August 9, 2022 

International California Mining Journal: Original Sixteen to One Goes to Court - Challenges MSHA Citations Part II

In the April 2001 issue of ICMJ, we published the opening statement of Michael Miller, President of Original Sixteen to One, in his administrative challenge of MSHA citations.


The hearing was concluded on April 3, and the judge has asked for written summaries from both parties. It will likely be another 2 or 3 months until a decision is made by the court, and we will provide you with the decision when it is finalized. Following is Michael Miller's closing statement...


I would like to refer back to my opening statement and reiterate that time will be the judge of how well we have presented our case here. The operator asks that the evidence and testimony presented in this hearing be reviewed in real-world terms, not in terms of the speculative world into which MSHA has chosen to move over the past four to eight years. We have seen that a bevy of fresh graduates from the academy left MSHA headquarters on a search and destroy mission to the Sixteen to One Mine. Does this behavior conform to the law?... The Act?... the intent of Congress or the regulations stemming from the law? Federal agents became policemen, issuing citations while the men in the back rooms intensified their levying of fines.


At the conception of our current legal system, all five judicial roles - investigator, prosecutor, judge, juror, and appellate tribunal - were deliberately assigned to separate entities. Through this dispersal of authority, no single entity is able to establish complete hegemony; instead, each serves as a check on the judgement and power exercised by the others. Executive federal agencies, however, use the process of administrative law, and need not observe the dispersal of authority. Thus MSHA, through authority granted by federal law, has emerged to serve as investigator, prosecutor, judge, jury and first appeals court. Furthermore, it serves as the complainant, itself filing charges against mining operators.


Our issues are not with the usefulness or legality of the administrative process. Even after three days of hearings, I have no issues with the chairman and judge of the hearing. Our issues are with this particular agency and its agents. As a citizen raised to appreciate the separation of judicial functions and the rights protected by this separation, I struggle with the apparent injustice and unconstitutionality of the manner in which MSHA exercises its powers under administrative law.


The most bothersome of these injustices is that there is little in the administrative process protecting a mine operator when MSHA makes an arbitrary decision to prosecute. This results in great expense for the operator. I am not speaking here of the many agents and MSHA employees who unselfishly provide genuine professional service in support of the mining industry. I am speaking of cases where decisions are made by people of insufficient expertise, or who are unwilling to consider different points of view regarding intent, reason and interpretation.


In reflecting on agents Bruce Allard and Curt Petty, what they lacked in 1999, when they entered the Sixteen to One Mine and began their onslaught of citations, was reason. Reason, as it exists in man, is our intellectual eye, which like the physical eye requires light in order to see. To see clearly and far, reason needs the light of intellectual firmament - discernment seasoned by experience. These men were too inexperienced, too green to apply the reason bred of experience to a unique and complex mining operation like the Sixteen to One.


They were unwilling to consider that the operator has over ninety years of experience at this mine, experience handed down in writing, by oral tradition, and by practice. At the time these citations were issued, the management was comprised of individuals whose collective mining experience totaled nearly 100 years. Evidence presented over these three days of testimony has demonstrated that this experience is crucial to accurately assessing the Sixteen to One operation, and has created more than a reasonable doubt about the validity of Petty and Allard's perceptions and accusations.


Mr. Allard, in a knowingly felonious manner, entered the Siteen to One Mine. Mr Petty did also, but to a significantly lesser degree. MSHA frequently makes accusations regarding knowing and willful negligence. But what else can we call the actions of these agents and their superiors? MSHA should spend some time in front of a mirror.


The agency's representative and especially its chief administrators have the responsibility to administer the law and regulations in a reasonable manner. Administrative law is only viable when exercised by men of reason and mature, experienced judgement. That is why we subpoenaed MSHA management from J. Davitt McAteer at the top, on down. It is unfortunate that we could not bring them all into this hearing as participants.


As long as regulators and mining exist, there well be disputes about rights and wrongs. If no operator objected or no miners rebelled, unsubstantiated wrongful accusations would last forever. How else can change take place? It does not take a majority to make a rebellion; it only takes a few determined leaders and a sound cause. We have presented our defense here. MSHA has failed to justify its allegations.


For the freedom of our citizenry, Americans need a productive mining industry. It is undeniable that our industry is in decline. Perhaps the wisdon of moving the industry off-shore will be widely acclaimed someday. Or perhaps the demise of mining will be widely mourned and regretted someday.


I am uncertain whether during an administrative hearing the judge is bound by the highest laws of the land or by the acts of Congress, by the regulations of the MSHA agency itself, or the Department of Labor. Nonetheless, Your Honor, during this hearing I have grown to trust your background, experience and training to administer the laws under whose guise these false accusations of violations and wrong-doings have been spawned.


The operator is asking a lot of you, Your Honor. As one of its employees and co-workers of underground miners, on behalf of our owners and employees I ask that you judge the real situations and facts - the evidence represented in this hearing - as if you were an underground gold miner at the Sixteen to One Mine. I know that what I ask is difficult; you have never been in the mine, but you have witnessed testimony from those who work there every day, the mine's most precious resource, its miners. They are the ones whom we are here to protect and defend.


Thank you.


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