<DOC>
[DOCID: f:k94-574r.wais]
BERWIND NATURAL RESOURCES, CORP.
June 12, 1995
KENT 94-574-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 12, 1995
BERWIND NATURAL RESOURCES, CORP., : CONTEST PROCEEDINGS
KENTUCKY BERWIND LAND COMPANY, :
KYBER COAL COMPANY, : Docket No. KENT 94-574-R
JESSE BRANCH COAL COMPANY, : through KENT 94-797-R
Contestants, :
v. : and
:
SECRETARY OF LABOR : KENT 94-862-R
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : AA & W Coals, Inc.
Respondent : Elmo No. 5 Mine
:
: Mine I.D. No. 15-16856
ORDER DENYING MOTION IN LIMINE
On April 24, 1995, I issued an Order and Notice of
Hearing in these cases. In the order, I denied the
Secretary's motion for summary decision with respect to
all of the Contestants (17 FMSHRC 684 (April 1995)).
I granted the Contestants' motion for summary
decision with regard to two of the Contestants: Berwind
Natural Resources Corp. (Berwind) and Jesse Branch Coal
Company (Jesse Branch). I stated:
[T]he undisputed material facts establish that Jesse
Branch and Berwind did not substantially participate
in the control or supervision of the day-to-day
operations of the mine or have the authority to do
so (17 FMSHRC at 717).
I also denied the Contestants' motion with regard to
Kentucky Berwind Land Company (Kentucky Berwind) and Kyber
Coal Company (Kyber). I stated:
I cannot find the undisputed material facts establish
that Kyber and Kentucky Berwind substantially
participated in the control or supervision of the
day-to-day operations of the mine or had the authority
to do so. Nor can I find such facts establish they did
not so participate. Additional evidence is needed
about the mining projections and the relationships
between AA&W, Kyber and Kentucky Berwind as they
relate to the projections and to the day-to-day
operations at the mine. Additional information also
is needed regarding the interpretation and
implementation of the provisions in the Kyber-AA&W
contract that relate to production (17 FMSHRC 716-717).
In order to afford the parties the opportunity to
augment the record with the necessary additional evidence,
I noticed the cases for hearing and stated, "at the hearing
the parties should be prepared to offer evidence regarding
the particular issues specified above," i.e., the issues
stated regarding Kyber and Kentucky Berwind
(17 FMSHRC at 717).
In response to the notice of hearing, the parties, as
directed, have exchanged lists of exhibits, witnesses and
synopses of testimony. As a result, counsel for the
Contestants has moved in limine for an order precluding the
Secretary from offering certain testimony and evidence at
the hearing. Counsel states that the parties' prehearing
preparations reveal the Secretary's intent to present
evidence beyond the scope of the issues that remain in the
cases.
Counsel for the Secretary opposes the motion stating,
in effect, that all issues are open for litigation ("The
denial of summary decision only signifies that there are
facts in dispute. As a result, all issues raised in the
motions are open to litigation" (Response to Motion in
Limine 4).). As set forth more fully below, I do not
agree with counsel for the Secretary, although I decline
to grant the Contestants' motion outside a hearing and
without proffers, where necessary, from counsel for the
Secretary.
Generally, when a case is not fully adjudicated upon
a motion for summary decision, the judge may ascertain
what material facts are controverted or are yet to be
ascertained and may enter an order accordingly. Upon
trial of the action, the facts shall be deemed established
and the decision rendered (See Fed. R. Civ. P. 56(d)).
If the judge denies the motion and does not specify those
facts that are not controverted or at issue, all of the
issues, as framed in the pleadings, are open for trial.
However, when the judge specifies the facts needing
resolution, trial is only necessary on those issues
required for a decision (See Moore's Federal Practice,
� 56.20 [2](1995)). In such instances, contrary to the
Secretary's contention, all issues are not open for
litigation.
In my view, the order and notice of hearing of April
24 1995, contemplated that to resolve the remaining issues
the hearing should be limited to evidence regarding whether
Kyber used mining projections substantially to control
day-to-day mining at the Elmo No. 5 Mine (17 FMSCHRC at
707), whether Kyber exercised control over the day-to-day
operations of the mine through the Kyber-AA&W contract
provisions relating to production (17 FMSCHRC at 709) and
whether Kentucky Berwind used its involvement with mining
projections substantially to control the day-to-day mining
at the Elmo No. 5 Mine (17 FMSCHRC at 714). On May 1, 1995,
I stated this view in a letter to Stephen D. Turow, counsel
for the Secretary.
Counsel for the Contestants requests that I exclude
proposed expert or factual testimony on 13 issues in the
Secretary's May 26, 1995 letter to Timothy M. Biddle,
counsel for the Contestants. I decline to do so in the
abstract and outside the context of the hearing. However,
while the ruling sought by the Contestants is DENIED, the
Secretary is on notice that I intend to conduct the
hearing consistent with my view of the issues remaining
to be resolved.
David F. Barbour
Administrative Law Judge
Distribution:
Robert I. Cusick, Esq., Marco M. Rajkovich, Esq.,
Christopher Van Beyer, Esq., Mindy G. Barfield, Esq.,
Wyatt, Tarrant & Combs, 1700 Lexington Financial Center,
Lexington, KY 40507 (via facsimile and certified mail)
Timothy M. Biddle, Esq., Thomas M. Means, Esq., Edward M.
Green, Esq., Crowell & Moring, 1001 Pennsylvania Avenue,
N.W., Washington, D.C., 20004-2595 (via facsimile and
certified mail)
Stephen D. Turrow, Esq., Office of the Solicitor, U.S.
Dept. of Labor, 4015 Wilson Boulevard, Suite 400,
Arlington, VA 22203 (via facsimile and certified mail)
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