ADMINISTRATIVE PROCEDURE-Con.
ADMINISTRATIVE LAW JUDGES-Con.

ing conference, sua Page
sponte, is not error unless
it can be shown that such
failure was an abuse of
discretion...........

3. The refusal of an Adminstra-
tive Law Judge to grant
a motion for severance is
not a denial of due pro-
cess when a mining claim-
ant is afforded a hear-
ing and yet fails to
present any evidence of
unfairness because of such
denial...

4. Upon appeal from a decision
of
an Administrative
Law Judge, the Board
of Land Appeals may
make all findings of fact
and conclusions of law
based upon the record
just as though it were
making the decision in
the first instance__.

BURDEN OF PROOF

1. A mining claimant is the
proponent of the validity
of his claim under the
Administrative Procedure
Act, 5 U.S.C. §§ 551 et
seq. (1970), and has the
burden of overcoming by
a preponderance of evi-
dence the Government's
prima facie case of failure
to comply with the loca-
tion requirements of the
mining law and of lack
of discovery of a valuable
mineral deposit--- - -

DECISIONS

1. It is error for an Administra-
tive Law Judge to fail to
make appropriate find-
ings of fact and con-
clusions of law and to
show the reasons there-
for in his decision in

325

325

409

324

ADMINISTRATIVE PROCEDURE-Con.
DECISIONS-Con.

any proceeding brought
pursuant to section 109
of the Act (30 U.S.C.
§ 819) with respect to
the occurrence of each
violation alleged and as
to each of the statutory
criteria required by such
section to be considered.
Where such findings and
conclusions are merely
not labeled or mislabeled
the Board will not nor-
mally remand; however,
where these requisites are
obfuscated or absent, a
remand may be necessary
to permit proper admin-
istrative and judicial re-
'view....

Page

317

317

2. Exhibits and oral testimony
in an administrative
hearing are not fungibles
where evidentiary value
is ascribed on a quantum
basis. Instead, they are
products having different
probative values depend-
ent upon factors such as
relevance, competency
and credibility..

3. A coal prospecting permittee
who applies for a coal
lease, alleging with sup-
portive data that there
is coal in commercial
quantities within certain
lands in his permit, is
entitled to a hearing con-
ducted in accordance
with the Administrative
Procedure Act, 5 U.S.C.
$554 (1970), before his
application may be re-
jected because he has not
shown coal in commercial
quantities.

4. Under the Administrative
Procedure Act, hearsay
evidence is admissible at
a hearing if it is relevant,
material and not unduly
repetitious, but it has
little or no weight where
the circumstances do not
establish its reliability--

LICENSING
1. Under the Administrative
Procedure Act, if a
licensee has made a
timely and sufficient ap-
plication for a renewal of
a license in accordance
with agency rules, a
license with reference to
an activity of a continu-

442

624

777

ADMINISTRATIVE PROCEDURE-Con.

LICENSING-Continued

ing nature does not ex-
pire until the application
has been finally deter-
mined by the agency.
This includes applications
for grazing licenses and
permits under the Taylor
Grazing Act..

be-

2. A proposed decision of a
District Manager which
includes a Notice of Ad-
visory Board Adverse
Recommendation
comes the final decision
of the Department of the
Interior on a grazing
license application if no
appeal is taken in the
time permitted by De-
partmental regulations..
3. In accordance with regula-
tion 43 CFR 4115.2-1(e)
(9) (i), where the evidence
establishes that no ap-
plication for a grazing
license was filed for two
consecutive
years, the
base property qualifica-
tions for grazing privi-
leges in an allotment are
properly found to be
lost..

ALASKA

HEADQUARTERS SITES

1. An application for a head-
quarters site for a com-
mercial fishing operation
must be rejected where
the applicant fails to
show that he is using the
site in connection with a
productive industry as
required by law at the
time he filed his applica-
tion to purchase. The
term "productive in-
dustry" is not so broad
as to include within its
meaning an operation

Page

777

777

777

ALASKA-Con.

HEADQUARTERS SITES-Con.

such as the applicant's
endeavor, where the ap-
plicant admits that he
was actively engaged in
fishing operations for only
the first season after the
claim was initiated, the
gross receipts from the
operation were meager,
and the enterprise was
discontinued and the boat
sold....

HOMESTEADS

1. A homestead settlement claim
for an additional home-
stead entry under the
Act of April 28, 1904 (33
Stat. 527), 43 U.S.C.
§ 213, may be made for
unsurveyed lands in
Alaska by a person other-
wise qualified who has
filed an application for
homestead entry on
form approved by the
Director, Bureau of Land
Management, and made
acceptable final proof on
his original homestead
settlement claim, where
the combined area of the
two claims does not ex-
ceed 160 acres__--

INDIAN AND NATIVE AFFAIRS

a

1. Historical differences between
the situation in Alaska
and the other states af-
ford reasons for different
interpretations of legisla-
tion pertaining to Alaska
natives and legislation
pertaining to Indians in
the other states. There-
fore section 8 of the Act of
May 17, 1884, regarding
the occupancy of Alaska
natives and others upon
public land, is not in pari
materia with the dis-

ALASKA-Con.

INDIAN AND NATIVE AFFAIRS-Con.

claimer provision in sec-
tion 3 of the Utah En-
abling Act of 1894, as to
lands "owned or held by
any Indian or Indian
Tribes"----

APPLICATIONS AND ENTRIES

GENERALLY

1. A Bureau of Land Manage-
ment decision which re-
jected an application un-
der the Act of March 3,
1891, for a pumping sta-
tion and irrigation sys-
tem within a small cove
of a reservoir withdrawn
for a fish and wildlife
management area pursu-
ant to the Fish and Wild-
life Coordination Act, will
be sustained where it was
made in due regard for
the public interest in
managing the area in light
of that Act__.

COAL LEASES AND PERMITS
GENERALLY

1. The holder of a coal pros-
pecting permit is entitled
to a lease pursuant to sec-
tion 2 of the Mineral
Leasing Act of 1920, as
amended, 30 U.S.C. § 201
(b) (1970), if he shows
to the satisfaction of the
Secretary of the Interior
that the land contains
coal in commercial quan-
tities discovered prior to
the expiration of his
permit__ __

2. A coal prospecting permittee

who applies for a coal
lease, alleging with sup-
portive data that there is
coal in commercial quan-
tities within certain lands
in his permit, is entitled

Page

443

197

624

Page

COAL LEASES AND PERMITS—Con.
PERMITS-Con.

COAL LEASES AND PERMITS-Con.

GENERALLY-Con.

LEASES

to a hearing conducted
in accordance with the
Administrative Proce-
dure Act, 5 U.S.C. § 554
(1970), before his ap-
plication may be rejected
because he has not shown
coal in commercial
quantities...

1. The holder of a coal pros-
pecting permit is en-
titled to a lease pursuant
to section 2 of the Mineral
Leasing Act of 1920, as
amended, 30 U.S.C. § 201
(b) (1970), if he shows
to the satisfaction of the
Secretary of the Interior
that the land contains
coal in commercial quan-
tities discovered prior to
the expiration of his per-
mit...

2. A coal prospecting permittee
who applies for a coal
lease, alleging with sup-
portive data that there
is coal in commercial
quantities within certain
lands in his permit, is
entitled to a hearing
conducted in accordance
with the Administrative
Procedure Act, 5 U.S.C.
§ 554 (1970), before his
application may be re-
jected because he has
not shown coal in com-
mercial quantities----

PERMITS

1. In determining whether lands
are of such character as
to subject them to leasing
rather than prospecting
under permits, the Secre-
tary of the Interior is

entitled to rely upon the

624

624

Page.

reasoned opinion of his

technical expert, the

Geological Survey. Only
upon a clear showing
that the Survey's deter-
mination was improperly
made, will the Secretary
act to disturb the deter-
mination__--

2. The holder of a coal pros-
pecting permit is en-
titled to a lease pursuant
to section 2 of the Min-
eral Leasing Act of 1920,
as amended, 30 U.S.C.
§ 201(b) (1970), if he
shows to the satisfaction
of the Secretary of the
Interior that the land
contains coal in com-
mercial quantities dis-
covered prior to the ex-
piration of his permit....
2. A coal prospecting permittee
who applies for a coal
lease, alleging with sup-
portive data that there
is coal in commercial
quantities within certain
lands in his permit, is
entitled to a hearing
conducted in accordance
with the Administrative
Procedure Act, 5 U.S.C.
§ 554 (1970), before his
application may be re-
jected because he has
not shown coal in com-
mercial quantities-------
Workability

1. The workability of any coal
will ultimately be de-
termined by two off-
setting factors-(1) its
character and heat-giving
quality, whence comes its
value, and (2) its accessi-
bility, quantity, thick-

COAL LEASES AND PERMITS-Con.

PERMITS-Con.

Workability-Con.

ness, depth, and other
conditions that affect the
cost of its extraction. It
must be considered а
workable coal if its value,
as determined by its
character and heat-giving
quality, exceeds the cost
of extraction____

2. Workability as defined by
the USGS is concerned
with the economics of the
intrinsic factors. Extrin-
sic factors such as trans-
portation, markets, etc.,
are not considered. How-
ever, the cost of mining
must be considered. In
its classification of coal
lands, USGS has antic-
ipated and assumed the
ultimate coming of condi-
tions favorable for mining
and marketing of any
coal if the coal is workable
in terms of the intrinsic
factors. In this respect,
the test of workability
under the Mineral Leas-
ing Act differs from the
prudent man rule under
the mining laws_ _ _ _
workability
basically a problem of
the physical parameters
of the coal, the test of
workability is dependent
upon economic factors.
If the value of the coal is
greater than the cost of
its extraction, the de-
posit is workable..

3. Although

4. Workability may

is

be

established by geologic in-
ference where detailed in-
formation is available re-
garding the existence of a
workable deposit in adja-
cent lands and there are geo-
logic and other surround-

Page

7

8

∞

COAL LEASES AND PERMITS-Con.

PERMITS-Con.

Workability-Con.

ing conditions from which
the workability of the
deposit can be reasonably
inferred. However, geo-
logic inference, as a tool
for determining worka-
bility, has certain limita-
tions. The mere fact that
lands applied for adjoin
other lands which contain
workable coal deposits
does not, per se, permit
the inference that they
contain coal deposits in
workable quality and
quantity

COLOR OR CLAIM OF TITLE

GENERALLY

1. Under the Color of Title Act,
45 Stat. 1069 (1928), as
amended, 43 U.S.C. § 1068
(1970), an applicant's
period of adverse posses-
sion may commence at a
time when title to the
land is being held by a
state pursuant to the
provisions of the Carey
Act, 28 Stat. 422 (1894).
as amended, 43 U.S.C,
§§ 641 et seq. (1970)__.
2. The period of possession of a
color of title claim, hav-
ing been initiated when
the land was subject to
appropriation under the
public land laws, is
not interrupted by a sub-
sequent period of time
during which the land
was not open for
appropriation___

3. A color of title application
cannot be allowed where
the applicant fails to show
that the land applied for
is public land, i.e., land
subject to the operation
of the public land laws...

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209

210

702