Beaver Creek Coal Company

Plain-English summary

Beaver Creek Coal Company disputed a withdrawal order and MSHA's handling of a proposed roof control plan modification at the Trail Mountain No. 9 Mine. MSHA later vacated the withdrawal order and approved the requested modification without the disputed condition. The Commission held that the requests for declaratory relief were moot and that the operator could not recover attorney fees and litigation costs under the cited authorities. It affirmed the ALJ's dismissal of the contest.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.200, 30 C.F.R. § 75.220(a), 30 C.F.R. § 75.223(d)
• Outcome: The Commission affirmed dismissal of the contest and denied declaratory relief and the requests for attorney fees and costs.
• Key point: Once MSHA vacated the withdrawal order and granted the requested roof plan modification, no live controversy remained for declaratory relief.

Full text (FMSHRC public release)

CCASE:
BEAVER CREEK COAL V. MSHA
DDATE:
19891220
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                           December 20, 1989

BEAVER CREEK COAL COMPANY

 v.           Docket No. WEST 88-145-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

              DECISION

BY THE COMMISSION:

 The questions presented in this contest proceeding are whether

Beaver Creek Coal Company ("Beaver Creek") is entitled to declaratory
relief under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801 et seq. (1982) (the "Mine Act"), and to attorney's fees and costs
Commission Administrative Law Judge John J. Morris concluded that Beaver
Creek was not entitled to either declaratory or monetary relief, and he
dismissed Beaver Creek's contest. 10 FMSHRC 758 (June 1988)(ALJ). For
the reasons that follow, we affirm the judge's decision.

Beaver Creek's application for declaratory relief involves a

dispute between Beaver Creek and the Department of Labor's Mine Safety
and Health Administration ("MSHA") regarding the revision of Beaver
Creek's roof control plan at its Trail Mountain No. 9 Mine located in
Emery County, Utah. 1/ The plan permitted 140 feet of penetration on

1/ Pursuant to 30 U.S.C. 862 and mandatory safety standard 30 C.F.R.
75.200 (1987), an operator is required to adopt a roof control pla
suitable to the conditions and mining system of the mine. The plan
must be approved by the Secretary and must be reviewed at least every

Page 2

six months. Once adopted and approved, the provisions of the plan are
enforceable as mandatory safety standards. See Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Jim Walter Resources, Inc.,

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development mining without installation of permanent roof support.
It also permitted continuous mining machines to make 10 foot cuts.
By letter dated January 13, 1988, Beaver Creek requested that MSHA
approve a modification of the roof control plan to allow remote
controlled continuous mining machines to make cuts of 20 feet during
development mining. By letter dated February 16, 1988, MSHA "tentatively"
approved the modification subject to various conditions, one of which
stated that "[t]he maximum depth of penetration is limited to 40 feet.
If adverse conditions are encountered or anticipated, the cut depth shall
be substantially reduced." Exhibit C. By letter mailed March 14, 1988,
Beaver Creek objected to this and other conditions.

 On March 17, 1988, MSHA inspector Dick Jones conducted an inspection

at the mine. Jones found that a remote controlled continuous mining
machine had exceeded the 40 foot penetration limit set forth in MSHA's
letter. Jones therefore issued to Beaver Creek an order of withdrawal
pursuant to section 104(d)(2) of the Act, 30 U.S.C. 814(d)(2), alleging
a violation of section 75.200 for failure to comply with the approved roof
control plan. Jones further found that the violation significantly and
substantially contributed to a mine safety hazard and resulted from Beaver
Creek's unwarrantable failure to comply with the standard.

Beaver Creek personnel informed Jones that Beaver Creek had not

agreed to the 40 foot penetration condition stated in MSHA's letter.
They showed Jones a copy of Beaver Creek's letter to MSHA in which it
stated its objections to the condition MSHA sought to impose. Later that
same morning, MSHA terminated the withdrawal order and mining was allowed
to resume. MSHA, however, refused to vacate the withdrawal order issued
by Jones.

On March 22, 1988, Beaver Creek initiated this proceeding before the

Commission asserting that the order was improperly issued. Beaver Creek
argued that, because it had not agreed to the condition, it had not
violated section 75.200 by not complying with the condition. Beaver Creek
also requested the Commission to order the Secretary to reimburse Beaver
Creek for its attorney:s fees and costs pursuant to Rule 11 of the Federal
Rules of Civil Procedure ("Fed. R. Civ. P. 11"), section 105(d) of the Mine
Act, and the common law, asserting that MSHA's defense of the contested
withdrawal order was frivolous and in bad faith. Notice of Contest 2-3.
Beaver Creek also challenged the inspector's unwarrantable failure finding.

On March 25 1988, MSHA vacated the withdrawal order and in a letter

to Beaver @reek conceded that, because there had been no agreement between
MSHA and Beaver Creek regarding the stipulation, penetration by the remote
controlled continuous mining machine beyond 40 feet did not violate the

Page 4

mine's roof control plan or section 75.200.

9 FMSHRC 903, 906-07 (May 1987). On March 28, 1988, the Secretary's
revised mandatory safety standards for roof, face, rib support, and roof
control plans became effective. The revised standards generally retain the
adoption, approval, and review requirements of section 75.200 (1987). See
e.g., 30 C.F.R. 75.220(a); 30 C.F.R. 75.223(d)(1988).

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MSHA also advised Beaver Creek that the roof control plan in effect on
January 13, 1988, would be enforced, commencing March 30, 1988, absent an
agreement on the conditions proposed by MSHA.

On April 8, 1988, Beaver Creek filed an amended notice of contest,

requesting declaratory relief and charging that the Secretary's practices
and procedures for approving new and revised roof control plans were
improper. Beaver Creek also renewed its request for attorney's fees and
costs. On April 22, 1988, MSHA unconditionally approved the roof control
modification requested by Beaver Creek, and moved to dismiss the notice of
contest as amended. The Secretary essentially argued that Beaver Creek's
request for declaratory relief was moot and that the principle of sovereign
immunity barred Beaver Creek's claims for attorney's fees and costs.

The administrative law judge granted the Secretary's motion to

dismiss. The judge concluded that, although the Commission had authority
to grant declaratory relief, relief was not warranted because the issues
were moot. 10 FMSHRC at 764. The judge specifically noted that the
modification sought by Beaver Creek had been granted by the Secretary. Id.
The judge also denied Beaver Creek's request for an award of attorney's
fees and costs, concluding that Fed. R. Civ. P. 11 does not provide a basis
for an award of fees and costs in Commission proceedings. 10 FMSHRC at

763. We granted Beaver Creek's petition for review.

     Beaver Creek submits that the Commission should reverse the order of
     dismissal and reinstate its contest. Beaver Creek asserts that, despite
     MSHA's approval of Beaver Creek's proposed modification of the roof control
     plan at the Trail Mountain No. 9 Mine, the relief Beaver Creek seeks
     involves an interpretation of the proper procedures to be followed in the
     roof control plan approval process and, therefore, that the issues are not
     moot. PDR at 2, 16-19. Beaver Creek also argues that it should be awarded
     the monetary sanctions it seeks.

     The Commission has previously recognized that it may grant
     declaratory relief in appropriate proceedings where jurisdiction otherwise
     exists. Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52 (October 1980),
     aff'd sub nom. Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447,
     452 (1Oth Cir. 1983); Kaiser Coal Corp., 10 FMSHRC 1165, 1170-71 (September
     1988); See also Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (February
     1985)("Y&0"). The question is whether declaratory relief is appropriate.

     The primary purpose of declaratory relief is "to save parties from
     unnecessarily acting upon their own view of the law." Climax Molybdenum
     Co., 2 FMSHRC at 2752. Beaver Creek instituted this case to challenge
     the validity of the withdrawal order and the inspector's finding of

Page 6

unwarrantable failure. Beaver Creek argued that MSHA had not approved,
and Beaver Creek had not adopted, the provision of the plan for which
it was cited and thus that it had not violated section 75.200. Shortly
after Beaver Creek initiated this proceeding MSHA itself vacated the
contested withdrawal order. MSHA admitted that the order had been
improperly issued because the inspector mistakenly believed that a

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limitation of 40 feet for the penetration of the remote controlled
continuous mining machine had been adopted and approved. Thus, MSHA
agreed with Beaver Creek that the company had not violated section 75.200.

In addition, MSHA approved without conditions and Beaver Creek

adopted the modification of the roof control plan originally sought by
Beaver Creek. The requirements of the roof control plan concerning the
advancement of remote controlled continuous mining machines inby permanent
roof supports during development mining are now clearly understood by both
Beaver Creek and MSHA. Accordingly, denial of declaratory relief does not
mean that Beaver Creek will have to act at its peril regarding the meaning
of this previously disputed provision.

Further, there are no allegations by Beaver Creek that there is

a present dispute between it and MSHA with respect to the approval or
review of the mine's roof control plan or of any proposed revisions to
it. See Tr. 15, 31-32. The prospect that the Secretary will take similar
enforcement action in the future is purely conjectural and cannot be the
basis for declaratory relief. See SEC v. Medical Committee on Human
Rights, 404 U.S. 403, 406 (1972).

Beaver Creek also requests that we declare invalid certain of the

practices and procedures used by MSHA in negotiating with operators with
respect to approval or revision of roof control plans, and that we issue
a declaratory ruling regarding the effect of the revised roof control
regulations upon MSHA's authority to review a roof control plan. See
Amended Notice of Contest 4; 53 Fed. Reg. 2354 (1988). The prospect of
future allegations of violations resulting from the Secretary's practices
and procedures for approval or revision of Beaver Creek's roof control
plan is entirely speculative. Indeed, the Secretary acknowledges that
MSHA's presently published roof control plan approval and review policies
"are largely consistent with the positions taken by Beaver Creek and the
declarations it seeks." See S. Br. 20-24. We further find it
inappropriate to consider declaratory relief in the context of the revised
roof control regulations. The revised regulations were not in effect at
the time of the Secretary's enforcement action in this proceeding. It
would be inadvisable, therefore, to express an opinion as to the propriety
of the revised procedures, absent a factually grounded controversy arising
under those procedures. Hence, we agree with the judge that, under the
circumstances of this case, declaratory relief is not warranted.

We also agree with the judge that Beaver Creek is not entitled to

attorney's fees and litigation expenses. Subsequent to granting review of
this proceeding, we concluded that the provision of Fed. R. Civ. P. 11
providing for monetary sanctions does not apply to Commission proceedings.

Page 8

Rushton Mining Co., 11 FMSHRC 759 (May 1989). 2/ We held

2/ Fed. R. Civ. P. 11 provides:

Signing of Pleadings, Motions, and Other Papers;

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that, absent specific statutory authority, the Commission cannot award
attorney's fees and costs against the Secretary. We noted that the
barriers to such relief "include the silence of the Mine Act on the
subject, the nature of the Federal Rules of Civil Procedure, the bar
of sovereign immunity, and the Equal Access to Justice Act (Pub. L.
No. 96-481, 94 Stat. 2325, reauthorized, Pub. L. 99-80, 99 Stat. 183)
("EAJA")." 11 FMSHRC at 763. Beaver Creek raises no arguments causing
us to reconsider our decision in Rushton. Therefore, for the reasons
set forth in Rushton, we conclude that Beaver Creek is not entitled to
attorney's fees and reimbursement for costs under Fed. R. Civ. P. 11.

 Sanctions

           Every pleading, motion, and other paper of a
 party represented by an attorney shall be signed by
 at least one attorney of record in the attorney's
 individual name, whose address shall be stated. A
 party who is not represented by an attorney shall
 sign the party's pleading, motion, or other paper and
 state the party's address. Except when otherwise
 specifically provided by rule or statute, pleadings
 need not be verified or accompanied by affidavit.
 The rule in equity that the averments of an answer
 under oath must be overcome by the testimony of two
 witnesses or of one witness sustained by corroborating
 circumstances is abolished. The signature of an
 attorney or party constitutes a certificate by the
 signer that the signer has read the pleading, motion,
 or other paper; that to the best of the signer's
 knowledge, information, and belief formed after
 reasonable inquiry it is well grounded in fact and is
 warranted by existing law or a good faith argument for
 the extension, modification, or reversal of existing
 law, and that it is not interposed for any improper
 purpose, such as to harass or to cause unnecessary
 delay or needless increase in the cost of litigation.
 If a pleading, motion, or other paper is not signed, it
 shall be stricken unless it is signed promptly after
 the omission is called to the attention of the pleader
 or movant. If a pleading, motion, or other paper is
 signed in violation of this rule, the court, upon
 motion or upon its own initiative, shall impose upon
 the person who signed it, a represented party, or both,
 an appropriate sanction, which may include an order to

Page 10

  pay to the other party or parties the amount of the
  reasonable expenses incurred because of the filing of
  the pleading, motion, or other paper, including a
  reasonable attorney's fee.

(As amended April 28, 1983, effective August 1, 1983.) (Emphasis added.)

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Beaver Creek also argues for an award of attorney's fees and costs
under section 105(d) of the Mine Act and under general principles of
American common law. It asserts that such fees and costs are warranted
when the government engages in frivolous or bad faith litigation. However,
as we observed in Rushton, the doctrine of sovereign immunity bars the
award of attorney's fees and costs against an agency of the United States
absent Congressional authorization. 11 FMSHRC at 765. As we explained
in Rushton, the EAJA is "the exclusive remedy provided by Congress to
prevailing litigants who seek reimbursement of their litigation expenses
from the Secretary in Commission contest and civil penalty proceedings."
11 FMSHRC at 765. Because Beaver Creek makes no claim or showing of an
entitlement to an award of fees and costs under the EAJA, its request must
be denied.

On the foregoing basis, we conclude that the judge properly denied

Beaver Creek's motion for declaratory relief and for monetary sanctions
against the Secretary, and we affirm the judge's decision dismissing
Beaver Creek's contest.
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
L. Clair Nelson, Commissioner

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Distribution

Charles W. Newcom, Esq.
Susan K. Grebeldinger. Esq.
Sherman & Howard
633 17th Street, Suite 3000
Denver, Colorado 80202

Thomas F. Linn, Esq.
Atlantic Richfield Co.
555 17th St.. 20th Floor
Denver, Colorado 80202

Steve Scovil, Miner Rep.
P.0. Box 1181
Castle Dale, Utah 84513

Dennis D. Clark, Esq.
Jerald S. Feingold, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204