.
DARWIN STRATTON & SON, INC.
August 2, 2000
WEST 2000-371-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                         August 2, 2000

 DARWIN STRATTON & SON INC.,     :  CONTEST PROCEEDINGS
                     Contestant  :
                                 :  Docket No. WEST 2000-371-RM
                                 :  Order No. 7966584; 4/24/2000
                                 :
                                 :  Docket No. WEST 2000-372-RM
                                 :  Citation No. 7966585; 4/22/2000
                                 :
                                 :  Docket No. WEST 2000-373-RM
                                 :  Order No. 7966587; 4/22/2000
           v.                    :
                                 :  Docket No. WEST 2000-374-RM
                                 :  Citation No. 7941252; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-375-RM
                                 :  Order No. 7941253; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-376-RM
                                 :  Order No. 7941254; 4/26/2000
 SECRETARY OF LABOR,             :
   MINE SAFETY AND HEALTH        :  Docket No. WEST 2000-377-RM
   ADMINISTRATION (MSHA),        :  Order No. 7941255; 4/26/2000
                     Respondent  :
                                 :  Docket No. WEST 2000-378-RM
                                 :  Order No. 7941256; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-379-RM
                                 :  Order No. 7941257; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-380-RM
                                 :  Order No. 7941258; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-381-RM
                                 :  Order No. 7941259; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-382-RM
                                 :  Order No. 7941260; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-383-RM
                                 :  Citation No. 7941261; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-384-RM
                                 :  Citation No. 7941262; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-385-RM
                                 :  Order No. 7941263; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-386-RM
                                 :  Order No. 7941264; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-387-RM
                                 :  Order No. 7941265; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-388-RM
                                 :  Order No. 7941266; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-389-RM
                                 :  Order No. 7941267; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-390-RM
                                 :  Order No. 7941268; 4/26/2000
                                 :
                                 :  Docket No. WEST 2000-391-RM
                                 :  Citation No. 7941269; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-392-RM
                                 :  Citation No. 7941270; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-393-RM
                                 :  Order No. 7941271; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-394-RM
                                 :  Order No. 7941272; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-395-RM
                                 :  Citation No. 7941273; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-396-RM
                                 :  Citation No. 7941274; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-397-RM
                                 :  Order No. 7941275; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-398-RM
                                 :  Citation No. 7941276; 4/27/2000
                                 :
                                 :  Docket No. WEST 2000-443-RM
                                 :  Order No. 7966588; 4/22/2000
                                 :
                                 :  Rattlesnake Pit
                                 :  Mine ID 42-02283

            ORDER TO RESPOND TO SECRETARY OF LABOR'S
                   MOTION FOR SUMMARY DECISION

     The Secretary of Labor filed a motion for summary decision
on the issue of whether the Department of Labor's Mine Safety and
Health Administration ("MSHA") has jurisdiction over the
Rattlesnake Pit.  Under the Commission's Procedural Rules, Darwin
Stratton & Son, Inc., has 10 days to respond to the Secretary's
motion.  29 C.F.R. � 2700.10.  Darwin Stratton must mail its
response to the Secretary's motion to me on or before August 15,
2000.

     The Commission's summary decision rule provides that a
"motion for summary decision shall be granted only if the entire
record, including pleadings, depositions, answers to
interrogatories, admissions, and affidavits shows:  (1) that
there is no genuine issue as to any materials facts; and (2) that
the moving party is entitled to summary decision as a matter of
law." 29 C.F.R. � 2700.67(b).  The Commission's procedural rule
further states that a motion for summary decision must be
supported.  The Secretary of Labor attached an affidavit of MSHA
Inspector Dennis Harsh in support of its motion.  In the
affidavit, Inspector Harsh sets forth facts, based on his
personal knowledge, to support the Secretary's position that the
Rattlesnake Pit is a mine subject to the jurisdiction of MSHA.

     The Commission's procedural rule provides that "when a
motion for summary decision is made and supported as provided in
this rule, an adverse party may not rest upon the mere
allegations or denials of his pleadings, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for a
hearing."  29 C.F.R. � 2700.67(c).  It also states that "if a
party does not respond, summary decision, if appropriate, shall
be entered against him."  Id.

     As applied in these cases, this procedural rule requires
Dawson Stratton to respond to the Secretary's motion if it
continues to believe that MSHA is without jurisdiction to inspect
the Rattlesnake Pit and issue citations for violations of safety
standards.  Its response must set forth specific facts to show
that MSHA is without jurisdiction.  Simply arguing that MSHA does
not or should not have jurisdiction over the Rattlesnake Pit is
not sufficient.

     As I have stated in the past, these cases involve a fatality
and the Secretary may subsequently propose high monetary
penalties.  Because the issues raised in the cases may have
significant implications for Darwin Stratton & Son, Inc, it
should seriously consider hiring an attorney to represent it in
these cases.  Darwin Stratton's conduct in these cases indicates
to me that it does not understand the importance of these cases.
For example, using a rubber stamp, it stamped "Not Accepted" six
times on correspondence it received from counsel for the
Secretary of Labor on July 27th and mailed a copy to me.  It also
stamped "Without Dishonor U.C.C. 3-505" on this same document.
Using rubber stamps on documents will not have any bearing on the
results in these cases.  In addition, the Uniform Commercial Code
is not applicable to these proceedings, including section 3-505.

     As I have previously stated, MSHA has not proposed monetary
penalties for the citations and orders it issued at the
Rattlesnake Pit.  Until these penalties are proposed, settlement
is more difficult.  If Darwin Stratton continues to treat these
cases in a frivolous manner, I may cancel the hearing set for
October 3rd and stay the cases until civil penalty cases have
been filed.  At that time, Darwin Stratton will know what its
potential monetary liability is and the parties will be in a
better position to discuss settlement.  Darwin Stratton should
understand that it will not be able to challenge any citations a
second time in a civil penalty case that I affirm following a
pre-penalty hearing.  If the cases are stayed, on the other hand,
all issues can be considered at one hearing.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:


Mr. Pat Morgan, Darwin Stratton & Son, Inc., P.O. Box 1089, St.
George, UT 84771

John Rainwater, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

RWM