The notice of publication and the affidavit of examination are required by 30 U.S.C. § 613 (1970), in order to assure that the proper parties are given notice of the Government's action. Appellant was completely informed of the proceeding against its claims. There is no indication that the appellant was in any way prejudiced by any of the alleged deficiencies in these two exhibits. The Judge stated in his decision, p. 2: There is no indication that any deficiencies which may exist in these areas have been prejudicial to the interests of Mineral Ventures, Ltd. (the only mining claimant in this proceeding), or have affected that corporation's opportunity to be represented and heard in this matter. In fact, a hearing originally scheduled for January, 1972, was canceled after requests of the mining claimant's attorney, who advised that he required a longer period for preparation. He requested a hearing for September, 1972. The hearing was held on October 24, 1972. In the past, this Board has held that technical deficiencies will not defeat the Government's case where there is no showing that the claimant was in any way misled, confused or prejudiced by the errors. Mrs. Mildred Carnahan, 10 IBLA 150, 156 (1973), United States V. Stewart, 1 IBLA 161, 165 (1970); see also the D.C. opinion, Converse v. Udall, supra, p. 592. After reviewing the record, we find that the deficiencies, if any there were, in no way prejudiced the appellant. Accordingly, the Board finds itself in full agreement with the Judge's ruling on this matter. Federal Coal Mine Health and Safety Act of 1969: Mandatory Safety Standards: Grounding Use of a clamp to ground an electric hand drill is a violation of 30 CFR 75.701-3 unless approved by an inspector or some other authorized representative of the Secretary. Federal Coal Mine Health and Safety Act of 1969: Mandatory Safety Standards: Trailing Cable Splices Under section 306 of the Act, 30 CFR 75.603, only one temporary splice may be made in a trailing cable at one time. APPEARANCES: Robert P. Reinecke, Esq., Wesley C. Marsh, Esq., and Ray December 14, 1973 mond C. Davis, Esq., for appellant, Clinchfield Coal Company; Robert W. Long, Esq., Associate Solicitor, J. Philip Smith, Esq., Assistant Solicitor, Mark M. Pierce, Trial Attorney, for appellee, Mining Enforcement and Safety Administration. OPINION BY MR. DOANE INTERIOR BOARD OF MINE OPERATIONS APPEALS Clinchfield Coal Company appeals to the Board to reverse or at least modify a decision by an Administrative Law Judge (Judge) dated February 15, 1973, assessing penalties in Docket No. MORG 72– 67-P for various violations of the Federal Coal Mine Health and Safety Act of 1969.1 Having reviewed the record and considered the briefs, we have concluded that the decision should be affirmed.2 Appellant argues that the Judge erroneously denied its motion to suppress evidence based upon the Fourth Amendment prohibition of unreasonable searches. Clinchfield also claims that the Judge failed to give sufficient rulings on its proposed findings of fact and conclusions of law. We have already rejected arguments similar to these in Buffalo Mining Company and ap 3 1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ S01-960 (1969). 2 On April 23, 1973, the Board issued an order granting a motion to strike all reference in Appellant's brief with respect to the National Environmental Policy Act of 1969. 32 IBMA 226, 80 I.D. 630, CCH Employment Safety and Health Guide par. 16,618 (1973). pellant has shown no reason why we should reconsider our previously stated positions.* Apart from these general challenges to the decision, appellant also attacks the Judge's rulings with respect to certain specific violations. First, Clinchfield maintains that Notice No. 3 L.D.P., May 26, 1971, should be vacated because the clamp that was being used was, contrary to the inspector's opinion, sufficient grounding for an electric hand drill. Under 30 CFR 75.701-3, the use of a clamp as a method of grounding must be approved by the inspector or some other authorized representative of the Secretary. The record reveals that there was no such approval and we are of the opinion that the Judge correctly concluded that a violation did occur. Second, Clinchfield insists that section 306 of the Act does not prohibit the making of more than one temporary splice in a trailing cable. We hold that the authorization in that provision for one temporary splice in a trailing cable, which may then be used for a twenty-four hour period, necessarily precludes the making of any other such splice at the same time. A contrary interpretation would represent an unduly narrow construction of the Act which must be construed liberally in light of its broad remedial purposes." See Youghiogheny and Ohio Coal Co. v. Morton, No. 72-78 (S.D. Ohio, September 19, 1973). 530 CFR 75.603. Expressio unius est exclusio alterius. 7 Op. cit., footnote 4. has been issued will be determined on the basis of general statutory provisions in that respect, and a decision to withhold fee patent will be overturned on appeal where there is an abuse of administrative discretion and where the record supports the conclusion that the applicant is capable of properly managing his or her own affairs. APPEARANCES: Harold G. Stanton, Esq., of Stanton, Hovland and Torske, for appellant. OPINION BY MR. SABAGH INTERIOR BOARD OF INDIAN APPEALS On or about April 17, 1973, the appellant, an enrolled Crow Indian, made application for fee patent covering five allotments for lands she owned on the Crow Reservation in Montana, totaling 2,084.34 acres. The Superintendent, Crow Agency, notified appellant through counsel that he had sent a letter to the Area Director, Bureau of Indian Affairs, Billings, Montana, on May 17, 1973, recommending withholding of action on appellant's application. The applicant filed a timely appeal with the Area Director. On June 8, 1973, the Acting Area Director issued a letter decision sustaining the Superintendent withholding approval of the application. In his decision of June 8, 1973, the Acting Area Director, gave as his reasons for sustaining the Superintendent the following: 1 Crow allotment Nos. 2057, 2058, 2059, 3518 and 3519. 2485.8 acres were classified as dry cropland. 1,598.54 acres were classified as pasture land. KEVERN CROW ALLOTTEE NO. 3519 The Crow Tribe has expressed an interest in purchasing all five tracts of Mrs. Kevern's land. Accordingly, we intend to withhold approval of this application at this time in order to allow the Tribe to enter into negotiations with Mrs. Kevern. We will notify the Superintendent and the appropriate tribal officials of this decision in order that they may expedite communication with your client. In support of the desire of Indians across the Nation to retain their lands in trust status whenever possible, new regulations for 25 CFR 121 have become effective April 24, (sic) 1973, by publication in the Federal Register, Volume 38, No. 78. Page 10080. We draw your attention to the new Part 121.2 entitled application" "Withholding action part as which states in pertinent follows: on Action on any application, which if approved would remove Indian land from restricted or trust status, may be withheld, if the Secretary determines that such removal would adversely affect the best interest of other Indians, or the tribes, until the other Indians or the tribes so affected have (sic) [had] a reasonable opportunity to acquire the land from the applicant *** The balance of the part provides that the applicant may appeal the withholding action under the same appeal procedure currently in use. The sum total of these considerations is such that we think this is a proper case for the discretion afforded the Secretary of the Interior by the Acts of February 8, 1987 (24 Stat. 390) and May 8, 1906 (34 Stat. 82) for use in such instances, and we concur in the recommendation of the Superintendent that approval be withheld on these applications for now. Mrs. Kevern appealed the decision of the Acting Area Director to the Secretary of the Interior on or about June 27, 1973, and the matter was referred to this Board pursuant to a special delegation. Notice of Docking of the appeal was mailed to the appellant and the Area Director. Appellant was allowed 30 days within which to file an appeal brief and the Area Director was allowed 20 days from the date of receipt of appellant's brief to reply. The appellant timely filed an appeal brief which was duly served by certified mail, return receipt requested, on the Area Director, Bureau of Indian Affairs, Billings, Montana. No reply was filed by the Area Director, and the time for filing has expired. The appellant among other things contends that the action of the Bureau of Indian Affairs in withholding approval of the application for a fee patent was an arbitrary and capricious use of discretion. The law applicable to the case follows. Section 5 of the General Allotment Act, February 8, 1887, 24 Stat. 389, 25 U.S.C.A. § 348, provides in pertinent part that— * * * [U]pon the approval of allotments ***, by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, *** and that at the expiration of said period the United States will convey the same by patent to said Indian ***, in fee, discharged of said trust and free of all charge or incumbrance whatever: Provided, That the President of the United States may in any case in his discretion extend the period.* * * (Italics supplied.) The period in question has been extended by presidential action. Section 6 of the General Allotment Act, May 8, 1906 (34 Stat. 182), 25 U.S.C.A. 349, as amended, provides in pertinent part: and vested allotment. After compliance with the acts of Congress and agreements relative to the distribution of Indian lands, the allottee's title becomes absolute, and the execution and delivery of patents are thereafter merely ministerial acts, Woods v. Gleason, 43 Okla. 9, 140 P. 418 (1914). A trust patent is simply "a piece of paper or writing, im to show that at the end of 25 years the Indian allottee or his heirs will receive the fee to the land allotted. See United States v. Rickert, 188 U.S. 432, 436 (1903). That at the expiration of the trust properly called a patent” designated period and when the lands have been conveyed to the Indians by patent in fee *** then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside*** Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, See Acting Area Director's decision of June 8, 1973, supra, for the contents of 25 CFR 121.2, effective May 23, 1973, entitled "Withholding action on application." We are of the opinion that the contents of the General Allotment Act referred to supra, clearly express the legislative intent and the dictates of Congress, i.e., that the United States will cause to be issued to the allottee a patent in fee simple, if before the expiration of the trust period the Indian allottee becomes competent and capable of managing his or her own affairs. Several cases consider patents as merely evidence of the completed It is not probable that the issuance of these fee patents was considered essential in order to give the Indian unrestricted fee title, but they were issued because it was apparently believed that fee title now existed and that a fee title patent would be more convenient for the Indian and his vendees. A title tantamount to fee by reason of legislative enactment existed in the allottee. United States v. Spaeth, 24 F. Supp. 465 (D.C. Minn. 1938). We agree however that because of the variety of allotment laws, a case under one is not necessarily applicable to another. We conclude under the present circumstances that the Bureau of Indian Affairs was and is clothed with the discretion to determine the competency of the individual Indian to manage his or her own affairs. There has been no moratorium on the approval of patent applications on the Crow Reservation during the period April 17, 1972, to the present. |