November 22, 2017 
 Wednesday 
 
 

Forum
Topic:
YOU JUDGE *** US COURT OF APPEALS

       

 By SCOOP

04/05/2006  10:21AM

The judges favorable decision resulted in the cancelation of penalties totaling $19,650.00.
The entire decision can be found under the NEWS heading of the FORUM.
 By greenhorn

04/05/2006  7:08AM

In terms of penalties to be lifted, what dollar impact did the decision have?
 By Michael Miller

04/03/2006  2:24PM

As I walked in the office today, Ian and Rae were reviewing the job applications on file. I joined them. Twenty minutes later Rae said, “Oh, the Ninth Appeals Court decision arrived. We won.” Well, the job applications were set aside because this bit of news is really NEWS. WE WON!

The decision is five pages, which we hope to scan or get to our web site. It concludes, “We therefore grant the petition …and vacate the penalties imposed in connection therewith. In view of our holding and the factors cited…the imposition of further penalties for the conduct described in Citations Nos. 7995404 and 7995405 would be arbitrary and capricious. Accordingly, no further penalties shall be imposed with respect to those two alleged violations.”
 By Michael Miller

03/26/2006  10:31AM

I just finished listening to a CD of the hearing before the panel of judges for the US Court of Appeals Ninth District that was sent to me by a shareholder. If you have not heard the proceedings, I strongly encourage you to do so. If, like me, your system takes forty minutes to down load the web reference of the recording, which is impractical, I will send you a CD. To cover the expense (I hope thousands will listen to and ponder the important issues of this proceeding) please send some money to cover the costs of sending you a CD.

Now, my comments. I am somewhat awe struck by the hearing. The three participants (Klaus, the Secretary of Labor and the Panel of Judges) carried on a discussion that honored their respective duties. Since I have never been to a hearing at this high level, I had no expectations about how the Judges behave. I am impressed because they cared about us and did not blow us off as Gary Melick, the hearing judge, the MSHA lead inspector (Stephen Cain) and the Secretary’s hearing lawyer (Chris Wilkinson) did. One significant statement by Klaus honored our Company’s integrity, which all the others just ignored in their biased assault against us. It came during his five-minute rebuttal to the Secretary’s argument. Klaus pointed out in the hearing record how the miners follow the Sixteen’s policies towards safety. The above mentioned trio of federal employees insulted every miner and person associated with the Sixteen to One and the other gold mines, miners and operators in the Alleghany Mining District with their speculations and presentations about Mark’s tragic accident. Why?

For the first time I am content with our hard work to stop and reverse the government’s disgusting wrong doing! I hope you will complete the journey and listen to the last round of the battle for truth and justice. Should the panel of Judges not reverse the Secretary of Labor’s position, our final recourse is the US Supreme Court. My prayer is to stop process and the abuse now. Also I pray that the US Court of Appeals will issue a written decision. Why? While most Americans will never realize the importance of the questions at issue, I do and so do others in and out of the mining industry.

It is certainly odd that an issue so vital for our domestic mineral production capability has fallen on such a small company to defend. I did the best I could. It is out of my hands. You might want to hear the final take. The briefs are here on the web site as well as the many comments by web site participants. For all of you familiar with this journey who supported me, thank you. To the one guy who I cannot thank or hug or give a high-five… right on George. It is a game of words, George just like you said. Klaus gave honor to you in his oral argument. I honor you forever.
 By Rick

03/18/2006  7:48AM

Wow. I just finished listening to the entire transcript, 45 minutes of sitting on the edge of my seat. THIS IS A MUST for all of us to hear. Klaus was exceptionally prepared and does a supreme job articulating the ambiguities of the citations issued to the mine following Mark's accident. The Secretary of Labor attorney was antagonistic at best, and seemed to go around in circles.

I'm not here this time to give my opinions. It all speaks for itself. And, although I haven't spoken with him, I suspect Mike has refered us to this link (the word-by-word proceedings in the hearing) for us all, and especially for those out there who've doubted his decision to make this pursuit from the begining, to finally discover how the mine has been mischaracterized from the very beginning following the accident.

My gut feelings tell me that this time justice will be served, and the mine will be able to put this behind. Oh, and by the way, lest some lawyer for the CDAA conclude that I am "tainting" the citizens of Sierra County through the use of this forum page, I live in the valley, Yolo County.
 By SCOOP

03/17/2006  4:50PM

An audio file of the hearing is available at www.ca9.uscourts.gov (use copy/paste to put this in the address bar) on the upper left is a link to audio files. search by case # 04-71301
 By Michael Miller

03/16/2006  2:01PM

We are back from San Francisco. Two items before I summarize March 15, 2006 at the US Court of Appeals. First item is the courthouse. What a magnificent building! Words fail me in describing it. What overshadowed the marble corridors, the tasteful stone inlay or the structure is the feeling of sensing the experience of freely walking its halls. It is not a cold stone building like some I have toured. The physical structure inspires awe, awe in the most humbling manner. It is not pretentious, intimidating or arrogant. It is elegant in its massiveness and its detail. I highly recommend everyone who loves to visit San Francisco to include time for the federal courthouse. Thank you to those far seeing Americans who chose to save and repair the building instead of tearing it down because of earthquake fears. Second, thank you for your support in the righteous battle that has reached the next to highest court in the land. On behalf of the mining industry and our population whose life depends on the success of this fundamental industry, your voices from day one kept my voice along the path I chose to take.

The tape recorder could not pick up the voices of the judges or attorneys. The first issue was whether the Company filed a proper request for the mining commission to review the decision of the Secretary of Labor. Her attorney flew in from Washington DC and the judges took most of her time with this issue. Klaus spent a few of his twenty minutes on the topic. We think that the Court will rule that the particular circumstances support the validity of the position that the Court has the authority to hear the appeal. The next issue is the agency position that both the hearing officer and the Secretary of Labor took. The decided that Mark was management because he was a lead miner (their definition which completely was refuted by Jonathan (mine manager at the time of accident and me) and he took some responsibility for his work and safety. Klaus feels that this is the primary issue and if the decision is overturned, we have carried the day. By the way, even though Klaus had very little time to dig into all the mining practices, he quickly gained a fantastic understanding of the equipment, the methods we use in Alleghany and the rules and regulations for our specialized industry. Unfortunately, I have to go now. We continue to mine some very good looking gold and the shift is about over. I promise to write more about our trip to the Ninth Circuit Court. Lastly, we feel confident that the judges were well prepared before the session. I am confident in Klaus’s presentation. The Secretary’ lawyer did as well as she could with the cards she was dealt. but those cards were tainted by every lawyer who acted in this case. Now finally, if I were a gambler instead of a high-grade gold miner, I would wager that our position will carry the day.
 By Michael Miller

03/13/2006  8:44PM

What should happen Wednesday?

The Court gives each side either ten minutes or twenty minutes to argue its case. We have been given twenty, which seems positive. I plan to take a tape recorder so Kyle can transcribe the hearing for you to read. Hope it works. It is Klaus’s show, and he is prepared. I cannot imagine how the lawyers for the federal government even think that the position advocated by MSHA has merit. MSHA position is definitely not in mining’s best interest or the country’s best interest. If we lose, all Americans lose a round for domestic security. I just hope the judges understand the issues that have arisen as a result of Mark’s tragic accident. The direction of MSHA must change and the opportunity to change it is at hand. The citations should be thrown out for lack of evidence. Also the Court can make a statement that even though the citations are void, the idea that Mark was management is specious. Oh, by the way, today the miners ran right into the pocket of gold they were headed for. It looks good. More in a couple of rounds.
 By Michael Miller

02/20/2006  3:01PM

PLEASE NOTE THE NEW DATE FOR APPEAL

Wednesday, March 15, 2006 9:00 a.m.
Courtroom 4, 2nd Floor
United States court of Appeals – 9th Circuit
95 Seventh Street
San Francisco, California

ATTENTION - IMPORTANT - ATTENTION:

A PICTURE ID REQUIRED TO ENTER COURTHOUSE
( and leave your guns at home if you want inside)

Each side is allowed 20 minutes for argument.
 By Rick

02/18/2006  8:27PM

Having written "CWA" in the previous entry by typo accident, hmmmm, as I meant to write "CYA" (and we know what that stands for) I've decided that in the case of this typographical accident that "CWA" stands for:

Completely Wacko Authority
 By Rick

02/18/2006  8:19PM

MARCH 13, 2006
ORAL ARGUMENT
US COURT NINTH DISTRICT
OPEN TO PUBLIC

Attending such an event will open the eyes of anyone yet to do so. We'll see awesome posturing (call it CWA) by the factions leveling charges. Quite a spectacle.
 By SCOOP

02/17/2006  11:29PM

MARCH 13, 2006
ORAL ARGUMENT
US COURT NINTH DISTRICT
SAN FRANCISCO
OPEN TO THE PUBLIC
 By Michael Miller

10/05/2005  2:23PM

October 5, 2005

Cathy A. Catterson
United States Court of Appeals
For the Ninth Circuit
P.O. Box 193939
San Francisco, Ca 94119-3939

Re: No. 04-71301
Original Sixteen to One Mine.,
And Michael Miller, Petitioner

v.

Secretary of Labor (MSHA) and
Federal Mine Safety and Review
Commission, Respondents

Dear Ms Catterson:

I write to notify the Court the sad news that on September 12, 2005, my friend and confidant and business attorney, George Gilmour, was killed in a car accident near the mine. It is a significant loss. George will not be readily replaced in the case before the Court because of the complexities of mining law, worker safety law and all the other laws and procedures involved in our case. George was a sole practitioner,, and therefore, there is no one familiar with the nuances of the issues we are appealing. I will be seeking competent help, since the issues we argue affect everyone in the United States mining industry.

Until a replacement is located who will substitute into the case, I ask that you send all correspondence to me at the above address. I have spoken with our contact at your Court and learned that our case will not be heard this year. Please consider granting this request. If my letter does not cover the facts necessary to remove George as the lawyer of record and future correspondences sent to me, please let me know what else to do. California lost one of the brilliant good guys practicing law in our great state.


Sincerely yours,

Michael M. Miller, President

Cc: Cherly C. Blair-Kijewski
 By Michael Miller

06/19/2005  12:02AM

The US Court of Appeals asked for an explanation as to why I was addressing the Court without a lawyer, giving me fifteen days to respond or have my appeal dismissed. I chose that an argument justifying why it was proper for me to address them was not the issue. I want this group, the first and only judicial bunch to review the specious report of the accident prepared by Stephen Cain, to cancel MSHA’s accusations, as the ALJ, Mr. Gary Melick should have done. I asked George to sub in for me (he has long standing credentials to appear before this Court). He said okay but fifteen days is not a lot of time to come up to speed. An extension by phone was assured to be granted. We thought, let’s give it a shot and get it out of our minds( July 8, 2005, coming up in Downieville with four motions by the bad guys for review).

This new brief lacks the sermon aura of the brief filed on August 23, 2004 (following the second one). Scoop is right. George and I allowed two hours for driving uncertainties from Alleghany to the East Bay and finally to the Beautiful federal courthouse on Mission and Seventh. We bolted into my truck, he signed the sixteen copies we needed to file between Grass Valley and Auburn. Here it is.
 By Michael Miller

06/18/2005  3:42PM

INTRODUCTION
The following are remarks by Dave Lauriski, Assistant Secretary of Labor for Mine Safety and Health at the 62nd Annual Meeting of the Kentucky Mining Institute in Prestonsburg, Ky. On August 24, 2001.

“Upon entering this job, I’ve become responsible for all aspects of MSHA’s role and, in particular, those areas mandated by the Mine Act. Clearly, we also need to address human actions. While many accidents have multiple causes, human behavior is the biggest part of the equation.
“By the way, when I talk about human behavior, that emphatically does not mean a focus on blame. In conducting accident investigations, for instance, we need to pay attention to facts, not fault. What happened? What was the actual sequence of events? What causation factors were identified, and so on?
“Ultimately, finding facts determines responsibility. But that is quite different from starting out with the idea of finding blame. An inappropriate focus on blame forces people to be apprehensive and defensive. A close, respectful attention to facts will teach us how we can prevent similar accidents in the future.”

This case is before the Court on a petition by Original Sixteen-to-One Mine, Inc. (“the operator/petitioner”) for review and reversal of a decision of the Federal Mine Safety and Health Review Commission (“the Commission”) under the Federal Mine and Safety Health Act of 1977 (”the Mine Act”), 30 U.S.C. sections 801, et seq.. The Court has jurisdiction over this case under Section 106 (a)(1) of the Mine Act, 30 U.S.C. 816(a)(1).
The decision of the administrative law judge (“ALJ”) in this case was issued on January 5, 2004. The Commission declined to grant the operator’s petition for discretionary review of the ALJ’s decision, and the ALJ’s decision thus became a final decision of the Commission on February 17, 2004.
The Petitioner/operator timely filed a petition for review of the Commission’s decision under Section 106(a)(1) of the Mine Act on March 16, 2004.
This case has arisen from the issuance of citations alleging negligence of the operator after the tragic death of a miner. On October 6, 2000, Mark Fussell was an employee of the operator and had been for some years At that time the operator employed 12 to 14 miners, all of whom had earned the rank or title of “Lead Miner.” Tr. Page 459, lines 13-20.. Mark was, as his fellow workers, quite experienced. He had been assigned the task of rehabilitating a long-abandoned area of the mine of twenty-seven miles of underground tunnels in order that the area would be rendered suitable for mining in the future.
As every one of the operator’s miners, Mark was not working alone. Tr. Page 366, line 15-16. But on the day of his death his assignment did not involve mining, but rather the removal of treacherous objects and a great amount of debris aimed at the rehabilitation of the long-abandoned area. Tr. Page 13, lines 16-19.
Had it been true that the Petitioner had been maintaining a work place in which mining was ongoing, a finding of negligence on the Petitioner’s part may have been warranted. But, it was not such a workplace. Rather, two employees had been devoting their energies into making it become one. Tr. Pages 336-337. Debris was scattered along the 2000-foot tunnel, which had to be removed before a small battery powered locomotive could proceed along the level. They had not as yet removed a useless, antiquated chute that protruded over the track, making it almost impossible to move the locomotive beyond the barrier.
The Petitioner 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 unequivocally nothing in the record to support the ALJ’s finding to the contrary.
In the week before the accident, the area had been inspected by Edward Hurley, a mine inspector for Cal OSHA. Page. 336, lines 17-23. He found there to be no hazards. Tr. Page 339, lines 5-8, 20-24. He observed an old protruding ore chute lacking warning devices but concluded that it was not a source of danger. And he saw a locomotive/trammer/train parked some seventeen hundred feet away. Tr. Page 339, lines 20-24.
One of Mark Fussell’s assigned tasks was to eliminate the protruding chute. He was
provided a new electric chain saw with which to do so. Instead of doing so, however, he both brought the train beyond his work area and did not eliminate the chute. Further, he squeezed his body lower on the seat and lowered his head to drive past the barrier. He then parked the locomotive three or four feet past the barrier and got off the equipment. A short time later he returned to the trammer. He lit a cigarette and without looking forward, energized the trammer and drove into the barrier, killing himself.
Mark’s decision to utilize the train and his decision to not remove the chute, were not known nor authorized by the operator. His behavior was clearly both aberrant. and tragic.
At the hearing before the ALJ Gary Melick the operator was represented by a lay person, the company’s president and chief executive officer, Michael. Miller. Of course, this presented a severe disadvantage, for Miller believed that the ALJ would speak the truth.
However, in his decision, on page 3, footnote 2, the ALJ refers to “admissions” made by Miller:
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 section 7023 (Interim Edition; McCormick on Evidence. Fifth Edition, Admissions section 259.
………………..
The transcript of the hearing tells a different story:

THE COURT: The procedures that we follow, Mr. Miller, since you are not represented, I know you’ve had other hearings with other Judges before the Commission, but just to refresh your recollection, the procedures that we follow in these cases is that first of all the parties 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. page 1, lines 16-26, emphasis added.

MR. MILLER: I’ll make an opening statement.

THE COURT: All right.

MR. MILLER: My name is Michael M Miller. Your Honor, I have one other request, too. Since I’m going to testify, would you mind swearing me in at this time?

THE COURT: Well, no, because this is opening statement. When you testify I’ll swear you in.

MR. MILLER: Okay. Mark Fussell was a certified Lead Miner familiar with and trained for his position
Tr. page 11, lines 5-13

THE COURT: You say Mark Fussell was a lead miner?

MR MILLER: Mark Fussell was a lead miner.

THE COURT: That equivalent to a foreman at your operation?

MR. MILLER: A lead miner is a miner who has been task trained for all of the various jobs required in our particular operation. A lead miner does not have to have any management or foreman capabilities.
Tr. page 12 lines 1-8

THE COURT: Excuse me, I don’t want to – mean to interrupt you, but if this is going to be your testimony you might want to defer this to the time you testify, then I can considerate it as evidence. I don’t want to cut you off if you want to present that as opening argument, but if you also want to testify to the same it might save time to do that at the time of your testimony.

MR MILLER: Well - -

THE COURT: Is is relatively short? I mean go ahead. If you want to go ahead and present it, go ahead and present it.

MR. MILLER: Waive the rest of my opening.–

Tr. page 14, lines 5-16.

This conduct of the ALJ in grossly misstating the law and misleading a layperson during the hearing was outrageous. But, it continued. Neither Graham nor McCormick, cited in the Decision, speak of opening statements made by laypersons that have been misled by a judge.
THE CITATIONS
A. Citation No. 7995404
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.
1. The ALJ decided that Mark Fussell was the operator’s agent.
In considering whether an employee is an operator’s agent, the Commission has “relied, not upon the job title or the qualifications of the miner, but upon his function [and whether] it was crucial to the mine’s operation and involved a level of responsibility normally delegated to management personnel.” U.S. Coal, Inc. 17 FMSHRC 1684, 1688 (1995), quoted in Ambrosia coal & Constr. Co., 18 FMSHRC 1552, 1560. See REB Enterprise, Inc. 20 FMSHRC 203, 211 (1998); Martin Marietta Aggregates, 22 FMSHRC 633.
While the common law meaning of agent may be distinguished technically from the Mine Act’s definition of the term (Section 3(e)), there appears no substantive inconsistency between the two. The Commission has previously employed both the Act’s definition and common law principles in resolving agency problems (see, e.g.,Wilfred Bryannt v. Dingess Mine Service, FMSHRC 1173, 1178-80 (1988) aff’d. sub nom, Winchester Coals v. FMSHRC No.89-334 (4th Cir. May 10, 1190). Generally, an agent is one who is authorized by another, the principal, to act on the other’s behalf. See, e.g., Black’s Law Dictionary 59 (5th ed. 1979), Johnson v. Bechtel Associates Profes’l Corp., 717 F.2d 574, 579 (D.C. Cir.1983). The Restatement (Second) of Agency (1958) indicates that the essential feature of the principal-agent relationship is that the agent has authority to represent his principal in relations with third parties that affect the principal’s legal rights and obligations. Restatement, Section 10.
Mark Fussell was simply not the Petitioner’s agent. He possessed absolutely no managerial authority or responsibilities.. And he possessed absolutely no right to speak or act on behalf of the Petitioner. Nor was any evidence provided by either party stating such authority.
Jonathan Farrell was employed by Petitioner as the mine manager on November 6th, 2002. Over a seven-year period he rose from an inexperienced miner to lead miner, surface superintendent and mine manager. He acknowledged the policies of Petitioner that safe working responsibility was a reality at the mine and throughout the industry. He clarified an important fact: “And he (Mark) 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. page 366 lines 25-27.
2. Had Mark Fussell Been the Operator’s Agent.
Assuming for the moment that Mark Fussell had been the operator’s agent, the ALJ’s conclusions that such a relationship results inevitably in employer vicarious liability appears both unfounded and odd.
As early as 1981, in Nacco Mining Co 3 FMSHRC 840 (1981) the Commission held that although a “foreman’s unlawful act is attributable to the operator under statutory agency concepts, under the facts of the case the employer was not negligent”. The Commission found that the employee had acted “aberrantly,” engaging in wholly unforeseeable misconduct, resulting in his own death but not in harm or a risk of harm to anyone else. 3 FMSHRC at 850.
The Commission observed:
Whereas here an operator has taken reasonable steps to avoid a particular class of accident and the erring supervisor unforeseeably exposes only himself to risk, it makes little enforcement sense to penalize the operator for “negligence.” Such an approach might well discourage pursuit of a high standard of care because regardless of what the operator did to insure safety, a negligence finding would automatically result. We therefore approve the judge’s finding of no negligence.

3 FMSHRC, at 850.
The Nacco rule was refused application by the Commission in Rochester & Pittsburgh Coal Company 13 FMSHRC 189, 198 (1991) because the negligent acts of a supervisor had put other miners at serious risk. Such, however, is clearly not the case here. Mark Fussell was alone on the train. His partner, Vince Kautz, was working beyond him, beyond the chute and the train.
Tr. page 355, lines 16-22
Mark Fussell was not the operator’s agent. He possessed exactly the same status as every other lead miner in the operator’s employ. The Secretary asked whether Mr. Fussell “was the supervisor or lead man”. Mr. Miller answered, “No. He is a lead miner, Mr. Wilkinson”. Tr. page 459, line 10. Furthermore, all the miners at the mine were lead miners. Tr. page 459 lines 19-20.
B. Citation No.7995405
A miner was fatally injured at this mine on November 6, 2000, when he struck his head on an ore chute protruding into the drift at approximately head level, after he engaged the speed controller of the Mancha locomotive he was operating. The locomotive had a clearly evident mechanical defect, which had not been corrected in a timely manner to prevent a hazard to the miner. Alternatively, the locomotive was not taken out of service and placed in a designated area posted for that purpose, nor was the vehicle tagged or other effective method of marking the defective items used to prohibit further use of the vehicle until the noticeable defect was corrected.

This defect was easily detectable during a pre-operational or other similar inspection. It made continued operation hazardous to persons by causing the locomotive to be difficult to control at slow speeds or when power starting from a stopped position. The machine’s speed controller first point of power (slow speed) to the drive motor was not functioning as designed; thus, the locomotive would not move until the second point of power was contacted, when it would then jump or lurch forward.

1. Unsubstantial Evidence Was Used By the ALJ.
The Petitioner’s witnesses provided a coherent actual and plausible story, which was not contradicted by any evidence. None of MSHA witnesses who saw the locomotive prior to the accident ever examined the alleged defective part after the accident. Robert Montoya was even deemed to be unqualified to judge the electrical schematics of the trammer or how the motors worked. Tr. page 72, lines 1-10. The Secretary stated that Montoya was the link to his expert, Arlie Massey. “He provided certain information to the expert that would lay the foundation for our expert’s opinion”. Tr. page 72, lines 16-18.
Given the tragic and outrageous events, which gave rise to the instance case, we plead that the court thoroughly review the record provided. Of particular note is the brief of the hearing offered by the Petitioner’s president to the ALJ. It will be most helpful in providing an understanding of Petitioner’s belief that the ALJ decision is pure and simply erroneous. It is lengthy but thorough, even pointing out the many mistaken citations by the Solicitor in his brief.
The ALJ had no rational or reasonable evidence to “accept Massey’s conclusion that the resistor was defective before the accident.” See the Decision, page 10.third paragraph. Massey falsely represented his credentials by testifying that he was with MSHA since 1973. MSHA was established in 1977. His understanding of the incident at the mine was entirely hearsay from a phone conversation with Robert Montoya. Tr. page 144 line 25. Montoya stated “we never looked actually at the resister at that point in time”. Tr. page 67 lines 1-2. Tr. page 144 line 25. His opinion is based solely upon the verbal information from Montoya and a schematic FAX sent to him. He speculated that (a) there was not enough time for the resister to break electrical continuity during the 30 seconds or more time between Mark Fussell’s driving into the chute and when Vince Kautz reached him and the dead trammer; (b) that Fussell knew the resistor was open before the accident; (c) that the speed difference of a trammer operating in point one or point two was a factor. He later refutes his own testimony.
The chronology of the discovery of evidence gathered by special investigator, Stephen Allen Cain, provides crucial information regarding the Secretary’s position and the credibility of all her witnesses. The accident occurred on November 6, 2000. Cain et al. conducted their investigation between November 7, 2000 and November 9, 2000. The citations were issued and served on January 12, 2001. Robert Walker, Petitioner’s expert electrical witness, dismantled the trammer on February 12, 2001, and was the first and only person to examine the resistor. Petitioner then called for a health and safety conference to review citation 7995405. The negligence was modified from high to moderate on February 26, 2001. At the time of this investigation, MSHA personnel did not know the cause of the loss of the first point of contact. Montoya said, “We knew it was defective but we didn’t know at that point in time whether it was the controller or the resister bank”. Tr. page 67 lines 11-13. The Court asked if they ever found out. Montoya said, “When Mr. Miller, at a health and safety conference at a later point in time, produced the resister bank and shown that the resister was open.” Tr. page 67, lines 17-19. The citations were written and issued before MSHA had identified their alleged defect. How was it possible to satisfy the requirements of regulation 57.14100 (a), (b), (c), and (d) if the defect was not even known? It is not possible, which renders the citation invalid because it was improperly drafted. The law requires MSHA to identify and notify the operator of the specific violations of a regulation. It is telling that the citation 7995405 only identified 57.14100 of Title 30 CFR in the 9 (C) Section of the form.
The citation failed to address the four subsections because to do so would be pure speculation and unlawful. The alleged defect had not been identified. Furthermore Cain wrote that, “The locomotive had a clearly evident mechanical defect which had not been corrected in a timely manner”. The Secretary’s witnesses testified that the alleged defect was “electrical” not mechanical! Cain is either a liar, negligent or grossly incompetent in his investigation. The Court asked him, “How did you learn this (a resister had burned out)? Tr. page 194 line 20. Cain responded, “by looking at everything and testing everything it came down to one thing and that was the resister.” Tr. page194 line 27 to page 195 line 1. Cain, like Montoya and Massey did not learn that the resister was open until the operator held the health and safety conference after the citation was written. Cain misled the Court.
MSHA’s Massey was reluctant to disclose that the resistor actually did its job (performed as it is designed to do under load) as verified in the manual, Exhibit K. That was its function. (See Resistance, “Do not run on resistance points longer than necessary as over-heating will occur and results in burn-outs” and “Dont’s for the Motorman and Repairman”, which says the same thing.) For the ALJ to conclude that it did not function properly prior to the accident is improper and incorrect. The ALJ wrongly gave credence to Massey’s conclusion over the only person with knowledge about the trammer both prior to the accident and immediately after the accident, Fussell’s working partner, Vince Kautz. He stated that because Kautz “did not hear wheel spinning on the locomotive” it invalidates Kautz’s direct testimony that the resistor burnt because of the accident. The ALJ said that Massey was more credible than Kautz in his decision. During the hearing the Court asked Kautz if he observed the wheels spinning. Kautz replied, “No, I didn’t. The thing doesn’t have enough power, I believe, to spin the wheels at a stopped point like that, even in gear.” The Secretary asked what Kautz based that on. Kautz replied that by “using the machine for quite some time” almost five or six years. Tr. page 359 line23 to page 360 line 4. Compare this testimony to Massey’s testimony. Who is credible or believable? Massey stated that he drew his conclusions (speculations) regarding the trammer were, “based on my experience with the equipment”. Yet here was his experience: Q. Have you ever worked in a mine? A. No, sir. Q. Have you ever driven a trammer? A. No. Q. Have you ever driven a track (track vs. rubber tire)? A. No. How could the ALJ rely on Mr. Massey over all others? Tr. page 161, lines 2-18.
Interestingly, the ALJ provided no analysis of or reference to the numerous exculpatory facts entered to contradict Massey. They include a statement by Kautz that the trammer was old and the wheels would never spin; testimony by Charles Schultz about the trammer, “I have a problem with this, and a problem with some of the testimony about putting it in second or third gear, how it would lurch. This trammer is over 50 years old, its lurching days are over. It doesn’t lurch anymore. You could put it anyway you want and it will just crawl. This machine was the smallest machine Mancha made”. Tr. page 344 lines 18-24; testimony by Jonathan Farrell, “the wheels will spin a little bit…but never while the trammer is completely stopped.” Tr. page 386 lines 26-28; testimony by Robert Walker: Q. Did you draw any conclusions about how long that resister had been open? A. My conclusion was the accident, at the time of the fatal accident that’s when the resister burned out. Tr. page 327 lines 20-23.
The Court proceeded to question the witness regarding wheels spinning and asked, “Did anyone tell you the wheels were spinning?” Answer, “No”. Tr. page 328, lines 17-19; testimony by Michael Miller, “I took the instructions and I talked with a number of mining people, and they said that the resister is the type of thing that did exactly what it’s supposed to do. It was under pressure, it couldn’t move, and it eventually or quickly burned out, which is what it’s supposed to do. Now, whether it was two-thirds burnt before then, or whether it was half burnt before then, I have no way of knowing; no one does. But we know that the train was working fine when Mark got on it that day. We know that it was working in all three gears.” Tr. page 428, lines 15-24. . The ALJ asked how Miller knew this. His answer runs from page 428 through page 433. The ALJ made no reference to Miller’s report of the accident investigation (all operators are required by law to do after a fatality). It is more than curious why the person with the most knowledge of the mine, the operator, the miners and the specifics of the accident was ignored by the ALJ.
The Secretary created a disjointed questioning of Mr. Miller at the end of the two-day hearing. He proposed a hypothetical scenario about a defect and how the mine becomes aware of it. Mr. Miller’s response to the hypothetical situation was, “I would fire you and so would Jonathan because you disobeyed our policies. You’re supposed to either lock it out or disable the piece of equipment so nobody can make that mistake. So to answer your question, that event by the time I knew about it, might be, you know, in my position, days or weeks later, but you would be fired.” Tr. page 463, lines 4-14. Miller set policy and had been the operator’s president for twenty years. He concluded, “we don’t leave bad pieces of equipment underground.”
The ALJ completely ignored the most important testimony of all, Vince Kautz, the co-worker. The ALJ asked Mr. Kautz, “You don’t know whether it was under power”? Kautz replied, “No, I don’t believe it was. I believe that the first gear had burned the resister while it was there so it was in neutral”. On the other hand, he relied on MSHA witness Massey, who under cross-examination was asked if he had “any direct knowledge that the machine lurched”. He replied, “only from the testimony that took place in this room”. Tr. page 164, lines 3-4. The only testimony that had taken place in the hearing room was that of John Pereza and Robert Montoya.
In his decision the ALJ relied on Massey to conclude that the locomotive “lurched”. Mr. Melick wrote, “I therefore accept Massey’s conclusion that the resistor was defective before the accident and was the defect causing the locomotive to lurch forward when it was put in the second point. Within this framework of evidence, I find that the burned out resistor constituted a defect which made continuing operation of the locomotive hazardous.” There is no framework of evidence to support his conclusion that regulation 57.14100 was violated. See pages 20 and 21 of Petitioners hearing brief dated September 9, 2003. See Exhibit V, the United Stated Department of Labor Mine Safety and Health Administration Report of Investigation. The cover page identifies the Accident Investigators. Mr. Massey is conspicuously not listed.
Citation No. 7992100

Petitioner disagrees with the Decision (page 11 ) regarding identifying the violation as “significant and substantial” and of high gravity. The ALJ misstates the testimony of Jonathan Farrell. Tr. Page 28, line 25 through page 35 line 17. Specifically, “It’s my recollection that he was” Tr. page 29, line 12; ‘Yes” Tr. page 29, line 21; “ I can say that he would not be underground without being trained” Tr. page 29 line 23-24;”It was a clerical oversight” Tr. page 30 line 6; “but I have to say the only thing that was not done was to come back and sign it afterwards after the training had been completed” Tr. page 34 line 10-12. It is obvious that the ALJ discounted the fact established that the initial forty hour training is supplemented by additional “task training”, which may continue indefinitely and is not relevant to the regulation cited. The demeanor of the ALJ is consistent win the manner he conducted his hearing with the Petitioner as previously stated.
The Guidelines for Determining “Significant and Substantial” violations was not met. MSHA Program Manual Volume I Section 104 (d) (1)/(e) (1). In Secretary of Labor, Mine Safety and Health Administration v. National Gypsum Company, decided on April 7, 1981, the Federal Mine Safety and Health Review commission held that: “a violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a serious nature.”
In determining whether a violation could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard,” inspectors must first find that
1. an injury or illness would be reasonably likely to occur if the violation were not corrected; and
2. if the injury or illness were to occur, it would be reasonably serious.
Both of these findings must be made before a violation can be designated as “significant and substantial.” All of the facts relevant to this evaluation should be included in the inspector’s notes. Violations designated as “significant and substantial” should also be generally consistent with the information recorded on the Inspector’s Evaluation Section of MSHA Form 7000-3, Mine Citation/Order. These conditions were not met. See Petitioner’s Exhibit B3.
The Citation was marked “moderate”. “There was mitigation involved where I marked that as moderate, it was not a high negligent situation”. Tr. page 13 lines 4-5. Particular facts to support the gravity were not included on the citation. Exhibit B3. The Court asked, “What else can the government do?” Tr. page 37 line 4. Mr. Miller responded, “The first thing inspectors can do is follow the guidelines put out by MSHA and the policy manual that discusses how an inspector at the time a violation is observed the inspector must evaluate the particular facts involved and form an opinionas to whether an injury or illness is reasonably likely to occur if the violation is not corrected. And it says here all of the factors relied upon to make this judgment should be included in the inspector’s notes.” Tr. page 37 lines 5-13. Exhibit Number 1. Tr. page 38 lines 23-24.

2. Financial Impact

The monetary penalties in the Order are excessive. The Mine Act, Section 105 (b)(1)(B) requires the Commission to consider the appropriateness of penalties to the size of the business of the operator, negligence, the operator’s ability to continue in business and the demonstrated good faith of the operator to achieve rapid compliance after notification of a violation. The Operator removed the trammer and the 1700-foot level from use immediately and prior to the issuance of a citation, thereby demonstrating good faith. Operator presented industry accepted financial statements at the October 15, 2003 hearing, which were uncontested by evidence by the Secretary. These statements demonstrated that the operator was insolvent. The Court admits his lack of knowledge about securities law and misstates the law regarding the validity of unaudited quarterly reports. The Secretary offers no evidence to contradict operator’s testimony beginning on page 76 through page 97. Operator employed no miners, was not paying its president and the president was financially underwriting the operation from his own resources. Its primary current asset is gold inventory that is pledged for collateral against debt. Tr. page 86, line 14-15. The Court admits that he is not a financial expert. “I don’t have expertise in financial accounting” and has to evaluate the evidence coming before. Tr. page 88 lines 23-26. The ALJ’s penalty assessment is excessive in light of uncontested testimony of operator and the intent of the Mine Act. The Petitioner thus prays that the Court reduce and/or eliminate the penalties assessed to reflect its dire financial reality. The penalties imposed destructively lacked foundation both in fact and law.
CONCLUSION

The administrative agency process, the process by which governmentally- appointed administrators by and large conduct their affairs through administrative law judges, has served us reasonably. Otherwise, it would have been done away with long ago.
Unfortunately, the instant case is one in which the process failed.
The subject matters were the death of a relatively young man who had been employed in a gold mine in the California Mountains, and the administrative process, which addressed it. The company is ancient yet small. Its chief executive officer thus chose to represent the company in the administrative agency’s hearings himself. He is a layman, unskilled and naïve regarding the rules and vagaries of quasi-judicial practice and procedure. And the proceeding was presided over by an ALJ who repeatedly misled and intimated him mercilessly and unlawfully.
MSHA offered at best surmise and at worst falsehood. There simply was no “substantial evidence” presented by the government.
And, the record in this case, if considered carefully, reveals an abuse of process at a most fundamental level. The ALJ’s decision demands reversal and the record a fair reconsideration.
The Federal Administrative Law Judges Conference recently declared:
There can be no due process of law for the litigants, both private citizens and the United States Government, without the reality of fairness, and the system will not function effectively and efficiently without the public perception of fairness.

Both truths as well as fairness, procedural and substantive, were repeatedly absent in this case. It cries out for reversal.
Dated: June ___, 2005
Respectfully submitted,
___________________________,
GEORGE R. GILMOUR
Attorney for Petitioner
ORIGINAL SIXTEEN-TO-ONE
MINE. INC.
 By Michael Miller

02/22/2005  1:58PM

Good news and important for all Americans

Regarding our appeal to the United Stated Court of Appeals for the Ninth Circuit, which was filed on August 23, 2004 (the entire appeal can be reviewed below). The Circuit Judges denied the Appellee’s motion to dismiss the appeal for lack of jurisdiction. Appellee is the Federal Mine Safety and Health Administration. Its answering brief is due within 30 days of the filing date of the order. Our optional reply brief is due within 14 days of service of the answering brief.

Several years ago different active and retired MSHA employees confided in me that until those in the mining industry stood up to the enforcement abuses that were occurring during the end of last century, MSHA inspectors and low level management would continue to write and support “bad paper”. For the mining companies it was less costly to just pay the fine or at a minimum get the citation reduced than fight the battle through the administrative and court systems. For me, a line was drawn with Mark Fussell’s tragic accident. Read my brief, if you care to know why. Well, here we are in the United States Court of Appeals. Mark’s accident was on November 6, 2000. All along I felt inadequate to handle the task and at times pleaded for help. There has been some, pitifully little, though.

I have no idea how the lawyers will spin their tale to the Court of Appeals. They have completely lost sight of their job responsibilities. A broad range of state and federal men and women connected to the safety of workers do not agree with the lawyers who press the bogus charges against us. While this is reassuring, I remain open to your constructive input, especially all in the resources industries. The judges in the Ninth Circuit in San Francisco now have an issue before them of great importance well beyond our small sphere of influence. I pray for their wisdom.
 By Michael Miller

08/23/2004  1:10PM

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 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. 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.

August 23, 2004
_______________________________________
Michael M. Miller, Appellant’s Representative
 By Rick

07/20/2003  5:38PM

Any review of the specifics of the alleged citations brings forth a universal truth: simply being charged with a citation by a politically motivated and politically appointed team of investigators with no other agenda than accruing political points and even worse, monetary gain, has no bearing on whether the a party is guilty of the allegations.

Goldmaster, you've got the whole picture backwards. The current economic condition of the mine was created by the very acts you cite below. I'm not the first to suggest you do some diligent research before reaching the conclusions you have. Your lack of insight into the very obvious reason MSHA has pursued the Sixteen to One merely shows how statistics can be made to cast private enterprise into a bad light.

(Go read the citations before you claim their severity. I have. I have attended many court sessions; I've witnessed the supression of evidence that exonerates the mine and M. Miller in the vicious attack that resulted in unwarranted man-slaughter charges; I've testified before the Water Board and watched the CRWQCB single out the mine for the arsenic content of Kanaka Creek upstream from any discharge, all in the face of ignoring arsenic content thousands of times higher in Sacramento's Curtis Railyard; and I watch you bring vindiction to this website by suggesting that the presence of multiple citations over the last four years carries the gravitas which vindicates them, whether true or not.

Answer me this, please: Do you personally assign the lack of credibility to an individual or a private company simply because you see the actions of a government agency bent on destroying their Constitution rights?

Facts facts don't lie, and in this case you've just done everyone a huge favor by pointing out the degree MSHA and the CRWQCB have been pursuing the Sixteen to One.
The fact is, there's a battle being waged, and accusations don't prove validity. It's also a fact that most citations were challenged and many were simply throw out of court.

Which is it Goldmaster? Guilty until proven innocent, or the other way around?
 

  
 
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