he admitted that he did not recognize the violation of any mandatory safety standard. (Tr. 43, 45.) However, counsel for all the parties involved in this case agreed that there were at least three or possibly four mandatory safety standards that had been violated. Second, he issued a withdrawal order based on an obvious misunderstanding of the statutory meaning of the term "imminent." When asked by counsel for Eastern, "Do you know what the word 'imminent' means?", the inspector testified that it meant "a danger that could happen" and that a "hazard" and "imminent danger" meant the same thing. (Tr. 54.) Because of this misunderstanding, the inspector exceeded the scope of his discretion intended by Congress to be limited by section 3 (j) of the Act. The specific, limiting words and phrases, "which could reasonably be expected," and "before such condition or practice can be abated," were not applied by the inspector.

It was not reasonable for the inspector to believe that death or serious physical harm would come to a shuttle-car operator, who was neither operating nor about to operate a shuttle car through the restricted passageway. The most obvious reason for this conclusion is that the parked shuttle car and the debris had to be removed before the No. 4 Entry could physically accommodate the operation of shuttle cars. The record clearly supports the inference that the operator would continue and complete his abatement procedure before at

tempting to operate shuttle cars. (Tr. 36.)

Conclusion

I believe the statutory definition of imminent danger is sufficiently clear to be applicable in the enforcement of the Act and that the majority's new definition, employing an undefined term, "normal mining operations," is too vague. "Normal mining operations" could include the activity of abating safety hazards in addition to the activity of digging coal.

I am fearful that if the majority's definition of "imminent danger" stands, much confusion within the industry as well as among coal-mine inspectors will result, and excessive issuance of "imminent danger" withdrawal orders will occur in lieu of section 104(b) notices of violation.

I would affirm the decision by the Administrative Law Judge vacating the section 104(a) order of withdrawal, issued by the inspector at the Joanne Mine.

Affirmed.

Administrative Procedure: Administrative Law Judges-Rules of Practice: Appeals: Generally

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.

Administrative Procedure: Generally-Rules of Practice: Evidence

The Board of Land Appeals has authority to reverse the findings of an Administrative Law Judge. However, where the resolution of a case depends primarily upon the Judge's findings of credibility, which in turn are based upon his reaction to the demeanor of witnesses, his findings will not be lightly set aside.

Mining Claims: Common Varieties of Minerals: Generally

Where placer mining claims are located after July 23, 1955, for deposits of building stone, the stone may be an uncommon variety subject to location where it commands a higher price in the market place because of its unique patterns and coloration characteristics.

Mining Claims: Common Varieties of Minerals: Generally-Act of August 4, 1892

The Act of July 23, 1955, as amended, 30 U.S.C. § 611 (1970), had the effect of excluding from the coverage of the mining laws "common varieties" of building stone, but left the Act of August 4, 1892, 30 U.S.C. § 161 (1970), authorizing the location of building stone placer mining claims, effective as to building stone that has "some property giving it distinct and special value."

To determine whether a deposit of building stone is of a common or uncommon variety, there must be a comparison of the deposit with other deposits of similar type materials in order to ascertain whether the deposit has a property giving it a distinct and special value. If the deposit is to be used for the same purposes as minerals of common occurrence, then there must be a showing that some property of the deposit gives it a special value for such use and generally this value is reflected by the fact that the material commands a higher price in the market place.

Mining Claims: Discovery: Generally

Where locatable minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a mine, a discovery exists within the meaning of the mining laws. Mining Claims: Discovery: Marketability

In applying the prudent-man test a critical factor to be considered, especially in the case of widespread nonmetallic mineral, is whether the claimed material is marketable. To establish the marketability of a widespread nonmetallic mineral a contestee must show that by reason of accessibility, bona fides in development, proximity to market, existence of present demand, and other factors, the deposit is of such value that it can be mined, removed and disposed of at a profit.

APPEARANCES: Lee Chartrand, pro se, for appellants-contestees; Richard L. Fowler, Esq., Office of the General Counsel, United States Department of Agriculture, Albuquerque, New Mexico, for appellant-contestant.

OPINION BY MR. FISHMAN INTERIOR BOARD OF LAND

APPEALS

On August 25, 1967, the Manager of the Arizona Land Office, Bureau of Land Management, initiated a contest on behalf of the United States Forest Service challenging the validity of the Picture Rock Claims Nos. 1, 2, 3, 4, 5, 6, and 7. These placer mining claims were owned by Lee Chartrand and Barbara Chartrand. The complaint was thereafter amended to include five additional placer mining claims, the Arizona Picture Rock Nos. 1, 2, 3, 4 and 5, which were located on September 1, 1967, by the contestees, Lee Chartrand, Barbara Chartrand, Robert Chartrand, Lloyd Chartrand, Donald Chartrand, Debra Chartrand, Denise Chartrand, and Robert B. Jones.

The Administrative Law Judge 1 found that the mining claims challenged in the original complaint (the Picture Rock Claims Nos. 1-7) were abandoned, and declared them to be null and void. No party has challenged the determination made by the Judge in connection with these claims on appeal to this Board.

In connection with the remaining claims (the Arizona Picture Rock Nos. 1-5) the amended complaint charged that a valid mineral discovery did not exist within the limits of the claims, that the land

1 The change of title of the hearing officer from "Hearing Examiner" to "Administrative Law Judge" was effectuated pursuant to order of the Civil Service Commission, 37 F.R. 16787 (August 19, 1972).

embraced within the limits of the claims was nonmineral in character, that the mineral material found within the limits of the claims was not a valuable mineral deposit within the meaning of 30 U.S.C. § 611 (1970), that the land included within the limits of the claims was not chiefly valuable for minerals, that the claims were not located in good faith, and that the claims were not located by bona fide locators acting in association and were therefore in excess of the acreage allowed by the mining laws of the United States.

Based upon all the evidence presented at the hearing the Judge found that the deposits of stone in the Arizona Picture Rock Nos. 1, 3, and 4 were of a common variety. Thus, he concluded that these three claims were not subject to location after July 23, 1955, and declared the claims null and void. In connection with the Arizona Picture Rock Nos. 2 and 5 the Judge found that a deposit of stone exposed in a quarry situated on portions of both of these claims possessed a unique colorization characteristic which occurred in very limited areas of the widespread Coconino sandstone deposits found in the area. The Judge found that the stone from this quarry commanded a higher price in the marketplace than other stone used for the same purposes. Thus, he concluded that the deposit of stone possessed a property giving it a distinct and special value and that the deposit therefore was not a common variety of stone removed from the

The mining claims in issue were located subsequent to the enactment of the Act of July 23, 1955, 30 U.S.C. § 611 (1970). The Act provides in pertinent part:

No deposit of common varieties of ** stone *** shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however ***"Common varieties" *** does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value ***.

In United States v. Coleman, supra at 605, the Supreme Court considered the effect that 30 U.S.C. § 611 (1970) had on 30 U.S.C. § 161 (1970). The Court stated:

Thus we read 30 U.S.C. § 611, passed in 1955, as removing from the coverage of the mining laws "common varieties" of building stone, but leaving 30 U.S.C. § 161, the 1892 Act, entirely effective as to building stone that has "some property giving it distinct and special value" (expressly excluded under § 611).

As stated in United States v. Minerals Development Corporation, 75 I.D. 127, 134 (1968), the Department interprets the 1955 [A]ct as requiring an uncommon variety of stone to meet two criteria: (1) that the deposit have a unique property, and (2) that the unique property give the deposit a distinct and special value. In order to determine whether a deposit of stone has a unique property which gives it a distinct and special value, there must be a comparison of the material under consideration with

other deposits of similar materials. Therefore, it must be shown that the material under consideration has some property which gives it value for purposes for which other materials are not suited, or, if the material is to be used for the same purposes as other materials of common occurrence, that it possess some property which gives it a special value for such uses, which value is generally reflected by the fact that it commands a higher price in the market place. United States of America v. California Soylaid Products, 5 IBLA 179 (1972). See United States v. Thomas, 1 IBLA 209, 78 I.D. 5 (1971).

In applying these tests to the evidence presented at the hearing, the Judge concluded that the contestees established a valid discovery on the 40-acre tract referred to above.

The Judge made several evidentiary findings to support his ultimate findings of fact and conclusions of law set forth above. The Judge's treatment of the evidence appears on pages 10 to 17 of his decision which we hereby adopt as set forth below:

Mr. Robert B. Wilson, a duly qualified engineer of mines and geology, employed by the United States Forest Service, testified in behalf of the Contestant (Ex. 1). The bulk of Mr. Wilson's testimony is contained in a mineral report dated November 13, 1968, and received in evidence as Exhibit No. 2. He examined the claims in May and September of 1967, and in September of 1968. They are situated approximately 17 miles west of Heber, Arizona, and 21⁄2 to 4 miles north of State Highway 160. None of the permanent roads in the area furnish [sic] direct