Home › Forums › 16 to 1 Mine › YOU JUDGE *** US COURT OF APPEALS
- AuthorPosts
GREETINGS to our new website.
The FORUM began in the late 1990’s at origsix.com. Do to its age a modern website became necessary. Here it is; however all the transaction from origsix.com during the transition are not yet available on the site. Our original website will remain. Welcome and enjoy your journey with the oldest USA gold mining corporation. Participate using either or both sites.This topic is perfect for today’s entry. I read some of the early entries and, here we go again, but not so tragically. Check Rick’s entry on July 20, 2003, the beginning of this topic. Optimism for redirecting MSHA is my objective. Please read today’s entry posted under News. Sixteen to One is challenging the government to act legally. You are encouraged to spread this with others. It will help. I’m sending the following to others, including President Trump and Secretary R. Alexander Acosta.
Gentlemen:
For too many years the field grunts (I write grunts not that I believe they are grunts. I know from years of interactions with most of the good men and women working under leadership of the US Secretary of Labor in Washington DC their frustrations with upper management) encouraged me to keep challenging, complaining and outright fighting for the rights of miners and operators. All tell me that the BIG boys just figure that citations are a part of the business and pass it along. The upper top is President Trump and Secretary of Labor Acosta.
Your opportunity to redirect some misplaced enforcement in America’s mining industry is at hand. Abuses with Congressional legislation passed in 1977, have decimated small gold miners in California. On July 12, 2018, the oldest America gold mining Company filed a brief in an administration hearing with MSHA (Mine Safety Health Administration). You now control the outcome. The brief is publicly available at Origsix.com under news.
Very sincerely yours,
Michael Meister Miller
PresidentThe judges favorable decision resulted in the cancelation of penalties totaling $19,650.00.
The entire decision can be found under the NEWS heading of the FORUM.In terms of penalties to be lifted, what dollar impact did the decision have?
As I walked in the office today, Ian and Rae were reviewing the job applications on file. I joined them. Twenty minutes later Rae said, “Oh, the Ninth Appeals Court decision arrived. We won.” Well, the job applications were set aside because this bit of news is really NEWS. WE WON!
The decision is five pages, which we hope to scan or get to our web site. It concludes, “We therefore grant the petition …and vacate the penalties imposed in connection therewith. In view of our holding and the factors cited…the imposition of further penalties for the conduct described in Citations Nos. 7995404 and 7995405 would be arbitrary and capricious. Accordingly, no further penalties shall be imposed with respect to those two alleged violations.”
I just finished listening to a CD of the hearing before the panel of judges for the US Court of Appeals Ninth District that was sent to me by a shareholder. If you have not heard the proceedings, I strongly encourage you to do so. If, like me, your system takes forty minutes to down load the web reference of the recording, which is impractical, I will send you a CD. To cover the expense (I hope thousands will listen to and ponder the important issues of this proceeding) please send some money to cover the costs of sending you a CD.
Now, my comments. I am somewhat awe struck by the hearing. The three participants (Klaus, the Secretary of Labor and the Panel of Judges) carried on a discussion that honored their respective duties. Since I have never been to a hearing at this high level, I had no expectations about how the Judges behave. I am impressed because they cared about us and did not blow us off as Gary Melick, the hearing judge, the MSHA lead inspector (Stephen Cain) and the Secretary’s hearing lawyer (Chris Wilkinson) did. One significant statement by Klaus honored our Company’s integrity, which all the others just ignored in their biased assault against us. It came during his five-minute rebuttal to the Secretary’s argument. Klaus pointed out in the hearing record how the miners follow the Sixteen’s policies towards safety. The above mentioned trio of federal employees insulted every miner and person associated with the Sixteen to One and the other gold mines, miners and operators in the Alleghany Mining District with their speculations and presentations about Mark’s tragic accident. Why?
For the first time I am content with our hard work to stop and reverse the government’s disgusting wrong doing! I hope you will complete the journey and listen to the last round of the battle for truth and justice. Should the panel of Judges not reverse the Secretary of Labor’s position, our final recourse is the US Supreme Court. My prayer is to stop process and the abuse now. Also I pray that the US Court of Appeals will issue a written decision. Why? While most Americans will never realize the importance of the questions at issue, I do and so do others in and out of the mining industry.
It is certainly odd that an issue so vital for our domestic mineral production capability has fallen on such a small company to defend. I did the best I could. It is out of my hands. You might want to hear the final take. The briefs are here on the web site as well as the many comments by web site participants. For all of you familiar with this journey who supported me, thank you. To the one guy who I cannot thank or hug or give a high-five… right on George. It is a game of words, George just like you said. Klaus gave honor to you in his oral argument. I honor you forever.
Wow. I just finished listening to the entire transcript, 45 minutes of sitting on the edge of my seat. THIS IS A MUST for all of us to hear. Klaus was exceptionally prepared and does a supreme job articulating the ambiguities of the citations issued to the mine following Mark’s accident. The Secretary of Labor attorney was antagonistic at best, and seemed to go around in circles.
I’m not here this time to give my opinions. It all speaks for itself. And, although I haven’t spoken with him, I suspect Mike has refered us to this link (the word-by-word proceedings in the hearing) for us all, and especially for those out there who’ve doubted his decision to make this pursuit from the begining, to finally discover how the mine has been mischaracterized from the very beginning following the accident.
My gut feelings tell me that this time justice will be served, and the mine will be able to put this behind. Oh, and by the way, lest some lawyer for the CDAA conclude that I am “tainting” the citizens of Sierra County through the use of this forum page, I live in the valley, Yolo County.
An audio file of the hearing is available at http://www.ca9.uscourts.gov (use copy/paste to put this in the address bar) on the upper left is a link to audio files. search by case # 04-71301
We are back from San Francisco. Two items before I summarize March 15, 2006 at the US Court of Appeals. First item is the courthouse. What a magnificent building! Words fail me in describing it. What overshadowed the marble corridors, the tasteful stone inlay or the structure is the feeling of sensing the experience of freely walking its halls. It is not a cold stone building like some I have toured. The physical structure inspires awe, awe in the most humbling manner. It is not pretentious, intimidating or arrogant. It is elegant in its massiveness and its detail. I highly recommend everyone who loves to visit San Francisco to include time for the federal courthouse. Thank you to those far seeing Americans who chose to save and repair the building instead of tearing it down because of earthquake fears. Second, thank you for your support in the righteous battle that has reached the next to highest court in the land. On behalf of the mining industry and our population whose life depends on the success of this fundamental industry, your voices from day one kept my voice along the path I chose to take.
The tape recorder could not pick up the voices of the judges or attorneys. The first issue was whether the Company filed a proper request for the mining commission to review the decision of the Secretary of Labor. Her attorney flew in from Washington DC and the judges took most of her time with this issue. Klaus spent a few of his twenty minutes on the topic. We think that the Court will rule that the particular circumstances support the validity of the position that the Court has the authority to hear the appeal. The next issue is the agency position that both the hearing officer and the Secretary of Labor took. The decided that Mark was management because he was a lead miner (their definition which completely was refuted by Jonathan (mine manager at the time of accident and me) and he took some responsibility for his work and safety. Klaus feels that this is the primary issue and if the decision is overturned, we have carried the day. By the way, even though Klaus had very little time to dig into all the mining practices, he quickly gained a fantastic understanding of the equipment, the methods we use in Alleghany and the rules and regulations for our specialized industry. Unfortunately, I have to go now. We continue to mine some very good looking gold and the shift is about over. I promise to write more about our trip to the Ninth Circuit Court. Lastly, we feel confident that the judges were well prepared before the session. I am confident in Klaus’s presentation. The Secretary’ lawyer did as well as she could with the cards she was dealt. but those cards were tainted by every lawyer who acted in this case. Now finally, if I were a gambler instead of a high-grade gold miner, I would wager that our position will carry the day.
What should happen Wednesday?
The Court gives each side either ten minutes or twenty minutes to argue its case. We have been given twenty, which seems positive. I plan to take a tape recorder so Kyle can transcribe the hearing for you to read. Hope it works. It is Klaus’s show, and he is prepared. I cannot imagine how the lawyers for the federal government even think that the position advocated by MSHA has merit. MSHA position is definitely not in mining’s best interest or the country’s best interest. If we lose, all Americans lose a round for domestic security. I just hope the judges understand the issues that have arisen as a result of Mark’s tragic accident. The direction of MSHA must change and the opportunity to change it is at hand. The citations should be thrown out for lack of evidence. Also the Court can make a statement that even though the citations are void, the idea that Mark was management is specious. Oh, by the way, today the miners ran right into the pocket of gold they were headed for. It looks good. More in a couple of rounds.
PLEASE NOTE THE NEW DATE FOR APPEAL
Wednesday, March 15, 2006 9:00 a.m.
Courtroom 4, 2nd Floor
United States court of Appeals – 9th Circuit
95 Seventh Street
San Francisco, CaliforniaATTENTION – IMPORTANT – ATTENTION:
A PICTURE ID REQUIRED TO ENTER COURTHOUSE
( and leave your guns at home if you want inside)Each side is allowed 20 minutes for argument.
Having written “CWA” in the previous entry by typo accident, hmmmm, as I meant to write “CYA” (and we know what that stands for) I’ve decided that in the case of this typographical accident that “CWA” stands for:
Completely Wacko Authority
MARCH 13, 2006
ORAL ARGUMENT
US COURT NINTH DISTRICT
OPEN TO PUBLICAttending such an event will open the eyes of anyone yet to do so. We’ll see awesome posturing (call it CWA) by the factions leveling charges. Quite a spectacle.
MARCH 13, 2006
ORAL ARGUMENT
US COURT NINTH DISTRICT
SAN FRANCISCO
OPEN TO THE PUBLICOctober 5, 2005
Cathy A. Catterson
United States Court of Appeals
For the Ninth Circuit
P.O. Box 193939
San Francisco, Ca 94119-3939Re: No. 04-71301
Original Sixteen to One Mine.,
And Michael Miller, Petitionerv.
Secretary of Labor (MSHA) and
Federal Mine Safety and Review
Commission, RespondentsDear Ms Catterson:
I write to notify the Court the sad news that on September 12, 2005, my friend and confidant and business attorney, George Gilmour, was killed in a car accident near the mine. It is a significant loss. George will not be readily replaced in the case before the Court because of the complexities of mining law, worker safety law and all the other laws and procedures involved in our case. George was a sole practitioner,, and therefore, there is no one familiar with the nuances of the issues we are appealing. I will be seeking competent help, since the issues we argue affect everyone in the United States mining industry.
Until a replacement is located who will substitute into the case, I ask that you send all correspondence to me at the above address. I have spoken with our contact at your Court and learned that our case will not be heard this year. Please consider granting this request. If my letter does not cover the facts necessary to remove George as the lawyer of record and future correspondences sent to me, please let me know what else to do. California lost one of the brilliant good guys practicing law in our great state.
Sincerely yours,
Michael M. Miller, President
Cc: Cherly C. Blair-Kijewski
The US Court of Appeals asked for an explanation as to why I was addressing the Court without a lawyer, giving me fifteen days to respond or have my appeal dismissed. I chose that an argument justifying why it was proper for me to address them was not the issue. I want this group, the first and only judicial bunch to review the specious report of the accident prepared by Stephen Cain, to cancel MSHA’s accusations, as the ALJ, Mr. Gary Melick should have done. I asked George to sub in for me (he has long standing credentials to appear before this Court). He said okay but fifteen days is not a lot of time to come up to speed. An extension by phone was assured to be granted. We thought, let’s give it a shot and get it out of our minds( July 8, 2005, coming up in Downieville with four motions by the bad guys for review).
This new brief lacks the sermon aura of the brief filed on August 23, 2004 (following the second one). Scoop is right. George and I allowed two hours for driving uncertainties from Alleghany to the East Bay and finally to the Beautiful federal courthouse on Mission and Seventh. We bolted into my truck, he signed the sixteen copies we needed to file between Grass Valley and Auburn. Here it is.
Good news and important for all Americans
Regarding our appeal to the United Stated Court of Appeals for the Ninth Circuit, which was filed on August 23, 2004 (the entire appeal can be reviewed below). The Circuit Judges denied the Appellee’s motion to dismiss the appeal for lack of jurisdiction. Appellee is the Federal Mine Safety and Health Administration. Its answering brief is due within 30 days of the filing date of the order. Our optional reply brief is due within 14 days of service of the answering brief.
Several years ago different active and retired MSHA employees confided in me that until those in the mining industry stood up to the enforcement abuses that were occurring during the end of last century, MSHA inspectors and low level management would continue to write and support “bad paper”. For the mining companies it was less costly to just pay the fine or at a minimum get the citation reduced than fight the battle through the administrative and court systems. For me, a line was drawn with Mark Fussell’s tragic accident. Read my brief, if you care to know why. Well, here we are in the United States Court of Appeals. Mark’s accident was on November 6, 2000. All along I felt inadequate to handle the task and at times pleaded for help. There has been some, pitifully little, though.
I have no idea how the lawyers will spin their tale to the Court of Appeals. They have completely lost sight of their job responsibilities. A broad range of state and federal men and women connected to the safety of workers do not agree with the lawyers who press the bogus charges against us. While this is reassuring, I remain open to your constructive input, especially all in the resources industries. The judges in the Ninth Circuit in San Francisco now have an issue before them of great importance well beyond our small sphere of influence. I pray for their wisdom.
It is our choice to pursue what all of us know to be true and just. The following brief, filed today in San Francisco, is for Mark Fussell and all current and future
American miners. It is also for you. The reckless abuses of the language of mining will eventually ruin our industry. Plato recognized in “The Republic” the value of mineral extraction to society. So do I.INTRODUCTION
The Federal Mine Safety and Health Commission (FMSHRC) is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Federal Mine Safety and Health Amendments Act of 1977 (Mine Act). Under the Mine Act, the Department of Labor issues regulations covering health and safety in the nations mines. Congress declared that, “the first priority and concern must be the health and safety of its most precious resource—the miner”. Section 2 (a) of Mine Act.
On February 2, 2004, a petition for discretionary review was filed by Original Sixteen to One Mine, Inc., with FMSHRC under section 113(d)(2) of the Mine Act at paragraph 823(d)(2). That section provides that review of a decision of an Administrative Law Judge may be granted upon specified grounds and upon the affirmative vote of two Commissioners. Such review is discretionary. 30 U.S.C.par 823(d)(2)(A). However, no two members of the Commission voted to grant the petition or otherwise order review under 30 U.S.C. par (d)(2)(B). Consequently, the decision of the Administrative Law Judge was final as of forty days after its issuance. 30 U.S.C. par 823(d)(1).
Upon receiving Gary Melick’s (Administrative law judge presiding over the administrative hearing) decision, we realized that Mr. Melick’s lack of knowledge about mining caused him to violate us and the entire American mining industry. Ignorance raises its head again with serious consequences to our existence and the welfare of the American public. No one is suggesting it was intentional but rather the innocent misapplication and understanding of the language of mining.
How does one appeal ignorance? This is an over-riding thrust of our appeal to you. Everyone is ignorant in specific topics. Ignorance is commonplace and nothing to be ashamed of especially with professional people in activities that use their own language. Law is such a field. So is mining. I address you as the president of America’s oldest and only operating deep vein gold mine in the west. Our words and their meanings are as certain as your language of law. Our adversaries and judges are unfamiliar with both. We ask you to carefully review the background and the transcripts prepared in this case.
The primary principle for overturning the Administrative Law Judges decision in the matter at hand is his reliance on evidence that was not substantial and significant to support the citations. The burden of proof falls to the Respondent. TR: P1 L27. Regulations, standards and practices of MSHA conducted by its employees in this case do not stand up to support the decision. The administrative hearing judge chose to adopt his own standards. THE COURT: We follow our own rules of procedure, and if applicable we follow the rules of Civil Procedure as they apply to the Federal courts. This is an administrative hearing, it’s not a court of law in that sense, so we’re much more liberal in the application of rules of evidence and rules of procedure. TR: P7 L3-5. The investigation, hearing and subsequent decision validating the citations at issue are a legal fraud. In its entirety, the record before you must be considered. The appellant was denied a review by the Federal Mine Safety and Health Review Commission as it requested on February 2, 2004. No explanation was offer. Our only recourse to the law is with the United States Court of Appeals either in Washington D.C. or San Francisco. Not only is our corporation the oldest American company, it is incorporated in California, so we chose to appeal to you. We ask you to overturn Mr. Melick’s decision on two citations: Citation No. 7995404 and Citation No.7995405.
The administrative process is housed in the Executive Branch of our government. The investigation and the prosecution under “administrative law” is not the law we rely on to protect American rights. These are found in the Judicial Branch, which until this appeal was filed in this Court, has not been involved in the investigation or prosecution. The MSHA process in its orthodox form does embody a totally mistaken conception, even a travesty, of the nature of American jurisprudence.
The traditional form of law rests in a structure resembling the investigation of scientific proofs. First, there is a section called the “introduction” in which you merely describe the general field in which your scientific talents are going to be exercised. Next is recognition of previous work.
MSHAinspectors/investigators are required to utilize their background, experience and training throughout the process. Mister Steven Cain was obliged to use these as he groped toward the fundamental truths that he presented in his accident report. (Exhibit V of hearing transcript). He embraces a relatively new concept initiated by MSHA called “root cause”. The results of his investigation consists of a stream of information in which it is considered extremely bad form to discuss the significance of the results you are getting. Cain failed to remember that his mind is, so to speak, a virgin receptacle, an empty vessel for information. He is the chief MSHA investigator, a man with an open mind whose duties are to gather evidence reserving all appraisal of the evidence until the discussion section where he must ask himself if the information he collected actually means anything. It is an inductive process of administrative law.
His duty of factual discovery, or the formation of scientific theory, starts in unvarnished and unembroidered evidence of the senses and scenes at the Sixteen to One mine. It starts with simple observation: simple, unbiased, unprejudiced, or innocent observation. He failed to exercise this duty. Maybe this duty is not required in an administrative hearing.. They are required for public investigators employed in the lawful system of the rules in the Judicial Branch.
In Mark Fussell’s accident, Cain knowingly or unknowingly misused a method of inductive reasoning conceived by John Stuart Mill for social problem solving. Mill’s applied the methods, which the practice of science had shown to be immensely powerful and exact. MSHA has introduced a poor program of adapting Mill’s method to accident investigations. The theory of Cain’s inductive method cannot be sustained regarding the validity of citation issued by MSHA.
The added danger to American miners as well as the American public is the close alliances between the “prosecutors” and the administrative law judges to each other and the MSHA personal. In the first place, there is no such thing as unprejudiced observation. Every act of observation in this case was biased. The individuals in this case all are employed by the same agency. There are no checks and balances, except at the end of the trail, the Judicial Branch’s Court of Appeals. They all started with some expectation about the outcome of the inquiry of the accident. MSHA has not accepted the fact that many and perhaps most accidents result from human error. The agency always alleges a violation of some regulation. It is in light of this expectation that some testimony was held relevant and exculpatory evidence was ignored. The method of inductive reasoning was chosen rather than deductive. Cain’s hypotheses arose by guesswork or perhaps by inspiration; but in any event they arose by processes that form part of the subject matter of psychology and certainly not logic. Indeed one does not deduce hypotheses; hypotheses are what one deduces things from.
ALJ Gary Melick failed to test rigorously the hypotheses presented by MSHA investigator Cain and MSHA prosecutor Chris Wilkinson.
THE APPELANT’S LAY REPRESENTATIVE WAS MISLED BY THE COURTIn his opening remarks the Court recognized that Michael. Miller was not represented by counsel and reviewed the procedures to be followed. The Court said, “in the case each have an opportunity to present an opening statement. It’s not necessary, you may waive that, but you can present an opening statement. That’s not considered as evidence, it’s not considered as factors, or a factor in deciding the case, it’s just a matter of presenting an outline of where you’re going to go”. (Tr: p1 l19-26)
In his Decision the Court wrote: “In this regard, Michael Miller, President and CEO of Sixteen to One, described Fussell’s functions in his opening statement at hearings:
Mr. Miller: Okay, Mark Fussell was a certified lead miner familiar with and trained for his position…Mark Fussell’s heading was to slush loose rocks in an old stope above the 1700 foot level. He chose to prepare the track in the event the use of an electric train would facilitate his job.”The Court proceeded with a decision that the appellant is responsible because in his capacity as a lead miner Fussell was an agent of the Respondent. “Thus, Fussell’s admittedly negligent conduct in this case may be imputed to the Respondent for civil penalty purposes.” (Decision page 8). The Court justified this conclusion in a footnote on page 3. He says: “While these admissions were made in Miller’s opening statement, admissions by an attorney or other agent of a party in a formal opening statement are conclusive in the case unless allowed to be withdrawn. M. Graham, Federal Practice and Procedure: Evidence par 7023 (Interim Edition); McCormick on Evidence, Fifth Edition, Admissions par. 259.”
Even after the Court offered the participants the option of making opening statements, the Court said: “Excuse me, I don’t want to—mean to interrupt you” (TR page14 line 5), which is precisely what he did. Miller began again and the Court interrupted again: “Is it relatively short? I mean go ahead.” Not only was Miller misled, he was intimidated to waive the rest of his opening.
THE COURT’S DECISION WITH REGARD TO CITATION NO.7995404 IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
The Court inter alia found: (1) that the appellant was negligent in maintaining an unsafe working condition which led to the death of one of its employees, (2) that the deceased employee negligently contributed to his own death, and (3) that the deceased employee was an “agent” of appellant.
1. Appellant’s Purported Negligence
The citation upon which the Court’s determinations are based stated:
A miner was fatally injured at this mine on November 6, 2000, while operating a Mancha locomotive on the 1700 level when his head struck a protruding ore chute causing it to become wedged between the battery compartment of the locomotive and the chute. The chute extended into the drift to the mid point of the train rails at approximately the same height as the locomotive operator’s head. Warning devices had not been installed in advance of the ore chute to indicate restricted clearance nor had the chute been conspicuously marked, nor marked at all, to warn and remind miners of the restricted clearance. Decision, p 1.The Court found:
The allegations in the citation are undisputed and clearly support the violation as charged. Indeed, Michael Miller, Sixteen to One’s President and CEO, acknowledged that there was no warning device and that “it was a tremendous hazard” (Tr. 284). In addition, whether or not the particular violation herein was a causative factor in the cited fatal injuries, the violation was also clearly “significant and substantial” and of high gravity. Decision, p 2.
Although the description of the sight of the tragedy offered in the citation and decision is clear, both fail to mention that the sight was not at the time a place in which mining was being conducted. Edward Tim Hurley was called as a witness. Hurley is a mine inspector for Cal OSHA. Question (Q). Hr. Hurley, when was your last inspection of the Sixteen to One mine? Answer (A). Previous to the accident. It was in the week previous to the accident. (Tr P336 L17-20)
(Q) Did you go to the 1700 level?
(A) Yes.
(Q) Do you recollect why you went on the 1700 level?
(A) There were two men working to set up a workplace.
(Q) What does that mean in a mine, at the Sixteen to One, they were beginning to rehabilitate an area or what?
(A) They were preparing to move in equipment.
(Q) Did you happen to see the chute in question that Mark Fussell ran into?
(A) Yes. TR P336 L 17-28 and P337 L1-13.
(Q) Were you aware of the hazard at the time—did you see a problem the week before the accident with that particular chute?
(A) I did not observe a hazard.
THE COURT: Could you explain that?
THE WITNESS: 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 not operating?
THE WITNESS: The locomotive was not in that position; the locomotive was at some distance away.
THE COURT: I see. This was what, two weeks before, or a week before the accident you observed it?
THE WITNESS: A week. TR P338 L27 to P339 L1-14
The Secretary’s agent has one question
(Q) When you say you saw a locomotive in the position a distance away, can you estimate how far away?
(A) The locomotive was located back at the shaft station which was approximately 1700 feet. TR P339 L20-24
Had it been true that Appellant had been maintaining a work place in which mining was ongoing, then indeed a finding of negligence on Appellant’s part would have been warranted. But, it was not such a workplace. Rather, two employees had been devoting their energies into making it to become one. (Tr. 336-337.) Warning devices had not as yet been installed by them. Useless, antiquated chutes had not as yet been removed by them.
Appellant in short was at the time of the tragedy in the process of rendering the area suitable and safe for mining and was not in any rational sense negligent vis-à-vis its employees. There is simply and unequivocably nothing in the record to support the Court’s finding to the contrary.
2. The Negligence of Appellant’s Deceased Employee
In its Decision the Court observed that the negligence of the deceased employee with regard to his death was not disputed by the parties. Decision, p. 3.
The Court’s Decision with Regard to Citation No. 7995404 is not Supported by Substantial Evidence and is Not in Accord With Applicable Law.
The Administrative Law Judge found that Fussell was the agent of appellant and that Fussell’s negligent conduct in this case could thus be imputed to Appellant for civil penalty purposes. Decision, p. 8.
Under Commission precedent, the negligence of a rank-and-file miner is not imputable to the operator for the purposes penalty assessment or unwarrantable failure.
Whayne Supply Co., 19 FMSHRC 447, 451, 453 (1997); Fort Scott Fertilizer-Cullor, Inc. 17 FMSHRC 1112, 1116 (1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (1982) (“SOCCO”). However, it is well established that the negligence of an operator’s agent is imputable to the operator for penalty assessment and unwarrantable failure purposes. Whayne, 19 FMSHRC at 451; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (1991) ; SOCCO, 4 FMSHRC at 1463-64. The main issue in this case is whether substantial evidence supports the judge’s findings that Fussell’s negligence was imputable to Appellant for unwarrantable failure and penalty assessment purposes.
In determining whether a miner is an agent of an operator for purposes of imputing negligence to the operator, the Commission has developed a multi-factor test. In formulating the factors, the Commission has in some cases considered the statutory definition of agent contained in section 3 of the Act. REB Enters., Inc., 20 FMSHRC 203, 211 n. 11 (1998)l; Ambrosia Coal & Constr.. Co. 18 FMSHRC 1552, 1560; U.S. Coal, Inc., 17 FMSHRC 1684, 1686 n.3 (1995). It has also been guided in some cases by common law principles of agency. See R&P, 13 FMSHRC at 195; (“The Commission has previously employed both the Act’s definition and common law principles in resolving agency problems.”) Ambrosia, 18 FMSHRC at 1561 n. 12 (citing 3 AM.Jur.2d Agency sections 78-79 (1986) for the proposition that “a principal is liable for the acts of an agent that are apparently within the agent’s authority and which the principal permits the agent to exercise”); see also Pocahontas Fuel Co., 8 IBMA 136, 147 (1977), aff’d. 590 F.2dd 95 (4th Cir. 1979), adopting the common law principle that the acts or knowledge of an agent are attributable to the principal… Thus, the Commission’s multi-factor test is not limited to the terms of section 3(e) of the Act. Moreover, the core concepts of imputation of an agent’s negligence to the operator for purposes of penalty assessment and unwarrantable failure are Commission-fashioned doctrines that do not spring solely from specific statutory language. Whayne, 19 FMSHRC at 451; R&P 13 FMSHRC at 194-97; SOCCO, 4 FMSHRC at 1463-64; see Nacco Mining Co., 3 FMSHRC 848, 850 (1981).
When deciding whether a miner is an agent of an operator, the Commission has focused on the miner’s function and not his job title. Martin Marietta Aggregates, 22 FMSHRC 633; REB Enters. 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560. It has examined whether the miner’s function involved responsibilities normally delegated to management personnel and whether his responsibilities were crucial to the mine’s operation. REB Enters, 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560; U.S. Coal, 17 FMSHRC at 1688. It has also considered whether the miner exercised managerial responsibilities at the time of his negligent conduct. R&P, 13 FMSHRC at 194.
In deciding agency questions, the Commission has also examined precedent on the distinctions between supervisors and employees under the National Labor Relations Act (“NLRA”), 29 U.S.C. section 141 et seq. Whayne, 19 FMSHRC at 451. The National Labor Relations Board (“NLRB”) has consistently found that the authority to assign tasks is not by itself sufficient to find supervisory status. See Micro Pacific Dev. Inc. v. NLRB 178 F.3d 1325, 1333 (D.C. Cir. 1999) (holding that leadmen waiters and bartenders were not supervisors under NLRA even though they made assignment and scheduling decisions; Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 921-23 (6th Cir. 1991) (holding that leadmen warehouse workers were not supervisors under NLRA even though they assigned work to other employees every day). In NLRB v. Lauren Mfg. Co. 712 F.2d 245, 248 (6th Cir. 1983), the court held that “the mere performance of routine tasks or the giving of instruction to others is not sufficient to afford an individual supervisory status.”
In the instant case there simply was no substantial evidence presented to suggest much less support the Court’s finding of agency.
The Court stated that he was unfamiliar with mining terms, methods and practices. His decision states an important and erroneous representation of the record in the transcript. On page 5 of his decision he writes, “Miller further describes Fussell’s functions in his testimony:” The Court then questions the witness:
The Court: “So the Lead Miner is the person who would be in charge of that particular work group?”
The Witness: “That’s right. He could have more than one helper, he could have several helpers, but it’s still his responsibility. And he reports directly to the underground foreman, if there’s one: or if not, the mine manager. In this case I was acting as both. I had both responsibilities” (Tr.365-356). The witness is not Mr. Miller as stated by the Court. It is the testimony of Jonathan Farrell. The Court had confused and represented a significant determination in his decision that is incorrect. The operator had a full time mine manager on site at the time of the accident, which is a significant factor supporting its denial that Fussell was management. Furthermore, the entire reference to testimony by Miller on page 5 is false.
The Court clearly misapplied the language in his reference on page 8 of his Decision to 30CFR par 57.1800(2) sic (par 57.18002 Examination of working places). Work places are required to be examined at least once each shift by a “competent person”. It is the operator’s responsibility to designate who is a “competent person” and that records be kept. The section as well as industry best management practices does not require or even suggest that fulfilling the requirements of this regulation that any or all “competent persons” are management. In practice the task usually falls to the most experienced miner; however, competency is a judgment based on background, experience and training. The Court erred in his understanding of the law and regulations of the above citation and how it is practiced in the industry. The administrative law judge works under the rules of the Mine Act as practiced by agents and employees of the Department of Labor. The Mine Act, regulations and policies require that he also opine with the particular events of the specific situation.
On page 10 of his Decision the Court found, “Under all the circumstances it is more reasonable to believe, and I find credible, that the power connector had in fact been damaged in the accident sufficient to make the locomotive inoperable”. Inspector S. Cain(Q) “This morning you and I had breakfast and I showed you a letter that was dated March 13th, 2001; is that correct?
(A) Yes, sir.
(Q) I’m handing you what has been marked Exhibit 25. Is that the letter that we discussed this morning?
(A) Yes sir, it is.
(Q) Have you formed an opinion regarding the validity of that letter as an explanation as to what the defect in that tram was?
(A) I would agree that the resister box did have one resister open, possibly by burning, or defective in other ways. But I agree with his letter that it was not functional in the first gear at the time of the accident.” TR P239 L23-28 and P240 L1-8.
Upon review there is no Exhibit 25;. However the March 13, 2001 letter referred to above is the report prepared by Robert Walker and submitted to MSHA at conference and is the letter that Cain refers to in his testimony.
(Q) “Did you prepare a report on the trammer that you inspected and worked on at the Sixteen to One mine?
(A) I did, sir TR P322 L10-13
(Q) If you’ll just explain the circumstances of your involvement and what you did prior to writing the report.
(A) I went to the Sixteen to One mine by the request of Mr. Miller because he knew I did work on their equipment in prior years. And it was on the 1700 foot level of the mine. And this particular locomotive that the tragic accident happened with, I viewed it, looked it over, looked the controllers over, the resister, the battery cables and the batteries, then I wrote the report to you.
THE COURT: When did you do that, sir?
(A) When I did it, sir, was the 12th of February.” (2001) TR P323 L27 to P324 L4-5
Appellant’s expert with regard to the resistor, Robert Walker, was the only person who had examined the resistor. The actual resister from the locomotive was brought before the Court. He explained the role of gears and resisters (TR P325-326) and testified: “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. These things are rusty. The reason they’re rusty is because a mine has got a lot of moisture in it.”
THE COURT: I’ll take your word for it. So we don’t have to take this as evidence. And if there’s any dispute I’m sure it will be presented. But you’re saying this is burned, something is burned inside that?
(A) Yes, sir, it is.
THE COURT: And what was burned inside that?
(A) One end of the resister is burnt, therefore you do not have low gear.
THE COURT: I see. That’s what you found on this locomotive?
(A) This is what I found.
BY MR. MILLER:
(Q) Did you draw any conclusions about how long that resister had been open?
(A) My conclusions was the accident, at the time of the fatal accident that’s when the resister burned out. “
Inspector Cain never saw the resister. His comment that, “But I agree with his (Walker’s) letter that it was not functional in the first gear at the time of the accident” is a significant distortion of fact. Perhaps this may explain why Cain held onto his opinion that the resister was pre-existing even in light of a mountain of contradictory testimony and evidence.
It is uncontested that the locomotive had stopped and was not running at the time of the incident. TR P241 L3-5.
ALJ prejudicial to fellow employees:
During the hearing the Court makes the following disclosures:
“You are getting a little ahead of me” (Tr 148 l21)
To shift responsibility is at epidemic levels. People are treating the symptoms, especially those in the government regulatory business. Why? It is easier to treat the symptoms instead of dealing with the causes. Now this practice has found its way into worker safety. Lawyers have taken on worker safety as an industry all to itself. Those with the specific background, training and education within America’s mining industry play second fiddle to a new group of mining experts, the lawyers.
One must wonder if those in position of regulating or enforcing safety have not succumbed to the popular pastime of blaming someone else. This is our greatest worker safety concern. If accidents are to be reduced, the mining industry must identify their root causes. It is with great regret and sadness that those who have the responsibility and duty to protect the miners have failed with regard to the accusations and allegations before us. They should be the ones on trial.
If the MSHA approach to miners’ safety is to take a position and maintain that position, defend that position no matter what the evidence indicates, the American miner is in trouble. If the American miner is in trouble, so are the American citizens. So are you.
The first priority and concern of all in the coal or other mining industries must be the health and safety of its most precious resource- the miner. That is the law. Federal Mine Safety & Health Act of 1977, Public Law 91-173 as amended by Public Law 95-164.
The key to safety in mining, other blue collar industries, professional sports and yes, even those necessary white collar jobs rests primarily with each individual worker. In our hearing that person is Mark Fussell.
Mark’s friends, family, fellow miners and acquaintances know and have expressed how Mark would see this battle. He would side with the company and miners who testified with evidence in this necessary and very unpleasant business. He would be mad that the truth has been blurred.
Mark died on November 6, 2000, in a self-inflicted tragic accident at the Sixteen to One mine. The operator’s policies and procedures in place and their execution by the entire crew were exemplary. Of course there must be an investigation. But the method of conducting an investigation should be without a pre-determined opinion. From the very beginning involvement of MSHA agents, a presumption of wrongdoing, colored the investigation. Once its position is presented it shall be defended no matter what!
At each opportunity for truth and clarity, those federal employees responsible to the American tax paying public for conducting its business, passed the buck, thereby creating the process we find ourselves engaged in today. From Steve Cain to the U.S. Solicitor, to the administrative judge the process continued. Defend and protect aggressively without regard to the evidence.
Mark Fussell was a certified lead miner, familiar with and trained for his position. Mark Fussell did not have a drug or alcohol problem.
Mark Fussell was late for work, he had some girlfriend issues but was happy. The only other person present was VinceKautz, Fussell’s mining partner. He did not see the accident. There are no witnesses.
Mark Fussell’s heading was to slush loose rock in an old stope above the 1700 foot level. He chose to prepare the track in the event the use of an electric train would facilitate this job.
A lead miner is the one responsible to identify and fix any safety issues in his heading. Anyone in the mining business will testify that as a lead miner, it is his job to identify and correct any defects in regulations. Mark was well aware of this. The chute was not marked because the level was abandoned for mining. It was only a secondary exit. Regulations for a secondary exit do not require that this chute be marked. A chute in and by itself does not require warning devices. The requirement is specific where overhead clearance is restricted.
Management relied on Mark Fussell. He was properly trained, legally certified for his position and capable. He apparently just finished clearing the track enough to bring the train to his heading. He decided to drive the train back to a timber station in order to get timbers to secure the slusher in the stope. He caused an accident that cost him his life.
CONCLUSIONUpon receiving Gary Melick’s (Administrative law judge presiding over the administrative hearing) decision, we realized that Mr. Melick’s lack of knowledge about mining caused him to violate us and the entire American mining industry. Ignorance raises its head again with serious consequences to our existence and the welfare of the American public. No one is suggesting it was intentional but rather the innocent misapplication and understanding of the language of mining.
The Mine Act requires that, “Each citation shall be in writing and shall describe with particularity the nature of the violation”. Section 104. (a) This requirement is performed by the authorized representative of the Secretary and a qualified inspector. MSHA Program Policy Manual gives numerous examples that “All of the facts relevant to this evaluation (whether a violation exists and its seriousness and significance) should be included in the inspector’s notes”. Volume One Section 104 (d) 91) /(e) (1). The decision is flawed because the required information, specific to the circumstances and relevance were not presented to the operator by the inspector as required. The explicit foundations of alleged wrong doing by an operator in a mine must include “all relevant circumstances”. The report of the investigation by S. Cain, has not met the requirements of the Mine Act. It does not address the issue of lead miner as management. No evidence was presented by any MSHA representative, that provided the “relevant circumstances” or “all of the facts relevant” about management status of Mark Fussell .The operator was blind sided in the administrative hearing regarding his usage and industry wide standard of the designation of “lead miner”.
How does one appeal ignorance? This is an over-riding thrust of our appeal to you. Everyone is ignorant in specific topics. Ignorance is commonplace and nothing to be ashamed of especially with professional people in activities that use their own language. Law is such a field. So is mining. I address you as the president of America’s oldest and only operating deep vein gold mine in the west. Our words and their meanings are as certain as your language of law. Our adversaries and judges are unfamiliar with both. We ask you to carefully review the background and the transcripts prepared in this case.
The primary principle for overturning the Administrative Law Judges decision in the matter at hand is his reliance on evidence that was not substantial and significant to support the citations. The burden of proof falls to the Respondent. TR: P1 L27. Regulations, standards and practices of MSHA conducted by its employees in this case do not stand up to support the decision. The administrative hearing judge chose to adopt his own standards. THE COURT: We follow our own rules of procedure, and if applicable we follow the rules of Civil Procedure as they apply to the Federal courts. This is an administrative hearing, it’s not a court of law inAny review of the specifics of the alleged citations brings forth a universal truth: simply being charged with a citation by a politically motivated and politically appointed team of investigators with no other agenda than accruing political points and even worse, monetary gain, has no bearing on whether the a party is guilty of the allegations.
Goldmaster, you’ve got the whole picture backwards. The current economic condition of the mine was created by the very acts you cite below. I’m not the first to suggest you do some diligent research before reaching the conclusions you have. Your lack of insight into the very obvious reason MSHA has pursued the Sixteen to One merely shows how statistics can be made to cast private enterprise into a bad light.
(Go read the citations before you claim their severity. I have. I have attended many court sessions; I’ve witnessed the supression of evidence that exonerates the mine and M. Miller in the vicious attack that resulted in unwarranted man-slaughter charges; I’ve testified before the Water Board and watched the CRWQCB single out the mine for the arsenic content of Kanaka Creek upstream from any discharge, all in the face of ignoring arsenic content thousands of times higher in Sacramento’s Curtis Railyard; and I watch you bring vindiction to this website by suggesting that the presence of multiple citations over the last four years carries the gravitas which vindicates them, whether true or not.
Answer me this, please: Do you personally assign the lack of credibility to an individual or a private company simply because you see the actions of a government agency bent on destroying their Constitution rights?
Facts facts don’t lie, and in this case you’ve just done everyone a huge favor by pointing out the degree MSHA and the CRWQCB have been pursuing the Sixteen to One.
The fact is, there’s a battle being waged, and accusations don’t prove validity. It’s also a fact that most citations were challenged and many were simply throw out of court.Which is it Goldmaster? Guilty until proven innocent, or the other way around?
- AuthorPosts
- You must be logged in to reply to this topic.