANY termine whether the operator was negligent in permitting the accu

2 IBMA 154 mulation to occur, and, therefore,

Decided June 29, 1973 he is deemed not to have been so

Appeal by Spring Branch Coal Com(Dec. 17); (4) the imposition of a

pany from a decision by Administra$50 penalty will have no negative effect on the operator's ability to

tive Law Judge William Fauver (PIKE continue in business (Dec. 6, Re

72-86-P), dated February 1, 1973, spondent’s Exhibit B); (5) the vio

assessing a civil monetary penalty of

$3,000 for five violations of the Federal lation is moderately grave, because the accumulations of coal dust were

Coal Mine Health and Safety Act of

1969. near to a source of ignition, and the mine was not equipped with deluge Affirmed. water sprays; however, there was no methane gas present (Tr. 14);

Federal Coal Mine Health and Safety (6) the operator complied with the

Act of 1969: Hearings: Generally Notice of Violation by abating the A penalty proceeding before an Adminconditions rapidly and in good istrative Law Judge is a de novo proceedfaith. (Tr. 8.)

ing in which the amount of a penalty Because the Board's findings and

assessed is determined on the basis of conclusions above are dispositive of

the evidence presented without regard

to any assessment proposed by the Assessthis case, we need not reach other

ment Officer. issues raised by the Bureau in its

Federal Coal Mine Health and Safety appeal.

Act of 1969: Penalties: Amounts
ORDER

It is not merely the fact that an alleged WHEREFORE, pursuant to the violation is cited as a part of an imminent authority delegated to the Board danger order of withdrawal, but the deby the Secretary of the Interior (43 gree of danger created by the violation

either standing alone or in combination CFR 4.1(4)), IT IS HEREBY

with other cited violations which is deterORDERED that the decision issued

minative of the statutory criterion of February 7, 1973, IS MODIFIED

gravity.

June 29, 1973

Federal Coal Mine Health and Safety operated by Spring Branch Coal Act of 1969: Appeals: Generally Company (Spring Branch) which The Board will not disturb a finding of an

resulted in the issuance of an "imAdministrative Law Judge in the absence minent danger" order of withof a showing that the evidence compels drawal pursuant to section 104(a) a different finding.

of the Federal Coal Mine Health APPEARANCES: Joseph W. Justice, The Bureau of Mines (Bureau) filed

and Safety Act of 1969 (the Act).” for appellant, Spring Branch Coal

a petition for assessment of civil Company; Robert W. Long, Associate

penalties pursuant to section 100.4 Solicitor, J. Philip Smith, Assistant

(i) of Title 30, Code of Federal Solicitor, John H. O'Donnell, Trial

Regulations on November 9, 1971, Attorney, for appellee, U.S. Bureau of

for six alleged violations of manMines.

datory safety standards involving

five different sections of the Act, OPINION BY THE BOARD

described in the aforesaid withINTERIOR BOARD OF MINE

drawal order. A hearing was held OPERATIONS APPEALS

on August 16, 1972, and on FebruFactual and Procedural

ary 1, 1973, the Administrative Law Background

Judge (Judge) issued a decision

vacating an alleged violation of secOn February 18, 1971, an inspec- tion 304(d) and assessing the foltion was conducted of Mine No. 9 lowing penalties:

[blocks in formation]

Spring Branch contends that the findings of violations were not supported by the record and that the Judge failed to consider adequately

the criteria required for determining the amount of a civil penalty under section 109 (a) (1) of the Act. The operator also alleges that the Judge was arbitrarily and unduly on the basis of the evidence preinfluenced by the fact that these sented irrespective of any prior proviolations were cited in an "immin- ceedings.? ent danger withdrawal order." The Board is not persuaded that Spring Branch maintains that this

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

the Judge was unduly influenced by is demonstrated by the fact that the the fact that the violations cited repenalty assessed by the Judge was sulted in an order of withdrawal. $2,000 higher than the Assessment Although we agree that it would be Officer's proposal.

improper to impose a higher penalty The Bureau maintains that the solely because the inspector cited record supports the Judge's decision an alleged violation in a section 104

a and that there is no basis for the (a) order, similar factors which contention that the Judge was in- bear on the existence of imminent fluenced by the order of withdrawal. danger are related to a proper con

sideration of the gravity of such 188ues Presented

violation. If a violation either

standing alone or in combination I

with other violations creates a con

dition which “could reasonably be Whether the evidence supports the Judge's findings of violations expected to cause death or serious and the penalties which he assessed physical harm before such condition

or practice can be abated” (section therefor.

3(j) of the Act), it should be conII

sidered more dangerous or of

greater gravity than a violation or Whether the Judge was unduly combination of violations) which influenced by the fact that the viola- does not cause such a condition. tions were cited in a section 104(a) The determining factor in conorder of withdrawal.

* Throughout the proceedings below, this Discussion

matter was governed by 43 CFR 4.544(a) (redesignated as section 4.546 (a) on June 28,

1972) which provided that the Board or an Upon careful review of the record Examiner (now Administrative Law Judge)

should assess a penalty after consideration of in this matter, the Board finds that

the record and the criteria established in the decision issued by the Judge is section 109(a) (1) of the Act. The actions of

the Assessment Officer are not part of the clearly supported by the record.

record. On April 24, 1973, this section was Each finding of violation is sup- deleted and section 4.545 was amended to

include the following under subsection (c): ported by credible testimony and

"In determining the amount of civil penalty the penalties assessed reflect a rea- warranted the Administrative Law Judge and sonable consideration of the statu

the Board of Mine Operations Appeals shall

not be bound by a recommended penalty of the tory criteria.

Bureau or by any offer of settlement made by

either party." The new language of section Since a hearing before an Ad

4.545 is even more explicit in its mandate that ministrative Law Judge is a de novo proceedings before the Office of Hearings and

Appeals independent

prior proceeding, the penalties are fixed

determinations.

are

of

any

June 29, 1973

a protest against issuance of confirmatory patent to the State of Utah for two sections of land.

Affirmed as modified.

Patents of Public Lands: GenerallySchool Lands: Generally-Secretary of the Interior-State Grants

sidering the gravity criterion in a penalty case is not the fact that the violation is cited in an order of withdrawal, but rather the degree of seriousness of the condition created by the violation. Eastern Associated Coal Corporation, 1 IBMA 233, 236, 79 I.D. 723, 726-727, 2 CCH Occupational Safety and Health Guide par. 15,388 at pp. 20,565–66 (1972). We believe that the Judge reasonably weighed this as well as other statutory criteria in arriving at the penalty assessments. The Board will not disturb his findings in the absence of compelling evidence to the contrary.

ORDER

Where the Secretary of the Interior is required by the Act of June 21, 1934, upon application by a state, to issue a patent to the state for school lands and to show the date title vested and the extent to which the lands are subject to prior conditions, limitations, easements, or rights, if any, he (and his delegates) may determine questions of law as well as fact, including a determination as to whether title passed under the school land grant.

WHEREFORE, pursuant to the

Act of July 16, 1894 (Utah Enabling authority delegated to the Board by Act)-School Lands: Grants of Landthe Secretary of the Interior (43 State Grants CFR 4.1(4)), IT IS HEREBY

Title to school sections granted to the ORDERED that: the decision of State of Utah by section 6 of the Utah the Administrative Law Judge IS Enabling Act, 28 Stat. 109, vests in the

State on the date of Statehood (JanuAFFIRMED; and, Spring Branch

ary 4, 1896), or upon completion and Coal Company pay $3,000 on or

acceptance of the survey of the sections if before 30 days from the date of this the lands were not then surveyed. decision.

Administrative Practice-AdministraC.E. ROGERS, Jr., Chairman. tive Procedure: Generally-Indian

Lands: Generally-Rules of Practice: DAVID DOANE, Member. Evidence School Lands: Generally

NAVAJO TRIBE OF INDIANS

v. STATE OF UTAH 12 IBLA 1

Although the Board of Land Appeals takes official notice of the findings and conclusions in an interlocutory order of the Indian Claims Commission on the claim of the Navajo Tribe of Indians against the United States, the Board's decision on a protest by the Tribe against issuance of a confirmatory patent to the State of Utah for school land sections now included within the boundaries of the Tribe's reservation is based solely upon the evidence in the hearing in the

Decided June 29, 1973

Appeal from decision of Director, Bureau of Land Management, dismissing

Department on this protest and upon its Indian Lands: Aboriginal Titleown application of the law to the facts in

Indian Lands: Tribal Lands this case.

The Treaty of 1868 between the Navajo Indian Allotments on Public Domain:

Tribe of Indians and the United States Generally—Indian Lands: Generally whereby the Tribe relinquished its claim

to land outside the boundaries of a reserThe Indian Homestead and General Allotment Acts manifested a general gov

vation provided thereby, extinguished the

aboriginal occupancy rights of the Tribe ernmental policy prior to and for some

and its members to any land outside that time after 1900 to replace the Indian

reservation. reservation and communal tribal system, to encourage individual Indians to own

Indian Allotments on Public Domain: their own small farm lands, and to open

Settlement surplus reservation lands to disposition under the public land laws.

Under section 4 of the General Allotment

Act of 1887, no improvements or other Grazing and Grazing Lands—Taylor

acts of settlement are required for allotGrazing Act: Generally

ments for minor children of a qualified Prior to the Taylor Grazing Act of

adult allottee who has maintained settleJune 28, 1934, generally open, unreserved

ment on his own allotment. public lands could be grazed upon with

Indian Tribes: Generally-Rules of out federal governmental interference or

Practice: Appeals: Standing to Apregulation, but subject to certain state laws.

peal-Rules of Practice: Private

Contests—Rules of Practice: ProIndian Allotments on Public Domain :

tests—School Lands: Generally Generally—Public Lands: GenerallySettlements on Public Lands—Taylor The Navajo Tribe of Indians has standing Grazing Act: Generally

within the Department of the Interior to

contest or protest against the issuance of From the latter part of the 19th century a confirmatory patent to the State of Utah to the Taylor Grazing Act of June 28, for school sections within the exterior 1934, there was a general policy of the boundary of the reservation for the Tribe. federal government to permit acquisition of title to open, unreserved public lands

Indians: Generally-Statutory Conby individuals settling upon the land, in- struction: Generally cluding Indians, but vested rights were

There is a well-established rule of statuobtained to the lands only upon compliance with a specific act of Congress, and

tory construction to favor Indians in case only for the maximum acreage allowable

of doubt as to the meaning of words in

treaties or legislation in their behalf; under that law.

however, the rule is not inflexible in its Administrative Procedure: Hearings— application and must give way where Rules of Practice: Evidence

such action is warranted by other rules of

construction and the circumstances of Exhibits and oral testimony in an admin

the case. istrative hearing are not fungibles where evidentiary value is ascribed on a quan- Act of July 16, 1894 (Utah Enabling tum basis. Instead, they are products

Act)-Indian Lands: Generallyhaving different probative values depend

School Lands: Generally_School ent upon factors such as relevance, com

Lands: Particular States-State petency and credibility.

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