FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W. Suite 520N

WASHINGTON, D.C. 20004-1710

(202) 434-9933

September 18, 2012

    ORDERS ON MOTION TO AMEND PETITION FOR CIVIL PENALTY

AND MOTION FOR PARTIAL SUMMARY JUDGMENT

            In this Civil Penalty Proceeding involving a single citation, with a proposed penalty of $100.00, issued to the Respondent, Timber Savers, Inc., the Secretary seeks to amend its Petition to list the Respondent’s name as either Timber Savers, Inc. and/or the Solid Rock Gravel Company. The Secretary also seeks Partial Summary Judgment on the issue of jurisdiction, finding, whichever name(s) appropriately and most accurately describe the Respondent’s operations, that it is a mine within the meaning of the Mine Act and subject to the jurisdiction of the Mine Safety and Health Administration. Upon review of the Motions and the Responses thereto, the Court finds that the amendment modifying the named Respondent is appropriate and warranted under the circumstances and is therefore GRANTED and further that, as this case is nothing more than a garden variety, and meritless, objection to MSHA’s jurisdiction, the Secretary’s motion for summary judgment is also GRANTED.

            Protracted discussion of these matters is not warranted and will not be made. Regarding the correct name of the operation cited, suffice it to say that MSHA, relying upon quarterly production reports submitted by Timber Savers, believed that to be the correct name for the Respondent’s crushing aggregate site. In an attempt to ferret out the correct name for the operation cited, the Petitioner, upon deposing Phillip Berreth, the sole owner/shareholder for Timber Savers, learned that the cited mining operation was changed to “The Solid Rock Gravel Company.” Mr. Berreth testified that Timber Savers ceased operations in 2004, selling its assets to the Solid Rock Gravel Company. Mr. Berreth, again through his deposition, stated that he bought Timber Savers from his father and, when that operation ceased, its assets were sold to the Solid Rock Gravel Company. Mr. Berreth, as the sole owner of Timber Savers, then became the sole owner of the Solid Rock Gravel Company. The latter, “new” operation of Mr. Berreth operates year round, selling crushed gravel to purchasers for their various needs. Critically, Mr. Berreth admitted in his deposition that the site which was inspected by MSHA is the same site where the Solid Rock Gravel Company performs its gravel crushing operation.

            Jurisdiction is not defeated merely because MSHA, in good faith, incorrectly named the entity where the crushing activities were ongoing. All parties understood the location of the operation cited and something as superficial as listing its formal name does not impair the effectiveness of the civil penalty proceeding filing. It would, for example, be sufficient if MSHA, unable to accurately determine the correct mine name, had to list the operation’s location simply by its geographic coordinates alone. Here, the heart of the Respondent’s objection emanates not from an incorrect listing of the mine operation, but rather from its view that its activity does not constitute interstate activity. That issue, raised in the Secretary’s other motion, will be next addressed. Accordingly, the motion to amend the petition is GRANTED.

            The Secretary’s second motion is a motion for partial summary judgment. In that motion the Secretary seeks a ruling that the Respondent, Timber Savers, Inc., and/or its alternative identifying name, the Solid Rock Gravel Company, is a mine subject to the jurisdiction of the Mine Act. For the reasons that follow, the Court, having considered the motion and the Respondent’s responses thereto, finds that the Respondent’s operation is indeed and without any doubt subject to the Mine Act. Accordingly, the Secretary’s Motion for Partial Summary Judgment is also GRANTED.

            The Court notes that the motion is supported by the deposition of Phillip Berreth who, by his own deposition, acknowledges that he is the sole stockholder of Timber Savers, a company that he purchased from his father in 1995 and that he is also the sole owner of the Solid Rock Gravel Company. The latter company is open year round, has equipment associated with mining activities, such as front end loaders and a crusher and sells gravel to customers who need that product. Mr. Berreth, again from his own words under oath during his deposition, admitted that he has never filed a legal identity report for the Solid Rock Company, though he admits that the Company crushes aggregate on the site where MSHA issued the citations in this docket.

            As the Secretary notes in the Summary to her Motion: “There is no doubt that the Respondent's rock crushing operation is a mine subject to the jurisdiction of the Mine Act. Mr. Berreth, the sole shareholder/owner testified that the operation, which he reports should be called The Solid Rock Gravel Company (although he files quarterly reports with MSHA suggesting that the production is really that of Timber Savers, Inc.) is a facility for the extraction, crushing, screening and sale of rock/aggregate. The product, according to Mr. Berreth, is sold to anyone who wants it and is used for road building. In producing this aggregate, Mr. Berreth utilizes the telephone for taking customer orders, dump trucks manufactured outside the state of Idaho for transporting the aggregate to the customers, front end loaders manufactured outside the state of Idaho for loading the aggregate onto the dump trucks, and office equipment, including computers as well as the use of credit cards. Mr. Berreth testified that the annual dollar volume of business of this company is a quarter of a million dollars.” Motion at 11.

            There is no genuine dispute of a material fact in this case and therefore summary judgment is appropriate. Clearly, this operation is a mine within the meaning of Section 3(h) of the Mine Act and its activity, all of which has been acknowledged by its owner, affects commerce within the meaning of Section 4 of the Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 801 et seq. The Court has reviewed Mr. Berreth’s responses to both motions and finds them to be without any merit. In issuing this ruling, the Court takes note of and incorporates by reference portions of the Secretary’s Motion. The Court also takes notice of the very relevant and on point decision of fellow Administrative Law Judge Zane Gill’s decision in Sec. v. Fittstone, Inc., 33 FMSHRC 2933 (Nov. 2011). That decision appears in the Appendix to this decision.

            Accordingly, the Court finds that the Respondent's facility, located at Weippe, Idaho and known as both Timber Savers, Inc. and the Solid Rock Gravel Company, is a mine within the meaning of the Mine Act and is subject to the jurisdiction of the Mine Safety and Health Administration.

            The parties are DIRECTED by these ORDERS to consult with one another to determine if the civil penalty issues can be settled and to then email the Court within two (2) weeks of the date of this Order to advise about the status of the matter. The communication to the Court is to be sent to: wmoran@fmshrc.gov .

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Patricia Drummond, Esquire

Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, Washington, 98101 (email and first class mail)

Mr. Phil Berreth, President

Timber Savers, Inc./ The Solid Rock Gravel Company, 201 S. Garden Court, Lewiston, Idaho, 83501 (email, and certified mail)

APPENDIX

SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), PETITIONER v. FITTSTONE, INC., RESPONDENT 33 FMSHRC 2933, 2011 WL 6148975 (Nov. 30 2011) Judge L. Zane Gill.

ORDER GRANTING THE SECRETARY'S PARTIAL SUMMARY JUDGMENT MOTION

This case is before the court on a petition for assessment of civil penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (the “Act”). The parties filed cross-motions for summary judgment. The underlying controversy involves citations issued by the Department of Labor's Mine Safety and Health Administration (“MSHA”) under Section 104(a). The issue the parties argued in their cross-motions is whether MSHA has jurisdiction to inspect the Respondent's limestone gravel operation. A telephone hearing on this issue was conducted on September 28, 2011.

The Respondent argues that its limestone gravel facility is not subject to MSHA's jurisdiction because it does not “substantially” affect interstate commerce. This position is based on the Respondent's interpretation of the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995). Respondent argues that after Lopez, a mine must satisfy a “substantial qualifier” test before MSHA can exert its inspection jurisdiction. This interpretation is plausible because in Lopez the Supreme Court stated that “the proper test requires an analysis of whether the regulated activity substantially affects interstate commerce.” Id., 559 (emphases added) The Supreme Court also said that “where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Id. (emphases added)

However, by placing so much weight on the word “substantial,” the Respondent misinterprets Lopez. The Lopez decision resolves the issue of whether a federal law banning possession of a firearm on public school property, 18 U.S.C. § 922(q)(1)(A), the Gun-Free School Zones Act of 1990, could be applied under a Commerce Clause argument when there was no discernable nexus between a student's possession of a firearm and any commercial or economic activity.

*2934 While it is true that in order for an activity to come under the Commerce Clause, there must be a showing that the activity “substantially affects” interstate commerce, i.e., the activity must first be shown to be commercial in nature. Lopez determined that possession of a firearm was not commercial or economic in nature, therefore there was no need to move to the secondary issue of whether the commercial activity had a substantial impact on interstate commerce.

In short, the Lopez decision did not elevate the “substantial qualifier” test to primary importance as the Respondent argues, but affirmed that laws and/or regulations promulgated via the Commerce Clause need to have some basis in commerce. By validating Wickard v. Filburn 317 U.S. 111 (1942) in its Lopez decision, the Supreme Court made it clear that if an economic activity is involved, the level of activity needed to justify extension of Commerce Clause authority is indeed quite minimal. The Supreme Court cited Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” Id., at 560 Accordingly, Wickard is still good precedent, and we are bound by it in this matter.

**2 Comparing the facts in Wickard with the facts in this case, there is no question that the Fittstone facility affects commerce and is under the Mine Act's jurisdiction. In Wickard, a law was established to limit wheat production based on acreage owned by a farmer in order to drive up wheat prices during the Great Depression. A farmer grew more than the limits permitted and was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it. The Supreme Court found that “[e]ven activity that is purely intrastate in character may be regulated by Congress, where that activity, combined with like conduct by others similarly situated, affects commerce among the States […].” Fry v. United States, 421 U.S. 542, 547 (1975) citing Wickard, at 127-128

Here, the Respondent's total facility sales were $358,901.00 for the time period February 23, 2010, to August 24, 2010. [FN1] In addition, the Research and Innovative Technology *2935 Administration (“RITA”) survey [fn2] CITED BY THE respondent in support of its position, confirms that there is only a small amount of gravel and stone included in the total freight transported in the United States. This demonstrates that even a relatively small amount of gravel production can have a disproportionate effect on interstate commerce for purposes of jurisdictional analysis, and it bolsters the Secretary's argument.

In addition to Wickard and Fry, there are numerous decisions that support the argument that MSHA has jurisdiction over the Respondent's Fittstone facility. For instance, in Jerry Ike Harless Towing, Inc. and Harless Inc. v. Sec'y of Labor, the Commission stated that the “Commerce Clause of the Constitution has been broadly construed [ … and that] Commercial activity that is purely intrastate in character may be regulated by Congress under the Commerce Clause, where the activity, combined with like conduct by others similarly situated, affects commerce among the states.”Jerry Ike Harless Towing, Inc. and Harless Inc. v. Sec'y of Labor, 16 FMSHRC 683, 686 (April 1994), citing Fry v. United States, 421 U.S. 542, 547 (1975); Wickard, at 111. The Commission continued by saying that “Congress intended to exercise its authority to regulate interstate commerce to the ‘maximum extent feasible’ when it enacted section 4 of the Mine Act.” Id., citing Marshall v. Kraynak, 604 F.2d 231, 232 (3d Cir. 1979), cert. denied 444 U.S. 1014 (1980) Though Harless Towing was published a year prior to Lopez, the Commission has not changed its stance on the matter.

In a Second Circuit decision issued in 2004, the court affirmed Wickard and Fry v. United States when it found that a gravel mine that did business only in New York was under the Mine Act's jurisdiction. D.A.S. & Gravel v. Sec'y of labor, 386 F. 3d 460, 463 (2nd Cir. 2004). The court stated that “the Commerce Clause does not preclude Congress from regulating the activities of an economic actor whose products do not themselves enter interstate commerce, where the activities of such local actors taken together have the potential to affect an interstate market the regulation of which is within Congress' power.” Id.

**3 In United States v. Lake, 985 F.2d 265, 267-69 (6th Cir. 1993), which the Commission cited in Harless Towing above, a mine operator sold all its coal locally and purchased mining supplies from a local dealer. Id., at 269. The court found that the operator was engaged in interstate commerce because “such small scale efforts, when combined with others, could influence interstate coal pricing and demand.”

The Secretary has also argued and provided evidence that the Respondent's use of machinery and equipment bought from out-of-state manufactures affects interstate commerce, also bringing respondent under MSHA's jurisdiction. Though there is abundant precedent *2936 supporting the Secretary's assertion on this point, [FN3] it only serves to bolster my decision. I conclude, therefore, that the Respondent's gravel operation affects interstate commerce and comes under MSHA's inspection authority.

Accordingly, the Secretary's Motion for Partial Summary Judgment is GRANTED and the Respondent's summary judgment motion is DENIED.