December 11, 2018 

16 to 1 filed MSHA brief - part 1



On November 6, 2000, a miner died. As a result of this tragedy both State and Federal agencies ran amuck by casting blame on his friends and fellow workers. This company and its miners reflect the true intent of the United States Congress, when it ratified The Act of 1977, which requires the responsibility of the operator and its miners to create and maintain a safe work environment. The corporation is merely the means to unite the components of labor, property and capital. A dear friend was lost, a son, a brother and a good soul. Let’s put this in perspective. What is this all about? Is it fixing problems at the Sixteen to One mine or is it work for MSHA and other agencies of the Federal government? Perhaps it is about money or individual growth and promotion by individuals working in a bankrupt system of bureaucracy.

I apologize for the length of this brief. It is necessarily long because of the serious misstatements by the prosecutor in charge of the case. There are also serious misrepresentations of the law and the facts in this painful subject. In order for the Court to reach an equitable resolution to the allegations of illegal behavior by Original Sixteen To One Mine, Inc., I felt the Court would appreciate the testimony and supporting references rather than merely a conclusion of the testimony. I have taken exact excerpts from the transcript. .

My anguish over the dismal misstatements by the Secretary have affected my confidence that her emissaries in the field are actually looking after the health and safety of America’s most precious resource, its miners. Have the participants in this investigation followed the laws, regulations, customs and mores of health and safety in the mining industry? It has become a possibility that other forces drove this investigation and subsequent administrative hearing. Therefore, I also reviewed the Secretary’s brief, checking statements with the cited transcript reference. Time and time again the reference had nothing to do with the opinions of the statements. This has been a new experience for me to address. Is it sloppy or is it intentionally misleading?

Mining is inherently a dangerous business, much like automobile racing is inherently dangerous or professional football or space travel. Miners at the Sixteen To One mine are keenly aware of this. They are provided all the tools to minimize the dangers. It is a small mine with a very connected crew. Everyone interviewed by the investigators was properly trained. Written procedures and policies are in place. Safety meetings are regularly held weekly. Equipment is kept in proper working order. Spare parts and supplies for performing mining were on the mine site. Management has stressed the need to stay focused on mining once the crew enters the property. After work it was not uncommon for the miners to get together where the topics of conversation would expand. It usually came back to mining because these miners love their work. At the work place it is all business.

So, the day Mark drove his locomotive into a stationary chute and died was special. It had never happened before to anyone associated with the company. For people who never met Mark to refer to him as a victim is inaccurate. For Steven Cain to concoct a story as he did from no evidence and continue propagating its veracity is an injustice to Mark and all the miners at the Sixteen To One mine and elsewhere throughout America. It may even be a crime.

There is no legitimacy to the two violations alleged by the Secretary. All of us who knew Mark Fussell, know the mine and are associated with the mining industry want this record to accurately reflect the events of November 6, 2000. For Mark, we have pursued the truth. We hope his death will help make the mines of America a safer place to work. A momentary loss of attention caused this accident. There was no defective equipment and the company and its partners in safety, its miners, are not negligent and guilty of violating any federal regulations. This was a tragic accident that must be recognized, if all of us at the Sixteen To One mine and throughout the industry wish to avoid a repeat in the future. It was an error in human judgment. Only until we recognize it for what it was can we take the educational steps necessary to reduce the potential for it happening again. This will be Mark Fussell’s legacy.



Charles Schultz was asked to testify because of his background, experience and by acting as a federal government inspector, a MSHA inspector, a trainer of miners, including the decedent and his stature as a mining engineer with years of experience in mines like the Sixteen to One.

Mr. Schultz earned a mining engineering degree from the University of Texas, College of Mines and Metallurgy. He has 47 years of mining experience, including 10 years as a Federal Mine Inspector. He has worked in the local area for 32 years. He is a licensed engineer, an approved MSHA mine contractor and a MSHA approved instructor.

Schultz trained Mark Fussell at least three times (P 347, L 2-3). Fussell was trainable yet he was argumentative, wouldn't accept certain things and resisted a lot of the training (P 35, L 10-13). "You tell him to do something and he always had another way to do it." (P 351, L 14-15).

Schultz is trained and qualified to render opinions or conclusions regarding serious tragic accidents equal to or better than the prosecutor’s witnesses.

Question: "Have you ever investigated any accidents either for the government or for private parties?"

Answer: "Dozens of them."

Question: "Have you ever investigated any fatal accidents?"

Answer: "Dozens of them." (P 347, L 19-23).

Schultz's conclusion about the causes of the accident: (1). If there were a malfunction in the number one resistor before the accident, Fussell failed to report it according to 57.14100 part A. If that were true, it was his responsibility to do so (P 347, L 27 to P 348, L 3).

The court asks the witness, "Why do you say it was his responsibility?" Answer: "He's the operator, and its says that in 14100. The operator's supposed to report any malfunctions to have it repaired before he works." (P 348, L 4-8).

Mark was aware of the hazard. He drove the train beyond the chute and parked it beyond the chute.

The Court asks, "What, if anything, did Mr. Fussell have to do with causing the accident?" Answer, "He drove under the chute, an unsafe act and completely unnecessary to get to his working place. What he could have done is stop in front of the chute and walk around and take a look at the place where he was going to go to work. When he decided to go under that chute that was the formation of an accident. He had a chain saw and a helper, and his next job was to cut the chute off because it was unnecessary to be there; and he didn’t do that. And that was his responsibility."

Schultz describes the equipment Mark was operating at the time of his accident. "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. It was a light machine and not made for heavy work. So, this quicker acceleration or jerking motion I don't agree with (P 344, L 20 to P 345, L 1).

Schultz refutes Cain's report, which says, "and the locomotive impact with the chute did not cause the resistor bank to fail." (P 345, L 2-3).

Schultz uses practical mining knowledge, reason and common sense to attack Cain's objectivity as an investigator regarding other chutes on the 1700 level (P 345, L 6-15). So does Miller. So does Farrell.

Schultz questions Cain's opinion or his ability to make a conclusion or have a definitive opinion about a pre-existing inoperative first gear and defective resistor that existed for a period of time. (P 345, L 20-24).

Schultz points out page 5 of Cain’s reporting a "root cause of the accident." Cain testifies that the concept of "root causes" was not used. Schultz also questions the completeness and objectivity of Cain to hold to professional standards in writing a report suggesting that Cain is not very smart, incompetent to perform his job or dishonest. (P 346, L 6-16).

Testimony of Robert Walker

Robert Walker is a trained industrial electrician since 1959. An industrial electrician is somewhat different from just a regular electrical contractor in a house. He must have knowledge in DC and AC in motors, controllers and codes. Walker’s experience is wide spread but most importantly, he was the electrician at the Sixteen to One Mine, employed by a prior lessee. He also worked on the Mancha trammer; the one Mark was operating at the time of his accident.

Mr. Miller asked Walker to examine the trammer and write a report on what he found. (P 323, L 20-26). Walker was the first to dismantle the train. (P 324, L 18-20.).

Walker explains the function of this particular resistor, which was brought into the hearing. "The fist gear goes through the resistors and it slows the locomotive down but you got a tremendous amount of torque on DC motors. The second gear, it slows it down similar but not as much as the first gear. The third gear you don't go through the resistor. You go straight from the battery to the DC motor. (P 326, l 24 to P 327, L 1).


Walker's "conclusion was the accident, at the time of the fatal accident, that's when the resistor burned out." (P 327, L 22-23). The court was shown the resistor when Walker testifies, "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. One end of the resistor is burnt, therefore you do not have low gear." (P 327, L 2-14).

The Court: "I'll take your word for it. If there's any dispute, I'm sure it will be presented. And what was burned inside that (the resistor box)?" Walker testifies, "One end of the resistor is burnt, there you do not have low gear." (P 327, L 7-14).

A significant point of contention is just when the resistor self-destructed. Prosecutor speculates it was before the November 6, 2002, the day of Mark's death. Cain reaches this conclusion having never seen the resistor. There is no oral or written evidence supporting his conclusion. His expert, Arlie Massey never saw the locomotive let alone the resistor. Walker is the first person to break down the locomotive and inspect its parts. Question: "Did it appear that the train had been dismantled prior to you seeing it?" Answer: "No sir." (P 324, L18-20).

Under cross-examination Walker's testimony is superficially somewhat confusing. It is likely he was experiencing some difficulty in hearing the prosecutor. (P 329, L 17-26). However, his opinion of the timing of the resistor melt down and its root cause is consistent with his direct testimony. Prosecutor: "You believe that the resistor had burned out that day of the accident, is that your opinion?" Walker: "That’s my opinion, sir. I believe that's what caused it." (P 329, L 27 to P 330, L 3).

Miller and Farrell presented the Walker report, the burnt resistor and other information to Lee Ratliff, MSHA district manager in Vacaville or March 6, 2001. Miller asked him to consider dismissing or changing the citations. (P 424, L 8-14).

Walker conducts himself with open honesty and offers his explanation to help Prosecutor gain a scientific and common sense perspective about how DC electrical power and trammer components actually function. "I'm looking at the burn on this, and you can see how it's rusty and everything. Well, you can see the burn, its still black and everything in there. Now these trams work in wet conditions, and if it was, if it had burnt out before that, it would be rusty. It doesn’t take long to rust; therefore, that's one conclusion I came to. (P 330, L 10-15).

During the prosecutor’s cross-examination Walker re-affirms his earlier testimony establishing himself as the first person to inspect the malfunctioning resistor. Walker, "It was - it hadn't been moved. It hadn't been taken apart. (P 332, L 7-8). Walker, "But I took - I took the resistor out of it, it hadn't been taken out." (P 333, L 14-15).

Mines in California are inspected by both State and MSHA health and safety agencies. Tim Hurley testified as a state inspector. Hurley inspected the mine in the week previous to the accident." (P 336, L 19-20). He went to the 1700 level because two men were working to set up a work place. (P 337, L 3). "They were preparing to move in equipment." Hurley when asked if he saw the chute that Mark Fussell ran into, responded, yes. Hurley was asked if he saw a problem with that particular. Answer, "I did not observe a hazard." (P 339, L 2). The Court asks for an explanation. "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 at some distance away." (P 339, L 4-11).

Prosecutor's cross-examination affirms that locomotive was at shaft, estimated by Hurley about 1/3 of a mile away from the chute.

Vince Michael Kautz is the only witness to the accident. He is a trained miner with four years of work experience at the Sixteen to One mine. He arrived at the 1700 level and walked to the area where Mark was setting up a slusher. Mark "had just cleaned his way past the chute. There was a lot of old rotten wood and rocks everywhere on the tracks." (P 355, L 7-9). "Mark got on the train to take off and go retrieve that beam (needed to secure a slusher he was installing). And that's when the accident occurred." (P 355, L 12-14). "I heard the train take off and immediately a crunch. I turned my light to see what happened, and I saw him pinched between the battery box and the chute." (P 356, L 1-2). Vince called for help on the mine phone nearby. He set the phone down and went to help Mark. He remembers saying, "He's a goner." (P 356, L 10-11). "I couldn't get the train to move. It's hard to get to the controller and he's all slumped over and pinched in there. Out of adrenaline I think I just shoved the train back and grabbed a hold of his neck because he was losing so much blood." (P 356, L 12-16).

Vince is the first person to assist in Mark’s recovery. The controller is like a shift on a transmission. First gear didn’t work. Vince could not get to the controller because Mark was pressed into the front of the locomotive where it is located. Vince reacts with great alacrity: he physically pushes the train away from the chute!

Under cross examination the solicitor attempts to support Cain's theory that first gear was broken before the accident and seeks evidence that the two parts of the connectors for charging the battery broke apart in the accident.

Kautz explains how the locomotive power components actually work. "The connector is mounted one half of it - welded to the box (the large battery box) and the other piece is free. I believe it was broken free from its mount. It was jammed right up in him because it's right there, the connector. They click together (the two halves) but it was broke free from the mount." (P 357, L 8-13).

The Court asks for critical details, "That's the source of power for the locomotive?" Kautz, "Yes." The Court, "So it had no power at that time?" Kautz, "I believe it was still connected. That’s how I believe that the gear in the resistor was burnt was because it was in gear and the motor is trying to burn while he's jammed under it while I was talking on the phone." (P 357, L 14-21). Vince was on the phone "20 or 30 seconds, maybe a little bit more." (P 358, L 27).

Is Vince Kautz a credible witness or is he just taking a position to address Cain's pure speculation? The Court asks him, "So you heard the motor still operating or saw it?" (P 357, L 22-23). Answer: "No." (A person trying to testify to help his side could have answered "Yes"). The Court, "How do you reach that conclusion then?" (P 357, L25). Vince Kautz's conclusion is that the gear in the resistor was burnt in the accident.

Kautz informs the Court that the mine and miners do not run the trains without all gears. "If he was to pull a slusher all the way through the drift and all the corners, he would have had to have first gear. Besides, if one of the gears is out, we don't run them. We get it fixed." (P 357, L 27 to P 358, L 2).

It is clear that Vince's definition of 'power' means still thrusting forward in first gear. If Mark had it in second gear as alleged by Cain, Vince would have known. Vince physically pushed the train away from the chute so he could attend to his partner. There was no power to first. Cain speculates that the two halves of the cable separated in the accident. This did not happen. Vince Kautz recalls that, "I tried to back it up and may have - if I had gone into the higher gears it may have backed up. I'm just pushing the motor and held his neck, you know." (P 358, L 16-20).

The prosecutor tries to expand the industry's definition and understanding of a work place. He also asks for more when the defendant could have been aware of potential hazards. Vince testifies that it was becoming a work area. He could not walk around without tripping on a bunch of stuff. "He (Mark Fussell) had just opened it up so he could get that little flat car that the train pushes with the equipment on to that point, and there was just crap all over." (P 359, L 15-19).

The Court seeks additional clarification on Cain's speculation that the train lurched ahead. "Did you observe the wheels spinning on the locomotive at any time?' Answer, "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." (P 359, L 23-27).

Prosecutor asks for the foundation of Kautz's belief in the ability of the locomotive. Answer, "Using the machine for quite some time." (P 360, L 2). The connector was broken loose from its mount. The two halves never separated and lay in the compartment. This is why the miners commented that the connector was broken.

Prosecutor called John Pereza.

Mr. Pereza's primary purpose was to secure the scene where the accident occurred. Under cross-examination Pereza testifies that the operator was factually representing the situation to him. Question, "Did you have any reasons in your past experiences not to believe either Mr. Barquilla or Mr. Miller?" Answer, "No." (P 33, L 7-9).

Pereza noticed a freshly lit cigarette, which was likely extinguished by Mark's blood. (P 34, L 3-5). The Court questions what this has to do with this case. Mr. Miller states that Mark's state of mind, including the distraction of just lighting a cigarette goes to the operator’s inattention.

Mr. Montoya was contacted to assist Steve Cain in the accident investigation. Witness

felt at the time of taking pictures there was a defect in the motor. (P 58, L 21-22).

The prosecutor alleges that the resistor bank was defective. Defendant agrees with MSHA inspector, that the resistor was defective after the accident. The Court identifies the battery connection plug and the power source plug is the same thing and asks, "Do you allege, counsel, that was somehow defective?" Answer, "No, Your Honor, the resistor. We allege the resistor bank was defective." (P 60, L 10-22).

Everyone agrees that there is a defective first gear on November 8, 2000. The question is how did that defect occur. To prove his case Cain speculates that when Mark hit the chute, the chute also hit the connector. There are no facts supporting this. By reviewing the photos to understand how the operator sits and drives a trammer and reviewing the injuries Mark sustained, it is likely the impact and driving torque of the motor pressed Mark’s body against the connector which then broke from its mount on the battery box.

Montoya offers a sketch of the inspectors reasoning on P 63 L 17-26. They used the process of elimination. The company’s agent, Mr. Miller, was present with MSHA and OSHA. "There was some contention that the resistor bank had also been damaged during the accident." (P 63, L 12-22). The broken connector was its separation from the battery box. The connector itself is two halves, which are clipped together. The halves are clipped together tightly because locomotives must be rugged to work in a mine.

Montoya appears to have reached a conclusion within minutes of evaluating the piece of equipment and the physical circumstances of the accident. He says, "If the connector had gotten broken during the accident that, you know, it wasn't possible for the resistor bank to be under power and burn out the resistor." (P 63, L 23-26). The Court wants to know about defects at the time of the accident. "Did you finally discover what you thought was a mechanical defect?" (P 64, L 21-22). Answer, "Actually it turned out to be an electrical defect, but we weren't sure for a while whether it was mechanical or electrical." (P 64, L 23-25). Montoya testifies that it was a defective resistor because the drum controller had no power in first gear. No one actually knew that the resistor point of contact (the fuse) was burnt therefore disrupting the flow of power until Walker took the motor apart.

The Court asks, "And how did you determine that could not have happened in the accident?" Montoya is correct with the first part of his answer that the connection plug was damaged during the accident. There is no evidence to support his idea that the damage to the plug disrupted the flow of electricity (it was dislodged from it’s mount). The Court follows his questioning, "Had power continued to be on to the locomotive it would have burned up the resistor?" (P 65, L 21-23). Answer, "Yes, if it was left in the first point eventually, the first point of contact." The Court, "Eventually how long would it have taken?" Answer, "I don't know, Your Honor." (P 65, L 26-28). Neither investigator actually looked at the resistor. (P 68, L 1-2; P 68, L 3-5; P 68, L 8). Walker took the motor apart.

Beginning on page 68 and until the government lawyer asks for a break on page 69, the witness is very confused with regard to the correctness of his testimony. Mr. Montoya never talked to anyone nor was told by anyone that the resistor was broken prior to the accident. Also, he never saw the resistor and did not learn that the coils of first gear melted until the operator brought it to MSHA offices in Vacaville, California after the citation was written. The Prosecutor asks for a break to reel in his witness.

Prosecutor states that Montoya has no role in determining how or when the melt down occurred. The Court. "What is this witness here for?" The Witness (Wilkinson is testifying) "He is here to identify the photographs, to also discuss his role in the investigation and lay the foundation for our experts opinion." (P 72, L 12-18).

Montoya confirms that only two inches of space existed between the locomotive, chute and the lid on the battery. (P 73, L 5). This explains why the forward movement of the locomotive could not continue down the track. Marks head and upper body was crushed between a powerful DC motor and a stationary wooden barrier. It was torque not speed, which is confirmed in the autopsy. The locomotive only moved about three (3) feet before striking the chute.

Montoya asks Miller about their safety program, specifically their equipment defect program. Question, "And what did he tell you?" (P 83, L 9). Answer, " When there was a defect on a piece of equipment, it was either repaired immediately …if it was something he (the miner) was capable of fixing himself, yes." (P 83, L 11-22).

Montoya contacts Arlie Massey in Pittsburgh when he returned to his office in Boise. Montoya relates over the phone his opinion of what he thought was wrong.


Mr. Montoya was called to seek out the root cause of the accident and the contributing factor. (P 85, L25-2). He specifically says, root cause. Chief investigator, Steven Cain, later testifies the root cause method of accident investigation was not used in this case. Montoya testifies that if everything on a trammer were working fine by checking it out, an operator would get on the machine and go to work, which is standard in the industry. (P 89, L 17-28). If any piece of equipment is found to be working fine during a pre-operating inspection in 2000, does it have to be noted in writing? Answer: If the equipment is working properly, it doesn't have to be documented. (P 92, L 10-11).

Montoya identifies Steve Cain as the lead investigator (P 92, L 26). Mr. Montoya never saw the trammer at the scene of the accident. (P 93, L 1-3). Montoya walked the 1700 level from the station to the scene of the accident and did not observe any other citations. (P 94, L 11-15). The distance is almost a half-mile.

The Court recognizes the relevance of exact same conditions elsewhere. (P 95, L 7-9). "They (chutes) weren't actually in the middle rail. They were farther up on the right-hand side of the track and farther our of the way." (P 95, L13-16).

On page 99, L 16, the Court fails to see the relevance in establishing that MSHA investigators check the other operating locomotives underground for defects. Both trammers were without defects. All gears worked in both directions.

It is a disingenuous argument for Cain and Montoya that the condition of similar locomotives is unimportant or a non-factor. The prosecutor tries to interject unacceptable evidence of a prior citation as some basis for negligence.

It is relevant on universally accepted standards for accident investigation to examine other on-site equipment. Montoya asked to see the other locomotives in the mine. He thoroughly tested both transmissions and found both worked properly. Question, "And then you inspected a second locomotive?" Answer, "Yes. Power in first point in both directions." Question, "What does that mean?" Answer, "That means that the controller on that particular trammer was functioning properly." (P 98, L 27; P 99, L 5-10). It also means that the resistor was working fine.

MSHA inspectors are expected to check the condition of other trammers. It is "part of the process of accident investigation." (P 99, L 26). Montoya understands the relevance of the doctrine of patterns of behavior. If defective equipment such as that on the locomotive Mark used had been found, it would be included in the accident report. If no defects were found it should also be included. No mention was made in Cain’s accident report of the facts that both other locomotives functioned properly. Montoya testifies that accident report investigations should be non-biased in most cases.

The fact that two investigators examined two other locomotives is important. Of greater importance is the fact that both worked properly and was without any defects. The relevance has much to do with this case because all MSHA offers, as evidence for the third trammer being operated in a malfunctioning manner is pure speculation and not even circumstantial. The fact that all trammers in the mine were functioning properly is powerful exculpatory evidence. This should be noticed in the report and considered by an unbiased investigator. Chief Investigator Cain developed a theory, a hypothesis, and proceeded to plug in only ideas that supported his manufactured theory: that the resistor was broken before Marks' accident and everyone went ahead and used the trammer anyway. Where are the facts?

Montoya never saw the trammer in service (P 102, L 13) and never saw the resistor (P 104, L 21). He clarifies Miller's speculations about the problems. Question, "Did he (Miller) say that there was a problem either before, during or after the accident?" (P 103, L 13-14) Answer, "I don't believe so. I think at that point in time, Mike, that you were just concurring that there was a problem with the motor at that particular point in time." (P 103, L 15-17)

MSHA has a technical support group, which they send to investigate fatal accidents. Eugene Hennon was part of the technical group that was sent to the mines. The alleged problem with first gear was determined to be electrical. The root cause was alleged to be Mark was operating a locomotive which had no first gear. “Eugene's background was mechanical and, you know, through the assistance with Gene, we determined that it was electrical rather than mechanical." (P 110, L 6-9) therefore, a MSHA agent without an electrical background determined the problem was electrical.

Any notions of deceit or impeding an investigation are spurious. The battery box weighs about 1000 pounds. Cain, Montoya, Hurley or Miller did not possess the skills or were in adequate physical shape to do the manual work. Miller was also preserving evidence until experts were called to dismantle the locomotive.

Re-cross by Wilkinson, "Why didn't you see the resistor circuit?" Answer, " I asked Mr. Miller during the investigation if he would remove the battery in the motor so we could take a look at the resistor and he would not do it." (P 113,L25-28). Question, "He tell you why he wouldn't do it?" Answer, "I think he has some safety issues or concerns at that time with the way the battery was to be taken off down on that level. I don't know if there was equipment available for the battery to be taken off on that level." (P 114, L 1-5). The Court, "Doesn't MSHA have the authority to examine equipment that is alleged to be in violation?" Answer, "Yes we do." The Court, "And MSHA did not pursue that?" Montoya, "We felt that we had enough information at that time to warrant the violation that was issued on the equipment for the defect." (P 114, L 10-16). MSHA could also request or demand that its experts be present, which it failed to do.

The whole issue of training is nothing but paper documentation and used as a smoke screen. Wilkinson again attempts to mislead the court to gain an advantage. (P 116). "Does the record keeping have anything to do with Mark Fussell." Wilkinson, "Actually, no, Your Honor." (P 116, L 1). Wilkinson, "They tangentially relate to the victim. I mean, Judge, the citations are tangentially - I won't say tangentially related, but if the mine has no program to train any of its' miners and has no program by which to document that training, then to that extent it does bear upon the accident issue, and you can work deductively.” (P 116, L 5-20).

A former instructor, one of two on the list, no longer worked at the mine. His name had not been crossed out. The Court, "That was the only problem?" (P 118, L 7). Montoya could offer no evidence for his conclusion that it was based on moderate negligence. The Court, "You didn't have any evidence one way or the other?" Answer, "No." (P 119, L 6-8). This testimony demonstrates how poorly trained and poorly prepared inspectors go about MSHA business. This behavior disregards the written policies and procedures of MSHA manuals.

A driving force of this investigation appears to be a personal attack on Michael Miller. Who is behind this is someone other than Mr. Montoya. Montoya exposes the hidden agenda. "I have written there that the operator should have known. He's been in the mining business a long time and had been involved with the training himself years ago." (P 126, L 3-5). The operator is a 92-year-old California Corporation. Miller is just an employee who also qualifies as an instructor. This demonstrates how MSHA has personalized and commingled the two. Montoya regarding the paper citations - "It's just a paperwork violation. There's not actually anyone exposed. It's just a recording violation. (P 127, L 19-28).

And where does the lawyers responsibilities come into play.

Wilkinson: "But Judge, these are strict liability. To the extent they bear negligence, that's the only possible relevance that could have. I'm not even saying it does bear on negligence." (P 131, L 11-15).

Arlie Massey was not listed on the solicitors witness list. Also, he is not included in the official report written by Cain, Exhibit V appendix A, page 11. He answers the third question asked of him wrong. Question, "How long have you been with MSHA?" Answer, "Since 1973." (P 142, L 3-4). MSHA established by congress in 1977. Compare the clarity of his answer with those of Charles Schultz.

Massey fabricates scenarios based on facts from small bits of evidence. (P 142, L 10-11). His scenario of the accident is based on the information he received from Mr. Montoya and all over the phone. Massey, "I serve as an investigator investigating unique things in that realm. I also investigate accidents." (P 142, L 8-9).

Massey has seen similar power connectors and describes, "It's a two prong connecting, as I'm understanding this. A male is inserted into the female and there is a lever like a cam lock that hooks the two together." (P 172, L 10-12). Question, "Okay. 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, "You don't have to assume that, that's true." (P 173, L 12). Assume a new controller was put on and in the accident the power cable dislodged from the machine itself, but it did not disconnect, some power is still there. Answer, "That machine would have kept going somewhere. Whenever the tracks end or wherever it derails. It would still be going. I agree with you. (P 174, L 19-22).

The Court, "You're asking him would the machine stop by itself if the operator became immobilized, is that what you are asking?" Answer, "Yes." The Court, "Is there any device on this machine that would somehow immobilize it upon the disablement of the operator, assuming that it was operating at that point in time?" The witness: "To the best of my knowledge, this machine does not include a dead man switch. There are no contacts here for a dead man switch." (P 175, L 13-27).

Question, "What happens if energy continues to go to the resistor and it (the machine) doesn't move?" The Court, "So the machine is blocked from motion?" Miller, "Yes." The witness, "There is a point that if that would continue, in my opinion for, say, 10 minutes, several minutes, you can burn a resistor open." (P 176, L 13-17).

Exhibit "L" is the operating instructions issued by the manufacturer and provided to MSHA investigators after the accident.

Question, "Explain this under 'Resistance'." "There are instructions to trammer operators. Do not run on resistance points longer than necessary as overheating will occur and result in burn-outs." What does that mean? Answer, "Longer than necessary is a relative term, but if you can operate typically in a certain point while you're really loaded, and your pulling as much current as you possibly can for that particular part of the circuit, you could overload a resistor and that resistor would open." Question, " Open, meaning burn out?" Answer, "Yes." (P 180, L20-28; P 181, L1-2).

Page 153 is presented in its entirety. Massey presents his scenario, but it is pure speculation. Where are the facts? From small bits of information?

Massey had no first hand contact with anyone from the mine or west coast MSHA employer working the accident. Cain never talked to him.

Massey identifies three facts he used to form his conclusion: no problem with the controller, no problem with the battery connection and the machine would not work in first gear. "Can you add anymore to that?" Answer, "No." (P 160, L 25). N0 facts are given to support any knowledge of the condition of the motor prior to the accident. Massey has never driven a locomotive. He drove a scoop but one with rubber tires. He never has driven a piece of track equipment. (P 161, L18).

Lurching locomotives seem to be a strong idea for MSHA to project. Question, "You drew a conclusion that the machine lurched?" Answer, "Yes I did." Question, "How did you draw that conclusion?" Answer, "I drew that conclusion based on my experience with the equipment." (P 163, L 4-5). HE HAD NONE.

He never drove one, never saw the locomotive involved in the accident, never went to the mine and never drove anything on a track. He does know how the mechanics of the transmission works. Question, "Can you conservable go from one, two, three (gears) in a short period of time? Answer, "Yes you can." (P 162, L 10-12). Question, "What would be a short period of time?" Answer, " As fast as you can possibly turn that arm." (P 162, L 13-14).

Returning to the speculation that the locomotive lurched in second gear plunging Mark into the chute, Question, "You have any direct knowledge that the machine lurched?" Answer, "Only from the testimony that took place in this room." (P164, L 1-4). The only witnesses before Massey are Pereza and Montoya.

Massey never wrote a report. One must wonder if this is responsible behavior for MSHA in such a serious allegation of negligence in the death of a miner." Wilkinson, "The objection is there's no written report." (P 164, L10-11).

Wilkinson again attempts to mislead the court. "Objection, Your Honor, I think he is misstating the evidence. I mean he - with regards to the word 'investigating', I'm going to object to the use of the word being vague. I don't think there's been any evidence that Mr. Massey was an investigator." (P 166, L 9-13). See page 142 L 8-9. "I serve as an investigator investigating unique things in that realm. I also investigate accidents."

Cain's first misunderstanding and subsequent presentation to the court that the accident scene (a work place) was established around October 22, 2000, "They has begun working the that area." (P 190, L 13). Cain combines the half-mile long 1700 level to the south with some stopes and raises above it to establish a work place. For purposes for issuing a valid citation, a specific location and situation of endangered miners are required. “That area” as generally used by Cain is about 2200 feet of the 1700 level and a stope (raise) that exists between the 1700 level and the 1500 level. This is too general a description for validating certain requirements necessary to issue a citation. Mark was reopening an abounded area, which required a gradual expansion of the work place as he moved down the level.

Cain, "They had inspected that area." (P190, L26). What area is "that area?" Testimony indicates work up in that raise that was above this level." (P 190, L 24). Workplace examination of records shows the area had been inspected. Standards require that the miner do a workplace examination sometime during the shift. (P 191, L 17-19).

Cain starts locomotive, "It lurched three to four feet in both directions." (P 193, L 15-16). "This entire investigation was to do testing on it to check it out, see what was going on, get an expert opinion, call tech support, because the gentlemen we had from tech support was a mechanical expert not electrical." (P 194, L 11-14).

"We had gotten a schematic from the company. They had provided us with the schematic. In fact, they had provided us with the entire Little Mancha repair list, and they got that out of their shop and we made copies of that." (P 194, L 24-27).

Cain’s testimony actually supports that the company was competent in maintaining its equipment. Also, in this moment of heartbreak and trauma, miners located the documents in the repair shop. This also indicates likelihood of recent activity.

"It could be nothing else, it would have to be the resistor was burned out." (P 195, L 1-4). This affirmation was reached by Federal agents, non-qualified as electrical tech experts before any electrical expert examined the damaged parts.

Cain, "It was obvious there was only two inches of clearance and a man sitting in that locomotive would have to make - would have to duck double to pass underneath that chute." (P 196, L 10-13). Mark did just that when he drove the locomotive beyond the hazard that day.

Cain finds no mitigating factors would lower the negligence on the company to less than high. (P 197, L 3-4). "The company had reason to know or should know of that violative condition." (P 197, L 15-16). The Court asks, "How long did this condition (violative) exist?" (P 197, L, 18). Cain misleads the court to support his thesis. "Well, from the information I gathered that they had been in that area ever since the prior inspection, which was six months prior." (P 197, L 19-21). Cain testifies, "There had been one (federal inspection) six months prior to the fatality." (P 198, L 1-2). Wrong. In fact a MSHA inspector was at the specific protruding ore chute in late August, a fact known to Cain and included in his notes.

The Court, "So your information would be that it had never been inspected by federal inspectors?" (P 190, L 9-10). Answer, "No sir, it had been walked by a federal inspector but it was not a work area, therefore they wouldn't have to mark those chutes because in fact there was no mobile equipment in that area." (P 198, L 11-14). The Court, "And that was not a violation as an escape route to have a protrusion such as that?" Answer, "No sir, because it wouldn't be restricted clearance for a person walking because they could walk down the left side of the drift and it would pose no hazard." (P198, L 25 to P 199, L 2). As the basis for the second citation, Cain testifies, "There was a defect on the Mancha locomotive that affected safety and health and it had not been corrected in a timely manner, had not been reported to -- had not been recorded and it was a contributing factor to the fatality.” (P 200, L 5-8). No facts support this, but Cain tries and postures that the company's entire pre-inspection / preoperational program was flawed. (P 200, L 19-20). "Other miners verbally stated to me that they did inspect equipment, but I had no verification that they had." (P 201, L 10-11). The Court asks about 'if there are any requirements in the regulations for record keeping of inspections.' Cain, "No sir, there is no requirement that you have a record that you did the inspection." (P 201, L 18-20).

The Court asks Cain for his basis for concluding that the particular machine operator did not perform his inspection. Cain, "My assumption after talking to Mr. Miller and others is that if there had been a defect on that, that they would have fixed it immediately, and it never would have operated that way." (P 201, L 24-27). The Court presses, "When you say, 'assumption', what did Mr. Miller tell you that led you to believe that that was a proper assumption?" Witness, "He said they would never let a piece of equipment run with a defect in that mine." (P 202, L 1-5). The Court asks the procedures for Mark to handle a defect that he couldn't fix right away. Cain, "He has the authority to take it out of service immediately and tag it."

Imagine: Vince hears and sees his partner smashed into a two-inch space and bleeding. He phones for help and rushes to free him. Vince may have told Steve Shappert that, "there had been trouble with the battery connection upon his arriving at the accident. (P 205, L 5-11). He certainly had trouble moving the controller because first gear had no power and no longer worked and that is the gear he would use. Plus Mark was slumped over the controls and bleeding. Kautz also states that perhaps he could have found the controller and moved the locomotive. This proves that the battery was energized and the connector clamp was in place.

For Cain’s speculations to hold, one must believe that everyone at the mine is incompetent, unprepared, ill trained and disregards safety as suggested by the Secretary’s witnesses. These are the subtle and irrelevant 'facts', Mr. Wilkinson seeks to establish. This is what those in judgment will have to believe. The facts presented throughout the hearing suggest otherwise.

With regard to understanding protruding hazards, dangerous situations to be aware of etc… Example: Wilkinson apparently wants to establish some pre knowledge about hazard recognition and subsequent action by the operator. Wilkinson asks regarding Cain's interview with Jonathan Farrell, "Whether there were any other accidents involving the chute?" Cain responds that, "He (Farrell) said that they had a self-rescuer device come in contact with a chute that had crushed the self-rescuer device, and he had used that as a training aid. He showed it to other mines and showed them what could happen if you make contact with the chute." (P 216, L 1-7). The company readily admits that its miners were trained and experienced to recognize hazards. Prosecutor continues to confuse the situation. He is either ignorant of the industry definitions of the work place or purposely misleading the court by generalizing 'in the area of the 1700 level' (P210, L 13-22). His point; Farrell ignored the protruding chute and therefore knew of the hazard prior to the accident. However, Farrell met Mark in the stope, not on the level. That Farrell, the mine manager, visited all the headings and spoke with all the miners on his first day back from vacation is evidence that he was performing his duties and responsibilities as expected under the law, regulations and company policies.

Cain assumes that "this violative condition had obviously existed or I determined that it existed for a long period of time." P 214, L 25-27 is offered as factors of high negligence. Cain offers himself as an expert on the heat holding capacity of a resistor in a trammer. "I've operated those machines when I was a miner and I've abused them. It's hard to burn up a resistor. It happens over time in a point of contact too long." (P 215, L 7-12). Cain cites the knowledge of Bob Montoya to support his theory of a pre-existing faulty resistor. However, Montoya says, “I didn’t find any, really any evidence to lead me to the fact that it wasn’t working prior to the accident.” (P 106, L13-14).

Cain's experience and credibility under cross-examination reveals he:

1. Never task trained on the trammer (P 223, L22)

2. Maximum time underground at this mine - twice

3. Maximum time on site surface - twice (P 224, L 7-13)

4. Cain misstates 'that area' later as the 1700 level drift from the station to the scene of the accident and further.

5. Under direct examination the miners were in the area for 6 months. Under cross-examination it may not have been six months, it may have been six weeks. I asked them how long have you been at the 1700 level and he (Farrell) said for six weeks sporadically.

Cain says, "Because of the battery bent arm I knew that it didn't work in first gear before the accident.” This is nonsense! His testimony on page 204 from line 9 to line 28 represents how Cain approaches his duties and responsibilities to perform an objective and non-biased investigation. His theory was almost immediately reached: the condition of the resistor, which he notes, 'We determined later,' was only know much later after the citations were issued and when Mr. Walker broke down the locomotive. The connector clamp had been disconnected and reconnected at least twice before Cain ever saw it.

The connector plug was mounted on the battery box. The impact forced Mark into the plug that broke free from the battery box. The connector has a male and female part and is snuggly secured with a clamp. Its two halves are secured tightly so they do not disconnect during operation.

The resistor did what it was intended to do: it melted apart, thereby shutting the train down in first gear. The train would make no noise, and it would not move while still engaged in first gear because electricity could not complete the circuit. Vince got to Mark after he followed the company's accident plan. Vince did everything right. Mark was squeezed into an area of only two inches of space. He was pressed into the gears, controller, connector, brake and operating parts a miner would use to drive the train.

Vince could not readily find the lever that moves the train. (It was impacted with Mark’s torso). He frees the machine from the chute by manually pushing it away. Later, other miners arrive and drive Mark the half-mile to the hoist. During this time the only things the miners know about the train is that it is a tool to help Mark, and it doesn't run in first gear.

Company policy is to disconnect the power cables when the operator gets out of the train. It is engrained in all miners at the Sixteen To One. This is well established internally as well as with Cal/OSHA and MSHA. Why? These old locomotives were not built with a 'dead man' apparatus. This is well known within the industry, which includes MSHA, technical support and experienced investigators as Mr. Cain.

Cain invents the root cause: "the evidence to me was the fact that the connector arm to the battery was bent, wouldn't hold the two male and female ends together supplying power to the controller" (P 226, L 25-28). Where is his evidence? Cain testifies that the connector was broken where the female and male ends came together. (P 228, L 15-16). The apparatus was connected, disconnected, reconnected, and disconnected after the accident and during the recovery. The miners disconnected when they went home, before MSHA arrived at the mine.

Cain testifies that even though or even if the connector broke off of its mount with the battery box that, "It absolutely had nothing to do with the accident." (P 228, L 21-22). The company agrees that the connector had nothing to do with causing the accident.

Cain recognizes that somebody had worked on that connector a week before which provides the evidence that it was repaired and in good order, which everyone at the mine agrees with.

Cain testifies, "I couldn't prove that it (the connector) was broken before the accident. If I had known for sure and had any testimony that the connector was broken before the accident, then I would have wrote that." (P 229, L 5-8).

Cain's credibility and his power of observation are flawed.

Cain: “A man's head would not stop that locomotive from continuing to travel on with no 'dead man switch' or able to apply brakes.” (P 232, L 26-28). “It (the locomotive) wouldn't have stopped at the chute, it would have continued on.” (P 233, L 1-2). Mark’s head and upper torso filled the 2-inch gap.

The relevance of producing manuals and diagrams and parts list for the locomotive with "so much going on" and under such stressful times and with most of the crew taking time off is clear proof that the operator had worked on the train fairly recently. It is not a stretch at all to accept this as proof.

Question: "You're alleging the company's program work was poor enough to perhaps contribute to this accident?" Answer, "I'm not saying that." (P 234, L 22-25).

Cain expresses as fact the following speculations, "The fact that the defect was not corrected in a timely manner, not reported tagged out, recorded." (P 234, L 26-28). There are no facts that say or even suggests this. He made it up.

Question, "In a normal quarterly inspection would you expect MSHA inspectors would look at a second exit?"

Answer, "Absolutely. (P 236, L 8-10). Your Honor, this is where my patience grows thin. This alleged un-biased MSHA inspector responds. Miller, “Did you know this was a second exit?" Cain, “I was told by you it was a second exit. Did you verify that? Well, I assumed that you were telling me the truth.” Later he answers, "my understanding is that they (MSHA inspectors) traveled the 1700 level in the course of inspecting the secondary escape way." (P 236, L 20-22).

Cain has attempted to hide the fact that MSHA inspector Bruce Allard traveled the 1700 level and saw the protruding chute and made no statement recognizing it as a hazard.

Question, "Did you find any citations in the history of the Sixteen to One for violations of chute markings on the 1700 level?"

Answer, "I did not on the 1700 level, find any history of that.” (P 236, L 20-25). Significance: The Sixteen to One Mine, under current management, has been inspected four times a year for over a decade. The second exits are regularly inspected. There has never been a chute hazard violation. The last inspection was about two months before Mark's accident. The mine has been inspected regularly since 1977.

Cain defines high negligence is when the operator knew or should have known of the violative condition and there are no mitigating circumstances. (P 237, L 11-18).

Question, " When did the situation at the mine become a violation of standard 57.9306?"

Answer, "The moment that mobile equipment went into operation in the restricted clearance area."

Question, " And when was that?"

Answer, " Well, we know it was the day of the violation.” (P 238, L 18-23). The next paragraph demonstrates how Cain creates facts from nothing other than his pure speculation. His speculation and subsequent conclusion are offered against absolute evidence that Mark drove the train past the chute the day of his accident. “And according to the workplace examinations, people had been operating in that area before that up to six weeks, and working in that area, performing work; therefore (and here is his speculation and conclusion) mobile equipment was operating in that area.” (P 238, L 25-28).

Question, " Isn't that an assumption?"

Answer, "Well, I wouldn't think that you would go back and work in a raise that's 2000 feet when you have a perfectly fine piece of mobile equipment to drive back there." (P 239, L 1-4).

Observation: Cain claims the locomotive was defective before the accident. He claims it "lurches" three to four feet when the operator engages the gears. Now he states it is “perfectly fine”.

Cain now confuses a hazard with a hazard that can result in a violation of MSHA regulation. (P 239)

Impeach witness:

Question, "Were there any distinctive characteristics of that chute versus others on the 1700 level?"

Answer, "I saw all the chutes as a problem. But that chute itself, the angle was flatter and it protruded out into the center of the rail a little bit further than the other chutes, and its clearance was a little bit closer to the locomotive as I remember it. But almost all of them there wasn't that much different between the height of them." (P 240, L 8-18).

Relevance: This contradicts grand jury testimony.

Question, "Do you have any evidence - other than the day of the accident, do you have any other information to tell you when the mobile equipment came into the specific area of the chute?"

Answer, "I don't know a specific time." (P 240, L 24 to P 241, L 2).

Question, "What would be the very first way that a miner would take care of that hazard?" Cain is non-responsive. (P 242, L 19 to P 243, L 5).

Question, "What about the idea of just cutting it off, you didn't mention that?"

Question, "How was the citation abated?"

Answer, "My understanding, according to the record, is that it was marked."

Question, "Can you show me that?"

Answer, "Exhibit 'F', page 2. It appears that it was abated by cutting it back and that's an operator decision.”

Question, "So your assumption was faulty in the case that it was marked to abate it?"

Answer, "I didn't know, I didn't abate it." (P 243, L 6-21).

Question, "Did the miners have a saw?"

Answer, "I believe they did have a saw in the area."

Question, "Was it a new saw or did you look at the saw?"

Answer, "I think it was a new saw."

Question, "Was there power to run the saw?"

Answer, "I believe there was."


The Doctrines of Root Causes: was it in effect or used during the Mark Fussell investigation.

Question, "You mentioned something about root causes, this is the way MSHA is trying to go after safety now, is finding root causes.”

Answer, "We are now using a new program called "Root Causes Analysis'."

The Court, "Was that in effect at the time?"

Cain, "No sir, it was not."

The Court, "It's irrelevant then, move on."

Miller, "I don't know what to do." (P 255, L 15-23).

If MSHA analysis of the root cause of the accident was the failure of the mine operator to install warning devices in advance of, and at the ore chute, to conspicuously mark the restricted clearance and the operator's failure to promptly correct the defective speed controlling system, which prevented the Mancha motor from being started at a slower rate of speed contributed to the accident, (P 256, L 1-7), how come Montoya and Cain later use the root cause concept for this investigation? Was it or was it not in effect at this time?

The official MSHA report, Exhibit V, page 4, goes into root cause. Montoya’s testimony mentions root cause. Cain later testifies about root cause. The Court ‘s ruling was based on Cain’s sworn testimony. Miller had to abandon his plans to question MSHA’s policies and procedures for investigating accidents and was unable to further demonstrate the lack of due diligence exercised by the Secretary’s agents.

Mr. Wilkinson addresses the court that he has done some research and grand jury testimony is not evidence by any means. (P 257, L 19-21).

Question, "Did you testify yesterday that the contacts were dirty or greasy?"

Answer, "I don't believe I did."

Question, "Did you testify that you found no problem in the controller yesterday?"

Answer, "We found no defects in the controller. We didn't find any defects in the controller." (P 266, L 1-2).

Cain testifies, "But when you put dirt with it then you have a problem." (P 265, L 21-22).

Gayle Filter asks can the controller have caused accident. (P 268).

Cain offers an explanation for a pre-existing defect on the train:

There's a control arm where the battery connects into the controller that is a clamp type situation that takes two points of contact and clamps them together. That way you can unclamp it, take the battery off and charge it, push that into a re-charger and recharge the battery. What happened in the week before? Steve Shappert had worked on that connector and he failed to rebolt it to the locomotive battery where it belonged and they had set it up on top of the battery. At the time of the accident that control mechanism hit the chute also bending the arm, the mechanism arm, which caused it to separate thusly allowing the locomotive to stop instead of continuing to run off. (P 268, L 24 to P 269, L 13).

Cain’s entire line of reasoning is flawed. The alleged failure to bolt the clamp where it belongs is not possible. Mark drove the locomotive past the low chute that day. If the chute were to be the cause of bending the arm, it would have done it the first time he passed under it.

Cain and Filter have conspired to create this dialogue. Perhaps Cain was not aware that he was being used to set up a case for criminal indictment. Either way he was. There definitely was a 'quid pro quo'. If Cain cooperates and responds only to Filter's prompts, and can get a grand jury indictment, Cain's theory gains credibility. Also, the mine and Miller will be consumed finally by the burden of oppression in defending themselves. It would be a feather in any MSHA agent to nail Miller and his miners. That was then and this is now. Here is their strategy:

1. Paint Mark as a victim.

a. Working alone - see narrowly defined time spans. Cain responds up to 12:00. The accident was at 1pm. Relevance: Filter purposely misleads the Grand Jury. Cain goes along and withholds important facts.

2. "How many chutes did you observe?" Answer, "five chutes." (P 237, L 25)

3. "It would only engage in 2nd and 3rd point of contact; his conclusion is a testimony of fact based on what? His conclusion, "thus it would start at a much higher rate of speed." (P 238, L 25). Filter presents little evidence to the Grand Jury. Only suspicions, allegations and speculations. Cain demonstrates his bias approach to his investigation.

Mark put his hand on the gear lever, which controls the power (which may be unclear to someone who has never seen or never operated a small Mancha Trammer) from the battery to the drive gears on the wheels. He was a second or less from his fatal injury once he moved his hand. With the power of a locomotive, the extent of the injury, and the possibility of avoiding death is nil. Mark will die. He was so close to the hazard that gears or speed of travel were irrelevant.

Everyone works in a dangerous world of hard rock underground gold mining here at this mine. Certain standards must be followed. Miners comply with regulations and even go beyond them. If another crewmember approaches an unoccupied motor, he may take it for his purposes. Although most everyone chooses to walk during a shift, as everybody approaches the motor, they can assume that it will be powerless until they make the cable connection.

Cain had no knowledge of how the company established long-standing policies that are etched into every person task trained on the locomotive. In this mine the operator task trained all miners to apply the habits of adapting safety standards. Cain reached a premature conclusion and for reasons known only to him or his employer, failed to analysis the circumstances of Montoya’s inspection of and findings on the other locomotives on the property. Each miner went through the routine, which is engrained in each employee working underground. The motor will not move until you connect the power cables. The power cables must be disconnected when you quit operating. Each locomotive was not defective in any way, even the little horns required by federal standards worked

The part he alleges was broken and probably broken for some time, a resistor, was on the shelf. If this were not a fact, he may as well assume that the company is insolvent (which is true) and therefore had no money for spare parts or repairs. Why not? He speculates about all his conclusions supporting his root cause scenario. A new resistor was on the shelf.


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