December 11, 2018 

16 to 1 files MSHA brief- part 2

Anyone conducting an investigation to determine the root cause of Mark’s accident or any accident where a locomotive is alleged to be defective would analyze the significance of the other pieces of similar equipment. It is critical information to determine fore knowledge or negligence if the opposite were true. What if all the other trains were defective!

The greatest danger in tramming the 1700 level is pulling a load. By that I mean the motor pulls it or pushes it in or out. TRAMMING IN A MINE GOES BOTH WAYS. In the Sixteen to One just as many trips take items into the working areas as trips taking material out. In establishing a new work place, the trammer operator most likely will be bringing more material into his heading than taking it out.

The prosecutor has proven that the gap between the locomotive top and the chute was two inches. The respondent agrees that the space between the locomotive battery box and chute is this much "________________________" (this line is two inches). Cain testifies that Marks head and body would pass through this space if the train hit the chute and the power circuit remained intact. No one will ever know for sure, but is it reasonable for a fully dressed miner, Mark Fussell, or is it even possible that the driven, energized Mancha Trammer on the 1700 level could push Mark through a space this size: "________________________".

Cain interviewed Brit McDaniel, the electrician who serviced the locomotive prior to moving it to the 1700 level station. His statement cannot be shoved aside. Exhibit 'N'. Then you ask him, “Did you work on the battery connector?” Answer, Yes, I did, meaning Cain asked McDaniel. McDaniel answers, No it was in good shape. (P 306, L 16-20

How thoroughly did Cain study or analyze the autopsy report? Very little. He was asked, "Did you use the autopsy report at all in evaluating - was that a piece of evidence for you in doing your analysis of this investigation of this accident?" Answer, "The only thing that it meant to us is that we had to eliminate drugs, and that was eliminated. We wanted to - we already knew pretty much everybody's description of how Mr. Fussell died.”(P 308, L 1-9).

The Court asks, "Was Mr. Fussell facing the chute?" Cain answers, "It's hard to discover whether he was or not. It's very difficult.” Miller stated that an expert reviewing the autopsy concluded “that there was such great trauma to Mark Fussell that it was the equivalent of driving 25 miles an hour.” (P 425, L 20-22). Mark’s injuries clearly prove that he was not looking forward.

Cain simplifies his understanding of the violation cited, “but to me it was a non-issue.” The fact that he impacted the chute, and it was a low clearance issue was the reason that he hit the chute and that was the violation. (P 308, L19-22). There is no dispute that 1) he impacted the chute; 2) it was a low clearance was the reason he hit the chute.

The snide suggestions that the miners purposely drove defective locomotives, intentionally worked in easily recognizable hazard areas or were too dumb and untrained are underpinnings for Cain's theory.

He raises doubt, which someone unfamiliar with mining in general and mining at the Sixteen to One may give credence. Example: regarding health and safety policies and procedures and record keeping. He alludes to a lack thereof but himself says what he fails to find is not required. He found some written and "that a lot of the policies are not written, a lot of them are verbal, they're understood policies." (P 309, L21-22). He says work place examination where the miners record their work. (Exhibit ‘O’). Question, "By reading those can you decipher whether Mark had driven the train beyond the chute prior to the day of the accident?"

Answer, "I think it would be impossible to determine that in the fact that your workplace examination records say "okay" and that's all they say. That's all the law requires you to say. It doesn't have to tell me whether or not a train traveled to a certain area at a certain time. I don't think any mine does that. I don't think they tell us to say 'drove over to the dump and dumped.”

“ It requires you to do a workplace examination. Any safety hazards that are found are to be corrected upon finding them. When I looked at those workplace examination records, most of them said 'okay' on them, and they had an initial and they gave the location of the work place in general terms of the 1700 level, the 800 level, things of the nature." (P 310, L 24 to P 311, L 12).

Cain's last summation of his case and opinion that the resistor was damaged prior to the accident is flawed. He assumes that the connector would not hold together upon Mark impacting the chute; therefore the power to the resistor was cut off; therefore the stalled locomotive would stop immediately. There is no evidence supporting this contention.

Cain does not understand the role a resistor has in the electrical circuit or how vulnerable it is to abuse. It will melt. Cain, "The resistor had to be burned at some time before the accident, or had to have been defective before the accident because it's not a piece of item that is readily burnt out. It can be worn out by abuse but not instantaneously." ( P 312, L 7 to 12).

Cain, “if they had power to it they would have moved that locomotive by power, and they didn’t do that.” Vince could not get to the controls because of Mark’s position. Vince pushed the trammer backwards. Again, Cain makes an erroneous conclusion.

Prosecutor introduces Exhibit 'V' in his redirect examination. An important visual drawing is identified. Question, "You have a diagram here on 'V-3' page 3. Who drew that, if you know?"

Answer, "Actually this picture is only an illustration, it is not an actual depiction of accuracy…

The Court, "You mean it's not accurate?"

The Witness, "It's not accurate, no sir. (P 316, L 18-25). This inaccurate piece of disqualified evidence has circulated on the worldwide MSHA site for years.

The injuries Mark sustained tell a story about the nature of the impact. Question, "If the power were off immediately after the accident, is it your position that the trauma that Mark Fussell experienced was upon impact?"

Answer, "Impact with the chute and the top of the locomotive, absolutely."

Question, "Well, would Mr. Fussell have experienced greater damage to his body if power had been on for ten seconds than if it were on for three seconds, or one second?"

Answer, "I wouldn't know that”

Cain testifies that when MSHA questions operators failure to promptly correct a situation, that "promptly" means, 'immediately upon knowledge'." (P 319, L 12). Does he mean knowledge by the company or the miner?

Cain's understanding is shallow. He has never been to the mine before (he was never task trained and drove a locomotive - years ago). Although always available, he never reviewed and analyzed the written policies and procedures that all miners received upon employment. The employee manual was written in 1995 and updated when required. He never established data to either support or discredit his opinion through statements by other miners.

When Bob Montoya checked out the other trammers, the miner did what was asked of him. He went through the whole process. A locomotive is never left with the two halves of the power connector together. The power is separated because the locomotive does not have a dead man switch. It has been discussed with state and federal inspectors for years.

The policy is to disconnect the power when going off the train. Even for a second! Why even for a second? The miner may be called to assist in another area and someone else may approach the locomotive. This mine has many demands and situations that change quickly. The crew is trained to always disconnect. The other reason is consistency. People who did not know Mark Fussell are referring to him as a 'victim'. No one who knew Mark, including his parents, his sisters, his girlfriend, his guy friends, his fellow miners, his neighbors or his employer would ever describe Mark as a 'victim'. Mark was an American certified hard rock underground gold miner.

MSHA investigators interviewed many people including some of the above regarding Mark's untimely death. Yet the investigating report is conspicuously devoid of exculpatory findings. Cain's notes do repeat that he contacted Mark's parents.

On November 6, 2000, Jonathan Farrell was the mine manager, employed by the company seven years. He began as a chuck tender, his duties and responsibilities grew: handling gold, surface superintendent, mine manager. Surface duties include equipment repair and maintenance.

Jonathan had over a twenty-year friendship with Mark Fussell. Mark was born into mining and was a lead miner. Farrell describes a lead miner: multitask oriented, trained and brought up to have the background, training and ability to maintain a safe working environment, whose work area is his responsibility.

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 reports directly to the underground foreman or the mine manager. In this case I was acting as both. I had both responsibilities. (P 366, L 1-27).

Respondent's Exhibit 'O' is a daily progress report/workplace examination. “It's all encompassing. If I put it all on one page then I could meet the needs of everybody by having people fill out one page at the end of the day.” (P 368, L 23-28).

Farrell compiles the daily work reports and makes a progress report for the president. "Each miner, whether he's a Lead Miner or a chuck tender, or a hoist man, or he works on the surface or anywhere, it's required that each person takes a look at the area that they're working in and examines it to be safe.”

Farrell describes how the miners handle defective equipment at the Sixteen to One Mine: "Basically each person is tasked with understanding and operating a piece of equipment and knowing how it's supposed to operate properly. My instructions, and the understanding, were that if you had an issue with a piece of equipment, if it was not functioning properly and you didn't have the ability to fix it immediately, then it was your responsibility to lock it out and make it so no one else could use it. If it's something that doesn't require immediate attention you could note it on here, or bring it up at the safety meeting. (P 369, L 6-23).

Mark Fussell was lawfully trained and in compliance, as was his partner, Vince Kautz. (P 377, L 1-7) (Exhibit 'R').

The company has regular formal weekly safety meeting but quite often met more often. (P 380, L 7-8). The meeting prior to Marks accident was 10/31/00. The topic that day was tramming and Mark attended. The company had a safety trainer and safety rep, Steve Shappert. Shappert had 20 years of mining experience, 15 or 16 at the Sixteen to One, is an EMT and volunteer fire fighter. Steve is an experienced trammer operator. (P 381, L1-22)

With regard to Respondents Exhibit 'F'. The reason for this Exhibit is to verify a strong safety program for the mine and that Mark Fussell and Vince Kautz attended the weekly meeting six days before the accident. The topic was tramming and Steve Shappert was qualified to conduct the meeting. The notes are an uncomplicated and expected list of things to do and not do, which specifically say, "Check your trammer brakes, battery water, lights, dead man, horn and electrical system." Farrell is confident that Shappert spoke what was on his notes during the meeting. The Witness, "I could explain to you that some of the things that he said in here, as with the piss ditch being funny, were so humorous that when I came back I heard about it. And I had asked Steve to compile this in regards to making -- to running the safety meeting because he had a lot of experience in tramming. (P 385, L 14-19). Cain acquired these notes during his investigation on November 8th or 9th. The Witness, " I produced it and gave it to him." (P 286, L 7).

Farrell describes how the trammer functions and specifically the one on the 1700 level: It's a low speed high torque piece of equipment. The wheels can spin but never while the trammer is completely stopped. Mark could not have brought the heavy slusher from the 1700 station to the end of the work area in second or third gear without going into first. The estimated distance of 3000 feet is uphill at a 1% grade. The turns are so sharp you must move the gear into first and second for proper operation. "If you were in second gear the train would probably come off the track." (P 388, L 8-9). Farrell's credibility, "Well, my experience of driving it." (P 387, L 28).

The company employed three men who are qualified electricians capable or repairing trammers and specifically a resistor. The Court, "Any of those three could have repaired that defective resistor, replaced it?” The Witness, "Yes, absolutely, at the minimum, any of those three. And quite honestly, virtually everybody who worked there had the ability to change that resistor; it's not a complicated item. You simply unplug the wire where they connect and reconnect the new item, which we keep them on the shelf; they're subject to wear.” (P 390, L 2-7).

While it is a simple task to replace a resistor, it is located under two battery boxes, each one weighing 920 pounds. Every level at the 49 Winze has a hoist at the station. A person under the company policies must be tasked trained to operate the hoist.

The mine manager conducted an investigation, " I reported to you that Mark had come to work late, he had personal issues in his life. It was my responsibility to make sure that he was of sound mind before he went to work. We sat down and had a discussion in the stope, and I really felt that he had put it behind him and he was ready to go to work for the day, and that he simply didn't look where he was going. Had he looked where he was going, it wouldn't have happened. That was my conclusion.” (P 392, L 21-28).

Farrell never was on the level on November 6 because no one was working on the level when he arrived to see Mark. They met in the stope above where the slusher was to be installed (P 394, L 5-6).

Chutes are not the only clearance hazard in the mine. Question, "Did the company have items to warn of hazards on site?" Answer, "Yes." (P 395 L 26-28; P 397, L 26-28

Question, "Did Mark have access to them?" Answer, "Yes." Question, " Was Mark trained to recognize hazards?" Answer, "Yes." (P 397, L 1-5)


Mr. Wilkinson objects throughout the hearing by saying. "Calls for speculation." Because Miller did not invoke, "Calls for speculation" and object to all of MSHA speculations does not mean that he agreed with the relevance of or value of their speculations. He purposely did not challenge it and allowed it in order to demonstrate that the entire MSHA case is speculation. The judge would likely have recognized the lawyer’s tactics and sustained Miller’s objections if made.

Cain cheats with his understanding of where Jonathan Farrell and Mark Fussell met before the accident. It is basic and fundamental dialogue or definition of mining. A raise or stope, an excavation is identified as originated from the lowest level. The work place where the slusher was under construction was between the 1500 level and 1700 level, the 1700 level being below or lower, the area is identified as a 1700 level raise, not a 1500 decline. It is the only way to describe it.

Farrell does his best to explain. " Your Honor, when I said I was on the 1700 I wasn't talking about the level. I said clearly I was in the raise. And the raise goes from the level between the 1500 and the 1700 levels. And I met him at the top of it. I was clearly not on the level. When I called it the 1700, everything below the 15 to the 17 is considered the 17. But in regards to whether I've been on the 1700 level that day, I was not. (P 400, L 1-8).

The events then unfolded rather quickly over a couple of days to allow the Federal investigators, the State of California and the Sierra County Sheriff to conduct whatever type of operation they desired. "There was a hundred percent cooperation by Original Sixteen to One Mine" to facilitate their needs. We let everyone go on the day of the accident. I let everyone know that they would be paid, and it was not mandatory for them to come to work the next day. And I gave them the rest of the week off if they wanted to go off.” (P 417, L 1-10).

Miller recognizes his lawful obligation according to MSHA Regulations to notify and cooperate with the agency and conduct an independent investigation of the accident. He is trained in the scientific approach of investigation and has used MSHA's earliest guidelines for understanding the nature of accident investigation. He testifies that, "My investigation was 100% unbiased. My investigation didn't end on January 12th, my investigation is still open." (P 424, L 6-7).

'Exhibit 'S': Written Policy and Procedure in force and affect at the Sixteen to One Mine during the year of the accident. On the mine site, Farrell had the responsibility and the ultimate responsibility was Michael Miller.

Miller testifies that he is well aware of the safety standards of the Sixteen to One Mine, that everybody at the mine is well aware of hazard recognition that everyone has the equipment, tools and resources to put safety first; that we won the safety award that MSHA gives for running a safe mine; that he has worked with these men for five years or more; that we have a very open and honest relationship; that the relationships of the miners at the Sixteen to One is very different from others. (P 421 L 12-28)

Question, "What's the policy of the operator (The Company) in regard to defective equipment?"

Answer, "The policy was to train individuals in regards to what the standards were and what their expectations should be. (P 388 L 14). I determined that the cause of the accident that took Mark's life was the greatest cause of all accidents, and that was human error. I wish not to say blame is what we're trying to do at this particular hearing, but it's trying to get to the truth of the accident in order to be able to eliminate the problems. (P 422, L 2-7).

The main speculation by MSHA, operating the locomotive without first gear, Miller doubted was accurate.

"The main one is that any miner at the Sixteen to One would put in place a trammer with a defective first gear. That is absolutely not true. The facts that I learned supported this when Mr. Montoya and I went to the other two trains. I will testify that I went to the other trains that were working at that property, holding my breath hoping that they would engage properly in all three gears and be no defects. There were no defects on those trains. The reason that I pointed out the little ball, the little round horn on the one train to someone that was testifying, what is that, is that was an MSHA requirement that if you -- the conclusion to be drawn from that is putting, keeping your equipment well up, if you put a backup device on there you're certainly going to take care of the major issues like the mechanical or the electrical issues." (P 422, L 9-23).

The chute was not marked and it's a simple task. It was the only chute (other than one on the 800 level which has an electric light since it was installed in the 1980's) that required any type of markings. (P 423 L 1-4).

MSHA regularly inspected the mine four times a year with two three or four inspectors. If they found even a petty citation they would write it. The 1700 level was a second exit and always included in an inspection. There was never a citation written for hazard clearance on the 1700 level.

Direct testimony from Miller, “One item that needs clarification is the autopsy and the conclusions from the autopsy. I feel that my position right now as an investigator is no different than Mr. Cain's. And if Mr. Cain can -- Mr. Cain never talked to Mr. Massey, he went through a third party, and yet that was their sole electrical witness for our electrical. Mr. Cain didn't mention Mr. Massey in his investigation report. His name was not as one of the contacted parties so I was not aware of Mr. Massey until this hearing. And so what's good for the goose, I guess I'm asking, is that good for the gander? And I -- I reviewed the autopsy. I got the autopsy, and I also reviewed the doctor's statements, and I came to conclusions. The conclusions were that based on the statements in the written report, which were given under perjury by the doctor, that there was such great trauma to Mark Fussell that it was the equivalent of driving 25 miles an hour. The testimony that was given today clearly is trying to say that Mark hit the chute, the power went off, the machine stopped and he died. The autopsy facts of the trauma to the left side of the head and the right side of the head to the speed, to everything, including the testimony that the doctor gave in the grand jury, does not bear witness to that to be true. So I'm testifying that based upon the autopsy it is impossible to reconstruct the scenario that MSHA has constructed. I believe their scenario was offered in good faith; however, it's wrong I came to the conclusions that the train was working properly when Mark decided on his own to use that that day at his heading. Why? Well, the defective part was something that we had on the shelf. The electricians who do all the types of repairs had worked on that machine two weeks before. We have a policy of never putting a defective piece of equipment underground. Why? Because it's so darn hard to get a piece of equipment underground. You're foolish if you ever try to think to put a defective piece of equipment underground. That's almost like a given in my mind. I don't know anyone that would put a defective piece of equipment underground. So I saw the ability to repair something was there, that there were repairs made to a machine. The parts that we later found out were broken were on the shelf. And I came to the conclusion that when the machine was put in play and driven by Mark, he was the first person to use it in his work to the best of my knowledge, it was a properly functioning machine. So then I had to look for other causes of why, of what happened and why that resistor broke. I want to testify that I was at all times -- first of all, after the accident no one went on the 1700 level without me, that was off limits. I contacted Bob Walker because he was the most experienced person with trammers and electrical background that I knew of, and I asked him if he would take this machine apart and keep notes and see what he came up with. He agreed to come up and do that. He met me at the office. (P 425, L 7 to P 427, L 4).

Miller valued the do's and don’ts of operating a trammer because he talked with a number of mining people, “and they said that the resistor 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." (P 428, L 16-19)

The Court questions how Miller knows certain things to be true. (P 428, L 25).

“I know the policies of the company, and I know everyone here well enough to know that you do not put a train, you do not put a piece of equipment in the mine that's not working properly. I drive a train. I'm not skilled, but I drive a train. So I'm familiar with how you put them in gears and what you do. And you would not drive the 1700 level in second gear. It is twisty and turning and you would -- you would not -- you would -- you've got to gear down. I am used -- when I drive a train I'm going from first, second and third almost back and forth depending on the conditions. Tramming is one of the most dangerous jobs in a mine. Driving a train is not just like driving it in the city or on tracks. When you put it into gear and then you go forward it requires constant adjustment, at least at the Sixteen to One. I don't know about other mines. I'd like to make it clear that I've only worked in mines in Alleghany, or these hard rock mines of California. I would be totally lost in a coalmine or a larger mine. I don't know anything about those operations. So I do know, I know how the trains are supposed to run, and I know the conditions of the track, and I know that they would not put it in there if it weren't working properly. Then the next step was well, could it have burned out. Could that -- it received electricity to the point where it happens when you fry any type of a circuit breaker or fuse. The resistors as I saw were similar to the part that is supposed to fail. I was told by numerous people that the resistor did exactly what it was supposed to do, it dissipated the energy. So I looked for the other causes of what could cause it. I came -- I don't know whether the wheels spin -- were spinning or not spinning. This idea of -- I have no idea of that, I don't know. I've had wheels spin a couple times but there's a lot of factors that make wheels spin. Okay. I'm convinced that my conclusion is that the machine was jambed in the position where it couldn't go forward and the energy was still going to the machine in first gear and it overheated and burnt that coil. There's just a spring in there is what it is. I looked at that chute, and as soon as I saw I said oh, my God, why didn't they cut the chute off, or why didn't they do something with this? Mark should have. I mean it was his job, he was rehabbing an area that was not under -- that he was -- he was establishing a new workplace, it was his job. He had been reconditioning the track, going to that particular spot, cleaning debris out of the way. You know, going back and forth in different jobs. There was never any attempt by anyone to conceal the overhang. All of the supplies were -- for barriers, hazards were on company property. And as Jonathan testified we have other types of overhead barriers, not chutes. We have a lot of them in the mine. We flag them and put markings on all of them. The conclusion I came up with was really in the autopsy, and in the doctor's statements that he was wedged in there. They thought there was so much power that he would continue down, that the train would continue down beyond in the tracks because it was similar of a car accident in 25 miles an hour. I want to comment on the speed. Mr. Cain and others have testified that the trains can go up to 25 miles an hour. No way. I absolutely refute those, any allegation or suggestion it can go 25 miles an hour. You can walk behind a train, six to eight miles an hour, maybe four. Anybody who would be driving a train that fast would no longer be working at the mine. When I asked Jonathan for a report he never gave me a written report. Jonathan would not give me a written report. But I stayed in contact with him during the times. I want to mention that I noticed today that both Jonathan and Vince became unhealthily emotional at some point today in their testimony. There are no other chutes on the 1700 level that extend in to become a hazard, that's a fallacy, none. An inspection would clear that in a minute. If there were -- to assume that that's true, and there was some pattern here, if you were to assume that was true you would have to assume that all inspectors over the last years were incompetent. What I found out about Mark's frame of mind concerned me a great deal when he came to work. It was obvious from the interviews that he was -- had other things on his mind. I'll testify that we have a policy of hanging your troubles on a hook outside before you go in the portal, and also that the men are to start thinking about mining when they pass through the gate. And it's obvious that Mark was not in a good frame of mind for being a safe miner on November 6th. I don't know if it's entered into evidence but the reports all indicate that he lit a cigarette, that it was burnt down. He was talking to Vince at some point. It's obvious that he was not looking at the chute. I'd like to explain the nature of the injuries, too. The injuries were to the left side of the head and the right side of the head. There are no noted injuries on the forehead. When he started the train he would be within three feet from it. He could not possibly have gotten on that train and started it and driven it if he had been looking at where he was going. It's customary for trammer operators to sit sideways, because most train operators that I know are constantly looking back at their load, looking up where they're going, looking back at your load, you're looking up at where you're going. So the safety in tramming is that you don't sit looking the direction you're going, because the direction of what's behind you, if you are pulling a load, is just as important as where you're going. At least at the Sixteen to One it is because we have very narrow drifts. We have some places of heavy timber. We have a lot of clearance issues where trains actually rub against some timbers. So the operator is constantly looking forward, looking back. And that's why these particular small trammers are the types of trains that work so well at this particular mine. I found absolutely no record that the locomotive had a defect. I think that the sense -- I think that the mine operators and the miners are the ones that are supposed to operate the mine, and the policies that we had in this small mine of immediately tagging out a piece of equipment, fixing it yourself if you could, that presumes that you're task trained to do it and you have the skills to do it. There's a presumption there. And if you can't do it I thought it was clear that you, in all of what I've read, and policies, that you call someone, you tag it out or fix it yourself. The train itself was old. It was bought by the company in the general purchase of the assets of Kanaka Creek Joint Venture in June of 1991, the best of my knowledge. We have a lot of old equipment, drills, slushers, trammers, so there was nothing unique or out of the way or extraordinary about having an old train, an old piece of equipment that's somewhat tired. That's in response to the interrogatory number 19. ( 429, L 7 to P 433, L 25)

Prosecutor jumps into a new theory, heretofore not raised by his client or him. It has not been raised because MSHA knows the circumstances at the Sixteen to One mine do not support the contention that a lead miner is a part of management. The following conditions must be in place for the Secretary to even inquire whether an employee is management: must be able to hire or fire employees; extra pay; designate or change the work place; no foreman or manager on mine site to report to. Lead miners are identified throughout the mining industry, including the Sixteen to One Mine. The prosecutor’s liberty with the rules is inexcusable.

Prosecutor fails to inquire into this subject during the two days of hearing. Investigators fail to inquire into the subject during their investigation. Prosecutor concocts its allegations based upon an opening statement by Miller.

“You Honor, since I’m going to testify, would you mind swearing me in at this time?” The Court, ”Well, no, because this is an opening statement.” (P 11, L 8-11).

This is the opening that Prosecutor jumped on to create an untruthful scenario. The following remarks are in Miller’s opening statement: (P 11, L 14).

1. A lead miner is the one responsible to identify and fix any safety issues in his heading.

2. A lead miner does not have any management or foreman capabilities.

3. Pay scales are established for experience and skills. All lead miners earn more than a Miner I or Miner II.

4. I don’t know exactly if Vince was paid more or less than Mark.

5. The Court: “But Vince Kautz was above Mark Fussell?” Answer, “No.” The Court, “Who gave the order to these persons, they would not give orders to each other. Answer, “They would give orders to each other, because we encourage everyone at the mine to have an opinion. But, if there were an ultimate responsibility it would be Mark.”

Jonathan Farrell was the mine manager. (P 363, L 23). The lead miner “reports directly to the underground foreman or the mine manager. In this case, I was both.” (P 366, L 25-27).

Reaction to the Prosecutor’s Brief

Farrell gives a short accurate reason why federal employees who are visiting the mine for the first time were not allowed to begin taking equipment apart. Lifting the battery box from the trammer “was no big deal.” But since each one weighs half a ton, a hoist is required. Wilkinson wonders if he could do it or does one ask permission? Answer: “You don’t have the background or experience to do it.” This translates into task training for operating any piece of equipment on a mine site, a federal requirement. (P 407, L 27).

The 1700 level is over six thousand feet long, about 3000 feet south of the 49 Winze and 3000 feet north of the Winze. The track is narrow gauge and the levels are also narrow. One time a self-rescuer, worn by a miner, was crushed while the operator drove the locomotive. Not only are the drifts and levels narrow, they have many turns because the miners follow the vein, preferring to keep the dip of the vein in the center of the level. Prosecutor continually attempts to skew the facts. Farrell responds, “You’re misstating my testimony. I testified that if you drove it in second gear with an 80 pound slusher on a flat car through those narrow winding drifts you probably would derail it.” (P 406, L 21-24).

No one testified that the company did not document defects. (P 409, L 7).

The statement that Cain wrote and Farrell initialed was not verbatim. (P 413, L7-9). The Court asks Farrell why did he sign it? Answer, “Because I wanted to get and hold my kids, man. My friend had just got his head almost chopped off, and this guy is interviewing me about it. And I read it and it seemed to be the gist of what I was saying. You know, and it’s not – I was in shock.” (P 413, L 19-24).

The Law: Congress declares that-

a) The first priority and concern of all must be the health and safety of its most precious resource- the miner.

b) Death from unsafe and unhealthy conditions cause grief and suffering to the miners and to their families.

c) There is a need to provide more effective means and measures for improving working conditions and practices. The existence of unsafe conditions and practices impedes the growth of the mining industry.

d) The operators of such mines with the assistance of the miner have the primary responsibility to prevent the existence of such conditions and the practices in such miners;

The Secretary is required to serve the objectives of the ACT. Congress by strict definition requires that any information obtained by the Secretary shall be obtained in such manner as not to impose an unreasonable burden upon operators, especially those operating small businesses (Sec. 103(e). The investigator complied with this condition regarding dismantling the motor on the first day of its on-sight inspection. Now the prosecutor’s argument of non co-operation is disingenuous and specious. It also is misleading to the court.

The Prosecutor alleges that a contested chute violation on the 800 level of the mine creates some pattern of behavior or knowledge about the danger and hazards of clearance. The ACT addresses the Doctrine of Patterns of Behavior: If an operator has a pattern of violations of mandatory health or safety standards in the coal or other mine which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health and safety hazards, he shall be given written notice that such pattern exist (sec. 104(e)(1). No such notices have ever been given to operator for chute violations, defective equipment violations or any other violations.

In determining whether to propose a penalty to be assessed under Section 110(b) the Secretary shall consider:

1. The operator’s history of previous violations.

2. The appropriateness of such penalty to the size of the operator charged.

3. Whether the operator was negligent.

4. The effect on the operator’s ability to continue in business.

5. The gravity of the violation.

6. The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation.

It is a relevant observation that the contested citation on the 800 level was deemed to be of ‘low negligence’.

MSHA Program Policy Manual is explicit. “The inspector must use background, training and experience together with an evaluation of actual circumstances surrounding the violation to arrive at an independent judgment.” Volume I Section 104 Guidelines for Completing Inspector’s Evaluation Section of MSHA Form 7000-3.

A specific job title does not necessarily determine how the individual is defined. MSHA Program Policy Manual, Volume III, Part 48.2(a)(1)/48.22(a)(1).

57.14100 contains four sub headings:

a) Inspection by the equipment operator. Secretary has no evidence that Mark failed to inspect the trammer

b) Defects shall be corrected in a timely manner. Secretary presented no evidence that defects were not corrected in a timely manner.

c) No evidence exists supporting the speculation that this specific locomotive or other operating locomotives or other non-operating locomotives were allowed to continue to operate with a defect. Secretary failed to present any evidence that defective equipment is left operating at the mine.

d) No defective self-propelled mobile equipment was on the mine site. Therefore no records are required.


The prosecutor writes in his brief, “Shortly after the inspection, the mine considered expanding its operation to the 1700 level.” What does the transcript really say?

Bruce Allard (MSHA inspector) was with John Barquilla (miner) in August of 2000 and John had told him they were thinking about possibly coming back to that area.” (P447, 25-27).

The prosecutor writes in his brief, “He supervised persons.” What does it really say?

Nowhere in his transcripts is there testimony that Mark “supervised persons.” Prosecutor: and you said that Mark Fussell was a supervisor of Miner I and Miner II. Answer: I said he was a lead miner. (P 460, L 1-3).

The prosecutor writes in his brief, “by mid October Mark Fussell was working daily on the 1700 level.” What does it really say?

October 22 to October 28, on the 25th day they were on the 2050. Jonathan, limit this to just on the 1700 level because obviously this shows that he’s working all around. (P 373, L13-20).

The prosecutor writes in his brief, “The accident caused damage to the clamp, which loosened the plugs connections.” (P 357, L 2-13). What does it really say?

Half the connector is mounted and welded to the box. The other half is free (designed to plug into the battery charger). It was broken free from its mount. It was jammed right up in him. So it was. They clip together but it broke free from the mount. (P 357, L 8-13).

“The inspectors determined that the controller failed to work properly in the first point of contact due to a defective resistor.” This determination was made on their first visit. This determination is correct; the resistor was burnt beyond contact during the accident. The investigators turned their investigation to determine how long the faulty problem existed.

There are several things to consider:

“There was some contention that the resistor bank had also been damaged during the accident,” Cain testifies. Operator’s initial suspicion was correct and later verified by Walker.

The prosecutor writes in his brief, “The inspectors and Massey determined that the resistors failure occurred prior to the accident,” and cites (P 148, L2 to P 149, L 5) for accuracy.

In reviewing the transcript and this reference, the Court attempts to gain some knowledge. The Court: “The question is what facts from Mr. Montoya you relied on.”

Cain: “They did not find any other broken parts to the circuit. So that only leaves one place for a problem to be and that’s in the resistor.” (P 148, L 23 to P 149, L 5). Nothing here says anything or provides any facts to support Cain’s theory or prosecutors statement. Cain never spoke with Massey. Montoya is not an electrical expert. Cain also pleads ignorance to all the facts. This is nonsense because he was with Montoya the entire time Montoya was on the 1700 level inspecting the locomotive.

The prosecutor writes in his brief, “In the case of the trammer Fussell operated, witness interviews revealed that the trammer did not encounter this type of stress during the accident.” (P 355, L 25 to P 356, L 19).

Your Honor, please read this authority and make your judgment on whether the prosecutor is purposely misleading the Court. It says, “I saw him pinched between the battery box and the chute.” This space has been determined to be about 2 inches. This locomotive is run by a powerful DC motor. It does not take long for the heat to break the metal coil. That is the purpose of the metal coil…to resist energy ad break when overloaded.


Prosecutor says: “No dispute exists that the Sixteen to One failed to mark the chute. And Cites (P 16, L 16-21), which says; Mr. Miller: The chute in question was not marked; (P 21, L 12 to P 22, L 5), presents a conclusion that is not supported by substantial evidence. (P 189, L 24 to P 190, L 16). This citation does not address the above conclusion.

The operator did not fail to mark the chute. The company never had the opportunity to mark it.

The prosecutor writes in his brief, “Nonetheless. Argued at the hearing that no violation occurred because Fussell was in a second escapeway.” The operator did not argue this and is unable to ascertain how the Secretary purports this to be true because there is no reference in the transcript. Of course warning must be given when an obstacle creates a hazard to a person on mobile equipment but nowhere was an argument made that hazards do not require marking in an escapeway. If mobile equipment were used in an escapeway, all hazards must be identified. Operator points out that no mobile equipment could be driven south down the 1700 level because the tracks were littered with debris. This is a much different argument than the one the prosecutor says was argued.

The Secretary’s interpretation is ‘plainly’ erroneous or inconsistent with the standard and is devoid of substantial evidence. See prosecutor’s brief for case, which does not apply.

Miller states that the chute didn’t create a hazard until the train was brought there. The Court: “Let me ask you something, Mr. Miller, what is your defense in terms of the violation alleged that the chute protruded into the shaft?” (P 283, L 28 to P 284, L2).

Answer, “The chute had existed for 20 years. It didn’t create a hazard until the train was brought there. There was no motor on that level and there hadn’t been a motor through that level. (P 284, L 13-17).

The Court, “Are you claiming that it was not protruding into the shaft?” (P 284, L 2-3).

Answer, “No”

The Court, “It was not a hazard.”

Miller, “ No, it was a tremendous hazard.”

The Court, “What is your defense?”

Miller, “Our defense is that it was discovered that day, discovered by the miner, who is a lead miner responsible for taking care of a heading.” (P 284, L 4-10).

The prosecutor writes in his brief, “Indeed, during an earlier inspection by the state of California, the state inspector noticed employees working the precise area of the chute where the accident occurred. (P 336, L 21 to P 337, L 7). Respondents claim that no violation occurred is without merit.” Upon reading the cited sections of the transcript, there is no mention of the State of California noticing employees working the precise area of the chute. This is under the caption of Legal Argument. Any necessary legal conclusion is erroneous.

The Secretary’s legal argument citing Secretary of Labor v UNC Mining & Milling is inappropriate because the assumed, alleged, speculated facts are not supported by substantial evidence. The prosecutor now cites his own false statements in the brief as facts on Page 10; second paragraph, “little dispute exists” is categorically true.

The Secretary purposely offers an opinion, “the likelihood of an accident is heightened under the facts here where the miner drove mobile equipment with headlights providing the only significant light.” This is a substantial misstatement regarding law, policy or regulations and standards enforced by MSHA.

The Secretary argues for a penalty of not less than $20,000 for citation No. 7995404.

While the Sixteen to One meets the definition of a small operator, the mine itself has over 28 miles of tunnels alone, not to mention the shafts, winzes, raises and open stopes. By reviewing the workplace examination entered as evidence, reviewing past MSHA reports, and the method of mining a high-grade mine, reasonably concludes that work is spread out and sporadic over a large area.

The 1700 level, for example is over a half mile long in a south direction. Miners utilized it as a second exit, but a locomotive was not brought to the southern end with the chute involved in the accident until the day of the accident.

Based upon the prosecutor’s representations in his brief, respondent finds no reason to believe his MSHA Data Retrieval System. The safety record of the company and its miners is exemplary.

Part 100.3 of the Regulations provide that a high negligence exists where the mine “knew or should have known of the violative condition or practice and there are no mitigating circumstances. “ 30 CFR§100.3. MSHA did not correctly issue citation No. 7995404, which is contrary to law or to the duly promulgated rules or decisions of the commission.

In the prosecutor’s attempt to misuse the rules, regulations, practices, decisions of the commission, he now introduces Mark Fussell as an agent for Sixteen to One.

Mark’s acts or omissions did not bind Original Sixteen to One Mine, Inc. in any fashion, it has been well established that Mark was a trained Lead Miner. The Law requires the miners to assist he operator in establishing health and safety.

The Prosecutor says, “Fussell held significant duties and responsibilities at the Sixteen to One Mine and bore ultimate responsibility for operations and decision making on the 1700 level.” Page 125, line 16 does not address the alleged facts or evidence stated above.

Page 13, L 9-14 says nothing about significant duties and responsibilities at the Sixteen to One Mine. Vince and Mark would give orders to each other. But, however, “if there were an ultimate responsibility it would be Mark” is unreasonable to represent that this responsibility extends beyond their heading “for operations and decision making on the 1700 level.” In light of previously highlighted testimony in respondent’s brief, information known to the prosecutor, the expansion of “ultimate responsibility” is reprehensible.

Prosecutor cites Page 284, L 8-10, which says “a Lead Miner is responsible for taking care of a heading: prosecutor’s expansion of a Lead Miner in a small mine is reprehensible.

Prosecutor cites Page 365, L 21 to Page 366, L 27, which clearly identifies a Lead Miner’s area of responsibility as his ‘work area.’ Prosecutor cites Page 459, L 28 to Page 461, L 4, which clearly identifies the duties of a Lead Miner are to take authority over your heading and also the responsibility for safety, which is the responsibility of every person working on the surface or underground at the Sixteen to One. It is the law.

On page 12 of his brief, prosecutor presents another total myth and supports it with the following citations from the transcript (P 350, L 7 –17; P 413, L 18-24)

His brief states Fussell was seen by a State of California inspector working in the vicinity of the chute a week prior to the accident and also calls Fussell a manger.

Page 350, L 7-17 does not address either assertion.

Page 413, L 18-24 does not address either assertion.

The Secretary states that the hazard “festered for over a week, no mitigating circumstances exist.” (P 430, L 18 to P 431, L 2). The transcript does not support this contention as factual evidence.

All references to a contested citation that is not final as implying high negligence is contrary to law or to the decision of the Commission and ruled inadmissible by the Court.

Prosecutor represents that Sixteen to One was aware of the chute prior to the accident; however, the chute did not become a hazard until mobile equipment was brought to the area that day. No basis exists for the theory that mine employees worked around a hazard observed by the mining inspector including Fussell in the week prior to the accident. (P 336, L 21 to P 337, L 13). The transcript says, “Did you happen to see the chute in question that Mark Fussell ran into?” Answer, “Yes.” Prosecutor misstates transcript.

“Nothing suggests that Sixteen to One was unaware of the hazard presented by the chute.” (Bottom of page 13 to top of page 14 of brief). How about a state mine inspector who testifies, “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.” (P 339, L 2-8). Bruce Allard, a MSHA inspector, also inspected the 1700 level prior to the accident and did not recognize a hazard.

Prosecutor misstates financial condition of operator. The mine has only two full time employees and one was not paid in 2002 or 2003. (P 440, L 8-14).

Operator is insolvent, which means you have more liability than liquid or current assets. “The only reason the Sixteen to One is staying in business is because I’m keeping it in business.” (P 444, L 1-2).

Good Faith.

The prosecutor’s brief continues with fiction on page 15 by representing that “Sixteen to One had no program to identify hazards, immediately repair the hazards or ensure that miners took significant action to repair them.” Such conclusions or findings are not supported by substantial evidence.


Citation No. 7995405:

“Evidence at the hearing establishes that the trammer was defective prior to the accident”. Prosecutor does not cite any facts. His alleged facts (P 16 & 17) are conclusions of MSHA. It is undisputed that after the accident (which is the only time MSHA examined the locomotive) the locomotive would not move in either direction in the lowest gear. He offers another speculation as fact, “Fussell did not have that point of contact available and was forced to start the trammer in the second point of contact.” The MSHA investigating team learned that: the locomotive was serviced before being entered in operations, the 1700 level could not be driven safely without first gear, replacing a defective resistor is relatively simple if one is task trained, a new resistor was on the shelf, and operational diagram and maintenance booklet was readily found in the lower shop, the manual cautioned operators how to avoid a resistor melt down, the company had weekly safety meetings and the one a few days before Mark’s accident covered tramming, everyone interviewed at the mine understood how to fix, report and tag out defective equipment and the other trammers in operation at the mine functioned properly in all gear and no defects at all were found during MSHA inspection.

The Secretary lists four reasons why the Company’s assessment that the resistor overheated during the accident fails.

First: Mr. Walker expressed uncertainty. Walker is honest, and he never waivers in his final opinion. The dynamics of electricity meeting a resistance thereby creating heat is basic or fundamental science. Unlike prosecutor’s thinking that Kautz did not see wheels spinning yet Walker just made that assumption on his own weakens Walker’s opinion, the opposite is actually true. That Kautz did not see the wheels spin means the electrical energy, which produces heat, had no place to go. It stayed in the resistor coil and quickly melted the metal, thereby interrupting the flow of power to first gear.

Second: “The resistor could not have burned out because the locomotive lost power immediately upon impact.” For facts, he misstates conversations with miners as representing to the court “that the battery connector clamp was knocked off.” Neither his reference to the transcript or any testimony says the connector clamp was knocked apart. He made this up and represents it as fact. Numerous witnesses testified that the connector broke from its mount. MSHA’s electrical expert testified that the two ends must be snuggly clamped for the train to even operate in any gear. Question, “now, for purposes here assume that the mining industry has very very tightly clamped connectors because I don’t want them to fall apart. Can you assume that one?” Answer by the MSHA electrical expert, “You don’t have to assume that, that’s true.” (P 173, L 12).

Third: Any opinions of MSHA inspector Cain as to electrical knowledge should be marginally considered. Prosecutor misstates his witness’s testimony. Cain says, it would have been almost impossible for the resistor to burn up and qualifies this belief with his speculation “because of the battery connection being defective.” (P 215, L 2-5). He failed to evaluate the actual situation before him: a 170 plus pound miner with his head and torso wedged in a two inch place being driven forward by the heavy torque of a DC battery

Fourth: Prosecutor raises speed now as an important speculation from which to draw a conclusion. This argument is perhaps his greatest attempt at deception. Mark collided with the chute in one second or less. The distance from where he engaged the controller to where he hit the chute was about three feet. While no party actually brought a stopwatch capable of measuring time in one hundredths of a second, it is reasonable to assume from life’s experiences that in the span of three feet, the only allegation that first or second gear is a factor in Mark’s fatality is a myth. The prosecutor demonstrates his logic (P18 of his brief) and cites Page 145, L15 to Page 146, L 2. This reference does not mention speed. The Secretary presents no facts to support this conclusion.

MSHA scenario – that the defect existed prior to the accident has neither factual nor logical basis.

With regard to the failure of taking appropriate corrective measures in compliance with 57.1400. Lurch starts and derailment are listed as obvious hazards. Cain is the expresser of the concept of lurching, which is rebutted by all witnesses familiar with the equipment or the company’s policies. Cain never saw the locomotive when it was defect free, before the accident.

Prosecutor references Page 145, L 15 to Page 146, L 2 and Page 406, L 18-24 do not support that a defect existed prior to the accident.

Prosecutor references Page 218, L 10-17 as testimony supporting another fabrication that no one took steps to correct defects. One is incapable of correcting a non-existent defect.

With regard to 57.4100,©, prosecutor alleges that the mine failed to ensure that miners did not operate the trammer with a defect and cites Page 203, L 20 to Page 204, L 5. The Court asks about procedures if a miner found a defect. Cain answers “he (the miner) has the authority to take it out of service immediately and tag it out.” Prosecutor’s reference does not provide continuity to operate a defective trammer.

Prosecutor’s story for Section (d) compliance, misstates the regulations regarding written documentation or reporting MSHA standards. His citation failed to meet the specific circumstances at the Sixteen to One Mine. Violations which result in a citation must be site specific. MSHA policy requires inspectors to evaluate “actual circumstances surrounding the violation to arrive at an independent judgment.” MSHA agent Cain failed to perform his investigation according to Law.

Prosecutor’s brief on page 21 references Page 429, L 7-10, which refutes the allegation that the company demonstrated high negligence (P 21(a). Nowhere is there evidence and testimony that the mine knew or should have known of the violation. His reference to the testimony of Michael Miler, president of the company since 1983 that this testimony supports his subsequent assumption is misleading.

Prosecutor verifies that the company complied with MSHA rules for equipment inspection. The surface was mentioned, because it appeared the qualified miners serviced the trammer in the lower shop, which is on the surface prior to moving it underground to the 1700 level. The trammer was serviced underground.

There is no evidence that the company did not implement the same equipment inspection procedures underground. No one testified either yes or no because no one would believe an old established company could remain operating by working so inefficiently. While it never was testified, it is obvious that a mine the physical size of the Sixteen to One would have many pieces of mobile equipment underground. It is safe to assume that MSHA inspectors during the quarterly inspections examined the machinery for defects. Since two similar trains were examined during the accident investigation, one may reasonably conclude that the conclusion that “No mitigating circumstances exist because Sixteen to One failed to extend its program underground” is a myth.

Inspector Cain’s power of observation, research analysis and subsequent conclusions that the company had no procedures for repairing defects on mobile equipment (Page 214, L15-17) will not stand up against the record. Furthermore, if one were to accept this opinion, one must discount the fact that the mine has been operating since the formation of MSHA in 1977. It has been regularly inspected at least 100 times. No violations of these serious accusations have been issued. Also, if such a condition were true at any point in time including the most recent MSHA inspection prior to the accident (August 2002), it likely would have been noticed and corrected according to the LAW. The machine was tested. (P 404, L 7).

The prosecutor writes in his brief that the Sixteen to One failed to engage in Good Faith. Contrary to prosecutor’s admonishment of refusing to dismantle the locomotive on November 9, when the MSHA inspectors arrived as not engaging in good faith, the opposite is true. It was the law. He does mention that safety was the stated concern. The Sixteen to One never claimed that it could not lift the battery box to inspect the resistor at the mine site because they lacked equipment. (P 113, L 25 to P 114, L 9). This reference is Cain’s testimony, which says, “I don’t know if there was equipment available for the battery to be taken off.”

The MSHA regulations require that anyone operating a piece of equipment at the mine be task trained. Miller knew he was not task trained to operate the hoist and correctly assumed that Cain, Montoya and Hurley were not task trained. If anyone operated the hoist without training, the company would be cited. The company sent a qualified helper to assist Walker with the removal of the heavy batteries. (P 324, L 23). The Secretary’s evidence that removal of the battery box would have been easy supports the conclusion that if first gear was not working at any time, it was easily repairable by Mark Fussell or the company’s maintenance crew. There are no assertions or direct testimony that Sixteen to One failed to cooperate with MSHA.

“Any time that you go and you get off one of those trains, you disconnect the battery and the power source that is our own company policy.” (P 463, L10-12).

1. The court views negligence "goes to whether the operator was negligence in allowing this condition to exist." The condition of a hazardous chute existed about an hour before his accident. The company cannot be held negligent.

2. Mark Fussell had responsibilities to correct these conditions himself. The court has given the defendant "great liberty in cross examination of a witness not only for his testimony but also to explore his credibility”. The company’s competence in understanding mining is established. Perez testifies that Mr. Cain. Page 38, L 1 gave sworn testimony that all the chutes in the miner were the same. Page 37, as important as the testimony at the hearing of MSHA agents is what was not said. An investigator has a fiduciary relationship (responsibility) to seek out the truth of an accident. He cannot knowingly or willfully exclude exculpatory evidence from his report to the Secretary.

The only difference between the chutes was the degree at which they came into the drift…and protruding to the mid point of the rail, all posing a restricted clearance hazard. (P 271, L 19-28). .



The Motorman page 5:

1. The controller…must not be allowed to remain on intermediate points, as there are resistance points…if allowed to run continuously on intermediate points the resistance may become heated to such an extent as to cause serious trouble.

The Resistance page 7:

2. The first points on the controller are resistance or acceleration points to be used only for a short time. Do not run on resistance points longer than necessary as over-heating will occur and result in burnouts.

Don’ts for the Motorman page 13:

5. Don’t run on resistance loner than necessary. Motormen who bear this in mind do not overheat their resistance.

This citation was written on January 12, 2001, two months and six days after the accident. It is noteworthy that nowhere is the word “resistor” used to describe the alleged root cause of the defect.

The Secretary fails to offer a practical scenario as to how the connector clamp disengaged during the accident or impact? No explanation. Did it break against the wooden chute? Was it pressed between the battery box and the chute? Did Mark’s hardhat hit it? Did his head break it apart?

Mark was an experienced miner and competent person as defined in 30 CFR 56/57.2 as a “person having abilities and experience that fully qualify him to perform the duty to which he is assigned.” It is not required that the person necessarily be a mine foreman, mine superintendent or other person associated with mine management. A miner may be qualified to perform the task after having been trained in the recognition of hazards in the working place. The phrase “working place” is defined in 30 CFR 56/57.2 as follows: “…any place in or about a mine where work is being performed.” As used in the standard, the phrase applies only to those locations in a mine when persons actually work during a shift. That location must be examined by a competent individual for hazardous conditions. It is clear that Mark met the requirements. There is no reason to doubt that he examined his work place on the day of the accident. Company records provided to MSHA show that the weeks prior to the accident he had recorded evidence that he conducted a work place examination.

Although the standard allows the examination to be made during each shift, it is recommended that the examination be conducted at the beginning of each shift. The standard requires that work place examination records shall be retained by the mine operator for one year and shall be made available to the secretary. The record keeping requirements may be satisfied by an operator’s written statement that the examination had been made. MSHA will accept such certification with out regard to format.

The Court, “So it’s your belief the fact that the chute was not marked with some kind of marking, or that there was no warning in advance of the chute, had nothing to do with the accident.”

The Witness, “I don’t know that that would have anything to do with the accident.”

The Court, “It’s your belief then it would probably have nothing to do with the accident, the fact that it was not marked or there was no warning in advance. Under your scenario you believe you believe it happened so close to the chute that he didn’t have a chance to duck.”

The Witness, “That is correct.” (P 154, L 6 – 17)




In introducing this brief, I pondered, “What is this all about?” After preparing it, I now ask, “Is there such a thing as an accident anymore?” Mark Fussell would be the first one to testify, “I messed up. My death was my responsibility, and no one is to blame. It was caused by my momentary lapse in attention.”

Federal law requires a mining company to conduct an investigation of a fatal accident. My investigation was very thorough and very lengthy. It included hugging Mark’s father. We both shared an unwanted bond, the accidental death of our sons. My investigation included attending Mark’s funeral, where so many of his friends gave testimony about his free spirit of life. Charles Schultz briefly addressed this during the hearing.

Mark Fussell died in a tragic accident, underground at the Sixteen To One mine. The two citations later issued by the Secretary of Labor, Mine Safety and Health Administration attempt to lay blame where none exists. They deserve to be dismissed.



Respectfully submitted,




By: Michael Meister Miller, president

Original Sixteen To One Mine Inc.


On: September 9, 2003


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