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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
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
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:
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
prior proceeding, the penalties are fixed
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.
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.