[Michael Miller]

in reply to: YOU JUDGE *** US COURT OF APPEALS #2197

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 COURT

In 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.
CONCLUSION

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.
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 in

[Michael Miller]

in reply to: From the Sixteen to One Archives #2196

MINING PROGRESS UPDATE
For
THE MEETING OF THE BOARD OF DIRECTORS
Of the
ORIGINAL SIXTEEN TO ONE MINE, INC.

MARCH 13, 1997

The last board meeting introduced new headings that we were eager to begin and showed our progress with our long-term advancements. Generally, the mine’s activities have followed closely the goals presented last time, but as might be guessed, our hopes for large high-grade pockets have come up empty so far. This is not to say that the development work has been in vain however; our active headings have exposed some encouraging geology and Mother Nature is continuously revealing surprises and forcing us to re-evaluate our interpretations. Each heading is described below in terms of advancement since the last meeting, and there are also further goals presented to take us through the next quarter.

The 26105 Raise that was started on November 10th holed through to the 2400 level at the end of January after 125 feet of progress. This Raise is now part of the main ventilation path and allows full air circulation through the 2600 level. As it advanced, we encountered what appeared to be the 16-K vein split about 50 feet up from the drift. A week after reaching the 2400 level, a new raise, the 26105-K, was started at this split by Tony Langdon and Jay Noble.
The raise is now about 120 feet up what is certainly the K. The geology of the face is encouraging, and the miners are seeing the vein begin to roll over to a more southerly dip. Because of the direction of the vein, they are not likely on the pay shoot below the 2233-K underhand, but by advancing a drift at the 2400 level into the K, we hope to find just where that shoot occurs. Rather than run a crosscut from the 24105 Raise into the footwall to intersect the K-vein, as was discussed last time, the crosscut will branch off from the 2400 level just north of the 24105 and will gradually turn into the K-vein about 30 feet north of the 26105-K.
This approach has several objectives. First, it will let the miners continue working off the 2400 level rather than transport equipment all the way down to the 2600. This will save time in moving both men and rock to and from the heading. Also, it will allow tramming along the 2400 and will reduce the cost of hoisting rock from the 2600. In support of this effort, Billy Joe has been rehabilitating the 2400 track and mucking out the drift for the past two months. He has now begun the crosscut and has encountered the K-vein. Surprisingly, the vein split is only 2 feet off the drift contrary to the 40-foot estimate from geological cross sections. This allows for a shorter drift to reach the raise and further outlines the pinch zone on the K between the 2200 and 2400. However, this drift is an exploration heading in its own right: it will continue past the raise to follow the K and discover the 2233-K ore shoot noted above.

The 2203 heading, manned by Ray Standring and Adrayan Aguirre, among others, is our “Whopper Country” program. Beginning on December 23rd, an initial winze was sunk to 50 feet and then drifting began to the north and south. The north wing acts as a slusher station and equipment storage, and the south wing extends about 35 feet toward the Whopper pay shoot. Even though we are not in the shoot yet, the surrounding geology has virtually every indicator of significant gold deposition. A new raise was started near the end of this drift that holed through to the 2200 level about 20 feet south of the original winze. A new wing has been started off this raise and is progressing south. Some visible gold was the reason for the placement of the raise and there has been subsequent gold in the small wing. Also, all the rock coming out of this heading is bound for the mill and should yield a few ounces. This drifting will soon be curtailed, but the northern wing will then be extended, possibly as far as the ’49 Winze.

Sam Griffith’s drifting on the 2600 level has continued and has gained 100 feet since mid-December. There were problems with the ground in this heading, as the 21-fault zone intersects the vein at this elevation. About 75 feet of timber sets were required for support and this reduced the footage otherwise possible. We may have encountered a vein split in the past week, and if this is the 16-K junction, it has moved down-dip from the intersection in the 26105 Raise. This discovery is important because it gives us more geological information and indicates favorable conditions for gold deposition. It also provides us with the clearest, farthest south vein junction and will allow us to better fill in the geological picture up-dip. Another 165 feet will put Sam underneath a known ore shoot on the 2400 level, one that will hopefully extend down to his drift.

The 2239 heading was started from a small spur off the 2200 level just north of the ’83 Hoist on what is likely the M-vein. It was opened up near the end January with a 40-foot raise that will be used as a manway. This raise paid off with 55 ounces of high-grade after only a few rounds, and all the rock coming out is ore. Drifting will continue so that a second raise can be started to serve as an ore chute. Once this is done, a new drift will be started above the 2200 level, connecting the two raises and following the new vein. In the last week, John Covert has continued mining here by starting the second raise and will begin the upper drift sometime next week.

Metal detecting has continued in the northern half of the mine, with 10 ounces coming out of the 1109 stope just south of the Tightner Shaft. Also, some small block mining is being done in the 1317 and 1319 stopes a little farther to the south and adjacent to the Ballroom. This was just started the week of March 3rd, so the potential is still unclear. A new M.D. program is in the works, whereby every crew will have a map section on which they will work and note gold, so the crews do not overlap so much and cover more ground more efficiently. Currently, however, the M.D. crew has been reduced to cover all our active headings.

The mill has been running almost continuously on daily shifts with a consistent ore grade of about ¼ ounce per ton. Since the last week of February, we have been running 12-hour shifts and on March 5th, we attained 14 tons per hour. Right now, our efforts have concentrated on replenishing the ore supply on the surface in order to keep the mill running until our next big pocket. One source of high-grade mill rock is our trommel program. Currently, we have one trommel running at various known ore piles around the upper levels, especially the 800, 1000, and 1100 between the 16-to-1 and Tightner Shafts. We now have a second trommel being built and have plans for a third. These machines have been averaging 4-5 ounces per day with usually two miners running them. As one ore pile is processed, the trommel is moved on to a new location. It works by sorting out ¼ inch and smaller pebbles that are then run through a sluice box to catch fine gold. The larger material is scanned with a metal detector and signals are picked out by hand. In this way, virtually the entire ore pile is sorted, inspected, and sent to either the mill or gold sales.

Our future activities will include a new small block target, the 2050-D Stope, that will be examined within a month. A new chute was installed in the 2213 and a raise will be extended through to the 2050 to accommodate this mining. Trommel work will continue, but will hopefully be reduced in favor of high-grade production that would reduce the amount of milling necessary. Respectfully, Michael M. Miller

What an interesting account to read. I enjoy my reports to the board. And now I read it years later.

[SCOOP]

in reply to: Clips from Alleghany #2194

Sparks are flying outside the portal as the miners prepare the equipment necessary to open the Tightner Shaft for transport. Four miners worked outside today and four miners worked underground. The block of unmined vein material between the shaft and the Ballroom has honest potential. When the geology and past production records are reviewed, even a novice newcomer to high-grade gold mining will see the potential. Mining will concentrate near the recent pocket, but the improved via the Tightner access will open the large area up for serious inspection.

Mike sold the fresh cut slab to Orocal yesterday for $36,250. Some of the quartz is very heavy with gold, in fact too heavy to bring in top dollar. The top grade sells for $1,200 per ounce (quartz and gold weight). The demand is greater than what the Company can produce. Cash flow remains a concern of management. It is too soon to throw high-grade into a crusher and turn it into bullion at $400 per ounce.

The MSHA appeal is due August 23. It must be in the hands of the US Ninth Court of Appeals in San Francisco. MSHA is an agency undergoing some appropriate changes in its operation. Taxpayers pay these guys to protect miners and their industry. For almost a decade they were a prime deterrent to the well being of the miners and their profession. Perhaps a favorable court decision will redirect the agency’s interpretation of the laws of the land in a more productive light for all Americans. Time will tell. Also the decision by the Court will be revealing about itself and its understanding of the rights of American businesses.

[SCOOP]

in reply to: Clips from Alleghany #2192

High grade in the muck pile, always a good sign. Alleghany Days is underway.

[Rick Montgomery]

in reply to: Clips from Alleghany #2191

Hey Scoop, we’re still excited about the last rock pop! Talk more rock, whether angular or roundy, we’re tuned in.

[SCOOP]

in reply to: Clips from Alleghany #2190

LESS TALK MORE ROCK…….

[SCOOP]

in reply to: Clips from Alleghany #2189

Two recent articles not yet on web: front page headline of Mountain Messemger August 5, 2004, “Miller, Sixteen to One File Amended CDAA Lawsuit”, and ICMJ’s Prospecting and Mining Journal, August 2004, “Mine President Seeks Opinions From Peers”. (www.icmj.com).

Company is advertising for administration assistance in Grass Valley paper. Amber left yesterday for Montana where she will marry and move to Nevada. Two young sons of Sixteen to One miners are being considered for training and employment underground. Both have the right attitude to contribute to the operation as it carefully rebuilds its workforce.

Because David and Mike are working to maximize the jewelry value of the last 1000 plus ounces of gold from the “Ballroom Stope”, revenue will be steady for four to six weeks. The manufacturers will be able to fill the back orders on their books. All parties dependent on their livelihood from the great Sixteen to One precious gemstones are relieved. No additional production is expected in August as the miners take care of “dead work”. Gold is currency and last months production could be immediately converted to cash by crushing the quartz. Cash flow remains something difficult to manage for the office, but not abnormally stressful with possibly a million dollars in safe places.

[SCOOP]

in reply to: Clips from Alleghany #2188

Miners are ‘rehabing’ the Tightner Shaft from the 800 foot level to the 1000 foot level. No work has been done in theis area since the fire in 1954.

CBS television from Sacramento has scheduled a visit to the mine tomorrow at 11am. Nothing like a little gold to perk up interest in the old operation.

[SCOOP]

in reply to: Clips from Alleghany #2187

The miners are working on projects that stood behind the mining for gold. Much of August will be surface and underground maintenance and new additions. Plans include a large air slusher for the Ballroom. It makes sense because when the electric air compressor comes on line to replace the diesel one, the mine will have more air than is required for the “as is” operation. Drilling is not as hard as moving the shot rock. This is where production slows down.

The office trailer down by the portal is getting some attention. It needs electrical power and some steps installed. The shop is also getting a face-lift. Parts that are unlikely to ever be used are being hauled off to increase the storage for the good stuff in demand.

[SCOOP]

in reply to: Clips from Alleghany #2185

This quote from a miner today at the Sixteen to One mine in Alleghany says it all. “If we hit another pocket this week, the company had better hire a psychiatrist.”

[SCOOP]

in reply to: Clips from Alleghany #2184

Ian, Joe and Reid took a couple of days rest away from the physical and mental quest to find the gold they believed was deposited near the ballroom. No one worked underground Friday, Monday or tomorrow. Britt and Farris replaced the 200-horse power electric motor in the air compressor today. Mike called the factory service reps to schedule a service call before the compressor fires up. Cost of operation is a consideration yet electric power is preferred over diesel. The draw back is the 1200 cfm electric compressor will produce much more air that the small crew requires.

KNCO radio in Grass Valley called about the recent strike. Mike talked to the reporter and asked for a copy of the interview when it is aired tomorrow. Maybe Rae knows how to add a vocal newscast to the web site. If so, you can hear the story along with me.

[SCOOP]

in reply to: Clips from Alleghany #2182

Extracting real high-grade ore, the kind that is measured in ounces per pound, is a sensitive process. Why?

Joe drilled a four-foot round in the vein above the lenses carrying the gold and shot it about noon today. Tomorrow the waste quartz can be slushed in order to lightly blast the ore with out diluting the gold with waste. The raise is about five feet wide. Gold is visible at the face and on both the left and right ribs couple of feet down the raise. These targets will be mined later. Estimates are difficult, but all the miners have experience and seem to like the process of the guessing game. Maybe they multiply their estimate by $400 per ounce and feel a sense of relief for living their dreams and beliefs.

Tomorrow should be a productive day for gold. Most agree that this pocket will exceed 1000 ounces. Company geologist inspected the heading today. When the mining is mapped and gold locations are identified, the picture will be informative for the present and future. One significant feature at the face is a definite ancient watercourse. Old time Alleghany miners related the importance of watercourses and gold but never explained why.

[SCOOP]

in reply to: Clips from Alleghany #2181

Sixteen to One miners know when to keep their mouths shut. Security is one issue but the Company is experienced in protecting its gold, whether in storage or at the face. When stock was listed and traded on the now defunct Pacific Stock Exchange, management wrestled with a good problem: when is a public release about production appropriate or necessary? Mike wants to keep his shareholders and the public informed but he doesn’t want to broadcast hype. He prefers hard numbers verses speculation.

Scoop readers know that the miners believe in the ballroom headings. Their active mining area looked like the right place to find Mister Pocket. That’s why they show up and turn on the air compressor each morning.

Now the way things have been these guys would be smiling over a fifty-ounce day. Work has been difficult. Emotions have been stretched: hard work, high hopes and little gold. How long can the miner say, “It could be the next round?” Bills still arrive; the wife swears at the mine; the muscles are sore and a cold beer never tastes better.

Well, last Thursday production was estimated at thirty ounces, but the face looked great. Spirits were definitely high after work and everyone held onto the dream. What will tomorrow bring? Joe’s drill actually stopped. David and Mike panned Thursday’s drill cuttings and confirmed the presence of “cornflakes”. Everyone knew that Joe drilled into solid gold! It takes a heavy concentration to stop a drill bit under 100 psi. There were no reasons for sealed lips in Alleghany. Excitement was high at Caree’s bar with no need for concealment.

Friday after work was different. The crew dragged in with 350 pounds of high-grade ore. It was the heavy arseno type but the quartz was the whitest in a long time. The jewelers will be pleased. It was a good payday for everyone, but something else was in everyone’s minds, the indicators suggested that the pocket was growing. (For those of you unfamiliar with the Sixteen to One vein system, when a pocket is encountered its size and direction of concentration are not easily determined. It is like entering the tail of a comet.) Word spread that the Sixteen to One hit and was confirmed by the miners. No one was hiding that fact, but how big will it be remained a secret to keep.

Production expectations for Monday were to equal or exceed the estimated 400 ounces on Friday. It did not happen but the crew is still smiling. It is not time for a press release, but it is time to let our friends know. The best is yet to come.

[lynwood]

in reply to: Gold Enters Major Bull Market #2179

In Response to Rick on January 31,2004

The global thought you ask has changed over the last century; however with a slight substitution maybe the following is valid. To paraphrase most every seasoned text on international (that is what it was called before global) trade and financial relationships, the functioning of a gold standard in any country is greatly affected by the number of countries employing it. This point is important because of the wide variations in the geographic coverage of gold standards during the past century. For a few decades prior to 1914 gold standards were used by virtually every commercially important country in the world. Later the numbers fluctuated widely until the United States became almost alone in its use. The decade between the mid 60’s and 70’s collapsed the long-standing position of gold in international trade. Or did it? If we substitute the word “countries” with companies, corporations or groups or individuals, maybe today the global financial players are still using the only currency of payment trade and wealth storage that will last. When you think of oil, think of gold.

[Gerard Forsman]

in reply to: Miscellaneous #2180

Hey Mike! I heard a rumor Friday night. Is it true?

[SCOOP]

in reply to: Clips from Alleghany #2178

Steady progress in developing the block of ground called the ‘kitchen’ raise. A little gold is the best geologic indicator and is the reason the crew remains mining this area. This area is below the 83,000-ounce pocket, to the north of the “million dollar day “ mined in 1993, and above the rich two million dollar week in 1995. Confidence remains high.

The 200-horse power electric motor is in the shop to be rewound and refitted with new bearings. Cost estimate is $4,000. It will be ready by Friday next week. When the mine harnesses its waterpower to convert it into electric energy, it will be a major milestone of accomplishment. Right now the crew is slushing two headings with air driven slushers. An electric slusher makes a world of difference in production. Right now the air is produced from a diesel compressor. Placing the electric compressor back on line saves labor but is more expensive to operate.

Mike has 50 ounces of pretty good slab to sell next week . So far, David has not filleted the quartz and gold golden trout. This carving has more lives than a cat. Gold sales ordered a new grinder, which will be shipped from Barstow, California next Tuesday. It cost $2,900 plus tax and shipping.

[SCOOP]

in reply to: Clips from Alleghany #2176

Outside weather continues to defy any criticisms. It is beautiful and invigorating. Underground remains the same. The crew has drilled two rounds per shift this week. Reid got himself twisted; well the drill sort of swung him around when the bit penetrated into a vug or some space or different material. He didn’t get hurt, but his curiosity about what he hit is high. Miners like sudden changes in their heading, especially when the drill cuttings turn yellow. Cornflakes, that is what the miner likes to see. Joe took some time this week to give the equipment some heavy service. Britt has removed the 150 horsepower motor from the broken electric air compressor. Mike will take it to be repaired on his next trip to town. Ian conducted an inspection with the Cal OSHA mine inspector with good results. Rae and Amber are closing out the accounting records for the second quarter. David has been busy with phone orders. He placed an ad in the International (California) Mining Journal, which has been running for three months. The next issue of the magazine may contain a story about the MSHA appeal in the US Court of Appeals for the Ninth District. Mike is off to Oroville to sell slab. Later in the day he meets with a team of lawyers who have expressed an interest in the action against you know who.

[SCOOP]

in reply to: Clips from Alleghany #2175

Happy Independence Day

Wealth is a contributor to freedom and freedom plays a significant role in independence. Gold is society’s most noted storage of wealth as recorded over an historical 6000 years. Shareholders will be pleased to know that a short crew (5) worked today and moved the company five shifts closer to Mister Pocket. The Sixteen to One poses no question about holding pockets of unmined gold. No geologist or learned student of the Alleghany Mining District doubts this as fact. Scoop stays intrigued with this mine because the question of its success is not “if”. The question is “when”.

Rae was organizing after the shareholder day sales. Receipts were $13,560. If Mike, David or Rae read this, take some pictures of the new T-shirt and put them on the web page so people can check them out! Oops, reporters are supposed to report facts and avoid opinions.

[SCOOP]

in reply to: From the Sixteen to One Archives #2174

Two Ways to Look for Gold
San Francisco Chronicle September 2, 1980
By Stephen Magagnini
Gold mining on a small scale is relatively hassle-free: “Pick a river, any river, any place on that river,” advises one pan-and-dredge salesman.
But the more grandiose your golden dream, the denser the thicket of local, state and federal agencies you’ve got to penetrate, as two 20th century Argonauts, Mike and Michael Miller, have discovered.
By coincidence, these romantics, who bear the same name but are unrelated and a little wary of one another, have both invested a lot of time, sweat and money re-activating long-dormant commercial mines – Mike was jailed in the process – and both have yet to hit paydirt.
Both are 38 years old, both are fascinated by gold, both are gamblers who have done their homework, hired geologists and staked their careers and fortunes in pursuit of buried treasure.
There the similarities end.
Mike Miller, a native Californian, is secretive, cautious and shuns publicity. He lives in a free-flow log cabin he built for himself down a dirt road not far from one of his mines.
He had mixed success running restaurants and selling real estate in Santa Barbara before he “got tired of dealing with people.” In 1974 he began scouting gold properties in Sierra County’s Alleghany Mining District, five square miles that contain some of the richest gold deposits in California but have hardly been worked since World War II.
The district’s only active mine, the Oriental (a 10-man operation), has been among the largest gold producers in the United States over the past five years.
In 1975, Mike bought the Morning Glory Mine and leased the Osceola Mine. The Morning Glory, which opened in 1891, had been submerged in water for some 40 years and several of the tunnels had caved in.
But there’s a gold-bearing quartz vein anywhere from half-an-inch to a yard wide that runs through the hill at a 30-degree angle, said Mike’s partner, Tom Woodfin. The trick is to follow the vein until it leads you to the gold.
“This area here is what they call a ‘pocket area,’ which means you can be following along the vein and not find anything,” Woodfin said. “ You go in, you drill holes, you load them up with dynamite, you light the fuse at night and you go home and you never know what you’re going to find the next morning – it could be a streak of gold as thick as your finger or it could be nothing. I’ve been in a lot of old mines where I found gloves, picks, shovels… like they just didn’t come back the next day.”
Steve Rosenbaum, Mikes’ geologists, compared gold mining in the Alleghany to hunting for “a raisin in a pudding. There hasn’t been a good correlation between any element or mineral that will increase the halo (the chance of finding gold).
“Eighty percent of the gold in this district came from veins 100 feet from serpentenite is no guarantee there’s gold to follow.
Miller and Woodfin pumped out the water from the Morning Glory, reconstructed the 300-foot tunnels and built a wooden bridge over a creek so trucks could haul the rock tonnage from the mineshaft to the rest of the 40-acre property.
But in November of 1977, Mike was arrested and charged with illegally using federal timber, doing “ substantial” work without a permit, dumping material into the creek that threatened fish and plant life and causing a barrier in the waterway that prevented run-off.
He was jailed and bail was set at $1000 on the misdemeanor charges, which were advanced by the state Department of Fish and Game.
Twice, Miller was prosecuted.
The first time, the j8ury was split 10to 2 in favor of conviction, said Sierra County District Attorney Jim Dremman; the second time, Miller was acquitted. Miller has since sued Dremman, Sierra County, the Fish and Game Department and the federal government for $6 million, charging illegal trespass, abuse of process, malicious prosecution, conspiracy and violation of his civil rights.
Last September, Miller and Woodfin finally got back on track and rehabilitated the main shaft. They plan to hire a dozen men to excavate between 15and 30 feet of rock a day.
Mike won’t say exactly how much money he’s invested so far – “less than $1 million”—or predict how much gold he expects to mine. “If we could match the production of the past (two ounces of gold for each foot) I’d be very happy,” he said.
Mike doesn’t know if he’ll be able to start production before he runs out of money. The state Department of Corporations prevented him from setting up a limited partnership of small investors “in a misguided attempt to protect widows and orphans from bad gold investments,” he said. “I was going to pay dividends in gold.”
For the last six months, Miller and Woodfin have been working day and night burrowing into the mine and examining mineral samples under the microscope. “We’ve taken a lot of risks but I think they’ve been calculated,” Miller said. “We watch out for the ‘foolkiller’ – we don’t go in without our hard hats.”
Mike and his family spent one summer living in a cabin without any electricity, and recently ordered several 100-pound sacks of beans. “You can live for six months on beans,” he said. “We could run out of money and even that might not stop us…”
The other Miller, Michael, hasn’t run out of money despite bureaucrats, floods, quicksand, and most recently, a fire in the tunnel that threatened to came in his mine.
Before he started the Miller Mining Co., the flamboyant Brooklynite – who attended New York Law School at night – practiced law for a dozen years, argued cases before the U.S. Supreme Court and “was successful in the academic sense, but not the financial sense.”
Michael went west in 1975 and discovered he had the Midas touch, at least when it came to producing television shows. IN three years, he produced a series of “self-help” shows on such topics as sewing and ethnic cooking he says grossed $80 million and netted him in excess of $10 million.
“IN 1978, I started looking at the tings to do with cash and was convinced gold was the way to go,” he said.
Michael toured Calaveras County in a Roll-Royce until he settled on the 100-year-old Altaville and Calaveras Central Mines. He lives in a Bel-Air mansion, jets up and down the state in a Cessna Citation and has autographed pictures of neighbors like Shawn Cassidy, Steve Martin and Suzanne Somers hanging in his office.
Michael thrives on publicity – reporters are handed a glossy package of Miller Mining Co. reprints – because he wants to “establish a market position – I want to build this into the gold company in California.”
Without the environmental restrictions, Michael said he could have opened his mines for $2 million. But the required settling ponds, water discharge plant and environmental impact report ran the bill to $6 million — $3 million of it Michael’s. “So they’ve upped the ante considerably,” he said. “If I had bought gold futures contracts at $180 an ounce, I could have made $10 million on a $250,000 investment, but what fun is it?
“IN August (1979) I had to gamble on two factors: One, is the gold down there, and two, will gold go up? People said I was a lunatic. It took a big set of nuts to put the money up.”
Besides the U.S. Mine Safety and Health Administration and the California Occupational Safety and Health Administration, Fish and Game Department and state air and water quality control boards, Michael had to contend with the suspicious citizens of Calaveras County. For months, the county threatened to revoke his building permit over supposed water and noise problems.
Ultimately, however, the citizenry realized that Michael, who has hired 105 persons, was doing the county – whose economy was suffering as a result of few housing starts and failing timber industry – more good than harm.
“Our independent… report indicates our operation will be responsible for 650 to 900 service and retail jobs – stores, restaurants, etc.,” Michael said. His payroll is $150,000 a month and each dollar generates $7 worth of business in the county.
Oliver Garcia, mayor of Angels Camp, remarked, “everybody wants it (the mine) as long as you don’t put it in their backyard. We like to see people gainfully employed. You can’t have your cake and eat it too.”
Once Michael had extricated himself from the bureaucratic quicksand, he ran into the real thing.
After his miners, averaging 10 feet a day, had bored about 489 feet into the Altaville Mine, they found themselves below the waterline. First there were floods and then there was quicksand.
“At one point I fell in up to my wais t and they had to pull me out with a tractor,” Michael said.
Then one August afternoon, when Michael was within tasting distance of the ancient river channel’s bedrock with its fabled “paystreak,” disaster struck.
Sparks from a cutting torch ignited the bales of straw used to fill up voids in the walls about 550 feet into the tunnel. Underground fires are extremely dangerous and difficult to put out; in 1922, 47 miners lost their lives in a fire that caved in the Argonaut Mine in Jackson.
Fifteen minutes after the fire started, 14,000 gallons of water were dumped down a drill hole above the fire. That didn’t work. The next day, 20 tons of liquid carbon dioxide were poured into the tunnel. That didn’t do it. Neither did 55-gallon drums of foam with an expansion ration of 100 to 1.
Benny Licari, Michaels 28-year-old project manager, said there was enough oxygen in the bale hay to keep it burning for months.
After more than a week of frustration, Michael’s miners poured a bulkhead of cement on either side of the fire, than plugged the smoldering area with 25,000 cubic yards of grout.
The next sep will be to drill through the cement.
No one was hurt in the fire, but production has been delayed by at least a month. “It don’t take a mathematical genius to say it’s (cost us) over $250,000,” Licari said.
Before the fire, Licari said “We hit a little pocket of it (gold). We took about a 40-pound sample and recovered a nugget a twelfth of an inch in diameter.”
Norm Brown, a Sacramento engineer who earns $400 a day as a mining consultant, said Miller “really is a pioneer. Michael’s got a lot of guts. There will be more like him. He only has to bring out 12 ounces of gold per day to cover his costs.”
Michael expects to do a lot better than that. His miners, using diesel-powered buggies, will be able to remove 1000 tons of ore a day – each ton yielding a quarter-ounce of gold, for the nine-year life of the mine, Michael said.
Since his existing sand and gravel operation already covers about 60 percent of his costs, he stands to clear bout $200,000 a day – if the paystreak is there.
“I have no doubt it’s there,” Michael said. “Between you and me, it’s an absolute sure thing.”

[SCOOP]

in reply to: Clips from Alleghany #2172

Shareholders Day…June 26, 2004…Alleghany, California

The weather was perfect. Not too hot; deep blue sky, and the trees in the forest surrounding the landing at the mine where the meeting took place drew many comments about their healthy appearance. No bugs. No noise, just the peace of the mountains.

Two yellow tents were erected, one for the gold collection and company specimens and the other for the mess hall. Bales of straw were placed around as benches. A large canopy was tied to the old office buildings, a couple of stakes in the ground and to the hillside. Over one hundred chairs were placed facing a single microphone stand. A large map of the Sixteen to One mine hung as a backdrop.

The Saturday crew wore the newest T-shirt. It was lime green which clearly told the 200 plus people whom to see if they needed help. Many former employees showed up to help manage the event along with the current contract miners and employees. After the meeting, which ran about an hour and twenty minutes, the shareholders and their guests had the option to inspect the underground workings. Miners were spaced in strategic locations and offered information about the mine. The gold sales tent had four and sometimes five people helping with sales or just answering questions about the gold and quartz inventory. Many bought the newest shirt in two styles and five colors but with the same print …Mister Pocket meets sweet Sixteen while dancing before a full moon.

The meeting began about 10:35am with an offer by Michael Miller to address questions that he did not plan to cover under old business or new business. About 11am when the seats filled and the rear tent was also crowded with people, he called the formal meeting to order. About nine million of the twelve million shares were submitted, constituting a quorum. A copy of last year’s meeting was available for review. Mike asked four, no five people to speak before the crowd: Charles Brown, past director who flew in from Denver for the meeting, Ray Wittkopp, resident geologist and one of the planners of the proposed new shaft into the northern strike of the Sixteen to One vein, Scott Robertson, director and treasures, Rae Bell Arbogast, secretary and George Gilmour, attorney representing the corporation in its prosecution of Filter et al.

After the meeting Mike said, “It was the most attentive gathering of shareholders I have seen since the serious take over meeting held in Sacramento in 1983. I could see their faces and look into their eyes. They were paying attention and wanted more information even when I was ready to cut them loose. It was a great meeting to witness.”

The event broke up about 4:30pm. Many went into town to see the drill collection at the Underground Gold Miners Museum. A small crew packed up the gold, gathered the trash so the bears stayed away, broke down the PA system and saved the remaining pasties and other food and headed to the office. (Scoop spotted them sucking down a couple of beers to end a perfect day).

[SCOOP]

in reply to: Clips from Alleghany #2171

It appears to us that the learned trial Judge has failed to consider the total effect of the facts relied on by the prosecution, in such manner as was required in a case of circumstantial evidence, and that he has been led into committing this error by acceding to the application to go into the matter before the close of the case for the prosecution.

Page 161

[john thurman]

in reply to: Miscellaneous #2168

name’s dick eh?…just plane old “Dick”

look, this post wasnt ment to be a joke. looks like i got just what i expected from a dumb hard headed rock miner who has noting else better to do with his time than to be a jackass and make fun of people. i hope your 1000 feet in a mine and the thing caves on you, and you get to smother to death and die slowly from lack of oxygen before they can get to you.

doesnt make any difference though if you mine or not. for your rude and azzholish comment, im going to have my old gypsy grandma put a hex on you. i bet you dont last 3 weeks now. think its a joke…we will see i guess.

[SCOOP]

in reply to: CDAA Conduct #2170

Superior court of the State of California
County Of Sierra
Order regarding the Demurrer Hearing
Case No. 6293
Hearing Date: May 28, 2004
Time: 2:30 P.M.
Dept: 1

The Demurrer of the Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and the California District Attorneys Association (CDAA), came on regularly for hearing on May 28, 2004 at 2:30 p.m. before the Honorable Richard A Haugner. Defendants and moving parties appeared by Knox, Lemmon and Anapolsky, LLP and Thomas S. Knox. Plaintiff and responding party Michael M. Miller appeared in proprier persona. Plaintiff Original Sixteen To One Mine, Inc. appeared by George R. Gilmour, Esq.
The Court having reviewed the pleadings and papers on file with the court and having heard oral argument and good cause appearing, it is hereby ordered:
1. Defendants’ demurrer to the First Cause of Action for malicious prosecution is overruled;
2. Defendants’ demurrer to the Second Cause of Action for intentional infliction of emotional distress is overruled;
3. Defendants’ demurrer to the Third Cause of Action for intentional interference with prospective economic advantage is sustained and Plaintiffs shall have until July 15, 2004 to amend their Complaint should wish to do so.

[Dick Davis]

in reply to: Miscellaneous #2169

Sorry, you took my message as an insult or joke. That was never my intent or thought.

People explore Florida’s beaches with metal detectors searching for treasure and I just suggested Mexico for the same reason. You mentioned your Dr. who prospects in Arizona, that’s what made me think of Mexico. I’ve been to a lot of old abandoned haciendas in Mexico and many have been torn apart by people looking for hidden valuables. And I doubt if the people looking had a metal detector. You’d probably at least find bits of history like the people who search Bodie, California.

This is an Open Forum, not all replies come from the 16:1 miners. I’m just a guy that likes California history and hopes that this last connection to underground mining history continues.

I had cancer 9 years ago. Upjohn used me as a guinea pig and provided experimental treatment. As a group the treatment did not prove superior, but it worked for me and they paid the bill. I hope your treatment is successful.

I’ll be more careful with my comments in the future.

[SCOOP]

in reply to: CDAA Conduct #2167

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
BEFORE THE GRAND JURY OF THE COUNTY OF SIERRA

THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
MICHAEL MEISTER MILLER, JONATHAN
FARRELL, and ORIGINAL SIXTEEN TO ONE
MINE, INCORPORATED,
Defendants.

OCTOBER 28 and 29, 2002

INDICTMENT

Honorable CHARLES EGAN GOFF, Judge

APPEARANCES:

For the People: California District Attorney’s Association
731 K Street
Fourth Floor
Sacramento, CA 95814
By: GALE FILTER
Deputy District Attorney

DENISE MEJLSZENKIER
Deputy District Attorney

ANTHONY PATCHETT
Deputy District Attorney

Judy Bishop, CSR. No. 2261

October 28, 2002

9:10 a.m.

THE COURT: Good morning, ladies and gentlemen. I see that our good clerk has put my name tag up here, that’s important because my standard introduction for that is that I don’t want you to have the impression that the mistakes I’m making are to be blamed for some other judge. But anyway, my name is Charles Egan Goff, and it’s a pleasure to be here in this most beautiful community. I’ve only been here to work once before. It was a pleasure then, I’m sure it shall be this time. Now, these are members of our grand jury, just for the record?

THE CLERK: Yes.

THE COURT: Madam Clerk?

THE CLERK: Yes.

THE COURT: I’m going to introduce to you the persons who will be presenting matters to you. I’m sure you know our court personnel here because this is a beautiful and small community, and I’m sure a most friendly one. That’s been my experience the one time I’ve been here previously. I’ll introduce our regular court personnel to you so that you will know. I’m sure you know them anyway. But our clerk, of course, is Jan Hamilton, and she’s being assisted –

MR. FILTER: Excuse me one second, I believe there’s some people in the room that are not grand jurors and we should ask them to leave till we convene.

THE COURT: Oh, I understood they were all members of the grand jury. I apologize for that, ladies and gentlemen.

MR. FILTER: If you just step outside we’ll get you shortly.

THE COURT: Thank you for calling that to my attention. My presumption was, my understanding was that all folks in the room were members of the grand jury except, of course, for the official personnel. Our assistant clerk is Regina Belleque. Am I pronouncing that correctly?

THE CLERK: Belleque.

THE COURT: I’ll get it here. That’s a new name to me. And our reporter, a very important member of the group, is Judy Bishop. Now, the team that will be presenting the information, we call it evidence, to you are members of the California District Attorney’s Association, a special statewide group. And this group is especially experienced and learned, I must say, after chatting with them, in the matters which will be presented to you. And I’m going to introduce them to you at this time. Mr. Gale Filter is, shall we say, the team leader. Is that appropriate, Mr. Filter?

MR. FILTER: It depends what Denise says (laughter).

THE COURT: All right. A sense of humor is essential, I know that. And next to him is Denise Mejlszenkier. Did I pronounce that —

MS. MEJLSZENKIER: Yes.

THE COURT: And over on my left also in that same row is Anthony Patchett, also a member of that team. And I’m advised, and was complimented by Mr. Filter, to mention that he is retired from the Los Angeles District Attorney’s Office, a prestigious legal organization. And let’s see, I’ve also met Ms. Kelley, the foreperson of this grand jury. Now, I want to express my appreciation to people who come in as jurors, either grand jurors or petty jurors. Petty jurors, it doesn’t mean they’re petty people certainly, petty means small, and grand jury is a big jury, more than 12 ordinarily, sometimes often over 20, I think; am I not correct?

MR. PATCHETT: Yes, sir.

THE COURT: And the petty jury, of course, is 12, sometimes even as small as six, so that’s why we use that term. And I just want to remind you, as I do all jurors in all cases, that when you’re called for this service you’re not serving me, you’re not serving the court system, you’re not serving the, quote, government as such, you are serving all of your fellow citizens, including yourselves, and it’s very important for you to understand. Please understand you are not here working for me, I am here working for you. You pay my salary. Never thought of that, did you? Who owns the courthouse? And who elects the government that puts us here? You are in charge. And I might say we all know we are going through troublous times, questions are raised about the government. Never forget, you are the government. We work for you, and you better make us do it. And they’re the thing that I emphasize to juries. Wonder why nonlawyers and nonjudges do these things, sit as jurors and make these decisions? It’s very simple. I want to explain that to you just briefly. It may have been explained to you before. That just because someone has been to law school and has practiced law and sat as a judge doesn’t mean that he or she has more common sense or more practical everyday nuts and bolts experience in the world than the rest of society. I always call them normal people. That’s a joke, of course. Once you’ve been through law school, why you’re not a normie anymore, you’re one of them. But your experience in life, or common sense, are what cut it. A verdict, you’re not here to do a verdict, but a verdict, ver comes from the world verily. Verily I say unto you. It’s verification, trust. Dict is speak. So when the jury comes in with a verdict they’re telling you what the real facts are, the truth. And in a sense that’s what you will be doing here in a little different way. I tell everybody, all jurors this, that before when I was trying cases as a lawyer I always had my hair cut. I used to have hair, and I’d have a haircut before trial, and my barber was Jack Muldoon. Jack, I would tell Jack about the case I was going to try and Jack would invariably, every single time, come up with some point of view that I had never thought about because I had stuck with legal stuff, and gives me an odd way of looking at the world. Jack talked to everybody everyday, and he knew the world much better than I did. So that’s why we have juries. You decide the true facts of the case and the judge is supposed to tell you the law. And the judge, by the way, is supposed to tell you the law in a way that you understand. If you don’t understand it, raise your hand. The judge is working for you, make them tell you what it means; okay? So if that happens in this hearing, what are you talking about, Judge? What’s that word mean? It’s okay, that’s what we want you to do. Now, I’m going to read to you a very well prepared statement regarding what we’re to do here. And by the way, it’s a special honor for me to be in this court. One of the great judges in California, recognized by all lawyers and all judges as just almost a Superman, came from this county, and was a judge in this county, and should have been on the Supreme Court of California at least, was Judge Winslow Christian. You probably all know him. And it’s a great honor to sit here where he has sat. One of the great people. Now, it becomes the duty of the court, and we always say the court, that means me. I don’t know why they put the court in here. It’s my job to tell you, or instruct you as to the law of the state bearing upon the services you will perform as grand jurors and the process known as a criminal indictment. Each of you will be provided with a written copy of these instructions for use during your jury service. Under our system of law only those crimes which are triable as felonies may be the subject of grand jury indictment. What’s a felony? A felony is something, the crime for which someone may be sent to State Prison if found guilty, or pleads guilty. Now, there are, as you know, crimes of lesser magnitude called misdemeanors for which someone may not be sent to State Prison for a year. I suppose 364 days would be all right. And you cannot indict for any of the misdemeanor offenses. The grand jury, whenever criminal causes are being investigated before it, must appoint a competent stenographic reporter to be sworn and report the testimony that may be given in such causes, and to transcribe the same in all cases where an indictment is returned or an accusation presented. Just for the record, has our stenographic reporter been duly sworn?

THE CLERK: Not for this session. I have an oath I could give her.

THE COURT: I think that might be appropriate. (Reporter sworn).

THE COURT: All right. And the following sentence I should have added: If your foreperson notifies the court of the day, time and place during which the grand jury will receive evidence, the Court will arrange for a court reporter; and of course that has been done appropriately. And she is present and with us. And the transcript is extremely important. And I have said many times that the court reporter is the judge’s best friend, because if something comes up and people don’t recall, at least I don’t recall everything word for word, and it’s very important that we have that record for later on, that protects everybody, the grand jurors, parties presenting, attorneys presenting the matter, and the Judge. Now, before the grand jury considers a charge against any person the foreperson shall state to these present the matter to be considered and shall name the person who will be charged with an offense in connection therewith. The foreperson shall then direct any member who has a state of mind in reference to the case of the party which will prevent him or her from acting impartially and without prejudice to the substantial rights of the parties to retire from the grand jury session while such matter is under investigation. Now, is that appropriately done at this time, Madam Clerk, or shall we wait until I’ve given the preliminary?

THE CLERK: We can wait.

THE COURT: Let’s do that. In the investigation of a criminal charge the grand jury can receive no other evidence than such is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness. And the deposition, of course, is taken under oath. And a deposition, if taken, would be presented through a court reporter, or prepared by a court reporter. The grand jury can receive none but legal evidence, and the best evidence in degree to the exclusion of hearsay or other secondary evidence. Basically, I might add, that nonhearsay evidence, that is admissible evidence, is evidence that the witness has personally perceived through one of his or her five senses. Hearsay is not admitted, except rarely, special exceptions to the rule, because the person who is testifying has not personally perceived the information. Presentation of evidence should be left to the attorney advising to the grand jury. Now, we have three here so we’re going to have a real super session. Questions by individual grand jurors should be presented in writing to such attorney. If you have questions please put them in writing. Our grand jurors been given note pads I presume?

FILTER: They have been, Your Honor.

THE COURT: They have, so, swell. Those are very important. You may take notes of the testimony if you desire, but if you have questions please put them in writing, and the attorney presenting the evidence will determine if it’s a question which will lead to legally admissible evidence. That’s why they’re in writing. Direct questioning by grand jurors may create an appearance of an inquisition to the prejudice of the proceedings. Another good reason for the written questions. The grand jury is not bound to hear evidence for the defendant, but it is the duty of the grand jurors to weigh all the evidence submitted to them, and when they have reasons to believe that other evidence — now, this is important, ladies and gentlemen — when they have reason to believe that other evidence within their reach will explain away the charge they should order such evidence to be produced and for that purpose may require the district attorney to issue process for the witnesses. Now, process means basically a subpoena to bring them into court. Now, that’s something that a petty jury, that is a trial jury, doesn’t have the authority to do. They might make a suggestion to do that, but they can’t require it; you can. In some cases it would be safe and proper to notify a defendant that you are investigating his or her case and invite that defendant to appear and to testify before you; in other cases, however, you might defeat justice by notifying the accused person that you are investigating his or her case. A sound discretion and judgment in such matters are required of you. When a person appearing before the grand jury is concerned in the investigation, such that an indictment or accusation may be found against such person, that person may testify only at his or her own voluntary request. Now, that’s a Fifth Amendment right. You can’t be required to make statements anywhere, at any time, which would tend to show that you violated any law. That’s a basic constitutional right. A procedure for use in such situations is set forth in the appendix to these instructions. Now the law presumes that a person who is the subject of a grand jury hearing is not indictable until such evidence has been presented to warrant an indictment. He or she, that is the prospective defendant, cannot be indicted unless eight or more grand jurors agree that the evidence presented satisfies the proof required by law. The standard of proof you must use to indict is the same as that before a magistrate at a preliminary examination. That is evidence presented to the grand jury which, if unexplained or uncontradicted, would warrant the grand jury in entertaining a strong suspicion that the accused has committed the offense or offenses for which the indictment is sought. Probable cause means that such state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that a crime has been committed and the person accused has committed the crime. If you find an indictment in any case you should proceed as follows: First, you will determine by a vote of at least eight grand jurors, each of whom has been present during the presentation of all the evidence, in favor of indicting a certain person for a given crime. You will then notify the district attorney or deputy district attorney to whom the case is assigned to draft an indictment charging that person with the crime. Thereupon, when the indictment is prepared by the district attorney and is brought before you and read before you, you should thereafter make a second vote in favor of adopting the form of indictment. The indictment must have endorsed upon the back of it words “a true bill”, and that endorsement must be signed by the foreperson of the grand jury. If an indictment is found the names and witnesses examined before the grand jury, or whose depositions have been read before you, must be inserted at the foot of the indictment before it is presented to the Court. The indictment that is so found and endorsed must be brought into the Court by the grand jury and must be — and must, by the foreperson, be presented to the Court, that is the Judge, and filed by the clerk as a record of the court, all in the presence of the grand jury. In the event an indictment is presented to you as grand jurors the fact is it must be kept completely secret and must not be disclosed to anyone until the defendant has been arrested. Now, this concludes your instructions at this time, and I’m confident you will fairly carry out the duties you have been sworn to uphold. And I notice that all grand jurors have paid rapt attention to what I’ve been stating to them. A copy of this will be given to you so that you don’t have to feel you have to memorize everything I’ve said, stated orally to you; that is not humanly possible. And some of these instructions have been rather complex and you will need to review them. Now, another important thing I should have said earlier, we’re working for you. Once again we are on your payroll, you are in charge. You are the grand jury of this county, you have tremendous authority, which is appropriate. Citizens must retain that authority in a democracy; you’ve got it. Now, one of our jobs — my job in particular is to see that I satisfy you, that you understand what is stated to you clearly. We all have the gross disadvantage of a legal education and legal experience. Of course I mean that jokingly. I love this work, I really love it, but we have our own peculiar vocabulary, and any business or profession has it. If any of you are, say, carpenters or mechanics you use terms all the time that I haven’t any idea about. My wife, a former architect, will not permit me to hammer a nail in our house. I’m serious, she won’t let me do it because that’s beyond my ability. And on the other hand, we certainly don’t expect you to understand legal terms, legal phraseology. Now remember, we’re presenting this to you as a service to you. If we don’t do it so you understand it clearly, just tell us. That’s our job. If we don’t make it clear to you we are not doing our job. And as I’ve told the attorneys, some judges for whom I appeared as a lawyer many times, get very fuzzy and sometimes upset if it’s called to their attention something simple like that. That doesn’t bother me a bit, I don’t care about that. I just want to do the job right. So if I don’t speak clearly, if you don’t hear me, if I use a phrase or a word you do not understand, raise your hand. You’re running this show; okay? Any question about it? Just ’cause I have a robe on it doesn’t mean anything; okay? All right. Anything further before we proceed? The record should show that I’ve exhausted everyone and no one has responded. (laughter). All right. Mr. Filter, what do you suggest?

MR. FILTER: We need to select the alternate.

THE COURT: Yes. And as I understand we have two alternates available. One of our — one of your members is unable to serve and is not present, unfortunately, and what we shall do now is ask our members of the grand jury to retire from the courtroom so we can most conveniently, for everybody concerned, particularly the prospective alternates, come in here and give them a little breathing room rather than sitting in rather small judge’s chambers. Now, I want to read something to you that’s extremely important.

JUROR: Are we supposed to go?

THE COURT: Oh, no. My wife reminds me, you’ll appreciate the fact my wife says I talk too much, I’m sure you agree by this time. I bought her a little pin. You might get a kick out of this, a little humor. A little pin I sent to her, she’s out in Hawaii recovering from minor surgery. So I sent this to her. I picked it up in a little sort of everything store in Truckee. It says, “Have I said you may speak”? I’m going to pin that on her.

JUROR: That goes over big.

THE COURT: But this is extremely important to you, ladies and gentlemen, for a lot of very practical reasons. I won’t enumerate them for you, as I say, they’re very practical reasons that will come to your mind. They’re legal reasons because they’re practical. And I’m going to — this indicates that I should state this to witnesses after they have testified, but it applies to our grand jurors, too. You probably heard this before. I must admonish you not to discuss or impart at any time outside of this jury room the questions that have been asked of any witness in regard to this matter, or the answers given, until authorized by the grand jury or the Judge to discuss or impart such answers. You’ll understand that a violation of these instructions on your part may be the basis of a charge against you for contempt of court. I’m not so worried about anybody being held in contempt, I don’t do those things, but you can’t even talk to your spouse about it. I can’t talk to my wife about this. She says, “What are you doing up in Downieville? It’s such a beautiful place, what are you doing up there?” Sorry. Yes?

JUROR: Does that mean we don’t discuss it with each other within the grand jury?

THE COURT: You can’t do it as a petty jury. Does that apply, in your opinion, to grand jurors also?

MR. FILTER: Your Honor, my view is that nothing is discussed about this case, even among themselves, outside of this room. For that reason it’s very much like a jury would be in any type of trial.

THE COURT: That’s a very practical point. We must admonish our jurors, our 12 jurors in a trial not only not to discuss the case with anyone, but we include in that fellow jurors. Now, the very practical problem is this, my experience with jurors is once they are in this jury box it’s their baby, and they feel that way. They get very involved, emotionally and intellectually with that, and they want to share this with their fellow jurors. Practical problem is if that happens then you have what we call subgrouping, I’m sure you’re all familiar with that. You get two or three jurors like a team who decide the case, and they try to convince the other nine. I’m sure that doesn’t happen often, but we just must prevent that as a practical matter. Once again for the juror’s protection, because you want to do a super job, we know that. And that is for your protection so that you will be satisfied that you did the best possible job. And that’s very practical. I’m glad you pointed that out, and I appreciate your observation, Mr. Filter, thank you. And once again, as I tell everybody, I can’t even tell my wife what kind of a case I’ve got when we’re trying this. It took a long time to convince her, of course. She’s permitted to talk about that but I don’t dare. Now, this admonition of course does not preclude your raising questions in the courtroom, and we certainly don’t want to jeopardize your personal rights in any way. I’m not really concerned about that because I can’t foresee it happening. Now, any questions at this time? Please understand questions are welcome. None at this time? Any occur to you? Oh, yes, Ms. Kelley.

JUROR: Would you pronounce your last name for us again?

THE COURT: Goff.

JUROR: Like playing golf?

THE COURT: No, that’s Scottish. G-o-f-f is Shanty Irish. County Clare. My first daughter’s name is Shannon. And it’s right by County Clare. All right. Shall we excuse our jurors at this time and call in one of our alternates? We’ll let you go now, and please remember the admonition, it’s so important to you.

FOREPERSON: Will it be long before you want us back?

THE COURT: Shall we give our jurors half an hour?

MR. FILTER: I’m sorry, what?

THE COURT: Shall we give our jurors half an hour?

MR. FILTER: I don’t think that long, Your Honor; maybe 15 minutes.

THE COURT: All right. We’ll see you then, say at ten o’clock. That’s 17 minutes.
(Whereupon the following proceedings were held outside the presence of the jury.)

THE CLERK: Judge, this is Anita McDonald, she’s one of the prospective alternates.

THE COURT: Were you with us?

MS. MCDONALD: Yes, I was.

THE COURT: Was our other protective alternate also?

THE CLERK: Yes.

THE COURT: That solves the problem.

THE COURT: Now, we you want to make this completely informal if we can. Why don’t I come down, too, and sit down here. All right. Why don’t you go ahead and ask her some questions.

EXAMINATION

BY MR. FILTER:

Q. I’m sorry, what was your last name?

A. McDonald.

Q. My name is Gale Filter, I’ll be one of the prosecutors on this case. This morning when I came in I noticed that, I think it was in the Mountain Messenger there was an article regarding this case in the newspaper; did you read that?

A. Yes.

Q. This case is going to have two felony counts, one of which is going to be a manslaughter charge. Would that affect you in terms of developing any bias on the evidence you heard in this case?

A. No.

Q. Is there any reason that you can think of that would disqualify you to be a juror in this case?

A. No.

Q. Having read the article that was in the Mountain Messenger, would that influence you? Does it give a preconceived idea as to what this case is about?

A. Yes.

Q. Okay. Given that, will that affect you in terms of sitting and listening to the evidence in this case in an impartial way?

A. I’m not sure.

Q. Why is that? Tell me why?

A. The article was a little slanted, so I think I could be objective, but it was — I felt a little sympathy for the defendant.

Q. Given what you read in the article could you put aside what it is that you read in there and sit as an objective juror, that everybody starts out on an equal or level playing field?

A. I’m sorry, could you repeat that?

Q. Sure. You’ve read this article and you say, as it stands, you have a little sympathy, if I understand you correctly, and leaning toward the defendant, and you haven’t heard any evidence in this case. What I’m asking you is could you sit as a grand juror in this case and put everything aside, start fresh, listen to the evidence and reach a decision independently of what it is that you read?

A. I believe I could, yes.

Q. Okay. Judge?

THE COURT: You wouldn’t believe this but when I was in high school the first couple years, summer college, I worked for a newspaper as a sports writer. And I was even asked if I would, later on, if I would become sports editor of that newspaper; small newspaper. This much I know about newspapers, and I admit — as a matter of fact, the college reunion last weekend I had dinner with a college friend who is editor of a small-time newspaper in California. And we got to talking about that quite a bit. Newspaper people, because of the nature of their work and sources of information, often must rely upon what is hearsay to them, things they haven’t observed. And I will tell you from extreme personal experience that hearsay, that is things a witness tells you under oath which he or she has heard from someone else, is very unreliable. I will not consider it in making any decisions. I won’t do it. What you read is hearsay. It’s baloney as far as I’m concerned. Why should you rely, as a juror, not upon what you have seen from witnesses under oath but what someone has heard from someone else which wasn’t even under oath? Does that make sense?

THE WITNESS: Yeah.

THE COURT: The other thing is that’s so important, I left the script up on my desk. Thank you. You don’t have to decide somebody’s guilt or not here, that’s not the question. If you were on a petty jury, 12 jurors, you would have to decide if the defendant is guilty of any particular offense beyond a reasonable doubt and to a moral certainty — beyond a reasonable doubt. That’s not the test here. I’ll read that, if I can find it. Yeah. The standard of proof you must use to indict is the same as that before a magistrate in a preliminary examination, that is evidence presented to the grand jury that is under oath in your presence, which if unexplained or uncontradicted by evidence under oath in this courtroom, not in a newspaper, would warrant the grand jury, that is you, each one of you, in entertaining a strong suspicion, strong suspicion, that the accused has committed the offenses or offense for which an indictment is sought. It’s very different from finding a person guilty and not guilty; it’s very different. So that’s the question. Can you do that?

THE WITNESS: Yes.

THE COURT: I’m not trying to push you. If you can’t I don’t want to put you in the position — I don’t ever want to put you in the position, or any juror in that position of saying I can do it because it makes the Judge feel good. You’re paying my salary, you don’t have to make me feel good.

MR. FILTER: I have just a couple, if I can, questions.

Q. What town do you live in? Don’t give me the address, but the town that you love in.

A. Calpine.

Q. And do you know Michael Miller?

A. No.

Q. Do you know Jonathan Farrell?

A. No.

Q. Do you know or have — do you have any relatives, close friends that work for, or have worked at the Sixteen to One Mine?

A. No.

Q. That’s fine. I’m perfectly fine with this.

THE COURT: Any questions?

MR. PATCHETT: No, Your Honor, that’s fine.

THE COURT: I will excuse you Ms. McDonald. If you’d wait with the other grand jurors and follow them back in.

THE WITNESS: Okay. All right.

THE COURT: I mean if I were normal I would say what did they ask you? They won’t do that. I’m not worried about that. Thank you.

(Whereupon a discussion was held off the record.)

THE COURT: Would you state your name, please?

THE WITNESS: Elaine Leontini.

THE COURT: Ms. Leontini, I think that Mr. Filter will ask some questions; very experienced in this.

EXAMINATION

BY MR. FILTER:

Q. Ms. Leontini, have you heard anything about this case? Mountain Messenger — have you read the Mountain Messenger?

A. Not in the last couple weeks.

Q. Okay. If you’re selected as a juror on this would you refrain from doing so until this case is resolved?

A. Sure.

Q. Without telling me what your address is where do you live?

A. Goodyear’s Bar.

Q. Do you know Michael Miller?

A. I’ve heard the name, I don’t know him.

Q. Jonathan Farrell?

A. No.

Q. Have you heard of the mining company called Sixteen to One?

A. Sure.

Q. Do you have friends, relatives, that either work for Sixteen to One or have worked for Sixteen to One?

A. (Witness shakes head negatively.)

Q. How did you hear about Sixteen to One?

A. It’s just one of the mines up here. I’ve been here 16 years.

Q. Okay.

A. Everybody knows about the Sixteen to One.

Q. And what kind of work do you do?

A. I’m retired.

Q. What kind of work did you do before?

A. Post office.

Q. This case will, as the Judge indicated, will involve charges of felony charges, serious charges needless to say. Do you have any problem sitting on a case that involves felony charges?

A. No.

Q. Is there anything, given what it is, what little you know about this case, that would make you feel uncomfortable in hearing what the evidence in the case is about?

A. No.

Q. Is there any reason that you could think of that would disqualify you as a juror?

A. No.

Q. You could be fair and impartial and listen to the evidence that’s presented in this case?

A. Uh-huh (affirmative).

MR. FILTER: Fine, Judge, I’m content with that.

THE COURT: Mrs. Leontini —

THE WITNESS: It’s Ms. That was my mother.

THE COURT: Well, you heard me mention that little pin I gave earlier, there was another one, it says, “What’s this about winning a man? What kind of a prize is that?” In any event, you’re certainly qualified. As we mentioned, what we’re going to do now is excuse you and then we will have a drawing.

MR. FILTER: You don’t win anything.

THE WITNESS: I kind of figured that one.

THE COURT: What kind of a prize is this?

THE WITNESS: Yeah, what kind of a prize is that.

THE COURT: We would be glad to have you on the grand jury, as we would Mrs. McDonald, so we can’t lose. It serves the people of the county, which is really what counts. Thank you for being with us, Ms. Leontini, a pleasure meeting you.

THE WITNESS: A pleasure meeting you.

THE COURT: Thank you. All right. For the record, we will set aside the state law against gambling and have a drawing.

THE CLERK: Anita McDonald.

THE COURT: All right, call Ms. McDonald in. Should we call our grand jury in. We told them ten o’clock. Let’s call Mrs. McDonald in.

MR. FILTER: We probably should call them both in.

THE COURT: Yes, I think that’s all right.

MR. FILTER: Would that be all right for me to do?

THE COURT: Sure, that’s a good suggestion.

MR. FILTER: Ms. Leontini is coming right up.

THE COURT: Mrs. McDonald, why don’t you be seated

[SCOOP]

in reply to: CDAA Conduct #2166

A. Yeah, his hands were together in his lap. And yeah, his head was — the battery box isn’t even under the chute there, and I believe it was at least this far up under it. I mean with that much space for his neck.

Q. Okay. And then —

MR. PATCHETT: Make a record of what he just said.

MR. FILTER: The witness has testified that in Exhibit 5, that the position of the — the character representing Mr. Fussell is in the right position as seated front of the tram. There are the following exceptions, correct me if I’m wrong, okay, Mr. Kautz?

A. Okay.

Q. And the hands were between his legs?

A. Yep.

Q. That the head was actually perhaps bent six more inches to what would be the right of Mr. Fussell; that the head was positioned more underneath the chute; that the helmet was on top of the tram, as opposed in this characterization being on top of the head of Mr. Fussell. And I think the other thing that you said, which clearly is not reflected, that there was a lot of blood.

A. Yes.

Q. Is there anything I forgot?

A. I think that’s about it.

Q. Okay. And this is Number 5 that I’m showing you.

A. Right, same picture.

Q. Okay. Good. What did you do after you went to see Mr. Fussell; what happened after that?

A. I went over to him and I noticed that the controller of the train was still in gear, so the train was still trying to go that direction with him pinned under it.

Q. Could you tell what gear it was in?

A. Second or third. It was in a higher gear.

Q. Okay. What did you do then?

A. I try to back the train up, to back him — get him out of there, and the train wouldn’t move under the controller. And what happens is when you leave them in gear and they’re not moving it just fries everything in the controller, all the electrical, just because the motor’s trying to go and it’s not. So I pushed the motor vehicle by hand.

Q. What happened when you pushed it back?

A. Then I grabbed him. I had gloves on, white gloves, I grabbed him around his neck and tried to keep his blood in him.

Q. Did you say anything to him?

A. Not at that point.

Q. Did he say anything to you?

A. No.

Q. Was he conscious?

A. No.

Q. Did he respond in any fashion after you moved the train?

A. Nope.

Q. Did you at some point in time move Mr. Fussell from the train?

A. No, I did not.

Q. Why not?

A. I held him there, holding his neck up until help arrived, which seemed like forever. It must have been 20 minutes, I guess. It’s way out at the end of the mine, a long ways in there. And Steve Sheppert showed up first, and he’s an EMT-Paramedic, Camptonville Fire Chief. He took over for me and told me to go grab the safety bucket, which we keep in every work area. And I hopped up to where the slusher was and grabbed the bucket and brought it back down, and when I got back Steve had him laid down on the floor of the tunnel and covered him with a blanket. We started CRP. Steve was doing the mouth-to-mouth and I did the compressions until the rest of the crew showed up, or three or four other people showed up with a stretcher, we call it a stokes. And we put him in the stokes and put him on the flat car of the train, and one of the other guys pulled him out. I followed on foot.

Q. At any point in time that you were administering assistance to Mr. Fussell did he respond in any way?

A. No.

Q. Approximately how long was he at the level of the 1700 level before he was moved?

A. Before he was moved?

Q. Right.

A. Well, we were probably 20 or 30 minutes before everybody showed up and we got him in the stretcher and strapped him in and moved him out to the skip, the elevator.

Q. At some point in time did you see him at the ground level?

A. At the — yeah, when I walked out of the mine.

Q. And what was his state when you saw him at the ground level?

A. Actually all the EMT’s and paramedics and volunteer firefighters were all swarmed around him, so he was just lying there, and they were all around him. I walked past them.

(Whereupon People’s Exhibit 9 was marked for identification.)

Q. Okay. I’m showing you what has been marked Exhibit 9. Could you take a look at that for me? Do you recognize that?

A. Sure.

Q. And given what — what is it?

A. It’s a map of the mine.

Q. All right. In looking at that map can you show where the 1700 level was that this incident took place?

A. Sure. This is the 1700 level (indicating).

Q. Right.

A. This is the main shaft out to the north. I don’t know exactly where, pretty far out here though. Probably in here somewhere.

Q. Okay. Can you put a red sticker approximately the area that this took place?

A. Okay. I don’t know that level too well. It’s got to be around here. Approximately out here (indicating).

Q. And if you would put your initials in the red dot.

A. (Witness marking).

Q. A couple final questions. Looking back on what I have up there, which has been marked as Exhibit 6, is that pretty much how it looked that day on November 6th, 2000?

A. Yeah. Yes.

Q. And it’s clear that there are no warning devices of any kind; you would agree with that?

A. Yes.

Q. No flashing lights of any kind?

A. No.

Q. And is the chute marked in any way?

A. No.

(Whereupon People’s Exhibit 7 was marked for identification.)

Q. Okay. I’m showing you what has been marked as People’s Exhibit 7. Do you recognize that?

A. Not really. It looks like one of the many chutes in the main from this angle.
(Whereupon People’s Exhibit 8 was marked for identification.)

Q. Okay. Exhibit Number 8, do you recognize that?

A. Yep. From that angle it looks a lot more familiar.

Q. Do me a favor, this is probably the worst drawing of a stick man you’ve ever seen, but could you put it over the seat in the position that Mr. Fussell was positioned?

A. (Witness indicating)

Q. So what you have done is you have taken a yellow sticker, there is a man with a baseball hat on facing to the left of the picture; is that correct?

A. Yep.

Q. And that represents the position that Mr. Fussell was in when you found him?

A. Yes.

Q. I mean seated that way?

A. Yeah. Seated that way, yes.

Q. Okay. On the next photo, that photo there, is that a close-up of the photo that is Number 8 in which you put the stick man on top of?

A. Yes.

Q. And again, there is no — or nothing to show, any warning signs, streamers or markings of any kind?

A. No.

Q. Thank you.

A. I would like to add, however, to that question.

Q. No, can’t do that.

A. Okay.

Q. The jurors have given us questions to ask you.

A. Okay.

Q. So we’ll take them one at a time. Was this a temporary chute or was it a permanent plan? The chute that’s above the tram, is that permanent or temporary?

A. Permanent.

Q. Are there any written documents concerning training where the train is concerned, and how often are those documents updated?

A. We fill out a form when you’re task trained on a piece of equipment that just shows that you’ve been trained and by who, but that’s all that I’m aware of.

Q. Is there a manual for the operation of the train and where is it located?

A. I don’t know.

Q. Well, let me ask the first question. Is there a manual for the train?

A. I’m sure there was one published at one time.

Q. Did you ever look at it?

A. I’ve never seen one.

Q. And so the second question, you wouldn’t know?

A. Right.

Q. Is there an emergency stop button for the operator mounted to the cart or the train?

A. No.

Q. Were all other chutes marked in other work areas?

A. No.

Q. Did anyone walk this area to your knowledge? Did anyone walk this area before sending in workers?

A. I believe that the inspectors were in that area not more than a week prior to that point.

Q. No, no, no, I don’t think that’s what the question is. The day of this, November 6th.

A. That day?

Q. Did anyone from the mine walk that area before workers were sent in? I don’t know whose question this is?

A. Not them, I believe; just the workers.

Q. Okay. There was one question we can’t ask, we have to ask someone else later. Are there any others questions?

FOREPERSON: All right. You’re admonished not to discuss or impart at any time outside of this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by this grand jury or the Court to discuss or impart such matters. You will understand that a violation of these instructions on your part may be the basis for a charge against you of contempt of court. This admonition of course does not preclude you from discussing your legal rights with any legally employed attorney should you feel that your own personal rights are in any way in jeopardy.

THE WITNESS: I understand.

MR. FILTER: Thank you very much, I appreciate your —

THE WITNESS: Will that be all today?

MR. FILTER: That’s it.

FOREPERSON: Will you stand and rise your right hand, please?

JAMES WEISBECK
called as a witness by the People, having been duly sworn was examined and testified under oath as follows:

FOREPERSON: Thank you.

EXAMINATION
BY MS. MEJLSZENKIER:

Q. Could you please state and spell your name for the record?

A. James Weisbeck, W-e-i-s-b-e-c-k.

Q. Mr. Weisbeck, what is your occupation?

A. I’m a MSHA inspector.

Q. What is MSHA?

A. Mine Safety and Health Administration.

Q. Is that part of the United States Department of Labor?

A. That is correct.

Q. How long have you been employed as an MSHA inspector?

A. January of ’99.

Q. And you have any special education or training related to — for your job?

A. A year at the mine academy in Beckley, West Virginia.

Q. And do you have mining experience?

A. Yes, I do.

Q. How much mining experience do you have?

A. Seventeen years of underground mine experience, about four years of surface mines.

Q. And what does your job with MSHA entail?

A. Inspecting for health and safety.

Q. As part of your job with MSHA do you issue citations?

A. Correct.

Q. When do you issue citations?

A. When there are hazards that present themselves that may be a hazard to the miners.

Q. And to whom do you issue citations when you issue them?

A. Normally the citations are not issued to persons. The company — the company and the inspection party — excuse me, I’m kind of getting over a cold. Whoever accompanies the inspection party that is the representative for the company.

Q. So do you issue citations to individuals or to people in their representative capacity?

A. In their representative capacity.

Q. So you do not issue citations to individuals in particular?

A. Very unlikely it would be an individual. There are — there is a certain case if an individual is smoking in a powder magazine, or something like that, where it would be an imminent danger, there could be an infraction on the individual, yes.

Q. Why do you not otherwise issue citations to individuals?

A. They do not direct the work force.

Q. So then the idea is to issue citations to the individuals who are in control or directing the work force?

A. Correct.

Q. Okay. Are you familiar with Sixteen to One Mine?

A. Yes, I am.

Q. Where is it?

A. It’s in the City of Alleghany.

Q. What county is that in?

A. Sierra County.

Q. Have you been out there before?

A. Before?

Q. Have you been out there?

A. Yes, I have.

Q. How many times?

A. Once.

Q. When were you last out there?

A. In August of 2000.

Q. Are you familiar with the term “legal identity report”?

A. Yes, I am.

Q. What is a legal identity report?

A. It’s the ID that represents the mine name, address, county, person in charge, person in charge of health and safety, president of the company and their address. And it has an MSHA-issued ID number.

Q. Are mine operators required to file legal identity reports with MSHA?

A. Yes, correct.

Q. Do legal identity reports indicate the official business name of the mine operator?

A. Correct.

Q. What is the official business name of the mine operator of Sixteen to One Mine?

A. At that time?

Q. At that time.

A. Original Sixteen to One, Sixteen to One was the name of the mine, or the name of the operator and the name of the mine.

Q. Do you know what the name of the mine is now?

A. It has changed several times over the years so I don’t know if there’s been a recent update.

Q. Okay. Do legal identity reports indicate the principal operator — the principal officer, sorry, or the mine operator?

A. Yes.

Q. Do you know, based on the legal identity report of Sixteen to One, who is the CEO of that mine?

A. In August of 2000 the president was Mike Miller/CEO.

Q. Okay. Do you know in August of 2000 who was the president of that mine?

A. Yes.

Q. Who is that?

A. Mike Miller.

Q. Do you know if he exercised direction and control over the mine?

A. Yes.

Q. Could you provide some examples of this?

A. Well, even when you checked in at the gate he had to be notified right away. He introduced himself as president of the Sixteen to One Mine, talked about his — his capacity of the mine, and that the citations, if there were any, or anything that needed to be addressed would need addressing through him.

Q. Did you also see him exercise direction and control over mine employees?

A. Not — other than Jonathan Farrell, no.

Q. Okay. Who is Jonathan Farrell?

A. Jonathan Farrell was the mine manager at the time.

Q. How do you know that?

A. Well, Jonathan Farrell was the — introduced himself as the mine manager, and when I checked in at the office that’s who they informed me would be accompanying me on the inspection.

Q. Did you see Jonathan Farrell exercise direction and control over mine employees?

A. Yes, I have.

Q. Could you provide some examples of that?

A. He directed the — in review of the records he was showing what he does for training in the regulations for giving training to new hires, or experienced minors, or annual refresher training. He also directed control of people, where they work, and who they work with, and areas that they’re going to be working, yes.

Q. On August 15th, 2000 were you at the Sixteen to One Mine?

A. Yes.

Q. What were you doing there?

A. I went to visit for a regular inspection.

Q. What’s a regular inspection?

A. Regular inspection is an inspection of a mine for its records, for looking over potential health issues, for safety or evacuation plans, rescue plans, and for if they’re in compliance with all of the federal regulations of the 30 CFR.

Q. The 30 CFR, what is that?

A. 30 CFR is the Code of Federal Regulations, it’s a standards book.

Q. Are the citations that you issue as a mine safety and health inspector based on Title 30 of the Code of Federal Regulations?

A. That’s correct.

Q. On August 15th, 2000 did you enter Sixteen to One Mine in order to conduct the inspection?

A. Yes, I did.

Q. Did you go underground into the mind?

A. Yes, we did.

Q. Did you go with anyone?

A. Yes.

Q. Would did you go with?

A. Bruce. I was accompanied with a fellow inspector, Bruce Allard, and Jonathan Farrell.

Q. During your inspection of Sixteen to One Mine on August 15th, 2000 did you notice any conditions that did not comply with mine safety and health standards?

A. Yes.

Q. Did one of those conditions that did not comply with mine safety and health standards relate to an area of restricted clearance?

A. Yes.

Q. Could you explain what restricted clearance is?

A. Restricted clearance is an area that presents itself as a hazardous area where in the event that people travel to and from would need to be conspicuously marked to identify itself as a potential hazard.

Q. Now, does restrictive clearance refer, for example, to areas where there’s low head room?

A. Yes.

Q. And what are the mine health and safety standards that relate to areas of restricted clearance?

A. Oh, we have, just the top of my head I can think of probably about three or four different standards.

Q. Are there — how many of those standards apply to areas of restricted clearance over rail lines?

A. One that would be specific for that area.

Q. What standard is that?

A. I believe it’s 57.9306.

Q. And what does it require?

A. Requires that in the areas where there is restricted clearance the area shall be conspicuously marked from each direction.

Q. Does it require anything else?

A. I can’t quote the standard.

Q. Do you not recall the — all of the requirements of the standard?

A. No.

Q. No, you don’t recall. If I show you the standard would that refresh your recollection?

A. Yes.

Q. I’m now handing a copy of the standard that you mentioned, Title 30, Code of Federal Regulations, 53.9306. Could you please take a look at that and look up when you’re 26 done reading it.

A. Okay.

Q. Did that refresh your recollection?

A. Sure.

Q. Okay. Could you please tell us what the requirements of that section of the Code of Federal Regulations are?

A. Where a restricted clearance creates a hazard on mobile equipment the clearances shall be conspicuously marked, and warnings shall be put in prior to the entry of that area.

Q. Okay. The area of restricted clearance that you discovered on August 15th, 2000 in the Sixteen to One Mine, what was that item of restricted clearance?

A. It was an ore chute.

Q. Where was it located?

A. On the 800 foot level behind the 49 winds.

Q. Okay. Was it — could you please explain what a winds is?

A. A winds is — technically a winds is a shaft. The reason they’re called — some are just called shafts, but a winds is technically for a shaft that is underground and doesn’t surface to the surface. It’s an underground shaft.

Q. Uh-huh (affirmative). And does the winds run horizontal or vertical?

A. Well, they can run in vertical, or diagonally vertical. Mostly vertical, yes.

Q. And so the winds, the 49 winds that you mentioned earlier, it runs vertically?

A. Correct. A diagonal vertical.

Q. How did this chute on the 800 level restrict clearance?

A. Oh, the 800 chute on the — or the chute on the 800 foot level had — it projected out into the center of the track and beyond. The clearance of the chute was measured at 55 inches above track level. So persons traveling via mobile equipment, being a rail, locomotive, would have to duck his head one way or the other to get through the narrow opening that was left there.

Q. And was that rail line in use?

A. Yes.

Q. What were the lighting conditions like in that area?

A. Well, of course you have your head lamp, and that was the only light condition that was provided in that area.

Q. There is no ambient light?

A. No.

Q. Was this chute, was it marked?

A. No, it was — it had no markings at all.

Q. Did it have reflectors on it?

A. No.

Q. Any kind of sign?

A. No.

Q. Were there any warnings in advance of this chute?

A. No, there was not.

Q. There were no flashing lights?

A. None.

Q. No rope hanging down?

A. Nothing to indicate at all that this was being marked in any way.

Q. Did you take pictures of this chute?

A. Yes, I did.

Q. Was Jonathan Farrell present when you inspected that chute?

A. Yes, he was.

Q. Was Michael Miller?

A. Not during the — when I wrote up the citation, no.

Q. Okay. While you were inspecting the chute did you come into contact with the locomotive operator?

A. Yes, just shortly after, through some of the disseminating of information, a locomotive did come out from the back end of the mine where we were heading to pulling some ore cars, yes.

Q. Was Jonathan Farrell present at that time?

A. Yes, he was.

Q. Did you measure the height of the locomotive operator?

A. We did.

Q. So he was operating the locomotive in the area of that chute?

A. Yes. He stopped prior to, because we were standing there. We got — made sure we had contact with him and stepped off the side to make sure he slowed down, and we wanted to communicate with him, yes.

MR. PATCHETT: Who is “we”?

THE WITNESS: Bruce Allard and myself.

MR. PATCHETT: Thank you.

THE WITNESS: And Jonathan Farrell.

BY MS. MEJLSZENKIER:

Q. So you stated that you measured his height. Did you measure his height while he was seated in the locomotive?

A. Yes, we did.

Q. And how — what was that measurement?

A. It was 60 inches.

Q. And you stated before that the chute, the lip of the chute hung down to 55 inches?

A. That’s correct.

Q. So are you saying that the operator of the locomotive was actually five inches taller than the chute?

A. Yes.

Q. Did the locomotive operator indicate to you how he travels past that chute?

A. I had asked him how do you make your way through that chute, and he says you just have to duck through it. There was a narrow opening about 16 inches from the chute lip to the bang board where he would duck his head and fit his head through it to pull himself through, yes.

Q. Could you explain what a bang board is.

A. A bang board is just a deflector. You got your chute lip, you got the trough where your ore runs down, then you have a gate that’s on the chute that stops the ore when you open the gate to drop the ore into a cart. That center line over the track, you have a bang board so the ore doesn’t shoot past the car. So it hits that and then drops down into the rocker car.

Q. Was Jonathan Farrell present when the locomotive operator indicated how he travels past that chute?

A. Correct.

Q. Did you discuss the need to mark areas of restricted clearance with Jonathan Farrell?

A. Yes, I did.

Q. Why is it important to mark areas of restricted clearance?

A. Well, it acts — it acts as a good reminder, and also it acts as something that catches the eye real quick. That in the event that there are factors that may happen as you’re pulling, as you’re running a rail car pulling ore on a rail, you have a lot of room for things that can happen. The locomotive that you’re driving can jump the track, the cars that you’re pulling behind you can jump the track, or something can happen with that that can distract you instantly, and then you lose your sight of your travel, and you need those quick reminders, and something that it catches the corner of the eye as you’re coming down the track to remind you that you have a hazard present.

Q. So you said you can lose sight of your direction of travel. Does that mean you get disoriented?

A. Well, there’s very low lighting. You have to understand that the mine is very dark, and the chute as it rusts and corrodes with mud and sand and dirt, it kind of blends in with the surroundings. So you only got your head lamp, and then a part of your — the light on the locomotive for your sight.

Q. The light on the — was there a light on the locomotive that you saw?

A. I believe so.

Q. Do you recall where on the locomotive that light was?

A. I don’t recall if it was on the front of the cab or the back of the motor.

Q. Do you remember about what height it was off the rail, above the rail?

A. No, I don’t. I would estimate right around the head height of the operator sitting in the locomotive.

Q. The light on the locomotive?

A. Correct. Give or take four or five inches in there, yeah.

Q. Okay. So with the low lighting that there are in these tunnels, and do you call them drifts, the mine tunnels?

A. We call them drifts, yeah.

Q. With that low amount of lighting, is your testimony that you would want to mark chutes or other areas of restricted clearance so that they would call your attention, you would be able to see them?

A. Yes.

Q. And did you also discuss the need to have warnings in advance of chutes?

A. We discussed best practice would be also to have warnings in advance to indicate to the motormen the need to slow down. In the event that something was to jump the track, or the attention was drawn to a different focus, that he needs to be traveling at a slower speed, yes.

Q. Uh-huh (affirmative). Is it — in your experience would lights in advance of a chute, or other markings in advance of a chute, would that call a locomotive operator’s attention if, for instance, they were not looking in the direction of the chute?

A. The lights in advance?

Q. Or other advance warnings.

A. Yes.

Q. Okay. And are warnings in advance of areas of restricted clearance of rail lines, are they important because locomotives can also be traveling fairly quickly?

A. Yes. When — yeah, they can travel fairly — they can travel fairly good speed. I mean we’re talking about 15 to 20 miles an hour. And pulling a train of rocker cars behind you, that adds a lot of weight. And when the momentum of all that weight, on a small locomotive as this was, that it can push you a long ways when you’re trying to brake and slow down. So advance warnings again is a good indicator that I got this much distance, I should be at this speed coming into this area because I know I got to duck my head. I got to make sure my head is in the right position to go through this opening.

Q. And let me ask you, one of the things used to mark areas of restricted clearance, not to warning in advance but to actually mark the items, would those be things like reflectors?

A. Yes. From my — yes.

Q. Okay. And reflectors on, for instance, an ore chute, do they get dirty?

A. Yes.

Q. Do they stop picking up the light when they get dirty?

A. Yes.

Q. So would an advance warning also assist a locomotive operator in noticing an area of restricted clearance if, for example, the markings on that area of restricted clearance are no longer readily apparent?

A. Yes.

Q. On August 15th, 2000 did you issue a citation related to the chute on the 800 level?

A. Yes, I did.

Q. Did you verbally notify people of the citation and their contents at the time that you saw the condition constituting the condition?

A. Yes, I did.

Q. And who did you notify?

A. Jonathan Farrell.

Q. And did you then provide a written citation, a written copy of the citation?

A. I took the written documentation and then I gave him the printed form the next day.

Q. Okay. When you informed Jonathan Farrell that you were going to issue a citation, that was at the time of your inspection?

A. Yes.

Q. Were you standing — I’m sorry, what was your answer, that it was at the time of your inspection?

A. Yes.

Q. And were you standing by the chute?

A. Yes.

Q. And did Jonathan Farrell respond when you informed him that you were going to issue a citation?

A. Yes.

Q. What was his response?

A. He was upset, and he felt that we might be picking on him. And he felt that — he had stated that the miners know those chutes are there and that it hasn’t been written in the past.

Q. The written citation that you later provide Jonathan Farrell with, did that state the regulatory basis for the citation?

A. Yes.

Q. And was that the code section we previously discussed?

A. That’s correct.

Q. Did you use, or do you use a special form to issue citations?

A. Yes.

Q. What form is that?

A. I believe it’s the 7003.

Q. Could you describe?

A. The citation order form, 7003 form, if you want to know the form.

Q. Is there an area on where you provide a narrative statement?

A. Yes, there’s a section in there where who you serve it to, the date you serve it, the time you served, citation number. It’s got a condition or practice. And it has your gravities, and it has your negligence, and it has termination.

Q. Let’s talk about gravity for a second.

A. Okay.

Q. In relation to gravity, did you fill out the area for gravity on this citation part?

A. Yes.

Q. How did you mark that section for the violation, for the violation that you noted with regard to the 800 shift?

A. I had marked it unlikely.

Q. And at the time that you wrote the citation did you believe that a miner traveling on the rail line would be at risk of striking his head on the chute?

A. Yes, I did.

Q. How is that?

A. With just the restriction of clearance, and having to duck his head through the opening to get through in and out of that area, I felt it was a hazard.

Q. Did you discuss that hazard posed by the chute with Jonathan Farrell?

A. Yes.

Q. When did you discuss that?

A. At the time.

Q. At the time that you were inspecting the chute?

A. Yes.

Q. Did you have such a conversation while you were also writing the citation on the chute?

A. Yes.

Q. During that conversation did you tell Jonathan Farrell that someone could be killed while traveling under the chute?

A. I painted out a few scenarios that — you know, trying to let him know how serious I felt about this discrete hazard. Jonathan was acting very confrontational at the time so it seemed like you had to take it to the extreme and say, you know, this can be really serious, this could result in a fatality. We need to really take a good look at this. And I explained again what I had seen in the past in my years of mining and underground exposure to this type of condition, and what’s been used, and over and over, and yes.

Q. What if anything did Jonathan Farrell say in response?

A. He felt we were in the wrong, and that it’s never been cited for, and his miners know their chutes are there.

Q. And did you discuss ways in which that chute could be made safe with Jonathan Farrell?

A. I sure did. I explained what I had seen in the past, from my experience and my exposures to these conditions.

Q. And in your experience, both as a miner and as a mine safety and health inspector, what are some of the ways in which chutes posed with restrictive clearance can be marked?

A. We have done several different things. We actually went through the scenario where there was a haul-through drift, as this was. We actually put strobes 50 feet in advance, and we hang streamers down from — or ropes or wires down with a wire that was reflective to the light in advance to slow down, especially if we were pulling — if pulling a large train of 10, 12 cars, or even five cars that are heavy. We would put bicycle reflectors all around the chute lips to indicate — to catch the eye at a glance, to catch the eye that it’s coming right now in the event that, you know, something, if there’s a lot of distractions. I tried to explain this all to him, yes.

Q. And what if anything did he say in response when you informed him of that?

A. He didn’t believe it was an issue here.

Q. I’m handing you People’s Exhibit Number 2 for identification.

A. Okay.

Q. What is it?

A. It’s a photo of Michael, Mike Miller.

Q. Is that — and that is the individual you described before as being the CEO of Sixteen to One Mine?

A. The president and CEO, yes.

Q. Is that up on the wall behind you?

A. Okay.

Q. Is that the same picture?

A. That is, yes.

Q. Okay. People’s Exhibit Number 2. I’m now handing you people’s Exhibit Number 1 for identification, do you recognize —

A. Yes, I do.

Q. Who is that?

A. Jonathan Farrell.

Q. Okay. And is that the individual that you described as being the mine manager on August 15th, 2000?

A. That’s correct.

Q. There’s the pictures being shown

[SCOOP]

in reply to: CDAA Conduct #2165

Q. So if Mark Fussell was moving, and the object he struck was stationary, if he had been moving at half the speed that would have reduced the available kinetic energy by one-fourth?

A. Correct. Well, not by one-fourth but to one-fourth. It would have reduced it three-fourths essentially. It would be only 25 percent of the original in other words.

Q. Doctor, I’m handing you People’s Exhibit Number 6.

A. Yes.

Q. What is it?

A. These are two photographs of a mine locomotive in a shaft. And in the upper photograph, toward the top right area, there’s a chute that is protruding into the upper part of the shaft.

Q. Okay. If I told you that the victim — looking at the top photograph in People’s 6. If I told you that the victim was seated on the locomotive depicted in that picture, and that locomotive weighs 3,000 pounds, and the victim struck the chute also depicted in that top picture, based upon his injuries do you have an opinion as to what direction the victim was facing when he struck the chute?

A. Yes.

Q. What is your opinion?

A. In my opinion he would have been seated so that the left side of his body, his left side of his face would hit the chute. So he would be seated probably, let’s see, to get his left side out, he would have to have his left side of his face showing, so his face would be turned in that direction toward this wall of the shaft, over here, where I’m pointing with the pointer, to have the left side of his face. ‘Cause he would — he would be coming out to the foreground of the photograph, because this is the front of the locomotive, and that’s the seat, I believe. So he would be turned facing this direction.

Q. Would such a scenario be consistent with your findings?

A. Absolutely, yes.

Q. Would such a scenario, it would have been sufficient to fracture his spine?

A. Well, yeah. See, you would have to place his — have him seated, and his head is positioned about here with the lower part of his face impacting some corner of this chute sticking out that would be about here. That would — and you’ve got some distance here between that impact and then the top of this, the battery box part of the locomotive here for the right side of his head then to rebound into. And in that sort of violent — well, actually you should go this way if you’re sitting the way I would envision him seated. Impact first to the left side of the face, violent motion of the head back, abruptly stopped by the top of the locomotive, with a secondary impact resulting in injury to the right side of the head. And with a violent movement of the spine, within the neck, between those two impacts, yes, it would be very consistent. Again, given enough kinetic energy, enough mass and velocity combined.

Q. And given that scenario would it also be consistent with the damage you found to Mark Fussell’s brain, the hemorrhages, and his brain stem being torn?

A. Yes. Very much so.

(Whereupon People’s Exhibit 15 was marked for identification.)

Q. I’m handing you what has been previously marked as People’s Exhibit 15 for identification.

A. Yes.

Q. What is it?

A. This is a photograph of the mine shaft. This is actually taken from the opposite perspective of the previous exhibit, showing the other side of the chute projecting into the upper part of the shaft.

Q. Are the materials on — what — based on your training and experience what do the materials on the chute appear to be to you on the lower picture?

A. We have two, at least two materials that are readily identifiable here. We have blood. There’s a blood stain swiped across the base of the chute here, and then at this edge, this is actually a 90 degree edge here, there is curly kind of dirty blond hair.

Q. Are the materials on that chute consistent with the types of injuries you found on Mark Fussell when you conducted his autopsy?

A. Yes. And particularly with the large open injury in front of his left ear, with the corresponding damage to his jaw.

Q. Do you have an opinion as to, if this is an object that Mark Fussell struck, as to what that hair is from?

A. I would expect that to be from his beard on the left side of his face.

Q. Would that be consistent with the injuries you found on him?

A. Yes, completely.

Q. Doctor, I’m handing you People’s Exhibit Number 5.

A. Yes.

Q. What is it?

A. This is a drawing depicting an individual seated on a mine locomotive confronting a chute with the left side of his head.

Q. In your opinion are the events — and is that the same photograph that’s being projected on the wall behind you?

A. Yes, it is.

Q. In your opinion are the events depicted in this sketch consistent with the types of injuries you found when you conducted Mark Fussell’s autopsy?

A. Yes.

Q. Doctor, I’m handing you People’s Exhibit Number 4 for identification.

A. Uh-huh (affirmative).

Q. What is it?

A. This is a photograph of Mark Fussell.

Q. Is that the same photograph that’s projected on the wall behind you?

A. Yes, it is.

Q. Could you please indicate with the laser pointer the corresponding location on Mark Fussell’s face where you would have seen the transfer of hair?

A. It would be from right about this area in here. Somewhere in front of the left ear, as far down as here, as far up as maybe the area to the outside of his eye. Somewhere along in there. Perhaps a good stretch of that.

Q. Did you find any contributing factors to Mark Fussell’s death?

A. Mechanically speaking, no.

Q. Drugs or alcohol play any role in contributing to Mark Fussell’s death?

A. In my opinion, no.

Q. And what is your opinion based on?

A. A toxicology screen that was performed at the time of the autopsy, or on specimens obtained at the time of the autopsy.

Q. When were those specimens taken?

A. At the time of the autopsy on November 8th.

Q. And would the result from those specimens, the results of the analysis on those specimens still be accurate even though Mark Fussell had died sometime prior to the autopsy on November 8th?

A. Yes.

Q. How do you know that?

A. Well, his body was well preserved over the approximately two days between the time he was pronounced dead and up to the autopsy. His body was cold, it had obviously been in refrigerated storage, which would again preserve any constituents within his blood that may have been present. And the other side of that is that the breakdown of drugs in the body stops at death. The liver does most of the work in metabolizing or breaking down drugs. Liver function ceases at death, so I wouldn’t expect any significant change.

Q. During your autopsy did you find signs of any other disease that could have contributed to the accident?

A. No.

Q. So no indications, for example, of a stroke?

A. No.

Q. Heart attack?

A. No.

Q. Do you have an opinion as to what the approximate time between Mark Fussell incurring his injuries and his death?

A. Very brief. His breathing would have stopped immediately. The area of his brain stem that was damaged houses some of the important centers in the brain that initiate the drive to breathe, and within a few minutes, maybe five at the most, his heart would have stopped for lack of breathing and lack of oxygen supply and so forth. So could have had a heart beat for a few minutes, but beyond that he would have been dead. He would have been unconscious instantaneously, and clinically dead within a few minutes.

Q. In forming your opinion did you review a statement by Vincent Kautz?

A. I believe so, yes.

Q. Was anything in that statement inconsistent with your findings?

A. No, not at all.

Q. So the statement was consistent with your findings?

A. Yes.

Q. Okay. Thank you, I have no further questions.

EXAMINATION

BY MR. FILTER:

Q. Dr. Reiber, do you know if there was a doctor at the scene at the time that this incident took place?

A. I haven’t seen any documentation that indicates that. My impression was that there was not, that first aid was rendered by co-workers is my understanding.

Q. Were any tests made by you or any other doctor of the hair that was obtained from the locomotive?

A. Not by me. If some was obtained and tested by another agency I just can’t say, I don’t have that information.

Q. How do you know that these pictures were from the scene?

A. By information that I had been provided.

Q. How did you know that the item — how do you know if these were the items that caused the death of Mr. Fussell?

DIRECT EXAMINATION

BY MS. MEJLSZENKIER:

Q. Can I rephrase that? When we were discussing the items in question I was posing you a series of hypothetical questions; correct?

A. Right, yes.

Q. And I indicated to you if these were the items involved then would those, would his injuries be consistent with that type of scenario; is that correct?

A. Correct.

Q. Do you have any independent knowledge about whether or not those were the items involved, that chute in one photo and the locomotive?

A. No. Beyond my examination of Mr. Fussell’s injuries, and then noting a pattern of consistency with these particular objects, no. I didn’t directly witness the accident, I haven’t personally been to the scene of the accident, so I don’t have any independent way of verifying that.

Q. And also in regards to the exhibit, the photograph of the chute with hair and blood, do you have any independent knowledge of that being — of Mark Fussell having struck that chute?

A. Independently, no.

Q. Okay. So is your testimony here today that his injuries are consistent with striking that chute?

A. Yes.

Q. Okay.

EXAMINATION

BY MR. FILTER:

Q. One other question. Given all the consistencies, did you find any inconsistencies with the information that you obtained through photos, reports you read, with the actual returns or findings that you made during your autopsy?

A. Not at all, no.

Q. Thank you. Any other questions?

JUROR: I do have one more question.

BY MR. FILTER:

Q. Who provided you with information surrounding Fussell’s death?

A. My information initially came through the Sierra County Sheriff-Coroner’s Office, Lee Adams and his personnel. We get a report that we review before we do the autopsy, that gives us basic information as to when the death occurred, date and time, and what was known at that point about the general circumstances of the death. That’s what we start with even before we start the autopsy. Additional information was either provided or verified from that initial input in conversation with Ms. — I will probably slaughter your last name — Mejlszenkier.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. Doctor, I met with you several days ago; correct?

A. Correct.

Q. And during that time I showed you Vincent Kautz’s statement?

A. Correct, yes.

Q. I showed you some photographs as well?

A. Yes.

Q. Is that correct? And I asked you if the statement was consistent with the injuries you found?

A. That’s right.

Q. And I showed you the photographs and I asked you if those photographs were consistent with injuries you found?

A. Correct.

Q. Okay.

EXAMINATION

BY MR. FILTER:

Q. In the 300 times that you’ve testified in courts of law in the State of California, and other courts, is this an uncommon procedure to discuss cases with prosecutors prior to testimony in order to obtain information?

A. Quite the contrary, it’s actually a very common practice. It actually helps both the attorney and the witness be clear on what the issues are and actually make sure that accurate information gets presented to the jury ultimately. In my experience over the years it’s actually the preferred thing. It’s better for everyone involved, when you’re dealing with expert testimony, if the expert witness and the attorney have a chance to meet and discuss the issues first.

MS. MEJLSZENKIER: So when I met with you did you explain to me what some of the terminology was in your report?

THE WITNESS: Yes, that’s right. Yeah. Meeting with the attorney before hand — when you are an expert witness you form your own opinions. You may gain information that helps you evaluate the strength of those opinions, but one doesn’t change one’s opinions just on the basis of the meeting unless there is some evidence, some hard evidence to show why one should. But it really is — it’s more of a matter of exploration of what your opinion is as opposed to this is what your opinion should be. Because you as a witness always have to form your own opinion.

MR. FILTER: Thank you.

MS. MEJLSZENKIER: Thank you very much.

FOREPERSON: You are admonished not to discuss or impart at any time outside this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by the grand jury or the Court to discuss or impart such matters. You will understand the violation of these instructions on your part may be a basis for a charge against you of contempt of court. This admonition does not preclude you from discussing your legal rights with any legally employed attorney should you feel your own person rights are in any way in jeopardy.

THE WITNESS: Thank you.

FOREPERSON: So allow 15 minutes out in the fresh air. Please remember not to discuss this among yourselves. Be back in 15 minutes.

(Whereupon a brief recess was held and roll was taken)

BRUCE ALLARD called as a witness by the People, having been duly sworn was examined and testified under oath as follows:

EXAMINATION

BY MS. MEJLSZENKIER:

Q. You may be seated. Could you please state and spell your name for the record?

A. Bruce Allard. B-r-u-c-e, A-l-l-a-r-d.

Q. What is your occupation?

A. Metal, nonmetal mine inspector.

Q. And for whom do you work?

A. Mine Safety and Health Administration.

Q. Is that part of the United States Department of Labor?

A. Yes, it is.

Q. What does your job with Mine Safety and Health entail?

A. Doing safety and health inspections at mining operations.

Q. How long have you been employed with Mine Safety and Health Administration?

A. Four years in December.

Q. Do you have any special education or training in regards to mine safety and health?

A. On-the-job training from previous mining experience, then 20 weeks of training in Beckley, West Virginia at the Mine Health and Safety Academy.

Q. How many years of mining experience do you have?

A. Twenty-two years.

Q. And how many inspections have you participated in?

A. Between 250 and 300.

Q. Are you familiar with the Sixteen to One Mine?

A. Yes, I am.

Q. Have you been out there? Have you been to the mine?

A. Numerous times.

Q. Were you at the Sixteen to One Mine on August 15th, 2000?

A. Yes, I was.

Q. What were you doing there?

A. An inspection, regular inspection.

Q. On August 15th, 2000 did you enter the Sixteen to One Mine in order to conduct that inspection?

A. Yes.

Q. Were you with anyone?

A. James Weisbeck and Jonathan Farrell.

Q. On August 15th, 2000 did you see Mr. Weisbeck issuing citations?

A. Yes, I did.

Q. Did any of the citations that Mr. Weisbeck issued on that date relate to areas of restricted clearance?

A. Yes. One on an ore chute on the 800 level.

Q. How do you know that he was issuing a citation for that?

A. We discussed it, the violative condition and the citation.

MR. PATCHETT: Who is “we”?

THE WITNESS: James Weisbeck and I.

BY MS. MEJLSZENKIER:

Q. Was Jonathan Farrell present while you were discussing the citation?

A. He was, yes.

Q. Did you see the chute?

A. Yes, I did.

Q. Could you describe it?

A. It was a metal chute coming out of the wall at about a 60 degree angle with a metal, what we call where I worked, a bang board, and a metal gate to close off the rock.

Q. How did the chute restrict clearance?

A. It extended out to the middle of the track line so it would load the ore cars as they came underneath of it.

Q. Was the chute measured?

A. Yes.

Q. Who measured it?

A. I measured it.

Q. How did you take those measurements?

A. With a tape measure.

Q. Do you recall what the measurements were?

A. 55 inches at the bang board and 58 inches at the chute lip, or the chute gate.

Q. And that’s inches above the rail?

A. Above the rail.

Q. Was the chute marked?

A. No.

Q. Did it have reflectors on the chute?

A. No.

Q. Any signs?

A. None that I saw.

Q. Any streamers?

A. I don’t recall any streamers or any markings. Certainly none that were conspicuous markings.

Q. Did you notice anything hanging on or near the chute?

A. A ways towards the adit, the opening of the mine, there were some wires hanging down from the back of the drift, from the ceiling of the drift.

Q. And based on your training and experience what did the wire appear to be for?

A. They may have been for a previous sign or a marking. That’s what we discussed at the time.

Q. Did you see the area around the chute?

A. Yes.

Q. Were there any warnings in advance of the chute?

A. No.

Q. On either side of the chute?

A. No.

Q. Do you know if the area where the chute was located was regularly traveled by locomotive operators?

A. Yes, it would have been. It was the only means of access to the mining area that they were currently mining.

Q. And on August 16th, 2000 did you return to the Sixteen to One Mine?

A. Yes, I did.

Q. Who did you go with?

A. James Weisbeck, Jonathan Farrell and Mike Miller.

Q. Did you see if Mr. Weisbeck provided written citations to anyone at the mine?

A. Yes, he did.

Q. To whom?

A. Jonathan Farrell.

Q. Did you see if a citation for failing to mark an area of restricted clearance, namely the chute, was one of those citations?

A. Yes, it was.

Q. Did you return to the location of the chute on August 16th, 2000?

A. Yes, we did.

Q. Who did you go with?

A. James Weisbeck, Jonathan Farrell and Mike Miller.

Q. Was the citation of the chute discussed at that time?

A. Yes, it was.

Q. What was that discussion?

A. It was quite a lengthy and heated discussion about whether the citation was justified, whether the chute needed marking, and what was required under the standard.

Q. Was the possibility of someone being injured by hitting the chute discussed?

A. I believe it was at that time. I know it was the day before when we discussed it with Jonathan.

Q. At any time on — during that time on August 16th, 2000, when you were with Jonathan Farrell, Michael Miller and James Weisbeck, did Michael Miller make any statements to you in regards to the possibility of injury based on that chute?

A. Yes, he did. As we were leaving there Mr. Miller spoke to me and said, “I don’t know what happened at the mine you worked at, but that could never happen here”.

Q. When he said that what was he referring to?

A. I understood him to be referring to the injury we had discussed with Jonathan, which was a motorman getting crushed between a chute and a motor.

Q. Did you have that — was that conversation something that occurred on August 16th, 2000?

A. I believe that conversation had occurred on August 15th with Jonathan.

Q. Was — do you recall if on August 16th, 2000 the use of warnings in advance of the chute was discussed?

A. On when?

Q. August 16th, 2000. If the use of warnings in advance of the chute on the 800 level was discussed?

A. Yes.

Q. And that was while Michael Miller and Jonathan Farrell were both present?

A. Yes, it was.

Q. What kind of warning devices were discussed?

A. We discussed signs, reflectors, ropes hanging down, things hanging down at the level of the chute that the motorman may hit ahead of time. Strobe lights. There are many different things used in other areas.

Q. When you say ropes and other things hanging down at the level of the chute, would those be placed right in front of the chute or would they be placed at some distance from the chute?

A. Ropes hanging down would be typically hung, oh, five or six feet in front of the chute so that they would hit the motorman first and remind him to duck. Or even closer, depending on the area, how fast they might be going.

Q. Do you recall if Michael Miller or Jonathan Farrell responded to hearing this information?

A. Well, one of the responses on the ropes was that the miners didn’t like ropes because they drug in the mud in the ore cars and got muddy and would slap them with muddy rope, so they didn’t like that idea. And they didn’t think they needed to mark them because everybody knew where they were.

Q. Did both Michael Miller and Jonathan Farrell state that, or was it one of them?

A. I couldn’t tell you which one, or who, but that was the — probably Michael Miller.

Q. Have you ever been on the 1700 level of the Sixteen to One Mine?

A. Yes, I have.

Q. Have you been on that — the 1700 level south of the 49 winds?

A. Yes.

Q. On August 26th, 1999 were you on the 1700 level south of the 49 winds?

A. Yes.

Q. What were you doing in that area on that day?

A. Inspecting the secondary escapeway of the mine.

Q. I’m handing you People’s Exhibit Number 9, what is it?

A. This is a map of the Sixteen to One Mine.

Q. Do you recognize it?

A. Yes.

Q. Is it a fair and accurate depiction of Sixteen to One Mine, or the workings?

A. Parts of it are. At least I couldn’t testify to the upper workings of the mine, those are not accessible.

Q. The 1700 level, would you say that’s a fair and accurate depiction of the 1700 level, particularly south?

A. I believe so, yes.

Q. Could you turn the map so that the jury can see it? Could you please indicate — let me give you some stickers. Could you please indicate, first just by pointing to it, where on the 1700 level you were on August 26th, 1999?

A. Went from this area out to 49 winds and then back to roughly this area.

Q. Were you with anyone at that time?

A. At that time with Billy Van Meter.

Q. And were you — were you inspecting the escapeway?

A. Yes.

Q. Could you please — first of all, could you please tell us what is the escapeway?

A. All underground mines are required to have two escapeways from the deepest level of the mine to the surface, totally independent of each other. You want some history of why?

Q. No.

A. Briefly because of fire. If a fire occurs in the primary the men have a way out of the secondary; two ways out of the mine.

Q. Okay. So did the 1700 level, the area that you inspected, did that comprise part of the secondary escapeway?

A. Yes, it did.

Q. Where is the primary escapeway of Sixteen to One Mine?

A. Primary escapeway is the hoist —

MR. FILTER: Show the jury.

THE WITNESS: The primary escapeway would be the hoist in 49 winds. The route that the men travel daily to and from work is the primary. Up there and out the 800 portal level.

BY MS. MEJLSZENKIER:

Q. So then the actual secondary escapeway, could you please indicate?

A. Secondary escapeway was comprised of the 1500 level, the 1700 level, and the 2200 level, then up through raises, stopes, and another raise to the surface, out approximately here (indicating).

MR. PATCHETT: For the record, that’s on the middle left part of that diagram?

THE WITNESS: Yes. It comes to the surface where this 21 exhaust fan sign is.

BY MS. MEJLSZENKIER:

Q. You say the secondary escape was the 15, 17, or 2200 level. Would that mean those are alternate ways or they’re all part of the escapeway?

A. They were part of the escapeway. Because for each, depending on where you were working in the mine, you would come from over here, from the north, say of 49 winds, across and come to the raise going to the surface on either the 15, 17 or 22.

Q. But you wouldn’t travel all three of them to get out, you would just travel one and then out?

A. One of them and then out.

Q. Okay. Did you talk to Michael Miller about inspecting the secondary escapeway?

A. Yes. That area of the secondary escapeway was supposedly closed. The mine had been — citations had been written on that part of the secondary escapeway before, then they were terminated based on the mine saying they would not work below the 800 level at all, they would close that area of the mine; during my inspection.

MR. PATCHETT: Was that discussed? When was that discussed?

THE WITNESS: Sometime in the summer of 1999. Prior to my inspection in August of 1999. The previous quarter’s inspection the inspector had issued citations, and rather than fix the problems Mr. Miller had chose to close that area of the mine.

BY MS. MEJLSZENKIER:

Q. You were stating then that during — what occurred during your inspection that prompted you to discuss the secondary escapeway with Michael Miller?

A. During my inspection we found people working below the 800 level. When we found them working below the 800 level I told Mr. Miller that I needed to inspect the secondary escapeway.

Q. Did he respond to that?

A. He said, “That’s unfortunate”.

Q. When you were on the 1700 level south of the 49 winds did you notice any chutes?

A. There were chutes there but I didn’t particularly notice them, other than that there were chutes throughout on every level of the mine.

Q. Did you, when you were walking — were you walking on that level?

A. We were walking.

Q. Okay. So were you walking in between the rails, or —

A. Usually between the rails, but when you came to a chute you’d have to walk around it.

Q. Was that for every chute you would have to walk around it?

A. Yes.

Q. What kind of lighting did you have with you?

A. Cap lamp.

Q. So did you — were you in particular looking at the chutes, or were you just inspecting the secondary escapeway?

A. I was inspecting it as more as a walkway than — at that time there were no motors, no electric locomotives on the level.

Q. Are there mine safety and health requirements regarding mine operators conducting real inspections of secondary escapeways?

A. Yes.

Q. And what are those requirements?

A. That they be inspected on a regular basis.

Q. Is that codified in the Code of Federal Regulations?

A. Yes.

Q. Do you know how long the 1700 level comprised part of the secondary escapeway for Sixteen to One Mine?

A. No, I don’t. Prior to — I know it comprised the secondary escapeway up to at least 1998.

Q. Do you know how many years though?

A. Prior to that, no. The reports that I read were — the oldest report was 1998. And it was my — from the records we have, it has been part of it since the mine — in the recent history of the mine.

Q. On September 22nd, 2000 did you conduct an inspection of Sixteen to One Mine?

A. Yes, I did.

Q. On that date did you go to the 1700 level of the mine south of the 49 winds?

A. Yes.

Q. Why did you go into that area?

A. I was requested to go into that area to check on terminations of citation that I had written on the 1700 in my previous inspection.

Q. Let me go back a moment to the secondary escapeway. You stated that mine operators have to conduct regular inspections. How often is that? Is there a certain amount of time per year?

A. There isn’t a set amount, it’s normally done monthly.

Q. Okay. On September 22nd, 2000 did you walk the entire portion of the 1700 level south of 49 winds?

A. Yes.

Q. Were you with anyone?

A. Jonathan Farrell.

Q. Could you please show on Exhibit Number 9 the area that you walked?

A. Again, from 49 winds out to the raise going to the 1500.

Q. And could you please take two of the stickers and put one at the point where you started walking on the 1700 level, and one at the area you walked until on that level.

A. (Witness indicating).

Q. And this was all — you walked this level with Jonathan Farrell; correct?

A. Yes.

Q. Between those blue dots?

A. Yes.

Q. Okay. Could you please take that pen and draw a dash line in between those two points?

A. (Witness indicating on diagram).

Q. Could you please put the date on the blue stickers that you walked that area with Jonathan Farrell?

A. What was that?

Q. The date.

A. The date of that inspection? September.

Q. September 22nd, 2000; is that correct?

A. Yes.

Q. Do you know if a portion of the 1700 level of the mine was ever barricaded?

A. Yes, it was.

Q. I’m sorry, are you done with the dates?

A. Yeah.

Q. Could you please indicate on that map what area was barricaded?

A. This was a barricaded place (indicating). Prior to my inspection on September 22nd there was a sign out at the entrance to the 1700 level from 49 winds saying “authorized personnel only”. After my inspection of September 22nd they barricaded the level approximately here (indicating) with a wooden barricade.

BY MS. MEJLSZENKIER:

Q. So if prior to your inspection on September 22nd the area was marked “authorized personnel only”, but you were in that area to look at some things that had been previously cited, does that mean you were issuing citations on an area of the mine they were not working?

A. Yes, because it was still — even though nobody was working in the area it was still part of the secondary escapeway and had to be maintained as a travelway.

Q. Could you please mark with, write the letter B in the area where the barricade was located?

A. The wooden barricade?

Q. The wooden barricade. Is that a complete barricade that one can get past? How high was it?

A. It was boarded up. You would have had to squeeze between the boards to get past.

Q. But it was possible to get past them?

A. Unlikely, but possible.

Q. Do you know if the barricade of the 1700 level south of the 49 winds that you indicated was ever removed?

A. Yes, it was.

Q. Do you know when it was removed?

A. I don’t know the date, no. It was removed. The mine established a new secondary escapeway in the north end of the mine, then decided they would go do some work in the 1700 south end and took down the barricade, but I don’t know the date they did it.

Q. I don’t have any further questions.

EXAMINATION

BY MR. FILTER:

Q. Mr. Allard, did the officer or the manager of the mine ever state that they had knowledge of mine safety regulations, or had regulations available to them?

A. Yes, they did.

Q. In that position as an operator of the mine are they required to have knowledge of safety regulations?

A. Yes, they are.

Q. Are they required to have regulations made available to them?

A. Yes.

Q. Do operating rules require written examination or certification of management in safety regulations?

A. Repeat?

Q. I’ll go slow. Do operating rules require written examination or certification of management and safety regulations? Maybe I can help you here. Does the operator of a mine have to be licensed?

A. No.

Q. How do they become an operator of the mine?

A. Basically buy it, or be hired to operate it. There’s no formal license.

Q. In your experience as an inspector is there exchange that goes between you and other inspectors and the operators, managers, executive officers of a mine where certain knowledge is spelled out as to what the rules and regulations of that mine are?

A. Yes.

MS. MEJLSZENKIER: Do you know if Michael Miller was certified, had a certification for mine safety?

THE WITNESS: He at one time had a certification as a trainer in metal mines. Underground mines are required

[Mark Hooper]

in reply to: Miscellaneous #2164

Thanks, that’s what I needed to know and good luck!!

[Dick Davis]

in reply to: Miscellaneous #2163

I think Mark needs to know that OAU is Original Gold. O= original, AU= the chemical symbol for gold.

[Rae Bell]

in reply to: Miscellaneous #2162

In repsonse to Mark Hooper’s question about OAU. OAU was the company’s ticker symbol when the stock was listed on the pacific exchange.

The geometrical pattern is a design Mike came up with several years ago.

I enjoyed your visit as well.

Take care.
Rae

[Dick Davis]

in reply to: Miscellaneous #2161

Take your Gold Master to Mexico. Wave it over every abandoned hacienda, convent, and church that you find. Dang, you’ll have a good time.

[Mark Hooper]

in reply to: Miscellaneous #2159

Hello from Tennessee,
I was at your museum on May 30th during a visit to the CA gold country and purchased a gold w/quartz heart pendant. Everyone here loves it because they have never seen such a “diffrent” piece of jewlery and were’re telling all of them where it was purchased. Rae was very helpful and we really enjoyed our visit. We picked up a couple of tee shirts with the OAU logo on it but were’re not sure what the OAU stands for or the symbol that goes with it. If possible I would like to know their meanings. Thanks and good luck aginst the political machine. You could be just two feet away from a Million!!!!

Mark Hooper

[john thurman]

in reply to: Miscellaneous #2158

hello. im hoping someone here can help me. im a 2 year cancer patient that has always had a small interest in mining. recently, while visiting my Dr. he suggested i get out and get some exersize to help build my strengh up a bit. he suggested electronic prospecting as he and his wife do it somewere inAZ once or twice a year. he also suggested looking on the web for places to go. some nice folks here locally all pitched in and bought me a used goldmaster metal detector. i havent the foggiest idea of were to use it, so i was hoping that with all of the experiece that ev eryone has in this area here, somene might be nice enough to point me in the right direction on were to go were i might find alittle something, or possibly someone here might be nice enough to let me tag along with them and give some instruction on using this thing. any help you nice folks can give me would be greatly appreciated

[Geoff Peart-Tang]

in reply to: Miscellaneous #2157

Hi Crush, what are you suggesting? If I knew for sure there is genuine interest I would certainly consider it. Alternatively I could scan a current map which I have dowsed and send it to you, as a demonstration. Regards Geoff

[Harlan Wittkopp]

in reply to: Miscellaneous #2160

Mike-
Thank you for responding to my recent posting on the 16:1 forum. I would like to set the record straight concerning some of your comments.
1) Like you I hold a University degree in Economics
2) As a director of the Wittkopp family mining and Exploration Company (Mountain View Exploration) I am an indirect 16:1 shareholder.
3) I am very familiar with the gold mining industry having attended many recent gold investment conferences sponsored by more than 150 mining companies.
4) As a stockbroker, many of my clients were goldbugs.
5) Having worked with and for my dad during 11 summers in the field I am very familiar with the geology of gold.
6) I am very familiar with the mining of gold in the Allegheny district, having followed my dad through the Oriental Mine many times during his 20-year association with this property. I first went underground at the age of four.

Harlan

[Rick Montgomery]

in reply to: Miscellaneous #2156

Geff, why dont you just come up to the meeting?

[SCOOP]

in reply to: Clips from Alleghany #2154

Last week was just another productive yet uneventful period of operation. Maintenance, organizing the mine site for shareholders’ day, gold teasing in the “kitchen” raise and paperwork were some of the activities.. This weekend the Clampers come to town. The museum has several underground tours scheduled. About 100 have pre registered for the June 26, annual shareholder meeting. Rae ordered 200 pasties and 360 drinks for the day.

[Geoff Peart-Tang]

in reply to: Miscellaneous #2155

Hi, I’m Geoff: several years ago I made an interesting discovery while water dowsing. I found I could also dowse for gold. I am a gold miners son, grown up on the goldfields of Western Australia, and am now living in the city working for a world leader in laser eye surgery machines. But my interest has never left that I could put this ability to use if some one was keen for me to give a demonstration for them. I excell at map dowsing, creating an intricate discription of the gold within an anomally. Especially beneficial for exploratory maps. If any one is willing for me to give them a demonstration, I would be only too happy. Kind Regards Geoff Peart-Tang

[Michael Miller]

in reply to: Miscellaneous #2153

Responce to Harlan,

It is always nice to have people participate on the FORUM, even if they are not shareholders, have little familiarity with the mine and are not students of the gold mining industry. Your submission is somewhat mind-boggling, since you are a former stockbroker and the son of the Company’s current geologist. Your dad and I go back a long way. We have spent many hours underground, talking about the various ways to find and extract the gold from the properties owned by the Company.

The Sixteen to One is one of the most concentrated free gold deposits in the world, along with other mines in the Alleghany Mining District. Our mid range plan (which your dad and I developed together) is to sink a new shaft somewhere on the Red Star claims. It will open up the proven areas in the north, which are not practical to mine from the existing workings. It will also open up a very attractive placer area, which makes anyone familiar with the “Blue Lead” blood boil with lust. It will also open the way to property our company bought 64 years ago. When this new shaft is driven to the old 250 level, the long-term future of gold production will be secured for the lucky heirs of OAU stock.

The other mining companies you mention operate primarily outside the United States. They are good companies, and I have owned shares in each of them in the past. I liquidated them because the Sixteen to One shares offer a superior gain potential than those or most others I have researched. I blundered with Ivanhoe and hold 10,000 shares at a substantial loss. I was betting on the promoter and ignored the underlying value and other important points to evaluate before buying into a position.

I cannot really comment on the other opinions you express. Why? First, they are topics beyond the normal corporate scope of discussion. They are not material or significant either in terms of dollars or impact or relevance. Another reason I cannot comment is because I just do not see the Company as you do. What mess? What current problems? We only lack some working capital, which is a top priority for us to obtain on mutually agreeable terms.

You bring up a very good point regarding corporate damages the owners suffered due to the activities of CDAA et al. Since you see the company in “such a mess”, you could be a good witness to substantiate damages of $24 million or only $2 per share. Since you recognize that the company fell behind the share appreciation of other gold mining companies and since evidence will be given at trial that my efforts of raising capital were thwarted due to the charges of murder and willful negligence against the company and its top management, damages of around $2 per share are reasonable and justified.

I admit that running America’s oldest gold mining company and the longest and perhaps the last commercial, traditional hard rock mine in the continental United States may have future problems. We can handle whatever is thrown at us because the human resources available to me are far superior in intellect that any misguided opponents. Recently I had a conversation with someone about the trials and tribulation of our work. We agreed that compared to the men who worked for and held the mine and company together from 1954 to 1974, our task is much easier. There is no doubt about what this company is. We are gold miners. A $24 million judgment equals a 60,000-ounce pocket. We are gold miners with more than one working face. As discovery begins, we will learn about the financial capabilities of the five defendants as to collecting the judgment.

Finally, please talk with your father, who is a shareholder, a solid geologist and a knowledgeable friend of the company about your concerns. He and I agree that is how you should treat this matter.

[Harlan Wittkopp]

in reply to: Miscellaneous #2152

Mike-

As promised in my earlier correspondence, here are my questions for you. I’m sure many forum readers as well as stockholders would be very interested in your answers. Please answer thouroughly each question.

1) Please list the number of ounces produced, cost of production per ounce, and sale price (average) per ounce.

2) On page 8 of the annual report, “Salaries and wages decreased do to the involvement of accredited miners becoming independent contractors as participants in a lease with the company.” What is the nature of the lease? How much do the miners pay the company? What if anything except the mine does the company supply? Don’t you think the shareholders should be supplied with a copy of this lease? If the miners do pay the company, where is this on the company financials?

3) Please tell me what in the past five years you have accomplished as the president of the 16:1.

4) You tout on your website your past Board of Directors but are short on qualified mining savy people as directors now, you are constantly getting fined by regulators yet haven’t paid any of your past fines for years, and you still have not been able to obtain new investment in the company. What is your plan to change, not only to stay out of future trouble, but to get your credibility back. How could you expect any new investment from qualified investors with the company with the current problems?

5) On page 3 of the annual report, the company has set aside the funds to install a passive water filtration system to eliminate or reduce low levels of arsenic in “surface” water. What about the mine water? How much has been set aside and when will it be completed? If these funds are set aside, where are they on the company financials?

6) Your complaint for damages against private lawyers and the California District Attorney Association: Can you prove damages of 24 million dollars? Explain how you came up with this number. In your letter to shareholders, you state “The financial balance sheet remains basically unchanged which in light of disruptive influences of the past, I view as positive. If you do win, do the have the assets to pay you? What do they have that is worth 24 million dollars? Are you a mining company or are you a litigating company?

7) Why do you list income from the price of gold going up on your balance sheet? Are you sure this is valid?

8) Other mining companies, Hecla, Agnico-Eagle Mines and Richmont Mines are doing very well. Why is the 16:1 such a mess?

Thanks

[Author]

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