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IHI?, 85-723 1. Leg~a~s and perennial grass mwt Dover at least 80! of the affected soil surface. Areas of leas than 80R cover shall not exceed one-fourth acre in size nor total nnre than 20i of the area planted. " 2. TY~ee and shrub species shall be at such a density to provide a minimim of 435 established seed- lings per acre of mine soil. A miniman of 200 seed- lings per acre will be allowed on one-half (1/2) acre within eaoh five (5) acres of planting. Additional saedirp or planting must be performed Ca make up any deficiency. 3. where this provision relative to vegeta- tion would be inooreistent with the proposed use, the reclamation plan shall be reviewed and acted upon in accordance with the approved use. In any event, the reclamation plan must provide for expeditious stabi- lization of the area. D. Upon the achieving of the adequate vegetative cover in accordance with the satisfactory reclamation plan the portion of the operator's bond held periling revegetation of the affected area shall be released. At the hearing, OSMRE's Inspector Prebeck stated that he used the point frequency method in determining that appellant had achieved only 60-percent vegetative coverage of the affected lands. 'This method requires the inspector to examine randcmly selected areas of the minesite by meare of a tube-like device containing cross-hairs. Prebeck further stated that he also examined the minesite by giving a sir~le visual irepection of the affected lands. This latter test caused Prebeck to irdeperilently conclude that appellant had not satisfied the 80-percent coverage required by ASMRC regulation No. 3 (Hearing TY. at 18). In Calvert and Marsh, supra, this Board found that the ultimate burden of proof in cases arising under 30 U.S.C. S 1271 (1982) rests with the appel- lant for review in accordance with 43 CFR 4.1171. 'fiis regulation provides, hoi+ever, that C6MRE must first corre forward with evidence which, if not contented, world establish that the violation as charged had occurred, i.e., the agency moat make out a prima facie case of violation. Because OSMQ2E had failed to explain the point Frequency method of examination in Calvert and Marsh, the Board questioned whether 06MRE succeeded there in establishing its prTima facie case. In the present hearing, the agency again failed to explain the basis for its point frequency ex~nination. It did, however, offer evidence that Inspector Prebeck examined the minesite by a second method also, the visual irepection method, and independently concluded that a violation had occurred. This visual irepection method was in use by the State (TY. 25). the hearing also adduced that Inspector Prebeck had been employed by O6MRE for 6 years aril served as a reclamation specialist (TY. 8). Prebeck had graduated from 100 IBI.A 304