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INTERSTATE COMMERCE AND SMALL MINES

       

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 By Michael Miller

01/30/2013  5:37PM

I am preparing a brief to file the end of February with the Secretary of Labor regarding the MSHA hearing held last November. From time to time while working with the transcript, lines jump out and I put them in a document for consideration. I’ll just share some with you. This was the third day. MSHA inspectors and solicitor rested their argument. The primary issues for the Sixteen to One are money and credibility. To let false charges go unchallenged creates a huge liability for our future. A bonus exists for other miners, natural resource operators and Americans who believe that domestic productivity, good paying blue collar jobs, increasing GDP and lessening our dependence of foreign interests. Unqualified MSHA regulators without the background, experience and training AND without accountability/responsibility have moved into western United States or at least the goldfields of California to the detriment of all but themselves. They may be small in number but so far the federal agency has failed to harness their malfeasance.


Witness: Michael Miller: Citation P-25 should be vacated. This citation never should have been written, let alone considered significant and substantial. This is so common to our type of mining. We've all done it so many times (dumping waste in old stopes). I do believe that that railing that was put up to terminate this citation created a danger. It could hang up bigger rocks that you're dumping, which would require a miner to go out there with a double jack and break them up so they could fall through the hole. I'm saying this from experience.

This hole is a waste dump- First of all, things MSHA didn't mention: the car was -- the car was chained down, you know, so the car is not going to flip. The guys have done -- this is routine work for them. It's just like when I see a NASCAR race. The guys are running around to change the tires or go and put the gas in the car. They better be trained. And so our miners are task trained. They're not rookies. They're not coming from a surface mine. Every miner working in here at this particular time was not only an experienced miner, qualify as a lead miner. That takes experience to another level

The material was coming out of the heading and being dumped into an abandoned stope. It was abandoned because we'd already metal detected it, everything in it, and there weren't any pillars left. So that's one of the reasons we backfilled it. A lot of mines automatically backfill. There are reasons to do that as well, but at the Sixteen to One, we normally don't backfill because things could change in technology. We may have a different metal detector, so we're very careful before we start backfilling and putting waste in one of these old stopes.

I thought you (Jonathan Farrell is asking mike as a lawyer would do) did a pretty good job of testifying to that. I don't want to belabor the point. I think -- I understand the intent of the standard (regulation cited by MSHA). I also know that the miners and the mine operator must establish methods of operating in a mine, If it's deemed that they're not doing it safely, they should be told, but if there's evidence presented that this is a customary practice that's been in use for a long period of time, I would hope they'd be allowed to operate that mine in the same fashion that they'd been doing for, say, a hundred years. If they screw up, they need to be told. (NOTE: the law passed by Congress establishing MHSA is clear that the mine operator and miners set the methods of operations.)I don't think everybody recognizes the inherent dangers of a mine, but I think the Sixteen to One miners do. They've always taken care if they needed a barricade, if they needed to put more wood in or if they needed ground to support.

One thing you (witness Farrell) might not have cleared up is, and I was thinking about this is that -- imagine railroad track and a train. The track…that's the travelway. Imagine a spur that's running off to one side. Maybe that's where they load the wheat or the coal. I'm not going to use coal because I don't know coal. I don't even want to pretend to know coal. It's a spur that's not used on a regular basis. Maybe they just pulled an old car out there to get it out of the way. We have those throughout the mine, and they're not maintained as travelways because they're not. And they're not regularly traveled.

And when -- when someone says that a miner travels it twice a day, that doesn't mean he travels it every day twice a day. When you're operating a mine, you might drill, blast -- you might be mucking where you have to travel that twice a day, but you might go five days when you never go there again and you're setting timber or you're moving timber, whatever you're doing. It's not -- this is not like a conveyer belt production line. The Sixteen to One doesn't operate that way. And it's hard to bring that imagination into this when you're used to seeing, you know, everything moving in big orderly fashions like that.

I've always tried to think of the Sixteen to One as a thinking miner's mine. We expect our miners to think, and that's one thing that we look for. And the ability to assess a situation. Quite frankly, it's not the operator ordering down. It's the miners ordering up. It's like the privates in the trenches telling the generals in the office what to do. Not because they're smart asses, but they've got more experience in what it's like to be in the trenches of warfare. So this is a prime example, right here, of a standard accepted way to practice in a small vein high grade course gold mine like --Go from Mariposa to Plumas County, 200-mile gold belt in California. I don't think anybody that's using this dump pocket would want to -- would imagine trying to do it another way.

I don't think Mr. Berglof (MSHA inspector) fully understood our men and mining operation.- There's one more point.- Look at the standard. It says if you don't put a barricade up, you have another alternative. You know what that alternative was there? A light. We put S/O cord thousands of feet down the level

The miners said, "Why are you doing this?" I said, " I want light." I think light creates a safer environment. That section was lit. I think that barricade is hurting the miners. No one's working there right now, but if I brought an inspector there and explained to him….I don't think that Bill realized....I wasn't there when he looked at the dump pocket. I would have said, "Look, we've solved this regulation here because there's a choice. Either put a barricade or put some kind of a device of a warning. A light underground in a very dark mine is very expensive to do, by the way. You're running thousands of feet of electrical wire. And that's also where they ate lunch.

Q: So would it be reasonable to give consideration to the dip of the vein in the fact that it's flat? If it was a steeper descent, it would be a different situation?

A. Oh,.yes, sometimes things are so obvious. --Sometimes some things are so obvious to me, like this hole -- You could walk down it. Anybody could walk down there. You're not going to slip and slide. It's not -- it's not vertical. It's flat. And actually, you know what else you have to do here? You have to put a slusher down to get that material out and drag it back farther down, -- down the old stope. It just doesn't flow all the way to the bottom. If we opened up this place again, I'd want to take that barrier down and say, "We're addressing the standard by that light that's up there right now. It's an acceptable warning device.”.

THE COURT: A light is a warning device?

THE WITNESS: Working around -- no, no, that's not it. Oh, you know what? I pulled -- did I pull it out of the book? Yeah, I pulled it out of the book so I had it with me. "Protection for openings around travelways. Openings above, below, or near travelways through which persons or materials may fall shall be protected by railings, barriers, or covers. Where it is impractical to install such protective devices, adequate warning signals shall be installed."

- I feel that's impractical. I feel that those barriers inhibit the dropping of the materials. I know sometimes when you're taking out old debris, you have large rocks. I've seen guys break them up with hammers. We installed a protective device. Now, maybe big-time miners might not understand this because they have a different way of handling material. They're bringing different trains in, and they have different types of situations, so I'm very comfortable in the belief of this, and there's no sense in beating it up anymore. And I believe that's my last response to the citations.
 By Michael Miller

01/24/2013  1:04PM

From the last day of a public hearing held in Nevada City on 11-19-2012. I was surprised when the judge asked me the following question while I was testifying. Her question allowed the opportunity to clarify an important issue miners face in gold mines in California. The enforcers (inspectors) lack the background, experience and training to carryout Congresses’ intent as written in AN ACT of 1977.

THE COURT: I have a question. I asked you before we went on the record why you had testified and asked of Mr. Farrell questions that would put in evidence the fact that the two of you were indicted by a grand jury, and I'd just like you to summarize that for the record, please.

THE WITNESS: The impact of statements in a hearing like this or in a citation written at some mine have far-reaching impacts to the individuals that are involved. Jonathan and I and this company all experienced that impact when outside lawyers indicted us with a grand jury indictment in our county, a grand jury indictment in our county, for basically willful manslaughter in the death of one of our fellow miners. For Jonathan, it changed him so much that he really decided that he no longer wanted to be involved in management if this could happen.
It's had an ongoing effect on, obviously, me, but also on our company because it's hard to refute or get fair recognition when people make accusations. This story hit the front page of the L.A. Times and college friends call me up and ask what was going on? So it's far reaching, these questions about negligence and the idea. That the enforcers get their pound of flesh..
Two things happened: One is, the inspector that MSHA brought in, special inspector for the accident, came from out of the area. He was not part of the team that's in Vacaville that goes to the Sixteen to One. But he came in; and it was obvious to me that he did not do a fair, open investigation. He had a prejudice right from the start. And the prejudice was that we were wrong. We were guilty and that we all caused the death of Mark Fussell. There was so much evidence that any reasonable person would have not come to that conclusion. So we challenged the citation, forcing us go through -- step by step through the process all the way up to the U.S. Ninth Circuit Court of Appeals in San Francisco.
In the meantime, a group of private lawyers (California District Attorneys Association) had taken MSHA’s information, violations, and with that testimony, led the Grand Jury. That's how we were indicted. So we were arrested. We were fingerprinted, booked, arrested, and came back to get bail, and the judge said that we wouldn't leave the county. So there was no bail; however, the -- so that's the background of it.
The reality of it is that these MSHA citations have some checkmarks. Sometimes they're automatically checked by an inspector without the understanding to know really what they're doing to the degree I believe they should know what they're doing. The damage is great.
For example, negligence: A S & S (serious and substantial) checkmark is a very, very serious charge versus a, "Whoops. We made a mistake and—”

THE COURT: So you -- if I understand you, you put that on the record -- you testified to it and asked Jonathan Farrell questions about it because you want it understood that there can be serious consequences that follow citations and how they're characterized?
THE WITNESS: Your Honor, that's a great summary. And there was one other reason too. I think it was the first day of this hearing. It might have been even before we got to Nevada City. For many people, this would seem like a trivial waste of everyone's time and money, and it never was for me. Today, people really don’t realize the consequences of a lot of their actions. The other thing about our experiences with MSHA that I've learned is that we're (presumed) guilty and -- I'm saying from my past experience that we're presumed guilty of something automatically.
It's not the burden of -- we have to prove our innocence here against something that's harder to do when there's a force that can just get away with making average -- Negligence, for example, is the biggest one, in my mind. Negligence. And then the potential of injury. There's all these things that go into a citation.
The point of it is, is that you can have a standard in this mining industry that could be violated, but it doesn't meet the other two aspects of being a citation, which is danger to a miner, which is one of the components of the whole process of these regulations. And also, there was another reason. I know how much -- obviously, I didn't know how much it still affects me, but it does, but I knew how much it affected Jonathan. And that's all.


THE COURT: Okay. Thank you.
 By bluejay

01/23/2013  6:00PM

The more laws and restrictions there are, the poorer people become.
– Lao-Tzu
 By Big Al

01/10/2013  10:34PM

Mike, I like your opening statement, Goverment regulators are no longer concerned about saftey, it's about creating revenue through fines, Doug Bonelli's experiance at Ridge Rock proves that. He had a visit from MSHA, everything was ok. then the inspector spotted a loose piece of tin roofing on the generator shed, it was fixed immeadiatly, with the inspector waching, he was still fined 2000.00 by MSHA. Big Al
 By Michael Miller

01/10/2013  3:17PM

By the Judge’s order prior to opening the hearing the respondent was not to bring up the issue of jurisdiction. Respondent behaved. The prepared opening is recorded below on 11/18/2012.


OPENING STATEMENT by Michael Miller
SOL vs. Original Sixteen to One Mine, Inc. 11-16-2012- Volume III

The first thing I'd like to do is acknowledge the administrative law justice's committee in allowing us to meet here in Nevada City. It's approximately an hour from our mine site. The way I first intended to present the respondent’s position was to bring maybe 30 different miners to testify who we are. I realized that it was not necessary. I'll only have two witnesses today. Our plan is to present a view, an image, a realistic image of facts, not speculation, about a very special mine, a very special operation and a very special company. We should be judged as the law and the regulations of MSHA are intended with specific interest, specific recognition of the individual nature of mining, miners, and the mining industry.

We like to look at the act which spawned all of MSHA with a broad brush and Congresses’ intent for regulating the mining industry It takes a broad brush to understand the mining industry. Every mine is different. Every deposit is different, and it's obvious that this is something that needs to be presented to those in the public sector or the government sector or the private sector who choose to judge our industry. With that in mind, respondent will present evidence about every one of these citations, that will contradict the presentation by the petitioner. It will be primarily based upon our experience, background, and training, which are demands placed on inspectors when they come out to inspect a property. This is something that all of us in the mining industry also respect. I've decided not to read any of my other statements. I have other things that I think are relevant, but --

THE COURT: Anything you wish to put on the record about us touring your mine yesterday?

MR. MILLER: There is something that happened yesterday that makes this whole -- it may seem petty that we're gathered here for some hundred dollar citations, but it's not petty at all. I don't think anybody, at least on our end, thinks it's petty. It's very, very important or we wouldn't be here. And something happened yesterday -- no, actually, it happened a little bit on Wednesday about the idea of overcoming a problem in the industry that all judges, all inspectors, all lawyers, all mine operators seem to be facing right now, at least in the western area of the United States: that's the understanding of our business.

And it turned out that an offer was given and accepted for all sides of this particular hearing to go take an hour and dr- -- well, we took hours and drove to Alleghany. We went through the mine and had, from my perspective – I can only speak from my perspective -- it was some of the greatest time to prove a point or to have the chance to get to some resolutions that may affect mining in America.

I would encourage the people that make these decisions to make this a practice, when possible, for people coming outside the area who are professional in their field but not necessarily experienced in mining, which is a special industry with special languages and special everything It is a very dangerous industry that -- those in it understand it. It really is hard to understand if you've never been in a mine. If, in fact, some mine operator in the future requests that the --the hearing officers go to their mine site and it's possible, I would so strongly support that.

And the most interesting thing that I found yesterday was the support from the MSHA people, as well. I mean, we could have all done high fives when we left yesterday or when we talked even Wednesday about the possibility that a judge from Washington and a lawyer from Denver take the time to go up to a little tiny town of about 60 people to spend their time (qualifying that with their supervisors). We were all very, very excited. In fact, when I met this gentleman here sitting next to Mr. Sanders MSHA inspector) this morning the first thing he asked was, "How did it go?"

And I said, "You know, I think it really went well."

It seemed to me that we could probably have saved a lot of time yesterday if we -- if we had a Sixteen to One vision of what mining is really like. So, I encourage mine visits and -- I mean, I not only encourage it, I'll do whatever's necessary to make it an option, when a judge or even one of the either two advocates feels it's important, to at least have a site visit considered. I really do have a lot to say, but I think it's better to probably -- that I think would -- I would like the ears of our federal government to understand. Perhaps this is not the arena to do it in, and it has nothing to do with the admonitions that were given us on the first day of this hearing. It has to do with totally different relevant things, but --

THE COURT: Well, I have to tell you, this is your opportunity. Let me say something before you go on, if you do, which is that the deputy solicitor for the Secretary of Labor, Douglas Sanders, and I went to the mine with you and Mr. Farrell, and it was a tremendous experience. I thank you for having us and hosting us. And you were true to your word. Except for one little slip, which is, "This is the shovel," which was the subject of one of the citations, we did not talk about any of the citations or any prospective issues that may come before the commission.

We talked about the mine. We did not talk about the business at hand in this proceeding, and so I was very pleased about that, and I was very honored that you hosted that tour of your mine. I'm -- you're a very proud operator, and it was my privilege, at least, to have been there. I think Mr. Sanders feels the same way.

MR. SANDERS: I do. And I was also going to say, for the record -- I thanked both of you yesterday, but on the record, I'd like to do so, as well. It was very informative, and I'll be relaying as much of my experience as I can to my colleagues because I think it was very helpful. Thank you very much.

THE COURT: And I know Mr. Farrell used to work for you at the mine, but I think, at the very least, you should hire him back as a tour guide.

MR. MILLER: May I ask him to say his comment for the record, too, so that others may understand his perception? I think -- the one thing I noticed, I noticed a change in my behavior as soon as I got to the mine property. I knew that there was no danger to Your Honor or -- and I wanted to convey that as quickly as possible. We had a little screw-up with all the lights, but a mine is a dangerous place. it's where we go to work, and we know it's dangerous. Over the years, we've created a very, very, very safe environment. So Jonathan, what were your thoughts?


MR. FARRELL: I just want to say that I appreciated the opportunity to bring both of you down
there, and I think that all of us involved have a greater appreciation for what we're talking about. I think the MSHA inspectors also appreciate the fact that you now have a visual of what they deal with in their job, as well. Thanks for coming down there with us. It was an enjoyable day.

THE COURT: Thank you.

MR. SANDERS: Thank you.

MR. MILLER: I'd like to add maybe two thoughts and speak from notes that I've written and edited and rewritten and edited and researched and all of that. Language is all we really have to maintain our social behaviors as Americans. The public has become so used to its distortions that too many people have turned off their abilities to understand. Our local government-elected people in Sierra County who talk about critical thinking and communications. It is a typical -- it is typical and leads to constructive outcomes.

My deceased friend and unusual California-bred lawyer and I spent hours arguing as law-type people argue. He knew the law, its intent, and its practices. I knew the facts and the situations of the cases we fought for. George Gilmore is his name. He reminded me that the game of law is a war of words. Both of us knew ethics of the business and the discussion and the justice we, as Americans, have earned through the deeds and sacrifices of our ancestors. Both of us deeply loved, respected, and grieved over the demise of certain aspects of the legal systems. We pledged to each other and our country to carry forth in the spirit of justice and the integrity of the judicial branch of our government. If this hearing is about the safety of miners in the Alleghany region and specifically, workers at the Sixteen to One, the primary issue is whether the Secretary's inspectors wrote good paper.

Notes from the actual document itself of – of the law and items related to it had two very short interesting quotes. These are not my words. "The committee (Federal Congress) recognizes that effective risk management must be goal oriented and that use of the most practical and efficient means to achieve the goal should always be the guiding regulatory principle. Flexibility and practicality are valuable, provided they are directed to formulating the best available means to achieve the goal and that safety goals and basic safety standards are not compromised in their achievement. The committee also recognizes the expertise of working miners who are very familiar with the conditions of a mine. The act requires that operators allow input from miners in the development of their safety plan and that such input will be considered seriously and thoroughly. Such involvement will help to ensure that safety plans are based on a broad scope of safety information and allow for the development of the most effective and efficient safety plans." Thank you.
THE COURT: Thank you.
 By martin newkom

11/30/2012  1:08PM

I believe Hoover has/had a prominent tower on the Stanford
campus named after him: Hoover
Tower. Also, Hoover and his wife
may have translated the "Agricola"
 By martin newkom

11/30/2012  1:07PM

I believe Hoover has/had a prominent tower on the Stanford
campus named after him: Hoover
Tower. Also, Hoover and his wife
may have translated the "Agricola"
 By Michael Miller

11/19/2012  4:15PM

Judge Bulluck closed the MSHA administration hearing today before noon. Post hearing briefs are limited to 35 pages, doubled spaced, 60 days from the date of receipt of the second party. The Company will file a Freedom of Information Act request to the Federal Mine Safety Health Review Commission (FMSHRC) for a copy of the transcript. Both briefs will be filed simultaneously, which means each brief is the last word. I expect a decision before spring 2013.

We have contested the language and alleged harm to a Sixteen to One miner based on many assumptions in the citations. Good paper has been hard to find from inexperienced inspectors without a background in a mine such as ours. Currently, a serious concern about bad paper (poorly written expressions of negligence, gravity and potential harm to our miners) has hit northern California from not only inspectors with no underground gold mining experience but inspectors with none or little mining experience. The current batch of young men sent here to protect our safety need to be protected by us for their safety as they conduct an inspection in the mine. I am taking steps necessary to purge this unwarranted behavior.

Now some positive and great news: history treats Herbert Hoover in diverse ways. I’ve read a bit about his life. President Hoover began his career as a mining engineer. I think he was graduated from Stanford. He wrote, “The future of nations cannot be frozen . . . cannot be foreseen. If we are going to accomplish anything in our time we must approach our problem in the knowledge that there is nothing rigid or immutable in human affairs. History is the story of growth, decay and change. If no provision, no allowance is made for change by peaceful means, it will come anyway- and with violence.”

Five people made some history in a mining and judicial environment with this administration hearing. We failed to address one of the changes I sought: Does the mining program at the Sixteen to One mine meet the congressional intent of affecting interstate commerce? This question must be laid before another level for review, which I intend to do. This question needs an answer until it can go no farther. What President Hoover wrote fits out times and our industry. More on this subject will be forthcoming as the provisions for peaceful dialog are ascended.
 By Michael Miller

11/18/2012  10:16AM

Below is the opening statement I prepared to present at November 14th’s hearing. If you are looking at this topic for the first time, please scroll down to the first entry and read to the top.
The judge ruled in favor of the Secretary of Labor’s motion, so my preparations became inappropriate. Nevertheless, the issue remains for another day, and I thought those of you following our company should stay current with my attempt to bring clarity to this topic: interstate commerce and the intent of the language in the legislation that originated MSHA and the Code of Federal Regulations. The issue has never been whether MSHA has authority to inspect and write citations. It has; but that authority is qualified and currently the Sixteen to One does not qualify.





Language is all we really have to maintain our social behaviors as Americans. The public has become so use to its distortions that too many people have turned off their abilities to understand. Our local government elected people who talk about “critical thinking and communicating”. It is typical and leads to constructive outcomes. My deceased friend and unusual California bred lawyer and I spent hours arguing (as law type people argue). He knew the law, its intent and its practices. I knew the facts and situations of the cases we fought for. George Gilmore is his name. He reminded me that the game of law is a “war of words.” Both of us knew ethics of the business under discussion and the justice we, as Americans, have earned through the deeds and sacrifices of our ancestors. Both of us deeply loved, respected and grieved over the demise of our legal systems. We pledged to each other and our country to carry forth in the spirit of justice and the integrity of the judicial branch of our government.

If this hearing is about the safety of miners in the Alleghany region and specifically working at the Sixteen, the primary issue is whether the federal agency abbreviated to MSHA (Mine Safety Health Administration) had the lawful authority to enter the private property of Original Sixteen to One Mine, Inc. at the times noticed in this hearing. Respondent does not challenge the United States Constitution or its founders thinking when they referenced the power of Congress relative to commerce in 1776. Nor does it rely on subsequent congressional decisions collectively referred as “the commerce act”. These are not the primary actors in dispute.

Congress has responded to economic and other social behaviors towards commerce over the past 236 years. It exercises its constitutional power. The INTERSTATE COMMERCE ACT is a law passed in 1887, due to a rising concern with the growing power and wealth of corporations, particularly railroads. Revenue, power or greed influenced Congress into action. Sitting here 125 years later and familiar with history, I agree with Congress. An Act that established federal agency Mine Safety & Health Administration (MSHA) was passed in 1977. Sitting here 35 years later and living the mining industry, I agree with Congress. The origin of MSHA was created in Congress and signed into law by the President. It is called An Act: Be it enacted by Senate and House of Representatives of the United States of America in Congress assembled. That this ACT may be cited as the “Federal Mine Safety and Health Act of 1977”.

Sections of An Act define the interactions of commerce, of regulation and of the duty and rights of miners and operators of mines. An Act clearly spells out Congress’s declaration in its Findings and Purpose in Section 2.

Congress also provided us with its intentions in Section 3 as to word definitions. It clearly specifies that language exclusively “for the purpose of this Act, the term ‘commerce’ means trade, traffic, commerce, transportation, or communication among the several States…or between points in the same State but through a point outside thereof.” The language becomes more specific in Section 4: “Each coal or other mine, the products of which enter commerce or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to the provisions of this Act.”

Today, Petitioner has moved away from the intent of Congress, laws established to protect America, the mining industry and “its most precious resource—the miner”. The health and safety of all in Respondent’s mining industry and those who prosper when minerals are extracted suffer from the consequences of these unlawful trespasses and inspections resulting from MSHA’s lack of compliance to An Act plus its own policies and regulations. MSHA has brought forth irrelevant cases in support of its right of inspection at this specific place and specific time. A broad brush approach to An Act is used to imply that the federal government has absolute control over all divisions of mining. This is absurd.

I do not agree with MSHA. When federal documents are read thoughtfully, it is obvious that today the intent of the authorizing Congresses is ignored. Even a careful reading of its case law, (stretched beyond credibility at times to keep power to MSHA) one cannot conclude that Section 4 of An Act established those qualifiers necessary to give regulatory privileges to MSHA. Such requirements to assert economic consequences from Respondents measly little operation as to quality, quantity, relevance between interstate commerce do not exist. There is no supportive evidence. The definitive phrase is “which affect commerce”. That which affects commerce must be considered in executing the right of control over those in the mining industry by MSHA. Unfortunately for Middle America and all US citizens over the age of eighteen, our government has stepped outside the law. If I could make a citizen’s arrest, Original Sixteen to One would arrest MSHA.

For the Respondent, this hearing and issues are not political. They are crucial for its survival. To reach our desired decision (the determination that MSHA lacked the authority at this time and at this place), we ask your Honor to embrace a progressive view of the facts presented by Respondent and the facts not presented by Petitioner. Yes, your decision fits the popular term, “progressive”. The strength to move into the 21st century from an outdated conservative attitude grounded in a farming incident in 1938 requires a liberal understanding: evidence presented, history, contemporary behaviors within and without the underground hard rock mineral extraction industry.
 By Michael Miller

11/08/2012  10:54AM

Below are excerpts (also additional comments) from my filing with the Hon. Jacqueline Bulluck, ALJ with the Federal Mine Safety and Health Review Commission. To understand this topic, please scroll down to the beginning and read forward from the first entry.


LOCATION OF UPCOMING HEARING

MSHA v. Original Sixteen to One Mine, Inc. hearing is scheduled to begin at 9:a.m. on Wednesday, November 14, 2012 through Friday, November 16, 2012 and continues on Monday, November 19, 2012 in Nevada City, California at the Law Library at Superior Court of California, 201 Church Street. The Company is exercising its right to challenge the gravity of potential likelihood of injury, potential effect of injury, significance of injury, negligence and the financial impact of penalties. It has done this over the years when warranted. As written, the accumulated penalties are about $3,000. Numerous inspections over a two plus year span have been combined into this hearing.

Many large mining companies (small ones also) budget money as the preferred way of dealing with MSHA citations. This has encouraged questionable interpretations of those “potentials” listed above. The biggest mining companies hire a full time safety compliance employee. Perhaps they need someone to specifically deal with safety. Our operation is quite different. Our crew has multi-skills of mining, not specialized as is the practice where hundreds of miners work underground. Our crew is not only aware of safety issues but is the first line of defense or action to eliminate hazards THAT COULD INJURE OR KILL THEM. We continue to have smart guys with a good head on their shoulders, not idiots. I say idiots because inspectors must believe that most miners are idiots and too stupid to even walk, talk and work. If you want to see an example of the effects of the dumbing down of America, look at the citations written at the Sixteen to One.

Our crew is well experienced with the specific nuances found at the Sixteen to One. Our management always keeps supplies on hand and always encourages the crew with its slogan, SQUARE: S=safety Q=quality U=you A=accountability R=responsibility E=efficiency. In a non-dangerous business I expect many companies place efficiency first. Not so with underground mining. It is an inherently dangerous business. Once that point is expressed and understood, safety races to the forefront.

MSHA inspectors have little experience in a mine like the Sixteen to One; even those with careers at other mines have difficulties. Today inspectors appearing in Alleghany have little or no experience as underground miners. This hearing is important for several reasons. The press cites the number of citations in articles when an accident occurs. The reader lacks a background to understand the relevance but it sure sounds like management was negligent and cared little for safety. There is no lack of written regulations from federal or state bureaucrats in the mining industry. Our crew members have made the following comment many times over the past twenty years: “MSHA’s attitude towards miner safety will cut down accidents because it continues to eliminate job opportunities for men to be hired and trained. Why not close all the mines. Then the miners will be safe because no one will be working.”

I’m not that cynical. MSHA still has a purpose today. It was definitely created to help the industry’s accident and mortality rate four or more decades ago. It succeeded. Its existence is not the issue. Its execution of the intent of Congress when it created a law and subsequently funded it with public money is the issue. If specious citations are not challenged, the small fries in natural resource extraction industries may become extinct. They are miners, loggers fishermen and farmers. If our American leaders want to eliminate the little guy, our natural resource industries will become large multinational corporations. It’s worth a little fight to stop or slow down this trend.
 By Michael Miller

10/25/2012  12:08PM

STATEMENT OF MATERIAL FACTS IN REFUTATION OF SECRETARY OF LABOR’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND STATEMENT OF MATERIAL FACTS IN SUPPORT OF OPERATOR’S POSITION

Of course the Congress is empowered to regulate commerce with foreign nations, and among the several states, and with the Indian tribes as presented in Article 1, Section 8(3). In 1977 Congress enacted by the Senate and House of Representatives of the United States of America An Act, Federal Mine Safety & Health Act of 1977, Public Law 91-173, as amended by Public Law 95-164.

For the purposes of this Act, Congress identified the Secretary of Labor or his delegate to conduct the implementation of the findings and purpose of An Act. The first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner. For the purpose of this Act, the term “commerce” means trade, traffic, commerce, transportation, or communication among the several states, or between a place in a State and any place outside thereof, or within the District of Columbia or a possession of the United States, or between points in the same State but through a [point outside.


Mines subject to An Act is defined. If the intent of Congress were all mines in the United States shall be subject to An Act, there would be no reason to include specific language in An Act to restrict a generalization that all mines at all times are subject to An Act. Congress wisely was specific: Each coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to the provisions of this Act. For Petitioner to allege that “there are no material factual issues to be resolved on this specific legal issue of whether the Secretary had jurisdiction under the Mine Act to issue ten of citations currently in contest” is absurd, self-serving in an attempt to expand its authority, arrogant, against intentions of Congress, not in the Publics’ best interest and not in the best interest of miners, which An Act professes to protect.

The burden of proof that no issues of fact apply in the case before you rests with Petitioner. Petitioner must present evidence that the following occurred at the times of its inspections: products were being mined; those products entered “commerce”; either the operation or products affected commerce for the operator and every miner was subjected to the provisions of this Act. Petitioner has failed to present such evidence. Respondent objects to all, if any, evidence presented by Petitioner alleged to support these conditions cited in An Act.


BACKGROUND

The Original Sixteen to One Mine, Inc. is the oldest mining corporation (incorporated in California) still in existence in the United States. The mine located in 1896 and its owner, established on October 11, 1911, is one of 500 public American corporations over 100 years old. The mine site has been worked for the production of gold since 1853. Due to vagaries of economics, commerce, laws, but predominately its unique gold deposit and other known and unknown uncertainties, its operation is considered as feast/famine, very irregular and speculative.

In 2008 the operator faced serious financial consequences, forcing it to lay off its crew and cease mining. Up to this time questions regarding whether the commerce clause referred to by Petitioner applied to this specific property and operation remained is the recesses of the mind. Due to the unwanted and dramatic situation, operator found it was required to do, as owner of the property of many people, the preservation of its assets that became its only goal

DISCUSSION

Summary judgment is only appropriate if the moving party has demonstrated that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Stated differently, if a single material fact is in dispute, the motion must be denied.” From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co (2001) 25 Cal. 4th 826, 850.


CONCLUSION

For the reasons set forth above and explained in greater detail in papers filed with the Secretary, operator, Original Sixteen to One Mine, Inc., respectfully requests the Court to deny Petitioner’s motion for summary judgment. Petitioner has not met its burden of showing that undisputed facts support each required element of its cause of action and Petitioner is not entitled to entry of judgment as a matter of law. To the contrary, Petitioner’s attempt to have the Court extinguish its right of due process, to operate under the intent of Congress as expressed in An Act constitutes violations of the operator’s rights, the mine’s rights and most importantly the miners’ rights guaranteed in An Act, the California and U.S. Constitution.

Petitioner continues to misrepresent the legal issue before the Court. It is not as he argues. It is not whether MSHA is to be tossed aside. It is about whether a small mine (once very active and likely affecting interstate commerce), that has reduced its operation to basic survival created an economic flow of money or influence over trade of mutual states. It has not by every degree of financial analysis. Petitioner has not presented any facts to support those cases he cites in his arguments. He speculates about gold entering the federal or local markets. Even then he misinforms the Court by advocating any unknown sale is from recent production not inventory from decades ago.

Wickard v. Filburn (1942) does not resemble Original Sixteen to One Mine, Inc. Gonzales v. Raich (2005) deals with cultivated marijuana and its use for personal consumption stretched to the argument that the grower would not be buying pot because he could grow it himself. Original sixteen to One Mine, has produced gold. It does not use gold, hoard gold or speculate in gold as a business.

U.S. v. Dye Construction Co (1975) is used by Petitioner to argue that “Sixteen to One falls squarely within the ambit of interstate commerce.” His facts are false. If the boundary of affecting interstate commerce is revenue of less than a dollar to AT&T 2011, then one of his “facts” deserve a hearing. Operating revenue of AT&T for 2011 was $126,723,000. Operator contributed less than one dollar. Citizen Bank cited by Petitioner as evidence of interstate commerce is in Rhode Island. Our Citizen Bank headquarters is in Nevada City, California. All seven of its offices are in Northern California.



Petitioner’s “fact” are mere speculations. He writes of what ifs or potentials not what has or realities. His closing idea of support is that respondent’s position “is solely based on a misinterpretation of a basic and long standing constitutional concept.” He would prefer that the Court look at operator as unable to understand his professional industry and the flow and ebb of legal discourse. Simply put, the issue of whether a “mine’s activities affect interstate commerce is not novel”. It is broader than those words expressed by a solicitor on behalf of the United States federal governments. “Nothing” proves that the times do change and change can be beneficial to miners and the American public. “Nothing” proves that the Secretary is out of step with the intent, language and enforcement of MSHA regulations as it applies to affecting interstate commerce as the recent Supreme Court Decision upholding the Patient Protection and Affordable Care Act by rejecting that this billion dollar legislation was constitutional under Congress’ power “to regulate commerce…among the several states”.


As Chief Justice of the Supreme Court John G. Roberts, Jr. wrote:

“The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them....”

Operator, Original Sixteen to One Mine, Inc. is doing nothing to affect commerce at the relevant times of this issue before the Court.
 By bluejay

10/25/2012  12:40AM

Absolute power is a dangerous thing. Did anyone see the movie "V For Vendetta?"

The quoted marijuana case is interesting when more and more States now legalizing the weed. The past local Indian civilizations use to grow it and smoke it and they had no problems until the whiteman showed up.

I would bet that the States have or should have the right to govern their own citizens in a sensible manner. You can not throw a rule book meant for major corporations at small local business owners. All I know is the Sheriff has, regardless of who says what, more authority than MSHA.

The obvious overstepping of the Commerce Act is stepping on State's rights. I

"Squeeze The People."

Somewhere along in time the regulators will reduce us all to poverty levels where we won't be able to pay our mortgages like some unfortunate folks at the closed down operations already know about.

The past Chairman of the FED, Alan Greenspan, gave the banks certain rights to govern themelves and they messed up and we were forced to bail them out. Why can't we regulate ourselves and if we mess up, then the public can make any potential messes whole again like the get-out-of-jail cards that were given to the big banks?

Why do we need the duplication of expenses from regulatory agencies, especially one that sits 3000 miles from our operation in Alleghany? Mike, the next time MSHA comes up to the Mine just call the Sheriff and ask for patrol car ahead of time to enforce our no trespassing signs.

We already have enough difficulty to handle from the State. Having a mix of another body of fingermen knit-picking our area to death could eventually put the whole County out of work. Enough is enough!!!!!
 By Michael Miller

10/24/2012  5:26PM

INTERSTATE COMMERCE ACT is a law passed in 1887due to a rising concern with the growing power and wealth of corporations, particularly railroads. Revenue, power or greed influenced Congress into action. Sitting here 125 years later and familiar with history, I agree with Congress. An Act that established federal agency Mine Safety & Health Administration (MSHA) was passed in 1977. Sitting here 35 years later and living the mining industry, I agree with Congress.

Two section of An Act define commerce and today is used to imply that the federal government has absolute control over all divisions of mining. I do not agree with MSHA. When federal documents are read thoughtfully it is obvious that today the intent of the authorizing Congresses is ignored. Even a careful reading of case law (stretched beyond credibility at times to keep power to MSHA) Section 4 of An Act established qualifiers in order to give regulatory privileges to MSHA. The phrase is “which affect commerce”. That which affects commerce must be considered in executing the right of control over those in the mining industry. Unfortunately for Middle America and all US citizens over the age of eighteen our government has stepped outside the law. If I could make a citizen’s arrest, Original Sixteen to One would arrest MSHA.

A hearing is scheduled in November to address the issue of jurisdiction. MSHA filed a motion for summary judgment on commerce and its applicability to the operation of Sixteen to One in 2011, when MSHA inspected its property.

This very important topic is yours for the reading. Survival as the small miner has known it for 140 years is at risk… more on that in future entries. Five small mining operations have been shut down recently by MSHA inspectors in our region. None of them affected interstate commerce. All the guys were put out of work. We were attacked with unprecedented regulatory incompetence from March to last week. Our crew worked through the situation but the behavior remains a threat to America and the rights of Americans.

Federal lawyers based in San Francisco initiated the action. The administrative judge is based in Washington DC. Later the case was transferred to Denver to a lawyer who I grew to respect. All of us are just doing our job. A few are just blinded by conservative power: what was in place and needed over a century ago must be kept relevant. Below are emails a gentleman lawyer named Doug and I exchanged. Comments welcomed and more on this subject will come.

FROM MMM on May 25, 2012:

Doug,
Docket 2012-516M has one citation. The inspector's language is not correct; however it is not a big issue. The elephant in the room is spelled out in my response and is a big issue: commerce and the authority for the federal government to invoke commerce as the justification for inspecting the Sixteen to One mine at the point in time of the inspection. The person that handles MSHA citations is on vacation. I will look more to find the second case you have with the Sixteen to One mine. At some point the elephant must have its judicial right of objection heard through the administrative and judicial system or all citations issued when the Sixteen to One did not meet the actual requirement for MSHA to inspect are withdrawn.

My preference should be obvious. MMM


FROM Doug on May 25, 2012:

I understand your objections, and if you choose to argue them in trial, that of course is your decision to make. I am confident that we have jurisdiction, but I will leave it to a judge to make that determination.
As far as settlement goes, if you decide that these cases are not going to be the jurisdictional test cases, I will entertain any offers of settlement that you are willing to make. Thank you.

From MM on May 25, 2012:

Why don't you tell me why you MSHA is confident that it has jurisdiction over the Sixteen to One mine on December 13, 2011? I will appreciate MSHA's opinion and may believe it is correct. I have read numerous cases set to me by the solicitor based in San Francisco and found none of them to remotely relate to the operation in Alleghany.

FROM Doug on June 19, 2012

Dear Mr. Miller,

I just wanted to follow up on the below email concerning MSHA’s jurisdiction over Original Sixteen to One, and get your thoughts on where we stand on resolving both WEST 2012-516M and WEST 2011-1239M. I am still hopeful that we can resolve these relatively small dockets without too much hassle. Thank you for your consideration.

Dear Mr. Miller,

I attempt below to provide you with adequate case law and analysis as to why Sixteen to One falls under MSHA’s jurisdiction. Regardless, I invite you to put both of these dockets to bed by making an offer of settlement.

Section 4 of the Federal Mine Safety and Health Act unambiguously evidences Congress’ intent to regulate mines to the full extent of its power under the Commerce Clause. D.A.S. Sand & Gravel, Inc. v. Chao, 386 F.3d 460, 463 (2d Cir.2004), cert. denied, 544 U.S. 1048, 125 S.Ct. 2294, 161 L.Ed.2d 1088 (2005). The Commerce Clause grants Congress power to “regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (citing Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942)) (finding that Congress properly penalizes noncommercial cultivation and possession of marijuana for personal medical purposes); see also D.A.S., 386 F.3d at 463-64 (finding that the Supreme Court has “long held” that Congress may regulate the “activities of an economic actor whose products do not themselves enter interstate commerce, where the activities of such local actors taken together have the potential to affect an interstate market ...”).

Courts have routinely held that mines with entirely local sales affect interstate commerce and fall within Congress’s Commerce power. See, e.g., D.A.S., 386 F.3d at 464 (Commerce Clause grants Congress authority to regulate the sand and gravel company that sold product only intrastate through the Mine Act); U.S. v. Lake, 985 F.2d 265, 269 (6th Cir.1993) (small coal mine with entirely local sales and locally-bought equipment found to affect interstate commerce because small efforts combined with others could influence interstate coal pricing and demand).
Here, the Secretary expects that it will be able to offer evidence that Sixteen to One’s product is taken offsite and delivered to customers. You have stated that you produce product for a local market. It does not have to be known how and where your customers use the product. However, because Sixteen to One sells product to customers, even if entirely to local customers, your product could influence an interstate market that Congress properly regulates. Additionally, Sixteen to One likely purchases fuel for its equipment, as well as parts for its equipment, which are manufactured and produced outside of the State of California. We believe that Sixteen to One is subject to the jurisdiction of MSHA and is properly regulated by the Commerce Clause.
Please let me know if you still dispute the jurisdiction issue. If so, I will be issuing extensive discovery demands upon Sixteen to One to show that it is properly regulated under the Mine Act.
Thank you.


From MMM on June 26, 2012:

Doug,
The way to resolve these citations is for MSHA to dismiss them. While they appear to be small, they represent a significant interference to our small operation. MSHA has no authority to inspect the current operation. Our goal is to get financially healthy, increase the operation and then evaluate whether our operation is affecting interstate commerce. If it does, which is our desired outcome, the issue of inspection is over. MMM


FROM Doug on June 26, 2012:

Dear Mr. Miller,
Thank you for your quick response. Although I appreciate where you are coming from, I must level with you. First, I am not in the position to dismiss these citations, unless you can provide me with some legal backup for your position – I can’t just take your opinion to my client and expect anything in the way of progress. I can, however, take a legal authority that you can cite to me and take it to my client in the hopes of dismissal.
Second, the law is not only somewhat clear, but crystal clear that pretty much any mine, coal, metal/nonmetal, surface, underground, large, small, northern, southern, publicly traded, privately owned, etc…is subject to the interstate commerce clause. That’s not my opinion, or my argument, or even my personal political belief – it is the law. The interstate commerce clause applies to entities which are part of the “chain of commerce” such that even if you don’t sell to clients outside of California, those clients deal with out-of-state vendors and customers, and the parts that you purchase are manufactured by out-of-state (and probably, out-of-country) companies. I invite you to look again at the law I cited to you in my email dated May 29, 2012.
Should you choose not to engage in settlement discussions, that is of course your option, and I do respect your resolve. However, there is simply no possibility that I can dismiss these citations, and we will go to trial, which by necessity will be more costly and time-consuming than the $100 (WEST 2012-516-M) and $1,024 (WEST 2011-1239-M) dockets at issue.
Thank you, Doug Sanders


From MMM on June 26, 2012:

Dear Doug,
My choice to start the administrative process for the determination of this long standing issue occurred a long time ago. Therefore, you can decide if this will be the jurisdictional test case. You client is the advocate and leading edge of the cases before you. Check with your client because if this is the position of the United States Secretary of Labor, let no one claim later that he or she was unaware of the concerns of a small mining operation that has been overly regulated into the point of bankruptcy because it is affecting interstate commerce.
It causes me concern that you, a deputy attorney for a federal agency, has come to such an inequitable position without knowing the "on-the-ground" situation in Alleghany, California that is operated by Original Sixteen to One Mine. Convince me that the legislative intent in commerce passed legislation applies to Original Sixteen to One Mine, Inc. and I will extinguish its opinion that is has been attacked without merit with adequate evidence to convince the board of directors. MMM

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