The opinion
PELL, Circuit Judge
(dissenting).
The cases which were before this court were petitions for review of three decisions of the Interior Board of Mine Operations Appeals to whom authority had been delegated by the Secretary of the Interior.
When the consolidated petitions were originally considered by the three-judge panel of this court, the Government clearly and unequivocally took the position that the burden of proof, without qualification, in the administrative hearings subsequent to the summary closures by the inspectors was on the mine operator not upon the Government.
Thus, beginning at page 27 of the Government’s brief the issue is stated, “The Secretary Properly Assigned the Burden of Proof to the Petitioner During the Administrative Proceedings Pursuant to Section 105(a)(1).”
The brief justified placing the burden of proof on the mine operator by stating: “It is, after all, his mine and the condition of it is best in his knowledge.” (Page 30) “To place the burden on the Secretary would seriously frustrate the Act. Accordingly, the Board’s assignment of the burden of proof pursuant to Section 105(a)(1) of the Act is entirely consistent with this Congressional intent.” (page 31)
In its response to the petition for rehearing, seizing upon my observation in my dissenting opinion that, at the very least, the duty should rest upon the Government to establish a prima facie case to support its position, the Government asserts that this “is the duty which the Board in the past has consistently placed on MESA and the duty it will continue to place on MESA in the future,” citing the case of Zeigler Coal Company, 4 IBMA, 88,101, 3 Emp.S.H. Guide (CCH), ¶ 19,478 at 23,247 (1975). Other than this bald assertion there is no support in the record that this policy was pursued in the three proceedings here *41 under review. These three cases were decided in July 1974 based on ALJ hearings in 1973. Zeigler was decided in March 1975. While the Government’s response to the petition to rehearing would suggest that it had assumed the burden of prima facie proof consistently in the past, the Board in its decision in Zeigler, “because of the apparent confusion over the application of the burden of proof rule,” deemed it necessary to clarify the Board’s position on the burden of proof issue. There is conspicuously absent from the decision any reference to the procedure announced in Zeigler as having been the theretofore accepted procedure.
The petitioner here if denied due process in its hearing by having the burden not only of ultimate proof but prima facie as well can find little solace in a subsequently announced change of procedure.
While it is not clear what approach was utilized by the ALJ in one of the three cases insofar as prima facie proof is concerned, there is no question that the prima facie burden of proof was placed on the operator in the other two. In Appeal No. 74-1654, the company put on its testimony at the beginning of the ALJ hearing. At the conclusion of the testimony, “the Applicant rested his case, and counsel for the United Mine Workers moved for dismissal of the case on the ground that Applicant failed to carry his burden of proof.” One cannot resist commenting that it is indeed unorthodox for the party having the prima facie burden to put on its evidence after the party not having that burden has proceeded to do so. In any event, the Union motion was taken under advisement and the Government then called its witnesses. At the conclusion of his discussion of the evidence, the ALJ observed that “[i]n a review proceeding concerning a 104(a) imminent danger order, the burden of proof lies with the Applicant.” In his Conclusions of Law this phrase was repeated followed by the conclusion that the “Applicant in this proceeding has not met his burden of establishing that the condition or practice recited in the subject order did not constitute imminent danger.”
In appeal No. 74-1656, the operator again had to put its testimony on first, including in this instance calling the inspector as an adverse witness. In this case, it was MESA which at the conclusion of the operator’s presentment moved for summary dismissal of the application. This was taken under advisement. The Government proffered no witnesses but put into evidence the testimony of an expert who had testified in a previous case.
I have addressed myself to the position now taken by the Government which position I cannot find supports the decisions in the cases before us. For this reason alone, it is my opinion that the petition for rehearing should have been granted and the cases remanded for proper due process proceedings. Even of greater significance, however, in my opinion, is the fact that the Government still adamantly insists that the ultimate burden of proof in the post-summary-closing administrative hearings should be on the one whose mine has been closed. This attitude basically is: “We took your property without notice or- hearing and if you think we were wrong, prove it.” This in my opinion is not good government and is violative of what is still regarded as a basic Constitutional precept.
For the reasons expressed in my dissenting opinion on the matter of where the ultimate burden of proof should rest, I dissent from the denial of rehearing. 1 The cases should be remanded for further proper and appropriate proceedings. The end result may well be the same. Irrespective of what the end result may be in these particular cases, the more significant aspect is the establishment of fairness of procedure which, as Mr. Justice Frankfurter observed, is due process in the primary sense. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. *42 123, 161 , 71 S.Ct. 624 , 95 L.Ed. 817 (1951).
That this matter is not just an inconsequential “tempest” is graphically demonstrated by the quotation from Zeigler that if the trier of fact should determine that the evidence is equally balanced, “or in equipoise,” the operator’s request for relief must be denied because it has failed to sustain its burden of proof that a Government agent has improperly closed its mine, a subjective determination made without hearing or notice. I find it shocking that the Government should not ultimately have to prove justification by a fair preponderance of the evidence.
. I also voted to rehear these cases en banc as did Judges Swygert and Stevens.