# Old Ben Coal Corp. v. Interior Board of Mine Operations Appeals

> Court of Appeals for the Seventh Circuit · June 13, 1975 · 523 F.2d 25

URL: https://www.frixlaw.com/law-library/cases/8897424

## Case

- **Full name:** OLD BEN COAL CORPORATION v. INTERIOR BOARD OF MINE OPERATIONS APPEALS, UNITED STATES DEPARTMENT OF INTERIOR and Roger C. B. Morton, Secretary of the Interior
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** June 13, 1975
- **Citations:** 523 F.2d 25
- **Precedential status:** Published
- **Opinion:** Dissent by Pell
- **Judges:** Pell, Perry, Sprecher
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8897424

## Opinion text

PELL, Circuit Judge,
(dissenting).
With all due respect to an otherwise well-reasoned opinion, it appears to me that the majority opinion has misconceived, and has reached a lamentably incorrect result with regard to, the issue raised as to the burden of proof in proceedings to review the action of an inspector in shutting down a mine.
I do not quarrel with most of the pronouncements of the majority opinion in the portion dealing with the burden of proof. The gist of these pronouncements is that the primary responsibility for the safety of the miners is placed upon the mine operator. As the author of the opinion in Freeman Coal Mining Co. v. Interior Bd. of Mine Op. App., 504 F.2d 741 (7th Cir. 1974), I indicated complete support for the proposition. We are not talking, however, about the power of the inspector to shut down a mine when in his discretion he has determined there is imminent danger. What we are, or should be, talking about is when the mine operator disagrees and takes the matter to a hearing does he or does the Government have the burden of proving that there was or was not an abuse of discretion.
None of us on this panel, and indeed I think this also applies to the mine operators, are saying that the inspector, before he can close the mine, must have a hearing or satisfy anyone other than himself that continued operation constitutes an imminent danger. In simple terms, the majority opinion states that when the Government inspector is satisfied that the circumstances justify his stopping an operating business completely, there is no burden on the Government after the business is stopped to prove that he was right.
The stopping of the business achieves the desired result of protection against what has been determined by only one person to be imminent danger. It is truly an awesome power when accompanied by a post-closing backup situation by virtue of which there is no necessity on the Government to prove the action correct. Instead, the company whose business has been stopped must prove that the discretionary judgment exercised by the single individual was wrong.
The problem of burden of proof was not before this court in Freeman, but we did note that the withdrawal order, if not set aside, may give rise to other penalties against the mine operator. 504 F.2d at 743 . These, of course, are pursued at leisure 1 and not in the context of an on-the-spot inspection where the determination by its very dependence upon a status of imminence must be made expeditiously if at all.
Under the withdrawal order, the operation of the mine is stopped until corrective measures are applied to the claimed hazardous conditions. Unless the mine operator desires to discontinue its business permanently, it must perforce make the corrections irrespective of whether it believes, or indeed whether in fact, there is a situation of imminent hazard. All of this should not prevent the operator from clearing its name in subsequent hearing procedures which are provided for in the Act in question.
It appears to me that the only fair and proper requirement when the controversy goes to the post-fact hearing is that *38 the Government, which has initiated the action through the withdrawal order should be prepared to show that there was a basis for the action taken, that it was not predicated upon an insubstantial basis and was not arbitrary or capricious individual action. At the very least, the duty should rest upon the Government to establish a prima facie case to support its position. 2 K. Davis, Administrative Law Treatise, § 14.14 at 326 — 27 (1959).
I venture to say that almost every trial lawyer gives substantial consideration in marshalling his evidence to whether the burden of proof on the issue to which the evidence pertains is on him or his opponent. He is confronted with the question of whether he must himself prove support for his position affirmatively or whether the form of his proof will be in the first instance to negative the evidence produced by his opponent. This is true even though on ultimate analysis the case will be decided upon all of the evidence introduced. He cannot be unmindful if the opponent has the burden of proof that the evidence must be something more than a basis for the trier of fact to speculate or conjecture, Shapleigh v. United Farms Co., 100 F.2d 287, 289 (5th Cir. 1938), and that upon a failure in this respect, judgment must go against the party upon whom the burden of proof rests. Cross v. Simmons, 96 F.2d 482, 486 (8th Cir. 1938).
The majority opinion, citing Wigmore, justifies placing the burden of proof on the mine operator since it had peculiar means of knowledge. However, we are not dealing with the general condition of the operator’s mine but rather the condition at the particular place and at the particular time the order was issued. Since the inspector’s judgment was at issue in the proceedings, it would appear that the facts were more particularly within his knowledge as to the necessity for a withdrawal order. Further, in the Wigmore text on the same page on which the majority opinion places reliance, the author states:
“The truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations.” Wigmore, supra, at 275.
As I have already indicated, it appears to me eminently fair that once the supposed emergency situation has passed, unless the operator acquiesces in the propriety of the closing, the Government should be prepared to go forward with proof to justify the extraordinary action which is tantamount to the seizure of private property. This court is no stranger to an analogous situation in the labor law area where the Government agency is charging an employer with an unfair labor practice and in which the burden of proof is upon the General Counsel. .
In the present case, it is unnecessary to balance what appears to be fair against a contrary statutory requirement. Irrespective of what regulations as to burden of proof may have been adopted, the statute quite clearly places the burden of proof on the proponent of the order. In this case, the order is that of withdrawal of which the Government is the proponent. 30 U.S.C. § 815 (a) provides that administrative review of withdrawal orders shall be subject to that section of the Administrative Procedure Act which provides for hearings, i. e., 5 U.S.C. § 554 .
Section 554 requires that the actual hearings shall be conducted pursuant to 5 U.S.C. § 556 . That section proves that “[ejxcept as otherwise provided by statute the proponent of a rule or order has the burden of proof.” There is no provision of the Federal Coal Mine Health and Safety Act which requires the mine operator to carry the burden of proof in a review of summary agency action.
Whether the result would have been the same if the Government had proceeded on the basis that it had the burden of proof at the hearing is a matter of conjecture. The operator points out numerous deficiencies of proof. We should decline to speculate that the Government sustained its case. Because of the substantiality of the incorrectness *39 of the procedure adopted before the Board, it appears to me that the case requires a vacation of the order with a remand for further appropriate proceedings in which the burden of proof should rest upon the Government.
. In these three cases, the average delay between the issuance of the peremptory closure order and the review hearing was nearly one year.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8897424. Public record. Not legal advice.