INTRODUCTION

On November 6, 2000, a miner died. As a result of this tragedy both State and Federal agencies ran amuck by casting blame on his friends and fellow workers. This company and its miners reflect the true intent of the United States Congress, when it ratified The Act of 1977, which requires the responsibility of the operator and its miners to create and maintain a safe work environment. The corporation is merely the means to unite the components of labor, property and capital. A dear friend was lost, a son, a brother and a good soul. Let’s put this in perspective. What is this all about? Is it fixing problems at the Sixteen to One mine or is it work for MSHA and other agencies of the Federal government? Perhaps it is about money or individual growth and promotion by individuals working in a bankrupt system of bureaucracy.
I apologize for the length of this brief. It is necessarily long because of the serious misstatements by the prosecutor in charge of the case. There are also serious misrepresentations of the law and the facts in this painful subject. In order for the Court to reach an equitable resolution to the allegations of illegal behavior by Original Sixteen To One Mine, Inc., I felt the Court would appreciate the testimony and supporting references rather than merely a conclusion of the testimony. I have taken exact excerpts from the transcript. .
My anguish over the dismal misstatements by the Secretary have affected my confidence that her emissaries in the field are actually looking after the health and safety of America’s most precious resource, its miners. Have the participants in this investigation followed the laws, regulations, customs and mores of health and safety in the mining industry? It has become a possibility that other forces drove this investigation and subsequent administrative hearing. Therefore, I also reviewed the Secretary’s brief, checking statements with the cited transcript reference. Time and time again the reference had nothing to do with the opinions of the statements. This has been a new experience for me to address. Is it sloppy or is it intentionally misleading?
Mining is inherently a dangerous business, much like automobile racing is inherently dangerous or professional football or space travel. Miners at the Sixteen To One mine are keenly aware of this. They are provided all the tools to minimize the dangers. It is a small mine with a very connected crew. Everyone interviewed by the investigators was properly trained. Written procedures and policies are in place. Safety meetings are regularly held weekly. Equipment is kept in proper working order. Spare parts and supplies for performing mining were on the mine site. Management has stressed the need to stay focused on mining once the crew enters the property. After work it was not uncommon for the miners to get together where the topics of conversation would expand. It usually came back to mining because these miners love their work. At the work place it is all business.
So, the day Mark drove his locomotive into a stationary chute and died was special. It had never happened before to anyone associated with the company. For people who never met Mark to refer to him as a victim is inaccurate. For Steven Cain to concoct a story as he did from no evidence and continue propagating its veracity is an injustice to Mark and all the miners at the Sixteen To One mine and elsewhere throughout America. It may even be a crime.
There is no legitimacy to the two violations alleged by the Secretary. All of us who knew Mark Fussell, know the mine and are associated with the mining industry want this record to accurately reflect the events of November 6, 2000. For Mark, we have pursued the truth. We hope his death will help make the mines of America a safer place to work. A momentary loss of attention caused this accident. There was no defective equipment and the company and its partners in safety, its miners, are not negligent and guilty of violating any federal regulations. This was a tragic accident that must be recognized, if all of us at the Sixteen To One mine and throughout the industry wish to avoid a repeat in the future. It was an error in human judgment. Only until we recognize it for what it was can we take the educational steps necessary to reduce the potential for it happening again. This will be Mark Fussell’s legacy.

PART ONE – THE TRANSCRIPT
Charles Schultz was asked to testify because of his background, experience and by acting as a federal government inspector, a MSHA inspector, a trainer of miners, including the decedent and his stature as a mining engineer with years of experience in mines like the Sixteen to One.
Mr. Schultz earned a mining engineering degree from the University of Texas, College of Mines and Metallurgy. He has 47 years of mining experience, including 10 years as a Federal Mine Inspector. He has worked in the local area for 32 years. He is a licensed engineer, an approved MSHA mine contractor and a MSHA approved instructor.
Schultz trained Mark Fussell at least three times (P 347, L 2-3). Fussell was trainable yet he was argumentative, wouldn’t accept certain things and resisted a lot of the training (P 35, L 10-13). “You tell him to do something and he always had another way to do it.” (P 351, L 14-15).
Schultz is trained and qualified to render opinions or conclusions regarding serious tragic accidents equal to or better than the prosecutor’s witnesses.
Question: “Have you ever investigated any accidents either for the government or for private parties?”
Answer: “Dozens of them.”
Question: “Have you ever investigated any fatal accidents?”
Answer: “Dozens of them.” (P 347, L 19-23).
Schultz’s conclusion about the causes of the accident: (1). If there were a malfunction in the number one resistor before the accident, Fussell failed to report it according to 57.14100 part A. If that were true, it was his responsibility to do so (P 347, L 27 to P 348, L 3).
The court asks the witness, “Why do you say it was his responsibility?” Answer: “He’s the operator, and its says that in 14100. The operator’s supposed to report any malfunctions to have it repaired before he works.” (P 348, L 4-8).
Mark was aware of the hazard. He drove the train beyond the chute and parked it beyond the chute.
The Court asks, “What, if anything, did Mr. Fussell have to do with causing the accident?” Answer, “He drove under the chute, an unsafe act and completely unnecessary to get to his working place. What he could have done is stop in front of the chute and walk around and take a look at the place where he was going to go to work. When he decided to go under that chute that was the formation of an accident. He had a chain saw and a helper, and his next job was to cut the chute off because it was unnecessary to be there; and he didn’t do that. And that was his responsibility.”
Schultz describes the equipment Mark was operating at the time of his accident. “This trammer is over 50 years old, its lurching days are over. It doesn’t lurch anymore you could put it anyway you want and it will just crawl. This machine was the smallest machine Mancha made. It was a light machine and not made for heavy work. So, this quicker acceleration or jerking motion I don’t agree with (P 344, L 20 to P 345, L 1).
Schultz refutes Cain’s report, which says, “and the locomotive impact with the chute did not cause the resistor bank to fail.” (P 345, L 2-3).
Schultz uses practical mining knowledge, reason and common sense to attack Cain’s objectivity as an investigator regarding other chutes on the 1700 level (P 345, L 6-15). So does Miller. So does Farrell.
Schultz questions Cain’s opinion or his ability to make a conclusion or have a definitive opinion about a pre-existing inoperative first gear and defective resistor that existed for a period of time. (P 345, L 20-24).
Schultz points out page 5 of Cain’s reporting a “root cause of the accident.” Cain testifies that the concept of “root causes” was not used. Schultz also questions the completeness and objectivity of Cain to hold to professional standards in writing a report suggesting that Cain is not very smart, incompetent to perform his job or dishonest. (P 346, L 6-16).
Testimony of Robert Walker
Robert Walker is a trained industrial electrician since 1959. An industrial electrician is somewhat different from just a regular electrical contractor in a house. He must have knowledge in DC and AC in motors, controllers and codes. Walker’s experience is wide spread but most importantly, he was the electrician at the Sixteen to One Mine, employed by a prior lessee. He also worked on the Mancha trammer; the one Mark was operating at the time of his accident.
Mr. Miller asked Walker to examine the trammer and write a report on what he found. (P 323, L 20-26). Walker was the first to dismantle the train. (P 324, L 18-20.).
Walker explains the function of this particular resistor, which was brought into the hearing. “The fist gear goes through the resistors and it slows the locomotive down but you got a tremendous amount of torque on DC motors. The second gear, it slows it down similar but not as much as the first gear. The third gear you don’t go through the resistor. You go straight from the battery to the DC motor. (P 326, l 24 to P 327, L 1).

Walker’s “conclusion was the accident, at the time of the fatal accident, that’s when the resistor burned out.” (P 327, L 22-23). The court was shown the resistor when Walker testifies, “In this particular case when I saw this, and you can see the burnt – where it’s burnt right here, your Honor, I looked at that and it’s a new burn. One end of the resistor is burnt, therefore you do not have low gear.” (P 327, L 2-14).
The Court: “I’ll take your word for it. If there’s any dispute, I’m sure it will be presented. And what was burned inside that (the resistor box)?” Walker testifies, “One end of the resistor is burnt, there you do not have low gear.” (P 327, L 7-14).
A significant point of contention is just when the resistor self-destructed. Prosecutor speculates it was before the November 6, 2002, the day of Mark’s death. Cain reaches this conclusion having never seen the resistor. There is no oral or written evidence supporting his conclusion. His expert, Arlie Massey never saw the locomotive let alone the resistor. Walker is the first person to break down the locomotive and inspect its parts. Question: “Did it appear that the train had been dismantled prior to you seeing it?” Answer: “No sir.” (P 324, L18-20).
Under cross-examination Walker’s testimony is superficially somewhat confusing. It is likely he was experiencing some difficulty in hearing the prosecutor. (P 329, L 17-26). However, his opinion of the timing of the resistor melt down and its root cause is consistent with his direct testimony. Prosecutor: “You believe that the resistor had burned out that day of the accident, is that your opinion?” Walker: “That’s my opinion, sir. I believe that’s what caused it.” (P 329, L 27 to P 330, L 3).
Miller and Farrell presented the Walker report, the burnt resistor and other information to Lee Ratliff, MSHA district manager in Vacaville or March 6, 2001. Miller asked him to consider dismissing or changing the citations. (P 424, L 8-14).
Walker conducts himself with open honesty and offers his explanation to help Prosecutor gain a scientific and common sense perspective about how DC electrical power and trammer components actually function. “I’m looking at the burn on this, and you can see how it’s rusty and everything. Well, you can see the burn, its still black and everything in there. Now these trams work in wet conditions, and if it was, if it had burnt out before that, it would be rusty. It doesn’t take long to rust; therefore, that’s one conclusion I came to. (P 330, L 10-15).
During the prosecutor’s cross-examination Walker re-affirms his earlier testimony establishing himself as the first person to inspect the malfunctioning resistor. Walker, “It was – it hadn’t been moved. It hadn’t been taken apart. (P 332, L 7-8). Walker, “But I took – I took the resistor out of it, it hadn’t been taken out.” (P 333, L 14-15).
Mines in California are inspected by both State and MSHA health and safety agencies. Tim Hurley testified as a state inspector. Hurley inspected the mine in the week previous to the accident.” (P 336, L 19-20). He went to the 1700 level because two men were working to set up a work place. (P 337, L 3). “They were preparing to move in equipment.” Hurley when asked if he saw the chute that Mark Fussell ran into, responded, yes. Hurley was asked if he saw a problem with that particular. Answer, “I did not observe a hazard.” (P 339, L 2). The Court asks for an explanation. “I did not see the chute and the locomotive in combination, at which point a hazard would have been observable. The chute by itself in my mind was not a hazard.” The Court: “The locomotive was at some distance away.” (P 339, L 4-11).
Prosecutor’s cross-examination affirms that locomotive was at shaft, estimated by Hurley about 1/3 of a mile away from the chute.
Vince Michael Kautz is the only witness to the accident. He is a trained miner with four years of work experience at the Sixteen to One mine. He arrived at the 1700 level and walked to the area where Mark was setting up a slusher. Mark “had just cleaned his way past the chute. There was a lot of old rotten wood and rocks everywhere on the tracks.” (P 355, L 7-9). “Mark got on the train to take off and go retrieve that beam (needed to secure a slusher he was installing). And that’s when the accident occurred.” (P 355, L 12-14). “I heard the train take off and immediately a crunch. I turned my light to see what happened, and I saw him pinched between the battery box and the chute.” (P 356, L 1-2). Vince called for help on the mine phone nearby. He set the phone down and went to help Mark. He remembers saying, “He’s a goner.” (P 356, L 10-11). “I couldn’t get the train to move. It’s hard to get to the controller and he’s all slumped over and pinched in there. Out of adrenaline I think I just shoved the train back and grabbed a hold of his neck because he was losing so much blood.” (P 356, L 12-16).
Vince is the first person to assist in Mark’s recovery. The controller is like a shift on a transmission. First gear didn’t work. Vince could not get to the controller because Mark was pressed into the front of the locomotive where it is located. Vince reacts with great alacrity: he physically pushes the train away from the chute!
Under cross examination the solicitor attempts to support Cain’s theory that first gear was broken before the accident and seeks evidence that the two parts of the connectors for charging the battery broke apart in the accident.
Kautz explains how the locomotive power components actually work. “The connector is mounted one half of it – welded to the box (the large battery box) and the other piece is free. I believe it was broken free from its mount. It was jammed right up in him because it’s right there, the connector. They click together (the two halves) but it was broke free from the mount.” (P 357, L 8-13).
The Court asks for critical details, “That’s the source of power for the locomotive?” Kautz, “Yes.” The Court, “So it had no power at that time?” Kautz, “I believe it was still connected. That’s how I believe that the gear in the resistor was burnt was because it was in gear and the motor is trying to burn while he’s jammed under it while I was talking on the phone.” (P 357, L 14-21). Vince was on the phone “20 or 30 seconds, maybe a little bit more.” (P 358, L 27).
Is Vince Kautz a credible witness or is he just taking a position to address Cain’s pure speculation? The Court asks him, “So you heard the motor still operating or saw it?” (P 357, L 22-23). Answer: “No.” (A person trying to testify to help his side could have answered “Yes”). The Court, “How do you reach that conclusion then?” (P 357, L25). Vince Kautz’s conclusion is that the gear in the resistor was burnt in the accident.
Kautz informs the Court that the mine and miners do not run the trains without all gears. “If he was to pull a slusher all the way through the drift and all the corners, he would have had to have first gear. Besides, if one of the gears is out, we don’t run them. We get it fixed.” (P 357, L 27 to P 358, L 2).
It is clear that Vince’s definition of ‘power’ means still thrusting forward in first gear. If Mark had it in second gear as alleged by Cain, Vince would have known. Vince physically pushed the train away from the chute so he could attend to his partner. There was no power to first. Cain speculates that the two halves of the cable separated in the accident. This did not happen. Vince Kautz recalls that, “I tried to back it up and may have – if I had gone into the higher gears it may have backed up. I’m just pushing the motor and held his neck, you know.” (P 358, L 16-20).
The prosecutor tries to expand the industry’s definition and understanding of a work place. He also asks for more when the defendant could have been aware of potential hazards. Vince testifies that it was becoming a work area. He could not walk around without tripping on a bunch of stuff. “He (Mark Fussell) had just opened it up so he could get that little flat car that the train pushes with the equipment on to that point, and there was just crap all over.” (P 359, L 15-19).
The Court seeks additional clarification on Cain’s speculation that the train lurched ahead. “Did you observe the wheels spinning on the locomotive at any time?’ Answer, “No, I didn’t. The thing doesn’t have enough power, I believe to spin the wheels at a stopped point like that, even in gear.” (P 359, L 23-27).
Prosecutor asks for the foundation of Kautz’s belief in the ability of the locomotive. Answer, “Using the machine for quite some time.” (P 360, L 2). The connector was broken loose from its mount. The two halves never separated and lay in the compartment. This is why the miners commented that the connector was broken.
Prosecutor called John Pereza.
Mr. Pereza’s primary purpose was to secure the scene where the accident occurred. Under cross-examination Pereza testifies that the operator was factually representing the situation to him. Question, “Did you have any reasons in your past experiences not to believe either Mr. Barquilla or Mr. Miller?” Answer, “No.” (P 33, L 7-9).
Pereza noticed a freshly lit cigarette, which was likely extinguished by Mark’s blood. (P 34, L 3-5). The Court questions what this has to do with this case. Mr. Miller states that Mark’s state of mind, including the distraction of just lighting a cigarette goes to the operator’s inattention.
Mr. Montoya was contacted to assist Steve Cain in the accident investigation. Witness
felt at the time of taking pictures there was a defect in the motor. (P 58, L 21-22).
The prosecutor alleges that the resistor bank was defective. Defendant agrees with MSHA inspector, that the resistor was defective after the accident. The Court identifies the battery connection plug and the power source plug is the same thing and asks, “Do you allege, counsel, that was somehow defective?” Answer, “No, Your Honor, the resistor. We allege the resistor bank was defective.” (P 60, L 10-22).
Everyone agrees that there is a defective first gear on November 8, 2000. The question is how did that defect occur. To prove his case Cain speculates that when Mark hit the chute, the chute also hit the connector. There are no facts supporting this. By reviewing the photos to understand how the operator sits and drives a trammer and reviewing the injuries Mark sustained, it is likely the impact and driving torque of the motor pressed Mark’s body against the connector which then broke from its mount on the battery box.
Montoya offers a sketch of the inspectors reasoning on P 63 L 17-26. They used the process of elimination. The company’s agent, Mr. Miller, was present with MSHA and OSHA. “There was some contention that the resistor bank had also been damaged during the accident.” (P 63, L 12-22). The broken connector was its separation from the battery box. The connector itself is two halves, which are clipped together. The halves are clipped together tightly because locomotives must be rugged to work in a mine.
Montoya appears to have reached a conclusion within minutes of evaluating the piece of equipment and the physical circumstances of the accident. He says, “If the connector had gotten broken during the accident that, you know, it wasn’t possible for the resistor bank to be under power and burn out the resistor.” (P 63, L 23-26). The Court wants to know about defects at the time of the accident. “Did you finally discover what you thought was a mechanical defect?” (P 64, L 21-22). Answer, “Actually it turned out to be an electrical defect, but we weren’t sure for a while whether it was mechanical or electrical.” (P 64, L 23-25). Montoya testifies that it was a defective resistor because the drum controller had no power in first gear. No one actually knew that the resistor point of contact (the fuse) was burnt therefore disrupting the flow of power until Walker took the motor apart.
The Court asks, “And how did you determine that could not have happened in the accident?” Montoya is correct with the first part of his answer that the connection plug was damaged during the accident. There is no evidence to support his idea that the damage to the plug disrupted the flow of electricity (it was dislodged from it’s mount). The Court follows his questioning, “Had power continued to be on to the locomotive it would have burned up the resistor?” (P 65, L 21-23). Answer, “Yes, if it was left in the first point eventually, the first point of contact.” The Court, “Eventually how long would it have taken?” Answer, “I don’t know, Your Honor.” (P 65, L 26-28). Neither investigator actually looked at the resistor. (P 68, L 1-2; P 68, L 3-5; P 68, L 8). Walker took the motor apart.
Beginning on page 68 and until the government lawyer asks for a break on page 69, the witness is very confused with regard to the correctness of his testimony. Mr. Montoya never talked to anyone nor was told by anyone that the resistor was broken prior to the accident. Also, he never saw the resistor and did not learn that the coils of first gear melted until the operator brought it to MSHA offices in Vacaville, California after the citation was written. The Prosecutor asks for a break to reel in his witness.
Prosecutor states that Montoya has no role in determining how or when the melt down occurred. The Court. “What is this witness here for?” The Witness (Wilkinson is testifying) “He is here to identify the photographs, to also discuss his role in the investigation and lay the foundation for our experts opinion.” (P 72, L 12-18).
Montoya confirms that only two inches of space existed between the locomotive, chute and the lid on the battery. (P 73, L 5). This explains why the forward movement of the locomotive could not continue down the track. Marks head and upper body was crushed between a powerful DC motor and a stationary wooden barrier. It was torque not speed, which is confirmed in the autopsy. The locomotive only moved about three (3) feet before striking the chute.
Montoya asks Miller about their safety program, specifically their equipment defect program. Question, “And what did he tell you?” (P 83, L 9). Answer, ” When there was a defect on a piece of equipment, it was either repaired immediately …if it was something he (the miner) was capable of fixing himself, yes.” (P 83, L 11-22).
Montoya contacts Arlie Massey in Pittsburgh when he returned to his office in Boise. Montoya relates over the phone his opinion of what he thought was wrong.
Cross-examination:
Mr. Montoya was called to seek out the root cause of the accident and the contributing factor. (P 85, L25-2). He specifically says, root cause. Chief investigator, Steven Cain, later testifies the root cause method of accident investigation was not used in this case. Montoya testifies that if everything on a trammer were working fine by checking it out, an operator would get on the machine and go to work, which is standard in the industry. (P 89, L 17-28). If any piece of equipment is found to be working fine during a pre-operating inspection in 2000, does it have to be noted in writing? Answer: If the equipment is working properly, it doesn’t have to be documented. (P 92, L 10-11).
Montoya identifies Steve Cain as the lead investigator (P 92, L 26). Mr. Montoya never saw the trammer at the scene of the accident. (P 93, L 1-3). Montoya walked the 1700 level from the station to the scene of the accident and did not observe any other citations. (P 94, L 11-15). The distance is almost a half-mile.
The Court recognizes the relevance of exact same conditions elsewhere. (P 95, L 7-9). “They (chutes) weren’t actually in the middle rail. They were farther up on the right-hand side of the track and farther our of the way.” (P 95, L13-16).
On page 99, L 16, the Court fails to see the relevance in establishing that MSHA investigators check the other operating locomotives underground for defects. Both trammers were without defects. All gears worked in both directions.
It is a disingenuous argument for Cain and Montoya that the condition of similar locomotives is unimportant or a non-factor. The prosecutor tries to interject unacceptable evidence of a prior citation as some basis for negligence.
It is relevant on universally accepted standards for accident investigation to examine other on-site equipment. Montoya asked to see the other locomotives in the mine. He thoroughly tested both transmissions and found both worked properly. Question, “And then you inspected a second locomotive?” Answer, “Yes. Power in first point in both directions.” Question, “What does that mean?” Answer, “That means that the controller on that particular trammer was functioning properly.” (P 98, L 27; P 99, L 5-10). It also means that the resistor was working fine.
MSHA inspectors are expected to check the condition of other trammers. It is “part of the process of accident investigation.” (P 99, L 26). Montoya understands the relevance of the doctrine of patterns of behavior. If defective equipment such as that on the locomotive Mark used had been found, it would be included in the accident report. If no defects were found it should also be included. No mention was made in Cain’s accident report of the facts that both other locomotives functioned properly. Montoya testifies that accident report investigations should be non-biased in most cases.
The fact that two investigators examined two other locomotives is important. Of greater importance is the fact that both worked properly and was without any defects. The relevance has much to do with this case because all MSHA offers, as evidence for the third trammer being operated in a malfunctioning manner is pure speculation and not even circumstantial. The fact that all trammers in the mine were functioning properly is powerful exculpatory evidence. This should be noticed in the report and considered by an unbiased investigator. Chief Investigator Cain developed a theory, a hypothesis, and proceeded to plug in only ideas that supported his manufactured theory: that the resistor was broken before Marks’ accident and everyone went ahead and used the trammer anyway. Where are the facts?
Montoya never saw the trammer in service (P 102, L 13) and never saw the resistor (P 104, L 21). He clarifies Miller’s speculations about the problems. Question, “Did he (Miller) say that there was a problem either before, during or after the accident?” (P 103, L 13-14) Answer, “I don’t believe so. I think at that point in time, Mike, that you were just concurring that there was a problem with the motor at that particular point in time.” (P 103, L 15-17)
MSHA has a technical support group, which they send to investigate fatal accidents. Eugene Hennon was part of the technical group that was sent to the mines. The alleged problem with first gear was determined to be electrical. The root cause was alleged to be Mark was operating a locomotive which had no first gear. “Eugene’s background was mechanical and, you know, through the assistance with Gene, we determined that it was electrical rather than mechanical.” (P 110, L 6-9) therefore, a MSHA agent without an electrical background determined the problem was electrical.
Any notions of deceit or impeding an investigation are spurious. The battery box weighs about 1000 pounds. Cain, Montoya, Hurley or Miller did not possess the skills or were in adequate physical shape to do the manual work. Miller was also preserving evidence until experts were called to dismantle the locomotive.
Re-cross by Wilkinson, “Why didn’t you see the resistor circuit?” Answer, ” I asked Mr. Miller during the investigation if he would remove the battery in the motor so we could take a look at the resistor and he would not do it.” (P 113,L25-28). Question, “He tell you why he wouldn’t do it?” Answer, “I think he has some safety issues or concerns at that time with the way the battery was to be taken off down on that level. I don’t know if there was equipment available for the battery to be taken off on that level.” (P 114, L 1-5). The Court, “Doesn’t MSHA have the authority to examine equipment that is alleged to be in violation?” Answer, “Yes we do.” The Court, “And MSHA did not pursue that?” Montoya, “We felt that we had enough information at that time to warrant the violation that was issued on the equipment for the defect.” (P 114, L 10-16). MSHA could also request or demand that its experts be present, which it failed to do.
The whole issue of training is nothing but paper documentation and used as a smoke screen. Wilkinson again attempts to mislead the court to gain an advantage. (P 116). “Does the record keeping have anything to do with Mark Fussell.” Wilkinson, “Actually, no, Your Honor.” (P 116, L 1). Wilkinson, “They tangentially relate to the victim. I mean, Judge, the citations are tangentially – I won’t say tangentially related, but if the mine has no program to train any of its’ miners and has no program by which to document that training, then to that extent it does bear upon the accident issue, and you can work deductively.” (P 116, L 5-20).
A former instructor, one of two on the list, no longer worked at the mine. His name had not been crossed out. The Court, “That was the only problem?” (P 118, L 7). Montoya could offer no evidence for his conclusion that it was based on moderate negligence. The Court, “You didn’t have any evidence one way or the other?” Answer, “No.” (P 119, L 6-8). This testimony demonstrates how poorly trained and poorly prepared inspectors go about MSHA business. This behavior disregards the written policies and procedures of MSHA manuals.
A driving force of this investigation appears to be a personal attack on Michael Miller. Who is behind this is someone other than Mr. Montoya. Montoya exposes the hidden agenda. “I have written there that the operator should have known. He’s been in the mining business a long time and had been involved with the training himself years ago.” (P 126, L 3-5). The operator is a 92-year-old California Corporation. Miller is just an employee who also qualifies as an instructor. This demonstrates how MSHA has personalized and commingled the two. Montoya regarding the paper citations – “It’s just a paperwork violation. There’s not actually anyone exposed. It’s just a recording violation. (P 127, L 19-28).
And where does the lawyers responsibilities come into play.
Wilkinson: “But Judge, these are strict liability. To the extent they bear negligence, that’s the only possible relevance that could have. I’m not even saying it does bear on negligence.” (P 131, L 11-15).
Arlie Massey was not listed on the solicitors witness list. Also, he is not included in the official report written by Cain, Exhibit V appendix A, page 11. He answers the third question asked of him wrong. Question, “How long have you been with MSHA?” Answer, “Since 1973.” (P 142, L 3-4). MSHA established by congress in 1977. Compare the clarity of his ans