December 23, 1976
Canon 15 of the Canons of Judicial Ethics, his undue interference and participation in the examining of witnesses, as well as the form of many of his questions at critical moments, prevented the proper presentation of the cause and the ascertainment of the truth with respect thereto. His persistent inability to refrain from assuming the mantle of an advocate, the indelible impression which the hearing must have left upon his mind, and the lingering impact of his behavior upon the witnesses persuade us that the fair rehearing of this case and the best interests of both parties would be served by remanding for assignment to another Judge under our broadly defined powers set forth in 43 CFR 4.603.
Before closing, we want to underscore several points. The record we have reviewed here is truly exceptional. Since the inception of adjudication under the Act, we have reviewed numerous case records and almost without exception the Administrative Law Judges have exercised suitable restraint and have avoided allowing their objectivity to be compromised by hyperactivity on the bench. In remanding here, we are not implicity suggesting that questioning from the bench is a general problem in the Office of Hearings and Appeals requiring discouragement, and we are not, as Parks suggests, placing restraints on the Administrative Law Judges which will preclude the truth from emerging. We remain of the view expressed early last year in Eastern
Associated Coal Corporation, 4 IBMA 1, 82 I.D. 22, 1974-1975 OSHD par. 19,224 (1975). We said there that an Administrative Law Judge is not a purely passive figure refereeing a sports match. He or she has an affirmative responsibility to exercise his or her discretion to expedite the processing of cases and to make a full record consistent with adequate consideration of the conflicting assertions of fact and law tendered for initial decision. In instances where, as here, an appellant claims an abuse of discretion in questioning of witnesses by a Judge and seeks a new hearing, he or she will prevail only by showing glaring abuse and equally glaring prejudice, that is to say, the kind of abuse and the extent of damage to the truth-seeking process which was shown in this case.
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 motions by Parks for correction of the record and for permission to file a brief 20 pages in excess of the 25-page limit in 43 CFR 4.601 (d) ARE GRANTED, and the order below precluding the attorneys from consulting with their respective clients regarding the alleged Driftwood Inn incident IS VACATED.
IT IS FURTHER ORDERED that the initial decision below IS SET ASIDE and that this case BE
(Note-See front of this volume for tables.)
1. The Secretary of the Interior
does not have authority
under the Right-of-Way
Oil and Gas Leasing Act
of May 21, 1930, 30
U.S.C. § 301 et seq. (1970),
to dispose of deposits of
oil and gas underlying
a railroad right-of-way
granted pursuant to the
Act of Mar. 3, 1875, when
the lands traversed by the
right-of-way were later
patented under the Act
of Apr. 24, 1820, without
any reservation for min-
erals. In such case, title to
the mineral estate was in-
Icluded within the grant
to the patentee----
ACT OF SEPTEMBER 18, 1940
1. Where the purchaser from
the railroad of unpatent-
ed land believed at the
time of his purchase that
the land was mineral, and
there was physical evi-
dence of its mineral char-
acter, or if conditions
were such that the pur-
chaser should have known
then that the land was
excepted from the grant
to the railroad, he was
not a purchaser in good
faith within the "in-
nocent purchaser" pro-
viso of sec. 321(b) of
the Transportation Act
of 1940----
ADMINISTRATIVE AUTHORITY
(See also Delegation of Author-
ity, Federal Employees and
Officers, Secretary of the
Interior.)
1. A decision by the Bureau of
Land Management re-
jecting a logging road
right-of-way application
as not in the public
interest will be affirmed
in the absence of suffi-
cient reasons to the
contrary-
ADMINISTRATIVE PRACTICE
1. Although a respondent in a
grazing license trespass
hearing brought by the
Bureau of Land Manage-
ment has the right to be
represented and aided by
legal counsel, the Depart-
ment has no duty or
responsibility under the
Constitution or the Ad-
ministrative Procedure
Act to provide such coun-
sel for him...........
2. When the holder of a grazing
lease is found to have
violated regulations and
the terms of his lease
because his cattle have
trespassed on Federal
land, his lease may be
canceled when lesser
sanctions have proved
to be of no effect or when
the nature of the viola-
2. Where the Bureau of Land
Management determines
that an Alaska Native
allotment application
should be rejected be-
cause the land was not
used and occupied by the
applicant, the BLM shall
issue a contest complaint
pursuant to 43 CFR
4.451 et seq. Upon re-
ceiving a timely answer
to the complaint, which
answer raises a disputed
issue of material fact, the
Bureau will forward the
case file to the Hearings
Division, Office of Hear-
ings and Appeals, De-
partment of the Interior,
ADMINISTRATIVE PROCEDURE-Con.
for assignment of an Ad-
ministrative Law Judge,
who will proceed to
schedule a hearing at
which the applicant may
produce evidence to es-
tablish entitlement to his
allotment..
ADJUDICATION
1. A federal district court jury
verdict in a suit to cancel
desert land patents, that
the entrymen and their
purchaser under an illegal
executory contract did not
commit fraud against the
United States, does not
collaterally estop this De-
partment from adjudicat-
ing a contest grounded on
the illegal executory con-
tract against the pur-
chaser's own entry, be-
cause the legal standard
applicable in the sub-
sequent contest is dif-
ferent than that in the
fraud action-a desert
land entry can be subject
to cancellation for acts
that do not constitute
fraud
ADMINISTRATIVE LAW JUDGES
1. Upon appeal from a decision
of an Administrative Law
Judge, the Board of Land
Appeals may make all
findings of fact and con-
clusions of law based
upon the record just as
though it were making
the decision in the first
instance...
BURDEN OF PROOF
1. An applicant under the Color
of Title Act, 43 U.S.C.
§ 1068 (1970), has the
burden to establish to the
Secretary of the Interior's
ADMINISTRATIVE PROCEDURE-Con.
BURDEN OF PROOF-Continued
satisfaction that the stat-
utory conditions for pur-
chase under the Act have
been met.-
1. The regulations do not pro-
vide for hearings as a
matter of right on tres-
pass violations involving
a section 15 grazing les-
see. For the Board of
Land Appeals to exercise
its discretion under 43
CFR 4.415 and order a
hearing, the appellant
must allege facts which,
if proved, would entitle
him to the relief sought..
2. It is within the discretion of
the Board of Land Ap-
peals to grant a request
for a hearing on a ques-
tion of fact. In order to
warrant such a hearing,
an applicant must at least
allege facts which, if
proved, would entitle him
to the relief sought.-----
ALASKA NATIVE CLAIMS SETTLE-
MENT ACT
1. Procedures adopted to imple-
ment the Public Land
Survey System as pro-
vided in Title 43,
Chapters 1 and 18, and
regulations promulgated
thereunder are made ap-
plicable to land with-
drawals by sec. 13 of
ANCSA....
2. Establishing of "standard
parallel" or "correction"
lines in compliance with
authorized procedure to
ALASKA-Continued
LAND GRANTS AND SELECTIONS
1. Sec. 14(h) (5) of the Alaska
Native Claims Settlement
Act establishes a manda-
tory deadline for applica-
tions for a primary place
of residence, which may
not be waived in the exer-
cise of Secretarial discre-
tion....
Mental Health Lands
1. Sec. 4 of ANCSA states:
(a) All prior conveyances
of public land and water
areas in Alaska, or any
interest therein, pursuant
to Federal law, and all
tentative approvals pur-
suant to sec. 6(g) of the
Alaska Statehood Act,
shall be regarded as an
extinguishment of the
aboriginal title thereto,
if any--
2. (b) All aboriginal titles, if any,
and claims of aboriginal
title in Alaska based on
use and occupancy, in-
cluding submerged land
underneath all
water
areas, both inland and
offshore, and including
any aboriginal hunting or
fishing rights that may
exist, are hereby extin-
guished....
3. (c) All claims against the
United States, the State,
and all other persons that
are based on claims of
aboriginal right, title, use,
or occupancy of land or
water areas in Alaska,
or that are based on any
statute or treaty of the
United States relating to
Native use and occu-
pancy, or that are based
on the laws of any other
nation, including any
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