With respect to the "accumulation" of float-coal dust observed by the Inspector on January 7, the record reveals the following: the Inspector observed a generally black condition with occasional gray or white spots in the Six North Slope Entry for a distance of about 300 feet and also in the four or five intersecting crosscuts. He stirred the dust occasionally in the crosscuts where the deposits of coal dust were slightly greater than in the entry and estimated that the depth of the combined rock and coal dust throughout the area averaged four to six inches. The mine foreman did not hesitate to inert the coal dust with rock dust. The immediate hazard presented was combustion and explosion, and the high-voltage cable carried in the entry was the only apparent source of ignition in the event of a rooffall. In general, The Inspector was satisfied with the rock dusting program in the mine. He admitted that this infraction occurred in an isolated location, that there were no miners in the area, and that the coal dust did not extend to any working area of the mine. (Tr. 484–494.) This does not conflict with our finding that the entry constituted an "active working."

dust

dust *** along the parallel slope

entry [to the Dutch Creek No. 1 Mine] and [in] connecting crosscuts for approximately 300 feet inby Six North Conveyor Belt." (Exhibit 72-10-P-27.) The Judge vacated the Notice on the grounds that the area inspected did not constitute "active workings" of the mine. Section 318 (g) (4) of the Act defines "active workings" as "* * * any place in a coal mine where miners are normally required to work or travel."

Bishop testified that a high-voltage cable is carried along the entry where the accumulation of dust was discovered (Tr. 489). Section 308 (h) of the Act requires "All underground high-voltage transmission cables shall be installed only in regularly inspected aircourses and haulageways***" (Italics added).

Since the operator is charged with the duty of regular inspection of the high-voltage cable, it can be inferred that a miner or miners normally work and travel in this entry. The Board concludes that the entry is subject to the requirements of section 75.400 of the Regulations [section 304 (a) of the Act] because it does constitute an "active working." Even though it may be that only one miner is required to regularly inspect the entry, an accumulation of coal dust is a potential hazard to him, and clean-up procedures are therefore warranted.10

10 We believe the appropriate action to be taken pursuant to section 75.400 would be to clean up rather than to rock dust an accumulation.

of previous violations is present in this record, and we find that it is only of moderate significance. (2) We find that Mid-Continent's L. S. Wood Mine employed approximately 56 men, 25 of them underground on two working shifts and a maintenance shift, five or six days a week (Tr. 39). We find that this is not a small mine, and it is only part of Mid-Continent's coal mining interests; therefore, the amount of $51 in penalties is not inappropriate. (3) Since the Board is interpreting for the first time a new and unusual set of circumstances, and since we find that one of the violations is only technical, we conclude that the operator was not negligent. (4) Considering the approximate number of men on the payroll in one of Mid-Continent's mines (above) and the company's failure to appeal nearly $4,000 in penalties assessed by the Judge, we find that the additional penalties will not affect the

January 7, 1971. January 27, 1971. January 7, 1971.

Total____

Date

2. The Order of Withdrawal of January 26, 1971, IS VACATED;

3. The Judge's decision IS AFFIRMED in all other respects; and 4. Mid-Continent pay the Administrative Law Judge's assessment

1. Where only a portion of the
lands in a unitized oil
and gas lease is elimi-
nated from the unit, the
leased lands are situated
in whole or in part on the
known geologic structure
of a producing oil or gas
field, and the lease terms
and factual circumstances
are identical to those in
the decision, Standard Oil
Company of California,
et al., 76 I.D. 271 (1969),
this Department will fol-
low the ruling by the
United States Court of
Appeals for the Ninth
Circuit in Standard Oil
Company of California v.
Morton, 450 F. 2d 493
(1971), which overturned
that decision solely upon
principles of contract con-
struction; therefore, the
eliminated lands will re-
tain the rental rate ap-
plicable to nonparticipat-
ing acreage within the
unit rather than the
higher rate applicable to
non-unitized lands within
a known geologic struc-
ture___.

2. "Competitive Bidding." Com-
petitive bidding does not
require that more than
one bid be submitted be-
fore the authorized of-

ADMINISTRATIVE PROCEDURE-

Continued

GENERALLY-Continued

plan reasonably related
to the protection of for-
age and other values, has,
therefore, a rational basis

and is not arbitrary or
capricious...
3. The marketability test, as
developed by this Depart-
ment and approved by
the courts, is a comple-
ment to the prudent man
test of discovery of a
valuable mineral deposit
under the mining laws,
and publication of the
test in the Federal Regis-
ter is not a prerequisite
to its validity.

4. The marketability test of
discovery of a valuable
mineral deposit under
the mining laws does not
violate due process of law
as being unconstitution-
ally vague, or as being
unlawful administrative
legislation_

5. A mining claimant has not

been denied due process
when his claims are con-
tested assertedly because
a permit has been granted
to a museum to perform
archaeological work under
the Antiquities Act, and
where there was some
prehearing newspaper
publicity that the contest
was being instituted but
the claimant does not
show that there was any
unfairness in the contest
proceeding itself_____

ADJUDICATION

1. A decision of a district man-
ager which is arbitrary
or capricious will not be
sustained, when chal-
lenged by one who has
standing, even in the
absence of any evidence

2. A

of serious economic im-
pact. To that extent,
National Livestock Com-
pany and Zack Cox,
I.G.D. 55 (1938), is
overruled..

decision involving the
exercise of administrative
discretion, which is sup-
portable on any rational
basis, is not arbitrary or
capricious. An appor-
tionment of the federal
range, involving some
abolition of "split-use"
between states and based
upon the effectuation of
a management plan rea-
sonably related to the
protection of forage and
other values, has, there.
fore, a rational basis and
is not arbitrary or capri-
cious___

BURDEN OF PROOF

1. In

a Government contest
against a mining claim
where the Government
has shown that the small
market for dolomite use-
ful for metallurgical pur-
poses is being met by
more competitive sources
than the claim, the con-
testee then has the burde
of proof to show by a
preponderance of the evi-
dence that the dolomite
could be marketed at a
profit for such purposes..
2. A mining contestee is the
true proponent under the
Administrative Procedure
Act that his claim is valid
and, therefore, has the
burden of overcoming the
Government's prima facie
case of no discovery with
a preponderance of the

evidence..