November 21, 2017 
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INTERSTATE COMMERCE AND SMALL MINES

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 By Michael Miller

08/19/2017  12:53PM

On May 30, 2017, Sixteen to One attorney contacted the government’s attorneys regarding our long time action for redress to adjust and balance a section of Congress’s law: which mine operations fall under the 1977 Mine Act. Congress place a size and economy qualifier to protect startups and small mines. Although our case is technically flawless and was accepted by the Ninth Circuit Court of Appeals in San Francisco for review, he suggested 16/1 would consider a voluntary dismissal with each party to bear its own costs and fees. The attorneys for MSHA and the Secretary of Labor agreed and a stipulated motion for voluntary dismissal and granted by the Ninth Circuit on June 6, 2017. The illegality surrounding Section 4 of the Mine Act is an important subject for all miners. The Ninth Circuit is often characterized as an outlier court that is frequently reversed by the Supreme Court. Perhaps it would understand this issue and (as outlier) rule for 16/1; however a court review must wait for another time.

The Company has given careful consideration to this issue. The time arrived to move MSHA into accountability in the 21st century regarding the law. Plumbago presented overwhelming facts that the Plumbago did not meet the intent of Congress in passing An Act in 1977. It did not affect interstate commerce! A Court challenge, however, must wait due to the Utah prairie dog.

Yes, the Utah prairie dog heavily influenced our decision. The Tenth Circuit (Denver) on March 29, 2017 affirmed an Endangered Species Act (“ESA”) challenge that the intrastate Utah prairie dog required protection because “Interstate travelers stimulate interstate commerce through recreational observation and scientific study of endangered or threatened species. This decision added fuel to a burning California issue of the delta smelt, which the Ninth Circuit reasoned affected interstate commerce ((2014). The commerce law now protects a dog.

The Tenth Circuit expressly approved the Ninth Circuit’s reasoning in the delta smelt case, and similarly found the ESA had a substantial relation to interstate commerce even if the prairie dog itself did not. “[W] conclude that Congress had a rational basis to believe that providing for the regulation of take of purely intrastate species like the Utah prairie dog is essential to ESA’s comprehensive regulatory schemes.” The Tenth Circuit ultimately therefore found that federal regulation of the purely intrastate prairie dog was within the federal power under the Commerce Clause. Nonsense.

The prairie dog case is recent and may lead to a request for review with the Supreme Court by local property owners whose use of their private property was diminished. Seeking review by the U.S. Supreme Court is always a time-consuming and expensive proposition, particularly since it requires 16/1 to go through the Ninth Circuit appellate process. The Company sees no chance of prevailing at the Ninth Circuit level of appeals due to judicial affirmation of travelers admiring the Utah prairie dog over property rights of Utah residents. Woof, woof or bow wow or whatever barks a prairie dog makes, you won. One justification in Court’s judgement was that travelers driving through Utah may be coming because they want to see the dog and if the dogs were not protected, there may be fewer travelers. Sigh.
 By fredmcain

02/13/2017  4:15AM

Mike,

Is there any hope that the new president might relax some of these laws and regulations? I know they have talked about doing that with coal but I don't know about hard rock mining.


Regards,
Fred M. Cain
 By Michael Miller

02/11/2017  2:05PM

California has two Red Ledge mines. One is near the town called Washington east of Nevada City and the other is down Foots Crossing Road from Alleghany. Neither has operated for some time. I may have written this before but I’ll repeat. Just in the Alleghany Mining district, I know of five operations that could not start a mine operation due to MSHA. I have heard exact comments from others in western USA. This is why our elected and appointed representatives, be they in Congress or the Executive Branch, must enforce the 1977 law that gave birth to MSHA. In clear language it identifies those mines that affect interstate commerce will be subject to this law. For the lawyers and MSHA executives to continue advocating this falsehood is criminal. They should be disbarred or replaced and held financially accountable or arrested and tried in the courts.

America must have a strong natural resource industrial base. If anyone doubts this reality, go read why Japan bombed Pearl Harbor on December 7, 1941. Go read how Japan invaded China and the Philippines in the 1930’s. Go read about “petrodollars”. Go read about the British Empire’s relationship with India and Burma.

Let us spread the word: all regulations are not bad, some are just factually and legally wrongly applicable and enforced. “Truth like gold lies at the bottom.”

...

 

  
 
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