Secretary of Labor v. Cactus Canyon Quarries, Inc.

Plain-English summary

Cactus Canyon challenged MSHA's authority over its Fairland Plant, a surface facility that washes, sorts, crushes, sizes, and roasts stone for terrazzo flooring. The Commission held that those activities constitute milling, so the facility is a mine under the Mine Act even though most stone is extracted elsewhere. It also found that the plant's sales affect commerce and rejected the company's claim that OSHA, rather than MSHA, had jurisdiction. The Commission further held that the ALJ adequately explained his refusal to recuse and that his active case management, adverse rulings, and references to related litigation did not show impermissible bias. It affirmed the Judge's mixed disposition of ten citations, which vacated four, affirmed three as issued, and modified three.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(h)(1)(C) and 803
• Outcome: The Judge's mixed disposition of ten citations and denial of recusal were affirmed.
• Key point: Crushing, sizing, and roasting stone are milling activities that bring a standalone processing facility within Mine Act jurisdiction.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
CACTUS CANYON QUARRIES INC., Respondent |
|
|
Docket Nos. CENT 2023-0045
CENT 2023-0046
CENT 2023-0047
CENT 2023-0048
CENT 2023-0049
CENT 2023-0050
CENT 2023-0051
CENT 2023-0052
CENT 2023-0053
CENT 2023-0054
CENT 2023-0089 |

BEFORE: Rajkovich, Chair; Jordan, Baker and Marvit, Commissioners

DECISION

BY THE COMMISSION:

These matters, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act” or “the Act”), concern a question of Mine Act jurisdiction and a request for recusal regarding the presiding Commission Administrative Law Judge.

The case involves the Fairland Plant,
operated by Cactus Canyon Quarries, Inc. (“Cactus Canyon”), which is a surface
facility that prepares stone for use in Terrazzo flooring.[1]
During an inspection of the plant, an inspector with the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) issued Cactus Canyon ten
citations. Cactus Canyon argued below that MSHA lacked jurisdiction to issue
the citations because the plant is not a “mine” subject to the Act.

The Judge concluded that the Fairland
Plant is a “mine,” the products of which “affect commerce,” and is therefore
subject to the provisions of the Act. 46 FMSHRC 710, 730 (Aug. 2024) (ALJ)
(citing 30 U.S.C. §§ 802(h)(1), 803). He determined that the sale of stone
processed at the plant affects commerce; that the crushing, sizing, and
roasting activities occurring at the plant fall within the definition of
“milling;” and that a facility engaged in milling qualifies as a mine
irrespective of its proximity to an extraction site. Id. at 727, 730.

The Judge also ruled on the merits of all
ten citations involved in the case – vacating four citations, affirming three
citations as issued, modifying one citation to lower the assessed gravity, and
modifying two citations to raise their negligence level and penalty amounts (and
lowering the assessed gravity for one of the two). Id. at 736-69.

Finally, the Judge denied Cactus Canyon’s
motion for the Judge to withdraw from this case due to his alleged personal
bias and other disqualifications. The Judge found
that “the [operator’s] affidavit evidence in support of the request and the
statements and actions cited by Cactus Canyon do not provide sufficient
evidence of antagonism, bias, or prejudice so as to warrant the [Judge’s] recusal.”
Id. at 770.[2]

For the reasons below, we affirm the Judge’s decision.

I.

Factual and Procedural
Background

A.
Factual
Background

Cactus Canyon operates the Fairland Plant,
a surface facility in Burnet County, Texas.

It prepares stone to be used in terrazzo floors. The
plant does not currently undertake any extraction of stone (or any other
materials) onsite, nor does any extraction occur adjacent to the plant. The
operator does, however, rely on 10 to 15 percent of its sales from dimensional
stone extracted from one of its leased, intermittent pits that send the
material to the plant. Otherwise, the stone arrives
at the Fairland Plant by truck or rail from sources in Mexico and other
locations. The material that the plant receives is partially processed
dimensional stone. 46 FMSHRC at 717-18, 726-27; Tr. 147, 557-59, 591, 610,
737-38.

Upon arrival, the stone is washed and sorted to remove any “contaminant or wrong-colored stone.” 46 FMSHRC at 726; Tr. 568 (direct examination of Andy Carson, president and head of operations for Cactus Canyon). Then it is crushed, sized, and roasted. 46 FMSHRC at 719; Tr. 63, 565-66, 570-71, 601-02.

Specifically, the MSHA inspector observed crushers and screens used for sizing rock. The rock passes through the machinery multiple times until it reaches the desired size. Carson acknowledged that the Fairland Plant uses crushers and screens for sizing rock to produce three sizes of stone for terrazzo flooring: three-eighths, one-eighth, and one-sixteenth inches. Stone may be run through the machines five or six times in the process of crushing and sizing the rock. During this process, some amount of the stone is rejected as too small for use in terrazzo stone and is used either in the construction of Cactus Canyon’s roadways or for sale in a secondary, less profitable market. The small pieces of stone that are deemed acceptable are sold to terrazzo installers to be used in the terrazzo flooring. 46 FMSHRC at 717, 726, 732; Tr. 563, 570-71, 574, 663-64.

During the inspection, MSHA issued the ten citations for various hazardous conditions – none of which are at issue individually on appeal. 46 FMSHRC at 711. In short, as it relates to the merits of the case, the operator only appealed the jurisdictional question.

B. Procedural History

The ten contest dockets and the related civil penalty proceeding were assigned to the Judge on January 13, 2023.

On
January 24, 2023, Cactus Canyon filed a Motion for Summary Decision seeking
dismissal of five citations issued at the Clendennen Ranch[3] on jurisdictional grounds, arguing
that the intermittent mine lacked a valid mine identification number and that
the Secretary failed to establish that it was part of the Fairland Plant and
Quarries. In a written order dated March 13, 2023, the Judge denied summary
decision, finding that the Commission lacked jurisdiction to review MSHA’s mine
identification practices and that genuine issues of material fact existed
regarding ongoing mining activity and the validity of the citations.

Thereafter, Cactus Canyon
filed additional motions, including a supplemental reply, a second motion for
summary decision, and a motion to reconsider, all of which were denied during a
prehearing conference held on March 30, 2023. A hearing was held April 4-6,
2023, during which testimony was received from Cactus Canyon’s President and
Head of Operations, Andy Carson,[4]
and MSHA representatives. On June 16, 2023, Cactus Canyon filed a request for
the Judge’s recusal, providing 24 examples of the Judge’s legal rulings and conduct
at the hearing to allege evidence of bias. Req. Withdraw at 10-19.

II.

The Judge’s
Decision

A. Jurisdiction

In his decision after the
hearing, the Judge first concluded that MSHA possesses jurisdiction over both
the Fairland Plant and Clendennen Ranch pit. 46 FMSHRC at 721. The Judge concluded that the Fairland Plant is a “mine”
pursuant to the statutory definition in the Mine Act whose operations affect
commerce and which is therefore subject to the Act and MSHA’s regulatory
jurisdiction. The Judge determined that Cactus Canyon is engaged in “milling”
at the Fairland Plant by crushing, sizing, and roasting dimensional stone to be
used in terrazzo flooring. Id. at 730.

The Judge also explained that
Appendix A of the Interagency Agreement between MSHA and the Occupational
Safety and Health Administration (“OSHA”) identified “milling” as an activity
subject to MSHA’s jurisdiction. 46 FMSHRC at 723, citing 44 Fed. Reg.
22,829. The Judge laid out the Interagency Agreement’s definition of milling
and stated that Appendix A lists general definitions of milling processes that
MSHA has authority to regulate, including crushing, sizing, and roasting. Id.

The Judge held that milling
independently qualifies an operation as a mine under the Act, regardless of
whether extraction occurs there. Id. at 727, citing Drillex
Inc., 16 FMSHRC 2391, 2395 (Dec. 1994)). He rejected Cactus Canyon’s
reliance on KC Transport, Inc., 44 FMSHRC 211 (Apr. 2022) and Maxxim
Rebuild Co. LLC v. FMSHRC, 848 F.3d 737 (6th Cir. 2017), concluding
those cases do not extend to milling. 46 FMSHRC at 728. He
further noted that both the Commission in KC Transport and the Sixth
Circuit in Maxxim recognized that MSHA’s jurisdiction encompasses
locations and equipment where extraction, milling, and preparation occur. Id.

The Judge also rejected Cactus
Canyon’s arguments that the facility was a “stone finishing” plant under OSHA’s
jurisdiction. He noted there was no evidence of any polishing or engraving, and
that the testimony showed that finishing occurs only after the stone is sold. Id.
at 726. He further rejected the operator’s claim that it was not engaged in
“separation.” In doing so, the Judge found that the testimony confirmed the
plant washes, sorts, and removes unwanted materials, consistent with the
definition of milling. Id. Finally, the Judge concluded that the
operations and products of the Fairland Plant affect commerce within the
meaning of the Mine Act, 30 U.S.C. § 803, because Cactus Canyon sells the
products milled there across North America and other places. 46 FMSHRC at
730-32.

B. The
Citations

Having concluded that MSHA has jurisdiction over the Fairland Plant, the Judge ruled on the merits of all ten citations. He vacated four citations, affirmed three citations as issued, modified one citation to lower the assessed gravity, and modified two citations to raise the negligence level and penalty amounts for both, but lower the assessed gravity for one of the two. As stated above, the citations were challenged solely on jurisdictional grounds; Cactus Canyon did not appeal the merits of the Judge’s determinations regarding any of the citations.

C. Recusal

Finally, the Judge considered
and denied the operator’s Request to Withdraw. In doing so, he discussed the
Commission’s procedural rules governing recusal. 46 FMSHRC at 769 citing 29 C.F.R.
§ 2700.81(c).[5] The decision found that “the affidavit evidence in support
of the request and the statements and actions cited by Cactus Canyon do not
provide sufficient evidence of antagonism, bias, or prejudice so as to warrant
the [Judge’s] recusal.” Id. at 770.

The Judge found that Cactus
Canyon’s allegations of bias largely concerned judicial rulings and routine
case management, including clarifying questions, limiting repetitive testimony,
and admonishing counsel. Id. at 772. He explained that when he “limited”
questioning, he encouraged counsel to move on, explain relevance, or avoid
issues already addressed. Id. The Judge concluded there was
“insufficient evidence of any deep-seated antagonism, prejudice, or favoritism
sufficient to warrant recusal” and emphasized that Cactus Canyon had a full
opportunity to present its case within normal procedural confines. Id. He
also methodically refuted many specific bias claims. Id. at 776–85.

In a footnote, the Judge took
judicial notice that the operator’s “brazen” efforts to restrict MSHA’s
jurisdiction had escalated. He cited related litigation in the U.S. District
Court for the Western District of Texas where the Secretary obtained an
injunction requiring access to the Fairland Plant after Cactus Canyon denied
entry and warned MSHA it would be treated as a trespasser. Id. at 785
n.22. The Judge relied on the operator’s behavior as support for his finding
that most of the operator’s allegations of bias sought to impugn the Judge’s integrity
to secure his withdrawal and delay MSHA’s exercise of jurisdiction. Id. As
such, he denied the motion for recusal and made a recommendation for attorney
discipline. Id.

Cactus Canyon filed two petitions for discretionary review (“PDR”). PDR I requested review of the denial of the motion for recusal. PDR II requested review of the decision’s finding of MSHA jurisdiction. The Commission directed review of both PDRs and stayed briefing except as to the issue of recusal. The Commission subsequently lifted the stay and ordered briefing on the issue of MSHA jurisdiction.

III.

Disposition

We conclude that the Fairland Plant is a “mine” for purposes of MSHA jurisdiction under 30 U.S.C. § 802(h)(1)(C). We further hold that the Judge properly denied the operator’s motion for recusal.

A. The
Judge Properly Affirmed MSHA’s Jurisdiction.

The first issue in this case is whether
the Fairland Plant is subject to the Mine Act, such that MSHA may conduct
inspections and issue citations. The issue and
evidence here are almost identical to what the Commission addressed in Cactus
Canyon Quarries, Inc., 49 FMSHRC ___, No. CENT 2022-0010 (April 20, 2026) (“Cactus Canyon Quarries I”). As
such, we follow the analysis in the decision issued in that case and
incorporate by reference the legal analysis regarding the definition of a “mine”
contained therein.

B. The
Judge Did Not Abuse His Discretion in Denying the Operator’s Request for His
Recusal.

The second issue in this case is whether
the Judge erred in denying the operator’s motion for recusal.[6]
Cactus Canyon’s PDR on the issue raises three specific arguments. First, it contends that the Judge’s denial of its request
for recusal violated Commission Procedural Rule 81(c), 29 C.F.R. § 2700.81(c). The rule requires that a judge who declines to
recuse must state the grounds for the ruling on the record. Cactus Canyon
argues the Judge failed to sufficiently justify his grounds for denying the
recusal request.

Second, PDR I argues that the Judge
violated Commission Procedural Rules 81(c) and 69(b),[7] in issuing the recusal ruling at the
same time as the merits ruling. Rule 81(c) requires that a Judge who does not
recuse shall proceed with issuing the decision, unless the Commission grants a
petition for interlocutory review of the recusal decision and stays further
proceedings. 29 C.F.R. §
2700.81(c). Cactus Canyon argues that Rule 81(c) does
not permit a judge to rule simultaneously on a recusal motion and the merits. PDR
I at 2-3.

Cactus Canyon also argues that under Rule 69(b), which provides that a Judge’s jurisdiction terminates when a decision is issued, the simultaneous merits ruling caused the Judge to lose jurisdiction over the recusal request, rendering the Judge’s recusal decision invalid. PDR I at 3. It argues that these errors deprived it of the ability to seek interlocutory review.

Third, Cactus Canyon argues
that the Judge’s reference to the separate District Court injunction case – i.e.,
information not specifically in evidence in this particular case – was evidence
of bias that required his recusal. PDR I at 4-8.

1. The Judge Adequately Explained His Denial Under Rule 81(c).

Cactus Canyon argues that the Judge
provided “no findings whatsoever,” failed to engage with 200 record citations,
and ignored the 24 additional alleged instances of bias identified in its
subsequent motion for the Judge’s recusal that it filed after the hearing
concluded, citing specific aspects of the Judge’s conduct during the hearing. PDR
I at 2, 3, 9. Most notably, the operator alleges that the Judge participated in
criminal activity in concert with the representatives for the Secretary of
Labor, i.e., by aiding and abetting alleged false testimony by the
Secretary. The operator claims that the Judge’s denial of the operator’s Motion
to Withdraw was conclusory, untimely, and deprived it of meaningful review.

We find these arguments to be completely
unfounded. Rule 81(c) requires only that the Judge “[state] the grounds for such
ruling” on the record. The Judge dedicated more than 16 pages to addressing the
motion and its allegations, citing transcript passages, Commission rules, and
precedent. See 46 FMSHRC at 769-86. In doing so, he addressed numerous
specific examples of allegations by the operator. Id. He also
specifically refuted the allegations of criminal activity. Id. at 784-85
(explaining the legally erroneous – as well as conclusory and unsubstantiated –
nature of the operator’s claims). The Judge thoroughly explained that the
claims of alleged misconduct – interruptions, evidentiary rulings, limits on
repetitive testimony – reflected ordinary trial management, not bias. Id.
at 769-86. He expressly found “insufficient evidence of any deep-seated
antagonism, prejudice, or favoritism.” Id. at 772.

We hold that the Judge’s decision is sufficient under Rule 81(c). The rule does not require a point-by-point refutation of every allegation. Instead, the Judge must simply articulate his reasoning. By framing the conduct at issue as routine judicial administration, the Judge met the standard.

2. The Application of Rules 69(b) and 81(c) to the Timing of the Ruling do not Support a Finding of Reversible Error.

Cactus Canyon argues that the Judge’s issuance of the recusal denial simultaneously with his merits decision violated Rule 81(c) and Rule 69(b). It contends that Rule 81(c) requires separate and prompt rulings, to preserve interlocutory review rights. According to the operator, Rule 69(b) terminates a judge’s jurisdiction once a decision “has been issued.” 29 C.F.R. § 2700.69(b). By the time the merits were decided, the Judge had no jurisdiction to rule on recusal.

According to the Secretary, Rule 81(c) expressly instructs that if a recusal motion is filed after the hearing, the judge “shall proceed with the issuance of his decision” unless interlocutory review has been granted, and that is what occurred here. She maintains that Rule 69(b) terminates jurisdiction after a decision is issued but does not bar a judge from resolving multiple issues – including recusal – in the same decision. The Secretary contends that the Commission retains full authority to review the recusal denial now. Sec. Resp. Br. at 9-10. The Secretary also emphasizes that Cactus Canyon suffered no prejudice because the Commission can grant relief if it finds error, including recusal and reassignment.

We find that any procedural error the
Judge may have committed by issuing his decision on recusal simultaneously with
his decision on the merits was harmless. The operator was able to obtain review
by filing a PDR under section 113(d)(1) of the Act, 30 U.S.C. § 823(d)(1), and
is in fact receiving that review here. For this reason, we agree with the Secretary
that Cactus Canyon suffered no prejudice under these facts. Salt Lake Cnty
Rd. Dep’t, 3 FMSHRC 1714, 1717 (July 1981) (holding that procedural
irregularities are not grounds for reversible error absent a showing of
prejudice); Long Branch Energy, 34 FMSHRC 1984, 1991 (Aug. 2012); cf.
Big Horn Calcium Co., 12 FMSHRC 1493, 1496 (Aug. 1990) (recognizing the appropriateness
of examining prejudice to the operator in recusal cases).

As such, we conclude that the Judge’s frustration of the operator’s procedural rights envisioned by Rule 81(c) did not constitute reversible error.

3. The Judicial Notice of the Federal Injunction Proceeding Does Not Support the Claim of Impermissible Bias.

As stated above, the Judge noted that, following the hearing, Cactus Canyon sent MSHA a letter denying entry, prompting the Secretary to obtain a federal injunction requiring access with U.S. Marshals present. The Judge used this to characterize Cactus Canyon’s tactics as “brazen.”

The operator claims that this reference relied on facts outside the record, misstated aspects of the injunction (e.g., that Cactus Canyon was ordered to pay fees for U.S. Marshal expenses, the number of subsequent MSHA inspections), and showed bias. It claims that the Judge improperly used the case to disparage counsel and chill jurisdictional defenses.

The Secretary points out that judicial
notice of related proceedings is permissible when learned in the Judge’s
judicial capacity, which is the case here. See Tejero v. Portfolio Recovery
Assocs., 955 F.3d 453, 463-64 (5th Cir. 2020). We note that the injunction
case was closely tied to the same jurisdictional disputes and involved the same
parties. And in the Commission case before the Judge, Cactus Canyon itself
frequently cited to other Cactus Canyon litigation. See e.g., Tr.
66 (alluding to the Judge’s rulings on jurisdiction).[8]
We decline to allow the operator the benefit of citing to the other cases without
inuring any detriment from doing so.

Even if some details in the Judge’s
footnote were imprecise, as the operator claims, they do not demonstrate
“deep-seated favoritism or antagonism” on the part of the Judge, as required
under Liteky, “to make fair judgment impossible.” Liteky v. U.S.,
510 U.S. 540, 555 (1994).

The Judge’s statement certainly reveals a potential degree of distaste towards the operator’s counsel and his litigation conduct. But “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and

women . . . sometimes display,” do not establish bias. Id. at 555-56; see
also Tejero, 955 F.3d at 464. We find that the Judge taking
notice of the related Federal injunction proceeding and using the word “brazen”
in this context fit within the scope of proper judicial conduct. They do not support
the operator’s claim of impermissible bias.

C. The
Operator’s Allegations of Bias Lack Merit.

Cactus Canyon attached to its PDR (which it also designated as its opening brief) a copy of its Request for Withdrawal that it filed in the proceedings before the Judge. The operator appears to have sought review of all the issues mentioned in that Request – for example, the 24 specific instances of the Judge’s conduct at trial that allegedly demonstrated his bias against Cactus Canyon. These included allegations such as interrupting Cactus Canyon’s cross-examinations, summarizing witnesses’ testimony, or chastising counsel.

The Secretary argues that the Commission should limit its consideration of the recusal issues solely to the three assignments of error raised in the operator’s PDR. She stresses that the Commission’s jurisdiction is confined to issues properly raised in a PDR. The Secretary argues that the 24 examples of bias identified in the operator’s “Request to Withdraw,” appended to its opening brief, are outside the Commission’s jurisdiction. According to the Secretary, attachments cannot cure a PDR that fails to “separately number[] and plainly and concisely state[]” issues, as required by section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(iii) and Commission Procedural Rule 70(d), 29 C.F.R. § 2700.70(d).

Section 113(d)(2)(A)(iii) of the Mine Act states:
“review shall be limited to the questions raised by the petition.” 30 U.S.C. §
823(d)(2)(A)(iii). Our caselaw shows that we have sometimes invoked this
limitation when a party seeks to raise wholly new issues after the Direction
for Review (“DFR”) is issued. See Chaney Creek Coal Corp. v. FMSHRC, 866
F.2d 1424, 1432 (D.C. Cir. 1989) (Commission barred from considering issues not
in PDR); Sunbelt Rentals, Inc., 42 FMSHRC 16, 22-23 (Jan. 2020); see
also Sec’y of Labor v. KC Transp., Inc., 77 F.4th 1022, 1034 (D.C.
Cir. 2023), cert. granted, vacated on other grounds sub nom. KC
Transp. Inc. v. Su, 144 S. Ct. 2708, 219 L. Ed. 2d 1314 (2024) (“The
Commission’s jurisdiction is limited to questions that were reviewed by the
ALJ, and then included in the petition for discretionary relief on appeal. See
30 U.S.C. § 823(d)(2)”).

The Commission has recognized it has
flexibility when a PDR frames an issue broadly. See Black Beauty Coal Co.,
36 FMSHRC 1121, 1123 (May 2014). “The Commission has held that section
113(d)(2)(iii) does not preclude review if the issue was implicitly raised in
the PDR or is sufficiently related.” Id. (citing Fort Scott
Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997)). However, the
Commission will not review “entirely separate” issues raised in subsequent
briefing. Central
Sand & Gravel Co.,
23 FMSHRC 250, 260 (Mar. 2001).

We conclude that the operator’s PDR generally set forth its argument regarding bias and its argument that the ALJ erred in failing to recuse himself from this case. The operator’s allegations regarding the 24 specific examples of bias are sufficiently related to that allegation to have been implicitly raised. As a result, we will consider the operator’s arguments regarding those allegations.

The operator’s
allegations are vague and generally lack substantiation. Viewed cumulatively they
fall into four categories: (1) allegations related to the Judge’s procedural
and evidentiary rulings; (2) claims regarding the Judge’s active case
management and questioning of witnesses; (3) assertions of favoritism,
coaching, or prejudgment; and (4) accusations of bad faith, dishonesty, and
criminal conduct. Req. Withdraw at 10-19. As discussed below, each category
fails as a matter of law and fact, and collectively they fall far short of
establishing the “deep-seated favoritism or antagonism” required to compel
recusal. Liteky, 510 U.S. at 555.

1. Category I Allegations: Procedural and Evidentiary Rulings

We agree with the Judge that many of Cactus Canyon’s allegations reflect an attempt to relitigate adverse procedural and evidentiary rulings through a Commission Rule 81(b) recusal motion and to take judicial comments out of context to support unfounded claims of personal bias. 29 C.F.R. § 2700.81(b); Req. Withdraw at 6-9, 19-20. For example, the operator alleges that the Judge demonstrated bias by disregarding a “mandatory” discovery disclosure sanction under Fed. R. Civ. P. 37(c)(1) and by characterizing undisclosed evidence as “compelling,” thereby purportedly constructing the Secretary’s jurisdictional case. Req. Withdraw at 5-6.

The record does
not support this allegation. The Judge made no finding that any evidence was
“compelling,”[9]
nor did he admit or rely upon undisclosed evidence. Rather, the Judge merely
observed, based on the parties’ prior interactions, that MSHA’s jurisdiction
would likely be at issue at trial and noted that – apart from materials
withheld on privilege grounds – the Secretary had produced evidence concerning
its jurisdictional review conducted at the operator’s request. Tr. 13-18. The
Judge’s comments reflected case-management observations regarding the
anticipated scope of the hearing, not a ruling on the admissibility, weight, or
sufficiency of any evidence.

The operator also alleges that the Judge demonstrated bias by acknowledging limited prior “experience” with “jurisdictional facts not stipulated,” by allegedly seeking to please the Secretary during the second prehearing conference, and by purportedly constructing the Secretary’s jurisdictional case at trial based on undisclosed and unqualified opinions regarding the applicability of the OSH Act. Req. Withdraw at 7 n.6.

The record does not support these allegations either. The conduct cited from the second prehearing conference consisted solely of the Judge extending professional pleasantries by asking a district manager – who was not serving as the Secretary’s representative in these proceedings – to convey greetings to Department of Labor officials he was scheduled to meet on the first day of the hearing. This exchange did not reflect favoritism, advocacy, or bias, and did not bear on any evidentiary or legal determination in this matter. The operator’s characterization of this courtesy as evidence of personal bias is unsupported by the record.

Adverse judicial
rulings and comments alone – even if numerous or strongly contested – do not
establish bias absent evidence of extrajudicial animus or deep-seated
antagonism. Liteky, 510 U.S. at 555. The record does not support the
operator’s claims in this category.

Cactus Canyon
alleged that the Judge exhibited bias by delaying rulings on motions for
summary decision and by allegedly ruling that the Secretary could carry her
burden “by pleadings alone.” Req. Withdraw at 8. The Judge refuted these claims,
explaining that the contest dockets were assigned in January and March 2023;
summary decision was denied on March 13, 2023; reconsideration was denied on
March 23, 2023; and the hearing commenced on April 4, 2023. 46 FMSHRC at 777. He
correctly concluded that this timeline does not reflect undue delay. Id.;
see Telecom. Research & Action Ctr. v. FCC, 750 F.2d 70, 76-77.

The Judge further
explained that he never ruled that the Secretary could prevail “by pleadings
alone,” but instead denied summary decision because genuine disputes of
material fact existed regarding jurisdiction and mining activity. 46 FMSHRC at 777-78;
see also Order Denying Mot. for Sum. Dec. at 3. During the hearing, the
Judge reiterated that the Secretary bore the burden of proof. Tr. 143. These
actions reflect adherence to governing procedural standards, not bias.

The operator
further alleged that the Judge failed to narrow issues, improperly “built” the
Secretary’s jurisdictional case, and transformed denials of summary decision
into rulings on the merits. Req. Withdraw at 7, 9, 20. The Judge rejected these
claims, correctly pointing out that Cactus Canyon made “no reference to [any] specific
duty that the [Judge] allegedly failed to undertake, nor [did] he point to any
instance in the record where the [Judge] failed to abide by his duties as an [ALJ].”
46 FMSHRC at 778. The Judge further explained that he merely clarified the
scope of the issues for hearing and emphasized that jurisdiction and mining
activity remained factual questions to be resolved at trial. Id. at 770,
777, 780.

The transcript
confirms that the Judge repeatedly clarified the issues without prejudging
them. See Tr. 117-18, 133-34; see also Order Denying Mot. for Sum. Dec.
at 3 (describing scope of hearing and restricting issues to “whether the
Fairland Plant and Quarries was engaged in active mining after its purported permanent
closure on August 11, 2022, and whether the citations issued at the Clendennen
Ranch intermittent mine on October 25-26, 2022, were validly issued as part of
that mining.”); Clarifying issues for trial is a core judicial function and
does not constitute advocacy. Medusa Cement Co., 20 FMSHRC 144, 149-50 (Feb.
1998). As such, we find the operator’s allegations here to be without merit.

2. Category II Allegations: Active Case Management and Witness Questioning

Cactus Canyon next alleged bias based on the Judge’s active management of the hearing, including interruptions of cross-examination, questioning of witnesses, and limits placed on certain lines of inquiry. Req. Withdraw at 10-15. These allegations misunderstand the role of a Commission Judge.

There is no
question that the Judge took an active role in the hearing. He frequently asked
questions of witnesses to clarify his understanding of the issues under
examination and to expedite the trial proceedings. He interrupted the
examination of witnesses to encourage the parties to stipulate to issues and
shorten the examination. See, e.g., Tr. 102, 136-37 (interrupting
the Secretary’s witness, Fisher, based off an apparent inconsistency with his
prior testimony). In addition, as stated above, the Judge announced to counsel
what, in his view, were the significant issues in the case, to allow them to
tailor their examination of witnesses. See, e.g., Tr. 135-36
(requesting that Carson narrow his questioning to the citations actually at
issue and not to a hypothetical future violation that might be issued to Cactus
Canyon).

Commission Judges,
however, have an affirmative duty to conduct orderly proceedings, clarify
testimony, and prevent repetitive or irrelevant questioning. 29 C.F.R. §§
2700.55(c), (e); Medusa Cement, 20 FMSHRC at 148-50. Active judicial
engagement does not suggest bias unless it prevents a party from presenting its
case.

The operator cited
the Judge’s questioning regarding whether the Clendennen Ranch constituted a
mine, as evidence of bias. Req. Withdraw at 11; Tr. 102. The Judge explained
that this inquiry was necessary to clarify Carson’s jurisdictional theory and
the relationship between the Clendennen Ranch and the Fairland Plant. 46 FMSHRC
at 780-81. We find this clarification was intended to assist the Judge’s
understanding of the issues and not to benefit the Secretary. Similarly, the
Judge intervened to clarify testimony regarding MSHA’s inspection history and
cited equipment. Tr. 403-05. Such clarifying questions fall squarely within a
judge’s discretion. Medusa Cement, 20 FMSHRC at 150 (“[W]e note that a
judge has wide discretion to interject questions in order to clarify testimony.”);
see Deary v. City of Gloucester, 9 F.3d 191, 194-95 (1st Cir.1993)
(“mere active participation by the judge does not create prejudice”); see
also U. S. v. Webb, 83 F.3d 913, 917 (7th Cir. 1996) (stating that a judge
is not prohibited from asking questions to clarify an important issue in the
case); U. S. v. Olmstead, 832 F.2d 642, 648 (1st Cir. 1987) (stating
that comments and questions remedied leading questions, clarified lines of
inquiry, or developed witness’ answers and were within court's discretion), cert.
denied, 486 U.S. 1009 (1988)”).

The operator also complained that the Judge improperly limited its cross-examination. Req. Withdraw at 13-14. The Judge explained that any limitations occurred only after extensive testimony had already been elicited and were accompanied by encouragement to move to new topics or explain relevance. 46 FMSHRC at 772.

The record in fact demonstrates that counsel for the operator was afforded extraordinary latitude. Nearly 50 pages of transcript were devoted to jurisdictional questioning alone. Tr. 109-157. In addition, counsel was permitted to testify in narrative form for approximately 163 transcript pages, largely uninterrupted. Tr. 554-717. These facts alone undermine any claim that the Judge’s case management hindered the operator’s presentation of its case.

3. Category III Allegations: Favoritism, Coaching, or Prejudgment

Cactus Canyon further alleged that the Judge demonstrated bias by favoring the Secretary, coaching MSHA witnesses, or prejudging the outcome of the case. Req. Withdraw at 14-16. As with the prior allegations, these claims fail because they conflate permissible judicial clarification and case management with advocacy, and because they disregard the legal standard governing claims of prejudgment.

A Judge’s efforts
to summarize testimony, confirm the scope of prior answers, or redirect
questioning do not constitute favoritism or coaching. Rather, such conduct
reflects routine judicial efforts to ensure that the record is clear, coherent,
and complete. See Liteky, 510 U.S. at 555 (judicial remarks or
interventions “that are critical or disapproving of, or even hostile to,
counsel” do not establish bias absent deep-seated antagonism).

The operator cited
several instances in which the Judge restated or summarized MSHA witness
testimony, asserting that these summaries improperly supplied testimony or
advocated on the Secretary’s behalf. Req. Withdraw at 2-3, 14-15. The Judge
examined each cited instance and demonstrated that his summaries accurately
reflected the witnesses’ own statements and were employed to prevent
duplicative questioning or to clarify what had already been established on the
record. 46 FMSHRC at 778-82. The record confirms this. See, e.g., Tr.
135-37, 140 (Judge restating Fisher’s prior testimony to confirm scope, clarify
any inconsistency, and redirect questioning).

The Commission and
the Courts have repeatedly held that restating testimony for clarity does not
constitute advocacy. Medusa Cement, 20 FMSHRC at 147-150; U.S. v.
Olmstead, 832 F.2d at 648; see also U.S v. Berber-Tinoco,
510 F.3d 1083, 1091 (9th Cir. 2007) (stating that judicial clarification of
testimony does not show bias). Here, the Judge’s summaries neither added new
facts nor altered witness testimony; they simply reflected what had already
been said.

Nor do the operator’s allegations establish prejudgment. The Judge repeatedly emphasized that jurisdiction, mining activity, and liability remained issues to be proven by the Secretary at hearing. Tr. 143, 145. References to prior rulings or to the procedural posture of the case merely acknowledged the existence of unresolved factual disputes and the need to address them through testimony. 46 FMSHRC at 777-78. Expressions of familiarity with the record or impatience with repetitive questioning do not demonstrate prejudgment.

Moreover, even if
the Judge had expressed skepticism regarding certain arguments, such skepticism
would not constitute bias. Judges are permitted to form tentative views based
on the record as it develops, so long as they remain open to persuasion. Liteky,
510 U.S. at 555-56; see also FTC v. Cement Institute, 333 U.S.
683, 701 (1948) (denying motion for disqualification, reasoning that “the
fact that the [Federal Trade] Commission had entertained [certain] views . . .
did not necessarily mean that the minds of its members were irrevocably closed”).
Nothing in the record suggests that the Judge closed his mind to the operator’s
evidence or arguments. Accordingly, the operator’s allegations of favoritism, coaching,
and prejudgment fail both factually and legally.

4. Category IV Allegations: Bad Faith, Dishonesty, and Criminal Conduct

Finally, Cactus Canyon alleged that the Judge acted in bad faith, fabricated facts, revised testimony, sabotaged the operator’s case, or aided and abetted false testimony. Req. Withdraw at 14-19. These allegations are serious and accuse the Judge of intentional misconduct. For the reasons stated below, we reject the allegations as wholly unsupported.

The operator’s
accusations centered on the testimony of Inspector Davis concerning MSHA’s
prior inspections and jurisdictional determinations. Req. Withdraw at 16-18. The
Judge stated that Davis’s testimony reflected his understanding of MSHA’s
inspection history and jurisdictional conclusions; during the hearing, the
Judge sometimes interjected to clarify points already raised. Tr. 361-68;
46 FMSHRC at 785.

The operator’s
allegations of dishonesty are not substantiated with any evidence that any
testimony was fabricated, altered, or supplied by the Judge. The fact that the
operator disagrees with a witness’s testimony or the Judge’s credibility
determinations does not render such testimony false. See Liteky, 510 U.S. at 555
(“Judicial rulings alone almost never constitute valid basis for bias or
partiality motion for disqualification.”). For instance, the operator alleges
that the Judge “interrupted [a witness] to fabricate false recollection about 2
different mirror citations.” Req. Withdraw at 17 (citing Tr. 405). The operator
offers no evidence or explanation to support its accusation.

Accordingly, we conclude that the operator’s allegations of bad faith, dishonesty, and criminal conduct are meritless. The Request to Withdraw relies largely on rhetoric and counsel’s own inchoate inferences. The absence of evidentiary support is dispositive.

In summation, the
record establishes that the Judge’s behavior showed evenhanded treatment. Courts
reviewing denials of recusal motions place great weight on whether the judge
treated both parties or both attorneys similarly. E.g., U.S. v.
Powers, 500 F.3d 500, 513 (6th Cir. 2007) (“[I]mportantly, the district
court displayed equal impatience with both counsel.”); see also U.S.
v. Ransom, 428 F. App’x 587, 589 (6th Cir. 2011) (summarizing that “[c]ases
in which recusal was warranted have involved, for example, instances in which
the trial judge consistently interrupted the proceedings in a one-sided
manner.”).

The Judge here admonished both parties. His
rulings also showed no signs of bias.

As noted above, he vacated four citations, reduced the gravity on two others,
and pressed the Secretary’s counsel on their weaknesses. Transcript examples
include him criticizing the Secretary, questioning both sides, and granting
fairness accommodations to the operator (e.g., granting breaks, precluding the
Secretary from discussing notes that had not been disclosed). See, e.g.,
Tr. 490.[10]
The Judge also had many cordial interactions with Cactus Canyon’s counsel.[11]
Furthermore, even though the Judge denied counsel’s request for an expedited
hearing on the ten citations in a written order on January 23, 2023, he set a hearing
in short order for early April 2023. These all serve as examples of evenhanded
treatment by the Judge.

We hold that the Judge’s conduct
fell within the scope of “ordinary trial management,” reflecting evenhanded behavior
within his discretion and consistent with Commission precedent. Rock of Ages
Corp., 20 FMSHRC at 125. Furthermore, the Judge’s
decision can be “defended as a rational conclusion supported by reasonable
reading of the record.” In re United States, 666 F.2d 690, 695 (1st Cir.
1981). Accordingly, his conduct is not grounds for recusal. In re
City of Milwaukee, 788 F.3d at 721-22.[12]

IV.

Conclusion

For the reasons above, we conclude that the Fairland Plant is a mine subject to the Act, such that MSHA had jurisdiction to issue the relevant citations. We further conclude that the Judge did not abuse his discretion by denying the operator’s motion to withdraw. Accordingly, the Judge’s decision is affirmed.

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Chair

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Andy Carson, Esq.

Cactus Canyon Quarries

7232 CR 120

Marble Falls, TX 78654

[email protected]

Felix R. Marquez, Esq.

Office of the Solicitor

U.S. Department of Labor

525 Griffin Street, Suite 501

Dallas, TX 75202

[email protected]

Jennifer A. Ledig, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety & Health

200 Constitution Avenue NW, Suite N-4428

Washington, DC 20210

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

[200 Constitution Avenue NW, Suite N-4428]

Washington, DC 20210

[email protected]

Melanie
Garris

U.S. Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Judge Michael G. Young

Office of the Chief Administrative Law Judge

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

[1] Terrazzo refers
to “[s]mall chips or pieces of stone . . . made by crushing and

screening
. . . used with portland cement in making floors, which are smoothed down and
polished after the cement has hardened.” Dictionary of Mining, Mineral and
Related Terms 567 (2d ed. 1997).

[2] Based on his
recusal findings, the Judge initiated a disciplinary proceeding against the
operator’s counsel for allegedly seeking to impugn the Judge’s qualifications
and integrity, under Commission Procedural Rule 80, 29 C.F.R. § 2700.80. On
March 19, 2025, the Commission created a separate docket number, CENT 2025-0180,
for the disciplinary proceeding and issued a stay order. The Commission does
not address the disciplinary proceeding in this decision.

[3] The Clendennen
Ranch is an intermittent mine site pit that is 3.1 miles away from the Fairland
Plant. At that site, dimensional stone is extracted. It accounts for one
percent of Cactus Canyon’s sales to its Terrazzo flooring manufacturers. Tr.
68-69.

[4] Carson is also a
licensed attorney who serves as Cactus Canyon’s legal counsel and corporate
representative in this case.

[5] Rule 81(c),
dealing with the “Procedure if . . . ALJ does not withdraw,” states that:

If, upon being
requested to withdraw pursuant to paragraph (b) of this section, the . . . ALJ
does not withdraw from the proceeding, the . . . ALJ shall so rule upon the
record, stating the grounds for such ruling. If the ALJ does not withdraw,
the ALJ shall proceed with the hearing, or, if the hearing has been
completed, the ALJ shall proceed with the issuance of a decision, unless the
Commission stays the hearing or further proceedings upon the granting of a
petition for interlocutory review of the ALJ’s decision not to withdraw.

29 C.F.R. § 2700.81(c) (emphases added).

[6] The Commission reviews a Judge’s decision on recusal for an
abuse of discretion. Medusa Cement Co., 20 FMSHRC 144, 147 (Feb. 1998). “Abuse
of discretion may be found when there is no evidence to support the decision or
if the decision is based on an improper understanding of the law.” Sec’y of
Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 299, 302
(June 2021). A judge’s conduct warrants recusal only if it demonstrates
“deep-seated favoritism or antagonism” making fair judgment impossible. Liteky
v. U.S., 510 U.S. 540, 555 (1994).

In the context of recusal,
“the analysis of allegations, the balancing of policies, and the resulting
decision whether to disqualify are in the first instance committed to the
district judge. And, since in many cases reasonable deciders may disagree, the
district judge is allowed a range of discretion. The appellate court,
therefore, must ask itself not whether it would have decided as did the trial
court, but whether that decision cannot be defended as a rational conclusion
supported by reasonable reading of the record.” In re United States, 666
F.2d 690, 695 (1st Cir. 1981). For purposes of analyzing recusal, Commission Judges
are analogous to Federal District Court Judges and the Commission itself
analogous to an appellate court. Cf. Martin v. Occupational
Safety & Health Rev. Comm’n, 499 U.S. 144, 154-55 (1991) (“Congress
intended to delegate to the [Occupational Safety & Health Review] Commission
the type of nonpolicymaking adjudicatory powers typically exercised by a
court in the agency-review context”); see also Sec’y of Lab. on behalf
of Wamsley v. Mut. Min., Inc., 80 F.3d 110, 114-15 (4th Cir. 1996)
(applying Martin v. OSHRC’s analysis to FMSHRC); Mid-Continent Res.,
Inc. 11 FMSHRC 2399, 2401-02 (Dec. 1989) (“appeals to the Commission from
judge’s decisions pursuant to section 113(d) arise in an adjudicative
context in which traditional adversarial litigation, conducted in a
two-tiered administrative arena of trial-type hearings and discretionary
review, is the vehicle for dispute resolution.”) (emphasis added).

[7] Rule 69(b)
states: “Except to the extent otherwise provided herein, the jurisdiction of
the ALJ terminates when the ALJ’s decision has been issued.” 29 C.F.R.
§ 2700.69(b).

[8] In fact, in a separate
Cactus Canyon case, Cactus Canyon Quarries,
Inc., 49 FMSHRC ___, No. CENT 2022-0010 (April 20, 2026) (“Cactus Canyon Quarries I”),
the operator requested the Commission to accept a brief that it had filed here.

[9] In fact, the only
statements the Judge made in the record using the word “compelling” were him
explaining that Fed. R. Civ. P. 37(c)(1) and Commission Procedural Rule 59
provide for discovery sanctions, such as a judge granting an order “compelling”
evidence to be disclosed when a party refuses to turn it over. Tr. 100.

[10] See Tr.
263-64 (the Judge expressing doubts about the Secretary’s ability to prove
interstate commerce and chastising the Secretary’s counsel for not subpoenaing
Cactus Canyon’s miners); Tr. 303 (the Judge admonishing the Secretary’s counsel
to “step it up here”); Tr. 307 (the Judge critiquing the Secretary’s counsel
with “Next question. Poor question.”); Tr. 317 (the Judge arguing back-and-forth
with the Secretary’s counsel and reproaching him that “this isn’t rocket
science here. This is formal legal proceeding. So if he’s answered, let’s
go.”); Tr. 680 (the Judge chiding the Secretary’s counsel that “before you
close your case, you should have moved to amend the standard to conform with
the proof or whatever. So, in any event, both of you should have done, I think,
something differently from my point of view.”).

[11] See, e.g.,
Tr. 352 (the Judge granting Cactus Canyon’s counsel request for a break and
apologizing to him for the long stretch without a break); Tr. 562 (the Judge politely
reminding Cactus Canyon’s counsel to describe his movements with the cursor on
the photograph “for the reader of the record, please, sir. Thank you.”); Tr.
681 (the Judge granting another request by Cactus Canyon’s counsel for a
two-to-three-minute break, saying “Sure. Let’s take five minutes.”); Tr. 668 (Cactus
Canyon’s counsel offering, unprompted, “I’m trying to get through this, Your
Honor” and the Judge responding “I appreciate that”).

[12] As observed in
Footnote 2, the ALJ instituted disciplinary proceedings against operator’s
counsel in Docket No. CENT 2025-0180. Necessarily, many of the issues in that
proceeding are related to the allegations of misconduct discussed here. We note
that the Commission here has considered only the facts on record; the
Commission does not find facts. Brody Mining, LLC, 37 FMSHRC 1914, 1931
(Sep. 2015). We make no preclusive findings of fact regarding Docket No. CENT
2025-0180, which will be decided on its own record.