National Cement Company of California, Inc. and Tejon Ranch Corp. (Commission decision, March 1, 2005)

Plain-English summary

An ALJ ruled that a private road leading to National Cement’s plant was a mine under the Mine Act. The judge certified the ruling for interlocutory review after National Cement moved for certification, the Secretary opposed it, and Tejon Ranch supported it. The Commission granted review of whether the road qualified as a mine under the Mine Act. It directed the parties to brief the issue under the Commission’s interlocutory-review rule. Commissioner Jordan dissented, concluding that review at that stage would not materially advance the case.

Decision snapshot

• Governing provisions: 30 U.S.C. § 802(h)(1); 29 C.F.R. § 2700.76(a) and (c)
• Outcome: Interlocutory review was granted on whether the private access road was a mine under the Mine Act.
• Key point: The Commission may grant interlocutory review when a certified ruling presents a controlling legal question and immediate review may advance final disposition.

Full text (FMSHRC public release)

NATIONAL CEMENT COMPANY OF CALIFORNIA, INC. -- March 1, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

March 1, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2004-182-RM
:
NATIONAL CEMENT COMPANY :
OF CALIFORNIA, INC. :
:
and :
:
TEJON RANCH CORP. :

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER

BY: Duffy, Chairman; Suboleski and Young, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 12, 2005, Administrative Law Judge Jerold Feldman granted the motion for summary decision filed by the Secretary of Labor and denied the cross motion filed by National Cement Company of California, Inc. ("National"). 27 FMSHRC 84 (Jan. 2005) (ALJ). In his decision, the judge concluded that a private road leading to the entrance of National's cement plant, which was owned and maintained by intervenor Tejon Ranch Corp. ("Tejon"), was a "mine" under the Mine Act. Id. at 98-102.

On February 7, 2005, the judge issued an order in which he granted the motion filed by National to certify for interlocutory review his order of January 12. The Secretary opposed the motion, and intervenor Tejon supported it. Commission Rule 76(a), 29 C.F.R. § 2700.76(a), provides that interlocutory review is a matter of sound discretion of the Commission and that the Commission may grant interlocutory review upon a determination that the judge's interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding.

Upon consideration of the judge's certification, we hereby grant review of the judge's decision of January 12 and the issue of whether the private road that accesses National's cement plant is a "mine" within the definition of section 3(h)(1) of the Mine Act. 30 U.S.C. § 802(h)(1). Briefing shall be conducted in accordance with Commission Rule 76(c), 29 C.F.R. § 2700.76(c).

______
Michael F. Duffy, Chairman

______
Stanley C. Suboleski, Commissioner

______
Michael G. Young, Commissioner

Commissioner Jordan, dissenting:

Given that the judge should be able to resolve all outstanding issues relatively quickly, review of his January 12 decision at this stage would not materially advance the final disposition of this case. Accordingly, I would not grant interlocutory review.

______
Mary Lu Jordan, Commissioner

Distribution:

Margaret S. Lopez, Esq.

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

2400 N Street, N.W., 5th Floor

Washington, D.C. 20037

Thomas C. Means, Esq.

Crowell & Morning, LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

Timothy S. Williams, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

Administrative Law Judge Jerold Feldman

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001