RULES OF PRACTICE-Con.

APPEALS-Con.

Burden of Proof-Con.

tracted delay in removing
utility poles from the
work area on a road
construction job and that
the Government failed to
rebut such inference even
though information hav-
ing a direct bearing on
the propriety of liqui-
dated damages assessed
for delayed performance
was apparently within
its possession or was more
accessible to it than it
was to the appellant.
The Board therefore re-
affirmed its prior holdings
that no attempt should
be made to apportion the
delay between the parties
and that the contract
time should be extended
to the date the contract
was determined to be
substantially complete...
3. A contractor under a con-
tract for the construction
of a road has not sus-
tained its burden of
proof where the only
evidence offered by it in
support of a particular
claim is the testimony
of one witness who re-
peated the allegations
contained in the con-
tractor's original claim
letter, as such assertions
have no probative weight
in the absence of further
amplification and docu-
mentation__

RULES OF PRACTICE-Con.

APPEALS Con.

Dismissal-Con.

Work" or other "pay for
delay" clause and the
Government issued a
modification postponing
the delivery date because
the building in which the
system
was to be in-
stalled had not been
completed, the Board
dismissed as beyond its
jurisdiction the contrac-
tor's claim for costs in-
curred in maintaining a
crew in readiness to per-
form the installation in-
asmuch as the postpone-
ment of the delivery date
was not a change within
the meaning of the
"Changes" clause..........

Failure to Appeal

be-

1. 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...
Hearings

1. An applicant for a section 15
grazing lease has no statu-
tory or regulatory right
to a full evidentiary hear-
ing before an administra-
tive law judge; a hearing
on issues of fact may be
ordered by this Board
in its discretion, but a
hearing will not be or-
dered where the applicant
does not allege the exist-
ence of facts which, if
proved, would entitle her
to the relief sought.--

RULES OF PRACTICE-Con.

APPEALS-Con.

Standing to appeal

1. The Navajo Tribe of Indians
has standing within the
Department of the In-
terior to contest or pro-
test against the issuance
of a confirmatory patent
to the State of Utah for
school sections within the
exterior boundary of the
reservation for the Tribe_

EVIDENCE

1. The Board denies a Govern-
ment motion for recon-
sideration where it finds
that a diary entry con-
tained in an exhibit
offered in evidence by the
Government, together
with the testimony of a
witness for the appellant
created an inference that
the Government was re-
sponsible for an in-
determinate portion of a
protracted delay in re-
moving utility poles from
the work area on a road
construction job and that
the Government failed to
rebut such inference even
though information hav-
ing a direct bearing on the
propriety of liquidated
damages assessed for de-
layed performance was
apparently within its
possession or was
accessible to it than it was
to the appellant. The
Board therefore reaf-
firmed its prior holdings
that no attempt should
be made to apportion the
delay between the parties
and that the contract
time should be extended
to the date the con-
tract was determined to
be substantially com-
plete

more

RULES OF PRACTICE-Con.
EVIDENCE-Con.

2. A contractor's application to
take depositions of re-
tired Bureau employees
and of a newspaper re-
porter will be denied,
since such prospective
witnesses are not under
the control of the Govern-
ment and the Board has
no jurisdiction over third
parties
3. A contractor who fails to
take advantage of Gov-
ernment offers to ex-
amine certain informa-
tion relative to its claims
is not entitled to have its
application to take the
depositions of Govern-
ment employees for pur-
poses of discovery grant-
ed, as the contractor has
not shown good cause as
required by the Board's
rule governing discovery
(43 CFR 4.115) ---
4. 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__ __ _
5. Where a mining claimant's
testimony as to location
and discovery is super-
ficial and implausible, it
is reasonable for the Ad-
ministrative Law Judge
to conclude from the
evidence and the testi-

RULES OF PRACTICE-Con.

EVIDENCE-Con.

mony of other witnesses
that none of the claims
was located according to
the requirements of the
mining laws and that no
discovery was made
thereon_...

6. Evidence tendered on appeal
in a mining contest may
not be considered except
for the limited purpose of
deciding whether a
further hearing is war-
ranted, since the record
made at the hearing must
be the sole basis for
decision-

7. A contractor under a con-
tract for the construction

of a road has not sus-
tained its burden of proof
where the only evidence
offered by it in support
of a particular claim is
the testimony of one
witness who repeated the
allegations contained in
the contractor's original
claim letter, as such as-
sertions have no proba-
tive weight in the absence
of further amplification
and documentation _____
8. The Board of Land Appeals
has authority to reverse
the findings of an Ad-
ministrative Law Judge.
However, where the res-
olution of a case depends
primarily upon the
Judge's findings of cred-
ibility, which in turn are
based upon his reaction
to the demeanor of wit-
nesses, his findings will
not be lightly set aside__
9. Although the Board of Land
Appeals takes official
notice of the findings and
conclusions in an inter-

RULES OF PRACTICE-Con.
EVIDENCE-Con.

locutory order of the
Indian Claims Commis-
sion 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 Depart-
ment on this protest and
upon its own application
of the law to the facts in
this case..

10. 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.

11. Where a prima facie case

rests upon the estab-
lishment of a negative
fact, but the other party
has peculiar knowledge
or control of the evidence
as to such matter, the
burden rests upon him
to produce such evidence
of sufficient weight and
credibility, and failing,
the negative will be pre-
sumed to have been es-
tablished. This principle
applies in a mining claim
contest to the extent
that where the Govern-
ment has made a prima
facie case of nonmarket-

RULES OF PRACTICE-Con.
EVIDENCE-Con.

ability, and the contestee
only testifies that he
made sales but fails to
buttress that testimony
with specific data as to
the sales or provide cor-
roborating evidence
thereof, he will be deemed
to have failed in his
burden of proof _ - - -

12. 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..

GOVERNMENT CONTESTS
1. When a mining claimant has

failed to answer a com-
plaint in a mining con-
test, the allegations are
deemed admitted under
43 CFR 4.450-7 and
the Manager will decide
the case without a hear-
ing..

2. When, pursuant to 43 CFR
4.450-7, a Manager has
decided a mining contest

against a defaulting con-

testee and no timely
appeal was taken there-
from, a late appeal will
be dismissed under 43
CFR 4.411(b) ------

RULES OF PRACTICE-Con
GOVERNMENT CONTESTS-Con.

to show that there was

any unfairness in the
contest proceeding itself
5. Where a prima facie case rests
upon the establishment of
a negative fact, but the
other party has peculiar
knowledge or control of
the evidence as to such
matter, the burden rests
upon him to produce such
evidence of sufficient
weight and credibility,
and failing, the negative
will be presumed to have
been established. This
principle applies in a
mining claim contest to
the extent that where the
Government has made a
prima facie case of non-
marketability, and the
contestee only testifies
that he made sales but
fails to buttress that tes-
timony with special data
as to the sales or provide
corroborating evidence
thereof, he will be deemed
to have failed in his bur-
den of proof-----

HEARINGS

1. In connection with Govern-

ment cancallation of a
timber sale contract, a
request for a hearing will
be denied where no facts
are alleged which, if
proved, would warrant
granting the relief sought.
2. An Administrative Law Judge
is not disqualified nor will
his findings be set aside in
a mining contest because
of a mere charge of bias
in the absence of a sub-
stantial showing of bias..

3. Where an Administrative Law

Judge's decision contains
a ruling, in a single sen-

RULES OF PRACTICE-Con.
HEARINGS-Con.

tence, on all of the pro-
posed findings and con-
clusions submitted by a
party to a hearing and
the ruling on each finding
and conclusion is clear,
there is no requirement
that the Judge rule sepa-
rately as to each of the
proposed findings and
conclusions.

4. Evidence tendered on appeal
in a mining contest may
not be considered except
for the limited purpose of
deciding whether a fur-
ther hearing is warranted,
since the record made at
the hearing must be the
sole basis for decision..........
5. The Board of Land Appeals

will set aside its former
decision and remand a
contest proceeding for
further hearing where on
reconsideration of such
decision it finds additional
evidence is necessary for
a final determination____
6. Where a prima facie case rests
upon the establishment of
a negative fact, but the
other party has peculiar
knowledge or control of
the evidence as to such
matter, the burden rests
upon him to produce such
evidence of sufficient
weight and credibility,
and failing, the negative
will be presumed to have
been established. This
principle applies in
mining claim contest to
the extent that where the
Government has made a
prima facie case of non-
marketability, and the
contestee only testifies
that he made sales but

a

RULES OF PRACTICE-Con.
HEARINGS-Con.

fails to buttress that tes-
timony with specific data
as to the sales or provide
corroborating evidence
thereof, he will be deemed
to have failed in his bur-
den of proof.____

7. A coal prospecting permit-

tee who applies for a
coal lease, alleging with
supportive data that
there is coal in commer-
cial quantities within cer-
tain lands in his permit,
is entitled to a hearing
conducted in accordance
Iwith 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----

8. An applicant for a section 15
grazing lease has no stat-
utory or regulatory right
to a full evidentiary hear-
ing before an administra-
tive law judge; a hearing
on issues of fact may be
ordered by this Board
in its discretion, but a
hearing will not be or-
dered where the applicant
does not allege the exist-
ence of facts which, if
proved, would entitle her
to the relief sought______

PRIVATE CONTESTS

1. The Navajo Tribe of Indians
has standing within the
Department of the In-
terior to contest or pro-
test against the issuance
of a confirmatory patent
to the State of Utah for
school sections within the
exterior boundary of the
reservation for the Tribe.