February 21, 2018 
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Two-headed Front

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 By karld

02/09/2018  4:39PM

I think the water / arsenic issue is still there...
 By karld

02/09/2018  4:38PM

Good news! Are there any other legal issues that our company is involved in?
 By Michael Miller

01/31/2018  4:24PM

Below is news, important news. If you appreciate gold mining, natural resource production or the Sixteen to One crowd, you will be pleased. If the topic seems strange, unimportant or unfamiliar, give it a try to absorb its meaning and significance.


A federal Mine Safety Health Administration (MSHA) hearing was held commencing
August 9, 2017, in Nevada City. There were two dockets. The first docket had two citations and is currently under a briefing schedule by the Mine and Secretary of Labor. The second had nine citations and two orders to litigate. The meeting was conducted by William B. Moran, an administration law judge (ALJ) based in Washington D.C. Today I received a DISMISSAL ORDER from Judge Moran with prejudice.

A 100% dismissal is a rare admission by the Secretary of Labor (MSHA) and the equivalent of a cancellation. All alleged wrong doings by the Sixteen to One miners and operator just disappeared as if they never occurred. The judge wrote “with prejudice” as an adjudication upon the merits and operates as a bar to future action. Another choice for the judge is a Dismissal without Prejudice. This usually means an indication that the dismissal affects no right or remedy of the parties (ours and MSHA). The decision is not on the merits and does not bar a subsequent suit on the same citations. You probably think I am elated with this news. Yes and no. Please read on.

The order dismissing our proceedings listed one old case (Lehigh Cement) considered by the ALJ that he heard in 2010. MSHA exhibited unusual behavior with Lehigh and Original Sixteen to One Min Inc. The joint motion9 MSHA & Lehigh) describes a “proposed settlement motion” for the citations as “vacated.” The joint motion was a peculiar submission in that it recites the penalty criteria then MSHA agrees to vacate [the two citations]. The Joint Motion concludes that “approval of this settlement is in the public interest and will further the intent and purpose of the [Mine Act]. This action by MSHA or more likely its lawyers caused me great wonderment.

The decision continues, “Normally, a settlement motion arises in the context of the parties’ negotiation of the particular citations listed, and more often than not, at least some of the citations are settled for an amount which is less than the penalty sums originally proposed. Where all of the citations in a given docket are vacated, as in this instance, the description of the result as a “settlement motion” seems inapt. Here, the Joint Motion seeks dismissal of the petition for the assessment of civil penalty. The question is whether a motion seeking a judge’s approval to dismiss a matter should be denominated as a “settlement.”

I not only agree with the ALJ, but what are the merits/reasons for MSHA to vacate all our citations? It wasn’t a settlement for no input given by operator? It must be somethings testified to under oath in the August hearing. But what are they?

An ALJ explained to me that the federal review commission has the right and responsibility to protect miners, operators and the public, who pay for all this regulation. What if MSHA and an unscrupulous mine operator conspired to reduce citations for the benefit of both parties? Shouldn’t the instances of this matter be recorded in a public hearing? These are good questions. For now, I can only surmise the reason all citations in this docket vanished, which I will later.

Case Law:
Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985), held that the Secretary has the authority to vacate citations and that such actions are not review able. In Cuyahoga the Supreme Court noted the distinct roles of the Commission and Secretary of Labor as adjudicator and prosecutor, respectively, and that Congress did not intend a commingling of those roles. In this 2010 hearing the ALJ concluded: “ As at least the title, if not the substance, of the Joint Motion is to dismiss the petition for the assessment of the civil penalty in this docket, and as such action does not require Commission approval, the proceeding has become moot and therefore this matter is DISMISSED, with prejudice.”


What were the merits of our August, 2017, hearing in Nevada City? It wasn’t a joint settlement because Sixteen to One was not a part of any settlement. It wasn’t even a settlement; however it was an admission by MSHA of something legally wrong. Nine citations have nine different standards for compliance. How could an inspector be wrong on nine citations in one inspection?

My experiences with inspectors actually predate the formation of MSHA. I enjoyed many conversations about every aspect of mining with inspectors. They felt comfortable telling me their stories as well. Years ago mine inspectors held onto the ability to judge a situation according to the specific things he saw, his strong background in the industry, his belief in what his role was and the standards established by Congress. Not so today. Very few situations are universally alike; however, the root of these standards is the health and safety of miners. But ones judgement does not come solely from books. What happened here? Were all citations written improperly? Doubtful. Without going crazy with wild speculations the conclusion most likely centers on the inspector.

Here it is. AN ACT, passed in the US Congress in 1977, has a Section 505: INSPECTORS; QUALIFICATIONS; TRAINING. It says, “Persons appointed as authorized representatives of the Secretary shall be qualified by practical experience in mining or by experience as a practical mining engineer or by education.” The inspector who wrote the nine citations and two orders had never worked in a mine. He was not a mining engineer nor did he have the formal education to meet this qualification. This language was specifically written by US Senators, Congressmen and other government and mining executives to insure the safety of those in the natural resources extraction industry. This industry was recognized in the law as a foundation for all other industries. Our government and private sectors knew this important fact.

The August 2017 hearing was more about the future than for monetary penalties. I want you to know what goes on in the trenches in my industry. Thank you for taking the time to learn. My conclusion is: someone, somewhere realized that the shadowy enforcement by unqualified inspectors cannot be continued. This inspector (and I suspect others as well) did not meet the legal requirement to issue citations and extract penalties from the Sixteen to One mine in Alleghany, California. Whoever you were, thank you, all of you. Keep up the good work towards responsible enforcement of important regulations.


Whew!! Glad this obscure subject is over and I hope you stuck it out to read. Truth like gold lies at the bottom.

...

 

  
 
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