penalty, the Secretary of the Interior shall consider six criteria. In so doing, as delegate of the Secretary, we make the following findings of fact: (1) Premium Coal Company does not have a significant history of prior violations of the Act (Decision, hereinafter Dec. 5); (2) a penalty of $50 is appropriate with regard to the size of the business of the operator (Dec. 6); (3) the record is inadequate to determine whether the operator was negligent in permitting the accumulation to occur, and, therefore, he is deemed not to have been so (Dec. 17); (4) the imposition of a $50 penalty will have no negative effect on the operator's ability to continue in business (Dec. 6, Respondent's Exhibit B); (5) the violation is moderately grave, because the accumulations of coal dust were near to a source of ignition, and the mine was not equipped with deluge water sprays; however, there was no methane gas present (Tr. 14); (6) the operator complied with the Notice of Violation by abating the conditions rapidly and in good faith. (Tr. 8.)

Because the Board's findings and conclusions above are dispositive of this case, we need not reach other issues raised by the Bureau in its appeal.

ORDER

WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43 CFR 4.1(4)), IT IS HEREBY ORDERED that the decision issued February 7, 1973, IS MODIFIED

to the extent that Notice of Violation No. 1 JLB IS REINSTATED, and that Premium Coal Company IS ASSESSED $50 to be paid 30 days from the date of this decision.

C. E. ROGERS, JR., Chairman.

DAVID DOANE, Member.

SPRING BRANCH COAL COMPANY

2 IBMA 154

Decided June 29, 1973

Appeal by Spring Branch Coal Company from a decision by Administrative Law Judge William Fauver (PIKE 72-86-P), dated February 1, 1973, assessing a civil monetary penalty of $3,000 for five violations of the Federal Coal Mine Health and Safety Act of 1969.

Affirmed.

Federal Coal Mine Health and Safety Act of 1969: Hearings: Generally

A penalty proceeding before an Administrative Law Judge is a de novo proceeding in which the amount of a penalty assessed is determined on the basis of the evidence presented without regard to any assessment proposed by the Assessment Officer.

Federal Coal Mine Health and Safety Act of 1969: Penalties: Amounts

It is not merely the fact that an alleged violation is cited as a part of an imminent danger order of withdrawal, but the degree of danger created by the violation either standing alone or in combination with other cited violations which is determinative of the statutory criterion of gravity.

Federal Coal Mine Health and Safety Act of 1969: Appeals: Generally

The Board will not disturb a finding of an Administrative Law Judge in the absence of a showing that the evidence compels a different finding.

APPEARANCES: Joseph W. Justice, for appellant, Spring Branch Coal Company; Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, John H. O'Donnell, Trial Attorney, for appellee, U.S. Bureau of Mines.

OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS

Factual and Procedural
Background

On February 18, 1971, an inspection was conducted of Mine No. 9

operated by Spring Branch Coal Company (Spring Branch) which resulted in the issuance of an "imminent danger" order of withdrawal pursuant to section 104(a) of the Federal Coal Mine Health and Safety Act of 1969 (the Act).1 The Bureau of Mines (Bureau) filed a petition for assessment of civil penalties pursuant to section 100.4 (i) of Title 30, Code of Federal Regulations on November 9, 1971, for six alleged violations of mandatory safety standards involving five different sections of the Act, described in the aforesaid withdrawal order. A hearing was held on August 16, 1972, and on February 1, 1973, the Administrative Law Judge (Judge) issued a decision vacating an alleged violation of section 304 (d) and assessing the following penalties:

Judge was arbitrarily and unduly influenced by the fact that these violations were cited in an "imminent danger withdrawal order." Spring Branch maintains that this is demonstrated by the fact that the penalty assessed by the Judge was $2,000 higher than the Assessment Officer's proposal.

The Bureau maintains that the record supports the Judge's decision and that there is no basis for the contention that the Judge was influenced by the order of withdrawal.

Issues Presented

I

Whether the evidence supports the Judge's findings of violations and the penalties which he assessed

therefor.

II

Whether the Judge was unduly influenced by the fact that the violations were cited in a section 104(a) order of withdrawal.

Discussion

Upon careful review of the record in this matter, the Board finds that the decision issued by the Judge is clearly supported by the record. Each finding of violation is supported by credible testimony and the penalties assessed reflect a reasonable consideration of the statutory criteria.

Since a hearing before an Administrative Law Judge is a de novo proceeding, the penalties are fixed

on the basis of the evidence presented irrespective of any prior proceedings.2

The Board is not persuaded that the Judge was unduly influenced by the fact that the violations cited resulted in an order of withdrawal. Although we agree that it would be improper to impose a higher penalty solely because the inspector cited an alleged violation in a section 104 (a) order, similar factors which bear on the existence of imminent

danger are related to a proper consideration of the gravity of such violation. If a violation either standing alone or in combination with other violations creates a condition which "could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated" (section 3(j) of the Act), it should be considered more dangerous or of greater gravity than a violation (or combination of violations) which does not cause such a condition.

The determining factor in con

Throughout the proceedings below, this matter was governed by 43 CFR 4.544(a) (redesignated as section 4.546(a) on June 28, 1972) which provided that the Board or an Examiner (now Administrative Law Judge) should assess a penalty after consideration of the record and the criteria established in section 109 (a) (1) of the Act. The actions of the Assessment Officer are not part of the record. On April 24, 1973, this section was deleted and section 4.545 was amended to include the following under subsection (c): "In determining the amount of civil penalty warranted the Administrative Law Judge and the Board of Mine Operations Appeals shall not be bound by a recommended penalty of the Bureau or by any offer of settlement made by either party." The new language of section 4.545 is even more explicit in its mandate that proceedings before the Office of Hearings and Appeals are independent of any prior determinations.

Department on this protest and upon its own application of the law to the facts in this case.

Indian Allotments on Public Domain: Generally-Indian Lands: Generally

The Indian Homestead and General Allotment Acts manifested a general governmental policy prior to and for some time after 1900 to replace the Indian reservation and communal tribal system, to encourage individual Indians to own their own small farm lands, and to open surplus reservation lands to disposition under the public land laws.

Grazing and Grazing Lands-Taylor Grazing Act: Generally

Prior to the Taylor Grazing Act of June 28, 1934, generally open, unreserved public lands could be grazed upon without federal governmental interference or regulation, but subject to certain state laws.

Indian Allotments on Public Domain: Generally-Public Lands: GenerallySettlements on Public Lands-Taylor Grazing Act: Generally

From the latter part of the 19th century to the Taylor Grazing Act of June 28, 1934, there was a general policy of the federal government to permit acquisition of title to open, unreserved public lands by individuals settling upon the land, including Indians, but vested rights were obtained to the lands only upon compliance with a specific act of Congress, and only for the maximum acreage allowable under that law.

Administrative Procedure: HearingsRules of Practice: Evidence

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 dependent upon factors such as relevance, competency and credibility.

Indian Lands: Aboriginal TitleIndian Lands: Tribal Lands

The Treaty of 1868 between the Navajo Tribe of Indians and the United States whereby the Tribe relinquished its claim to land outside the boundaries of a reservation provided thereby, extinguished the aboriginal occupancy rights of the Tribe and its members to any land outside that reservation.

Indian Allotments on Public Domain: Settlement

Under section 4 of the General Allotment Act of 1887, no improvements or other acts of settlement are required for allotments for minor children of a qualified adult allottee who has maintained settlement on his own allotment.

Indian Tribes: Generally-Rules of Practice: Appeals: Standing to Appeal-Rules of Practice: Private Contests-Rules of Practice: Protests-School Lands: Generally

The Navajo Tribe of Indians has standing within the Department of the Interior to contest or protest 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. Indians: Generally-Statutory Construction: Generally

There is a well-established rule of statutory construction to favor Indians in case of doubt as to the meaning of words in treaties or legislation in their behalf; however, the rule is not inflexible in its application and must give way where such action is warranted by other rules of construction and the circumstances of the case.

Act of July 16, 1894 (Utah Enabling Act)-Indian Lands: GenerallySchool Lands: Generally-School Particular States State

Lands: