FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

December 22, 2011

ORDER DENYING RESPONDENT’S MOTIONS TO DISMISS

            This case is before me upon the Petition for the Assessment of Civil Penalty (“Petition”) filed by the Secretary of Labor on October 20, 2011, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815. The Secretary issued to Respondent Spiro Mining, LLC (“Spiro”), a citation under section 104(a) of the Mine Act, alleging a violation of section 103(a) of the Mine Act at Spiro’s Calder Mine. Spiro filed both its Alternative Answer to Secretary of Labor’s Petition (Opposing the Assessment of Civil Penalty) and its Motions to Dismiss Action for Failure to State a Claim and for Lack of MSHA Jurisdiction (“Mot. to Dismiss”) on November 17, 2011. The Secretary filed her Response to Respondent’s Motions to Dismiss on November 21, 2011. Thereafter, Spiro filed a Reply to Secretary’s Dismissal Motions Response on November 28, 2011.

            In its two-page initial motion and its equally terse reply, Spiro cites to no case law but relies solely on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to argue, respectively, that the Secretary lacks subject matter jurisdiction and that she has failed to state a claim upon which relief may be granted. No affidavits or other evidence were submitted in support of Spiro’s contentions. In response, the Secretary cites to Commission case law arguing she has jurisdiction in this case and points to Exhibit A attached to her Petition as proof she has set forth a claim.

            As a threshold matter, the applicability of the Federal Rules of Civil Procedure to Commission cases is addressed in Commission Procedural Rule 1(b), which states as follows: “On any procedural question not regulated by the Act, these [Commission] Procedural Rules, or the Administrative Procedure Act . . . , the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b). The Commission’s Procedural Rules do not provide a procedure analogous to Rule 12, Fed. R. Civ. P. 12; nevertheless, a case before a Commission Judge certainly may be dismissed if the Secretary fails to establish a violation of the Mine Act as a matter of law. See 29 C.F.R. § 2700.67 (setting forth rules for summary decision by a Commission Judge). I address each of Spiro’s arguments below.

Fed. R. Civ. P. 12(b)(1) – Lack of Subject Matter Jurisdiction

            Spiro argues that the Secretary lacks subject matter jurisdiction over Spiro’s operation at the Calder Mine because the mine’s “initial ‘operations’ had not ever yet ‘produced products’ or ‘affected MSHA/interstate commerce.’” (Mot. to Dismiss 1.) The Mine Act provides that “[e]ach coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to the provisions of this chapter.” 30 U.S.C. § 803. In order for the Secretary to establish jurisdiction under the Mine Act, she must prove that a company is an “operator” of a “coal or other mine.” 30 U.S.C. § 802(d), (h)(1).

            Section 3 of the Mine Act defines “coal or other mine” as:

(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, . . . or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities.

30 U.S.C. § 802(h)(1).

            The Commission and reviewing courts have consistently interpreted the Mine Act’s jurisdiction in light of its legislative history, which exhorts “that what is considered to be a mine and to be regulated under the Act be given the broadest possible interpretation, and it is the intent of this [Senate] Committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act.” S. Rep. No. 95-181, at 12 (1977). See, e.g., Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1554 (D.C. Cir. 1984) (citing this same legislative history in support of Mine Act’s broad jurisdiction); Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 797 (4th Cir. 1981) (same); Calmat Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005) (same).

            In Cyprus Industrial Minerals Co. v. Federal Mine Safety and Health Review Commission, the Ninth Circuit considered the operator’s argument that its “site was not a mine because the work underway consisted of driving exploratory drifts in search of a commercially exploitable deposit of talc rather than in the extraction of minerals.” 664 F.2d 1116, 1117 (9th Cir. 1981). The court noted the Mine Act’s expansive jurisdictional language and rejected the operator’s argument, reasoning that the “activity at [the site] could hardly be described as anything but mining.” Id. at 1119.

            Similarly, Spiro argues that its preliminary operations at the Calder Mine do not fall under the ambit of the Mine Act. In the face of long-standing legal precedent that would support the Secretary’s jurisdiction in this case, Spiro offers no factual allegations or legal authorities in support of its arguments. Accordingly, I reject Spiro’s arguments as being without merit.

Fed. R. Civ. P. 12(b)(6) – Failure to State a Claim

            Alternatively, Spiro argues this case should be dismissed because the Secretary failed to state a claim upon which relief can be granted. (Reply to Sec’y Resp. to Resp’t Mot. to Dismiss 2.) Spiro avers that Exhibit A of the Petition “only sets forth a citation or order that is at issue in this litigation, and not a claim.” (Id.) The Advisory Committee Notes to the Federal Rules of Civil Procedure state with regard to Rule 12(b)(6) that such a motion may be treated as a motion for summary judgment and disposed of as such. Fed. R. Civ. P. 12 (Advisory Committee Notes, 1946 Amendment, Note to Subdivision (b)). I thus decide Spiro’s Rule 12(b)(6) motion in view of Commission Procedural Rule 67, 29 C.F.R. § 2700.67, on motions for summary decision.

            Here, the Secretary alleges a violation of section 103(a) of the Mine Act, which directs the Secretary to inspect the Nation’s mines and confers her the right of entry to any mine subject to the Act’s jurisdiction. 30 U.S.C. § 813(a). It is well-settled that “the Secretary . . . may issue citations for interference with the conduct of an inspection. MSHA’s inspection manual directs that in the event an inspector is threatened, harassed, or refused entry into a mine, he should immediately issue a citation alleging a violation of Section 103(a).” Timothy M. Biddle, 1 Coal Law and Regulation § 8.04 (1989). Here, the Secretary’s citation narrative states verbatim:

While I was issuing a citation to the Contractor for working men in the face of an order, Jon Marusich, drove up in his pickup and bumped me in the hip with his left front headlight. This was witnessed by two Spiro Mining, LLC employees. Also another MSHA Inspector witnessed this act. This incident happened at the north end of the mining area on the north side of the sediment pond.

(Petition, Ex. A.)

            MSHA’s Program Policy Manual clearly outlines the seriousness of interfering with an MSHA inspector. Although no criminal violation is before me, section I.103-1 of MSHA’s manual, titled “Assaulting, Intimidating or Impeding Inspectors,” notes in relevant part, the potential criminal penalties for interfering with an MSHA inspector:

Section 111 of Title 18 of the United States Code makes it a federal crime to forcibly assault, resist, oppose, impede, intimidate or interfere with any person designated in Section 1114 of Title 18 while such person is engaged in, or on account of, the performance of his/her official duties. It is a crime to assault, intimidate or impede MSHA employees who are assigned to perform investigative, inspection, or law enforcement functions. Thus, any person who assaults, intimidates or impedes an MSHA inspector, while the inspector is engaged in, or on account of, the performance of his/her official duties, is subject to investigation and arrest by the FBI, prosecution by the U.S. Attorney in the federal courts, and to a fine and/or imprisonment.

I MSHA, U.S. Dep’t of Labor, Program Policy Manual, Section 103-1 (Feb. 2003), at 6. Indeed, both the Commission and its Judges have recognized that the Secretary’s right of entry includes the right to be free from mine operator interference that would frustrate her legitimate objectives. Calvin Black Enters., 7 FMSHRC 1151 (August 1985) (finding management’s requirement of mine owner’s written permission for inspectors to enter mine site violated § 103(a) by effectively preventing inspectors access to mine); United States Steel Corp., 6 FMSHRC 1423 (June 1984) (affirming citation for violation of § 103(a) when operator refused to provide transportation to inspector which effectively prevented him from inspecting accident scene); Knock’s Building Supplies, 20 FMSHRC 535, 548-49 (May 1998) (ALJ) (upholding violation of section 103(a) after threatening an inspector with a shotgun).

            Based on the current record before me, I determine that the Secretary has alleged interference with her duty to inspect the Nation’s mines, which, if proven, would constitute a violation of section 103(a) of the Mine Act. Spiro does not contradict the allegations stated in the citation, nor does Spiro cite to any case law to support a contention that it is entitled to summary decision as a matter of law. Indeed, Spiro offers nothing but the bald allegation that the Secretary has failed to state a claim. As the Secretary has indeed stated an alleged violation of the Mine Act, I reject Spiro’s argument to the contrary as being without merit.

            Based on the forgoing, Spiro’s Motions to Dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim upon which relief can be granted under Rule 12(b)(6) are hereby DENIED.

                                                                                    /s/ Alan G. Paez

                                                                                    Alan G. Paez

                                                                                    Administrative Law Judge

Distribution:

Matthew P. Sallusti, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin Street, Suite 501, Dallas, TX 75202

Tony Joe “T.J.” Huffman, Esq., T.J. Huffman, Attorney at Law, P.O. Box 453, Spiro, OK 74959

/jts