tention did not approve the communitization agreement submitted by appellant on March 16, 1973. The record indicates the United States Geological Survey returned the agreement to appellant without action.

Execution of the agreement by the Indian mineral owner, Danny Elroy Wall Blackhorse, prior to the termination of the primary term of the lease, in itself could not legally bind or commit the leased acreage into the participating unit. Only the approval by the Area Director during the primary term of the lease could officially commit the acreage into the producing unit and thus continue the lease in full force and effect.

The record indicates that money was received by the Bureau of Indian Affairs as advance payment of delay rentals. Receipt, however, does not constitute acceptance. In any event, acceptance would not continue or reinstate the lease in question which had terminated by its own limitation.

We cannot agree with the appellant's argument regarding the term "supervision" as used in paragraph 11 of lease contract #14-20– 205-4266 (Form 5-154h). The appellant in effect urges that so long as the premises in question remained in trust and under the jurisdiction of the Secretary of the Interior the agreement could be approved after the lease termina

tion date. As we have stated elsewhere herein only the approval of the agreement during the primary term of the lease could continue the lease beyond the termination date thereof. (Italics supplied.) To approve the agreement after the termination date of the lease would be improper and without authority. United States v. Brown, supra; cf. Haby v. Stanolind Oil and Gas Company, 228 F.2d 298 (5th Cir. 1955).

Moreover, we disagree with appellant's final contention that the decision of the Area Director was not supported by substantial evidence and that his refusal was arbitrary and unreasonable. We feel the Area Director's decision was proper and correct under the circumstances, i.e., the lease had expired by its own terms or limitation and no action on his part under the cir cumstances could possibly revive the terminated or expired lease.

In view of the reasons hereinabove set forth and discussed, the Area Director's refusal of April 5, 1973, to approve the communitization agreement IS AFFIRMED and the appellant's appeal IS HEREBY DISMISSED.

This decision is final for the Department.

ALEXANDER H. WILSON, Member.

I CONCUR:

MITCHELL J. SABAGH, Member.

2 IBIA 112

Decided December 11, 1973

Petition to reopen.

Granted.

375.1 Indian Probate: Reopening: Waiver of Time Limitation

To avoid perpetuating a manifest injustice, a petition to reopen filed more than three years after the final determination of the heirs will be granted where compelling proof is shown that the delay was not occasioned by the lack of diligence on the part of the petitioning party.

APPEARANCES: Mable C. Marrs and Joan M. Hamilton, pro se.

OPINION BY MR. WILSON
INTERIOR BOARD OF

INDIAN APPEALS

Pursuant to the Board's Preliminary Order on Petition for Reopening, dated January 31, 1972, Docket No. 72-6, a hearing in the Estate of George Mortimer Cummings was duly held and completed at Portland, Oregon, on December 12, 1972.

From the evidence adduced at said hearing the petitioners, Mable C. Marrs and Joan M. Hamilton, have clearly established, and we find (1) that they were not dilatory in asserting their rights in and to the estate herein (2) that they are related to the decedent in such a degree so as to entitle them to share in

his estate as heirs under the South Dakota laws of Descent and Distribution (3) that the Order Determining Heirs entered in this estate on July 17, 1967, resulted from a mistake of such a nature so as to warrant reopening and correction, to avoid perpetuation of a manifest injustice (4) that none of the heirs as originally determined has entered any objection to the reopening of the estate herein, and (5) that there are no existing intervening rights which would jeopardize the title to the lands involved.

In view of the foregoing circumstances, the estate herein should be reopened and the Order Determining Heirs, dated July 17, 1967, modified and corrected to (1) include the petitioners as heirs therein and (2) to reapportion the shares of the heirs in the estate.

NOW, THEREFORE, by virtue of the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 CFR 4.1, the estate of George Mortimer Cummings, Cheyenne River Allottee No. 3484, IS HEREBY REOPENED and the Order Determining Heirs, dated July 17, 1967, IS HEREBY AMENDED, CORRECTED AND MODIFIED to redetermine the decedent's heirs and to reapportion their shares as follows, to wit:

Ronald Crain Cummings, Cheyenne

River nonenrolled, son, 1/4 Shelly Marie Cummings, Cheyenne

River nonenrolled, daughter, 4 Mable Carmen Marrs, Cheyenne

River nonenrolled, daughter, 1/4 Joan Marie Hamilton, Cheyenne River nonenrolled, daughter, 1/4 This decision is final for the Department.

OPINION BY MR. DOANE INTERIOR BOARD OF MINE OPERATIONS APPEALS

Armco Steel Corporation (Arm

Virginia.

ALEXANDER H. WILSON, Member. I CONCUR:

MITCHELL J. SABAGH, Member.

ARMCO STEEL CORPORATION

2 IBMA 359

Decided December 12, 1973

Armco Steel Corporation appealing an initial decision and order issued March 26, 1973, assessing $1,300 for violations of the Federal Coal Mine Health and Safety Act of 1969 in Docket No. HOPE 72-153-P.

Affirmed in part and vacated in part.

Federal Coal Mine Health and Safety Act of 1969: Evidence: Sufficiency

Where a notice of violation of section 304 (a) of the Act shows no indication of the depth or extent of an accumulation of combustible material, and MESA's sole witness, the inspector who issued the notice, has no present recollection of the condition, for which the notice was issued, the evidence is insufficient to constitute a prima facie case.

APPEARANCES: William C. Payne, Esq., and John H. Tinney, for appellant, Armco Steel Corporation.

initial decision and order dated March 26, 1973, wherein penalties were assessed for various violations totaling $1,300 pursuant to section 109 (a) of the Federal Coal Mine Health and Safety Act of 1969.1 The decision dealt with fourteen notices of violation of which only seven are challenged on appeal. A crossappeal was filed by the Bureau of Mines, hereinafter, Mining Enforcement and Safety Administration (MESA), and dismissed on June 11,

1973.2 IBMA 73-38.

Having reviewed the record and considered the brief of the appellant, Armco, we are of the opinion that, with the sole exception of Notice No. 1 JG, July 2, 1970, the allegations of error are insubstantial and wholly without merit. Apart from the excepted notice, Armco has shown no reason why the findings of fact and conclusions of law of the Administrative Law Judge should not be affirmed.

Notice No. 1 JG cited appellant for an alleged violation of section 304 (a) of the Act which proscribes accumulations of loose coal, coal dust and other combustible mate

1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1969).

2 Effective July 16, 1973, the MESA was substituted as the Appellant in this case. See 38 F.R. 18165 (1973). For the sake of convenience, we will refer to the enforcing authority throughout as MESA.

rials. The record reveals that MESA's evidentiary presentation consisted of the notice itself and the testimony of the issuing inspector, Mr. Jules Gautier. The notice was admitted without objection (Tr. 25) and reads as follows:

Accumulations of coal dust, oil and grease were present on the continuous miner, roof-bolting machine, and Nos. 14 and 15 shuttle cars in 12 southwest section. (Govt. Exh. No. 5.)

Inspector Gautier admitted that he had no present recollection of the cited condition but he stated that it was his unvarying practice to issue a section 304 (a) notice where the amount of material observed was in excess of one and one-half inches. (Tr. 25, 26, 29, 30.)

Armco called C. J. Halstead as a witness in its behalf. He was superintendent of the Robin Hood Mine which was the site of the alleged violation and was present at the inspection. He opined that the amount of offending material to which the notice referred was not unreasonable: (Tr. 34.) He did not, however, testify as to the depth or extent of the amounts in dispute.

We have decided to vacate this notice because, in our view, MESA failed to present a prima facie case, that is to say, the evidence of record was insufficient to require the operator to adduce rebutting evidence and to support findings of fact and conclusions of law that a violation did occur. The text of the notice itself is devoid of any indication of the depth and extent of the mass of

combustible material, on the basis of which we could determine if there was an "accumulation" within the meaning of section 304 (a) of the Act. The inspector's remarks with regard to his allegedly unvarying inspection practices do not compensate for the deficiencies of the notice. In the first place, his statements are entirely self-serving and do not really prove any precise condition. Second, if we were to hold that MESA's presentation did constitute a prima facie case, the operator would have to investigate the inspector's alleged practices. Such an inquiry would place an unfair burden upon the operator, would probably involve production of numerous records by MESA, and would drastically widen the scope of the hearing far beyond the relevant.

We emphasize that the Board is not holding that a notice of violation may never constitute prima facie case. Indeed, we are of the view that a sufficiently specific notice of violation, with proper foundation, standing by itself, may constitute a prima facie case in some instances. In the case at hand, the subject notice was too general and conclusory and the additional evidence presented by MESA failed to remedy its deficiencies. Moreover, the evidence outlined above which Armco voluntarily presented did not compensate for the gaps in the Government's case that we feel are crucial.