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__
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
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.--
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_
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
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-
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-----
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
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.
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