Mariposa Aggregates

Plain-English summary

Mariposa Aggregates contested proposed penalties for 107 citations and orders issued at its California quarry. The operator filed documents raising jurisdictional and other issues but did not answer the penalty petitions or state a substantive basis for contesting the citations. Judge Richard W. Manning held that the operator was in default and had waived its right to a hearing. He affirmed the citations and assessed the Secretary’s proposed total penalty of $108,067.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(a) and 820(i), and 29 C.F.R. Part 2700
• Outcome: The 107 citations and orders were affirmed by default, and Mariposa Aggregates was ordered to pay $108,067 within 40 days.
• Key point: A mine operator must answer penalty petitions and meaningfully contest the cited allegations to preserve its right to a hearing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                                      May 16, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-231-M
Petitioner : A.C. No. 04-04785-05553
:
: Docket No. WEST 2000-232-M
: A.C. No. 04-04785-05554
:
: Docket No. WEST 2000-239-M
v. : A.C. No. 04-04785-05555
:
: Docket No. WEST 2000-240-M
: A.C. No. 04-04785-05556
:
: Docket No. WEST 2000-241-M
: A.C. No. 04-04785-05557
:
MARIPOSA AGGREGATES, : Docket No. WEST 2000-520-M
Respondent : A.C. No. 04-04785-05560
:
: Docket No. WEST 2000-521-M
: A.C. No. 04-04785-05561
:
: Mariposa Aggregates Quarry

                                       DECISION

Before: Judge Manning

    These cases commenced when the Secretary of Labor filed proposed penalty assessments

against Mariposa Aggregates under the authority of section 105(a) of the Federal Mine Safety
and Health Act of 1977 (the “Mine Act” or the “Act”), 30 U.S.C § 815(a) and the Commission’s
Procedural Rules at 29 C.F.R. § 2700.25. Bevan Builders, Inc., doing business as Mariposa
Aggregates (“Mariposa Aggregates”) contested the proposed penalties in accordance with 29
C.F.R. § 2700.26, by checking the boxes on the preprinted forms that state “I wish to contest and
have a formal hearing on ALL of the violations listed in the Proposed Assessment.” (emphasis
in original). These cases involve 107 citations and orders of withdrawal (the “citations”) issued
at the Mariposa Aggregates Quarry. The Secretary proposes a total civil penalty of $108,067.

   In response to Mariposa Aggregates’ contests of the penalties, the Secretary filed a

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petition for assessment of civil penalty in each case as required by 29 C.F.R. § 2700.28. When
Mariposa Aggregates did not file an answer within thirty days as required by 29 C.F.R. §
2700.29, the Commission’s Chief Administrative Law Judge issued an order to show cause. In
response, Mariposa Aggregates filed a document entitled: “Notice of Fraud; Certified Demand to
Cease and Desist Collection Activities Prior to Validation of Purported Debt” (“Notice of
Fraud”). The Chief Judge assigned the cases to me.

    In its Notice of Fraud, Mariposa Aggregates did not address the citations, orders, or the

proposed penalties. Instead, it stated that the Secretary had failed to establish that she had
jurisdiction over its quarry. Its notice of fraud also raised a number of other issues that are
irrelevant to these proceedings. In my prehearing order, I described the broad nature of Mine
Act jurisdiction and suggested that it may be more efficient to resolve any jurisdictional issues
prior to hearing. I also explained how cases proceed before the Commission and stated that
many of the issues raised by Mariposa Aggregates were not relevant to these proceedings. When
the parties were unable to settle the cases, I set them for hearing. I canceled the hearing well
before the hearing date on motion of the Secretary. The Secretary filed a motion for summary
decision that counsel stated would dispose of all issues in the cases.

    The first part of the Secretary’s motion for summary decision concerns MSHA’s

jurisdiction to inspect the quarry. The Secretary argued that there were no genuine issues of
material fact on this issue and that she was entitled to summary decision as a matter of law. 29
C.F.R. 2700.67(b). She relied on the declaration of MSHA Inspector Jaime Alvarez and an order
of the U.S. District Court. She stated that Mariposa Aggregates has been periodically
obstructing MSHA inspections by denying entry to MSHA inspectors. On September 12, 1996,
the U.S. District Court for the Eastern District of California granted the Secretary’s motion for
summary judgment and permanent injunction against Mariposa Aggregates. Sec’y of Labor v.
Bevan Builders, Inc., No. CV-F-95-5842 REC (E. D. Cal.) (S. Motion Ex. A). The court found
that “defendants’ quarry operation, ‘Mariposa Aggregates,’ constitutes a mine whose products
affect commerce and which, as such, is subject to the jurisdiction of the [Act].” Slip op. at 20.
The court also found that MSHA “has clear and express authority under the Act to conduct
periodic, warrantless, and unannounced health and safety inspections of [the quarry]. . . .” Id.
The court also enjoined Mariposa Aggregates from obstructing or impeding future MSHA
inspections.

    Mariposa Aggregates responded to the Secretary’s motion for summary decision with a

document entitled “Petition for Redress of Grievance” (the “Grievance Petition”). This
Grievance Petition was signed by Mr. Wayne R. Bevan, President of Mariposa Aggregates and
Bevan Builders, Inc. It is styled as a “Private International Administrative Remedy” brought
against the undersigned, the Commission’s Chief Administrative Law Judge and two employees
of the Department of Labor. The Grievance Petition contains a series of “Statements of Fact.”
In these statements, Mariposa Aggregates maintains that its quarry is “within the boundaries of
Mariposa County in the Republic of California” and the quarry is “outside the exclusive
legislative jurisdiction of the United States.” (G.P. at 4). It also states that it “is not the operator
of the quarry” and that there are no employees at the quarry. Id. The Grievance Petition

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contains numerous other “statements of fact” relating to the Uniform Commercial Code (“UCC”)
and previous correspondence with representatives of the Secretary. The Grievance Petition also
contains a series of inquiries directed to MSHA and the undersigned. For example, it asks
whether the United States is a municipal corporation, whether California is a republic, and
whether the persons to whom it is addressed are “willing participants in aiding or abetting in
carrying out a deceptive, false and fraudulent scheme to extort contracts, signatures, funds and/or
securities from the citizens of the several united States.” Id. at 8.

   Mariposa Aggregates also filed another document entitled “Notice of Return of

Erroneous Presentments.” Attached to this document are the cover pages of the Secretary’s
motion and the attachments for the motion. Handwritten across each of these pages are the
words, “Returned, Erroneous, January 25, 2001, Wayne R. Bevan.” The Notice of Return of
Erroneous Presentments states:

           I am returning your erroneous presentments WITHOUT DISHONOR,
           UCC 3-501. You have sent me incomplete instruments. UCC 3-115.
           These documents are returned timely, in according to all applicable rules.

This notice makes additional references to the UCC and demands that the Secretary provide
“proof of your claim that you maintain a security interest, UCC 1-102(37)(A).”1

   I granted the Secretary’s motion for summary decision on the jurisdictional issue by

order dated March 15, 2001. 23 FMSHRC 354. In granting the motion, I relied upon the
Secretary’s motion, the order of the District Court, and the declarations of Jan M. Coplick and
MSHA Inspector Alvarez.

     In her motion for summary decision, the Secretary also sought summary decision on the

merits in these cases because Mariposa Aggregates did not deny the allegations set forth in the
citations and orders. She argued that she was entitled to summary decision because the answer
filed by Mariposa Aggregates did not contain a short and plain statement responding to each
allegation in the petition for assessment of penalty, as required by 29 C.F.R. § 2700.29. The
Secretary also stated that the other documents filed by Mariposa Aggregates in these cases
indicate that Mr. Bevan does not contest the citations and orders.

    Counsel for the Secretary stated that she filed this motion because Mariposa Aggregates

has a history of “raising a kaleidoscope of ever-shifting yet always meritless objections.”
(Motion at 11). For example, she notes that, in its Order Granting the Secretary’s Motion for

   1
     Mariposa Aggregates also filed a document entitled “Notice of Fault - Opportunity to

Cure.” This document noted that I had not responded to Mr. Bevan’s Grievance Petition and
“granted” me an extension of time to respond. Apparently the Postal Service failed to deliver
this document to my office. Mariposa Aggregates also filed a copy with the Commission’s Chief
Judge on March 1, 2001, and that copy was immediately forwarded to me.

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Summary Judgment, the District Court stated that the arguments set forth by Mariposa
Aggregates were “without merit,” were “frivolous,” and were made in “bad faith.” (S. Motion at
9-10; slip. op. at 15 and 18). Counsel further states that “[r]equiring the Secretary to repeatedly
relitigate these legally insupportable objections, interposed for wrongful reasons, is a waste of
taxpayer dollars
. . . [and] threatens the safety and health of Respondent’s miners, and of other miners employed
by other operators who may be encouraged to emulate Respondent’s blatant defiance of a
remedial statute designed to save worker’s lives.” (S. Motion at 11-12).

     The declaration of Inspector Alvarez states that when he arrived at the quarry for one of

the inspections involved in these cases, he could see by the activities that were occurring that it
was in operation. (Alvarez Decl. ¶¶ 4-7). After the person in charge at the quarry called
Mr. Bevan by telephone, the operations were shut down and everyone was sent home. Id. at
¶ 12. Inspector Alvarez was told that he was free to look around but that no questions would be
answered and no information would be provided. Id. Inspector Alvarez was also told that the
people who work at the quarry are not employees because they all signed a “unique labor
agreement.” Id. at ¶ 16. Inspector Alvarez, who is a health specialist, was unable to sample for
silica dust because the operations were shut down. Id. at ¶ 18. In his declaration, he stated that
during the previous inspection, MSHA determined that miners were “significantly overexposed
to silica-bearing dust.” Id. Thus, it appears that although Mr. Bevan permitted MSHA inspectors
in the quarry, he continued to impede inspections in violation of the District Court order.

    In an order dated March 15, 2001, I held that I could not grant summary decision on the

merits of the citations. 23 FMSHRC 350. I further held that the Secretary’s motion could be
more accurately described as a motion, filed under 29 C.F.R. §§ 2700.10 and 2700.66, requesting
that Mariposa Aggregates’ contest of the proposed penalty assessments, brought under 29 C.F.R.
§ 2700.26, be dismissed. I noted that Mr. Bevan stated “I deny having requested a hearing
before your commission” in his Notice of Fraud. (N.F. at 1). Because none of the documents
filed by Mariposa Aggregates actually contested the merits of the penalty petitions, I ordered it
to show cause why its contests of the citations, orders, and proposed penalties should not be
dismissed. 23 FMSHRC at 352. Mariposa Aggregates was ordered to state whether it was
contesting the allegations set forth in the citations and orders. If so, Mariposa Aggregates was
ordered to briefly state the basis for its contests. I also warned Mariposa Aggregates that if it
failed to comply with my order to show cause, I would dismiss its contests of the citations,
orders, and penalties, and that I would assess MSHA’s proposed penalties.

    In response, Mariposa Aggregates filed a document entitled “Notice of Additional Time

to Answer Notice of Fraud, Demand to Answer Prior to Taking Any Official Acts,” dated April
20, 2001. This Notice of Additional Time did not address the concerns of my order to show
cause. Instead, it states that I again failed to respond to Mariposa Aggregates’ Grievance
Petition and, for that reason, I admitted all of the statements contained in it by operation of law.
The Notice of Additional Time “granted” me another extension of time to respond.

   The Notice of Additional Time also contains the following:

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Page 5

             Your [order to show cause] . . . is refused for fraud since there is
             no contract with the court to hear any matter it may have before it
             involving Mariposa Aggregates. Your contention that MSHA had
             received a request from Mariposa Aggregates for a hearing is
             clearly fraudulent and there has been no attempt on MSHA’s part
             to provide the document whereby Mariposa Aggregates requested
             such a hearing. . . .

             DEMAND is made that you answer fully the Petition for Redress
             of Grievances referenced above prior to taking any further actions.
             Should you not do so you may be personally liable in a court of
             law for operating under color of law, color of office in a
             conspiracy to extort money from this company and violating other
             rights that even a corporation has under the Constitution and
             International Treaty subjecting yourself to treble damages and
             RICO charges.

(Notice at 2).

    On April 20, 2001, in response to Mariposa Aggregates’ Notice of Additional Time, I

issued an order requiring it to file an amended answer in these cases. This order was another
order to show cause giving Mariposa Aggregates a second opportunity to state whether it was
contesting the merits of the citations and whether it wanted a hearing. In this order I stated that I
had addressed the issues raised in its Grievance Petition in my order granting the Secretary’s
motion for summary decision on the jurisdiction issue. I also reminded Mr. Bevan that the other
issues it raised are irrelevant to these proceedings, including its arguments concerning the law of
contracts, the UCC, and the “Republic of California.” I also described how these cases arose,
what a mine operator’s rights are under the Mine Act, and the Commission’s Rules of Procedure.

    I explained in this order that the only way for Mariposa Aggregates to contest the

citations, orders, and penalties proposed by MSHA is at a hearing before me. I stated that if
Mariposa Aggregates did not file an appropriate response to my order I would affirm all of the
citations and that I would assess MSHA’s proposed penalty of $108,067.

    In response, Mariposa Aggregates filed a document entitled “Notice of Fraud, Demand to

Answer Prior to Taking Any Official Acts,” dated May 8, 2001. In this document, Mr. Bevan
repeats the demands he made in previous documents. He “refused for fraud” my order requiring
an amended answer; he states that he did not request a hearing; and he demands that I answer his
Grievance Petition. With respect to his Grievance Petition, Mr. Bevan states:

             DEMAND is made that you timely answer fully the [Grievance
             Petition] . . . prior to taking any further official actions. The
             proper method of answering the Petition would be to change any
             answer with which you disagree. For example, you refer to the

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             issue of the California Republic. I have not put it forth as an
             argument, but as a simple statement of fact. If you should
             disagree, then change the answer, e.g. Item number # I disagree.
             The State of California is not a republic because ...., with evidence
             in support. Should you take any official actions prior to answering
             or challenging the Petition, you may be personally liable in a court
             of law for operating under color of law, color of office in a
             conspiracy to extort money from this company and violating other
             rights that even a corporation has under the constitution and
             International Treaty subjecting yourself to treble damages and
             RICO charges. Your failure to answer will be deemed an
             exhaustion of my administrative remedies and your permission for
             me to remove this matter to a court of competent jurisdiction, of
             my choice, to have it resolved.

(Notice at 2).

    Mr. Bevan made no attempt to advise me of his position on the allegations contained in

the citations. He also did not request that these cases be set for hearing. The documents that
Mr. Bevan filed on behalf of Mariposa Aggregates do not contest the merits of the Secretary’s
penalty petitions. Instead, Mr. Bevan raises irrelevant issues or makes meaningless arguments.
Another example is instructive. In his Notice of Fraud, Mr. Bevan stated that the failure of
counsel for the Secretary to produce a valid licence to practice law constitutes a fraud on the
court which “is further exacerbated by [counsel’s] deliberate usage of foreign private
copyrighted ‘law’ owned by British companies.” (N.F. at 4). He further stated that “British
companies own United States and State of California copyrighted ‘law’ commonly known as
‘codes.’” Id.
Mr. Bevan based this argument on the fact that some legal publishers, including West Publishing
Company, are owned by British companies. On this basis, he stated that counsel for the
Secretary is legally required to be registered as a foreign agent and demanded a copy of the
attorney’s foreign agent registration card. Id. at 5. Despite my best efforts, Mariposa
Aggregates continued to offer such arguments rather than “a short and plain statement
responding to each allegation of the petition,” as required by 29 C.F.R. 2700.29.

                                  ORDER OF DEFAULT

     I provided Mariposa Aggregates two opportunities to comply with the Commission’s

Procedural Rules and my orders. Mariposa Aggregates did not make any attempt to comply with
my order to show cause or my order to file an amended answer. Consequently, under the
authority set forth in 29 C.F.R. § 2700.66, I hold that Mariposa Aggregates is in DEFAULT and
that it has waived its right to a hearing in these cases.

   Each of the citations and orders of withdrawal in these cases are hereby AFFIRMED, as

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written by the MSHA inspector. Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I base my findings with respect to the civil
penalty criteria on the information contained in the Secretary’s petitions for assessment of
penalty. I find that 62 citations were issued at the quarry during the two years preceding the first
inspection involved in these cases. Mariposa was a relatively small operator that worked about
38,480 hours in the previous year. Section 104(b) orders of withdrawal were issued for four
citations. The Secretary determined that with respect to 39 citations and orders, the penalties
should not be reduced because Mariposa Aggregates failed to demonstrate good faith in
attempting to achieve rapid compliance after notification of the violation. Mariposa Aggregates
did not submit any evidence that the proposed penalties will have an adverse effect on its ability
to continue in business. My gravity and negligence findings are as set forth in the citations and
orders. Penalties for 21 of the citations and orders were specially assessed by the Secretary
under 30 C.F.R. § 100.5. Thirty of the citations and orders were issued under section 104(d) of
the Mine Act. Based on the penalty criteria, I find that the penalties set forth below are
appropriate.

   Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), and the

information contained in the Secretary’s penalty petitions, I assess the following civil penalties:

   Citation No.                           30 C.F.R. §                    Penalty

   WEST 2000-231-M

     7969028                              56.14103(b)                   $5,280.00
     7969029                              56.14132(a)                    2,531.00
     7969030                              56.14130(a)(3)                 2,531.00
     7969031                              56.14107(a)                    1,247.00
     7969053                              56.4203                        2,531.00
     7969033                              103(a) of Act                  6,000.00
     3914242                              56.9100(a)                       760.00
     3914243                              56.4430(a)(2)                    760.00
     3914244                              56.4200(b)(2)                    475.00
     3914245                              56.12004                         993.00
     3914246                              56.14205                         340.00
     3914247                              56.12018                         340.00
     3914248                              56.12032                         224.00
     3914249                              56.16006                         277.00
     3914250                              56.16005                         340.00
     3914251                              56.14115(b)                      340.00
     3914252                              56.12004                       1,771.00
     3914253                              56.11027                       1,771.00
     3914254                              56.12004                         340.00

   WEST 2000-232-M

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Page 8

3914255 56.12032 $1,771.00
3914256 56.4011 340.00
3914257 56.12030 2,531.00
3914258 56.12013(a) 475.00
3914259 56.12008 277.00
3914260 56.11003 760.00
3914401 56.12034 340.00
3914402 56.11001 1,270.00
3914403 56.12004 1,771.00
3914404 56.12004 1,771.00
3914405 56.4202 277.00
3914406 56.12005 1,771.00
3914641 56.15003 1,815.00
3914642 56.14107(a) 1,270.00
3914643 56.4102 1,270.00
3914644 56.4200(a)(1) 340.00
3914645 56.14100(b) 4,400.00
3914646 56.4402 993.00
3914648 56.4101 1,771.00

WEST 2000-239-M

3914649 56.16006 1,957.00
3914650 56.14100(b) 475.00
3914653 56.9300(a) 1,771.00
3914654 56.20003(a) 1,270.00
3914655 56.14107(a) 1,815.00
3914656 56.14107(a) 1,086.00
3914657 56.14112(b) 1,815.00
3914658 56.14112(b) 1,815.00
3914659 56.14112(b) 1,815.00
3914660 56.3131 2,391.00
3914663 104(d) of Act 3,000.00
3914664 104(d) of Act 3,000.00
3914665 104(d) of Act 2,000.00
7969088 56.12028 655.00
7969117 56.12032 993.00
7969118 56.12004 993.00
7969119 56.14107(a) 872.00
7969120 56.14107(a) 1,247.00
7969121 56.14107(a) 399.00

WEST 2000-240-M

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Page 9

7969122 56.12008 $655.00
7969123 56.15006 655.00
7969124 56.15001 277.00
7969125 56.20003(a) 1,086.00
7969126 56.4102 475.00
7969127 56.12004 317.00
7969128 56.14107(a) 655.00
7969129 56.14101(a) 993.00
7969131 56.14100(c) 993.00
7969134 56.14112(a)(2) 347.00
7969135 56.16005 264.00
7969142 50.30(a) 55.00
7969186 56.12034 55.00
7969187 56.12004 55.00
7969188 56.4603 55.00
7969189 56.12032 161.00
7969190 56.12028 264.00
7969191 56.4402 131.00
7969192 56.14107(a) 131.00

WEST 2000-241-M

7969193 56.14109(b) 131.00
7969194 56.12004 161.00
7969195 56.12004 161.00
7969196 56.20001 55.00
7969197 56.11003 97.00
7969198 56.12004 161.00
7969199 56.20003(a) 97.00
7969200 56.12013(a) 55.00
7981001 56.14101(a)(2) 161.00
7981002 56.14100(c) 161.00
7981004 56.14100(b) 55.00
7981005 56.14132(a) 55.00
7981006 56.12005 55.00

WEST 2000-520-M

7981052 56.5002 850.00
7981056 56.5001(a)/.5005 850.00
7981059 104(b) of Act 750.00
7981060 104(d)(2) of Act $3,500.00
7981061 109(a) of Act 55.00
7981063 104(d)(2) of Act 3,500.00

               523

Page 10

   WEST 2000-251-M

    7969707                              56.12002                        550.00
    7969709                              56.12002                        550.00
    7969710                              56.12002                        550.00
    7969711                              56.12001                        550.00
    7969712                              56.14100(b)                     300.00
    7969713                              56.12002                        550.00
    7969714                              56.12002                        550.00
    7969715                              56.12008                        300.00
    7969716                              56.12001                        550.00
    7969717                              56.12002                        550.00
    7969718                              56.12002                        550.00
    7969722                              56.12008                        550.00

                                         Total Penalty             $108,067.00


                ORDER DIRECTING THAT PENALTIES BE PAID

   Bevan Builders, Inc., doing business as Mariposa Aggregates, is ORDERED TO PAY

the Secretary of Labor the sum of $108,067.00 within 40 days of the date of this decision.

                                         Richard W. Manning
                                         Administrative Law Judge

Distribution:

Jan Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., Suite
1110, San Francisco, CA 94105-2999 (Certified Mail)

Wayne R. Bevan, President, Mariposa Aggregates, P.O. Box 942, Mariposa, CA 95338
(Certified Mail)

RWM

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