Sanger Rock & Sand

Plain-English summary

Sanger Rock & Sand argued that MSHA could not regulate its California property because the federal government did not own the land and California had not ceded it to the federal government. Judge John J. Morris held that the cited constitutional provision concerned federal control over the District of Columbia and certain federal properties, not Congress's power to regulate commerce. He concluded that Congress's Mine Act authority rested on the Commerce Clause and that mining operations affecting commerce could be subject to federal regulation even when they were intrastate. He also rejected Sanger's argument that California regulation displaced the Mine Act. The judge granted a preliminary finding of MSHA jurisdiction in WEST 88-275-M, denied dismissal in WEST 89-71-M, and set the cases for hearing on the merits.

Decision snapshot

• Governing provisions: Article I, Section 8, Clauses 3 and 17 of the U.S. Constitution; sections 3(h), 4, and 506 of the Mine Act.
• Outcome: A preliminary finding of MSHA jurisdiction was granted in WEST 88-275-M, dismissal was denied in WEST 89-71-M, and the cases were set for hearing.
• Key point: The Mine Act's federal reach is based on Congress's Commerce Clause authority, not on federal ownership or territorial cession of the mine property.

Full text (FMSHRC public release)

CASE:
SOL (MSHA) V. SANGER ROCK & SAND
DATE:
19890809
TEXT:

           Federal Mine Safety and Health Review Commission
              Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-275-M
PETITIONER A.C. No. 04-01937-05505

      v.                             Docket No. WEST 89-71-M
                                     A.C. No. 04-01937-05506

SANGER ROCK & SAND,
RESPONDENT Sanger Pit and Mill

                             ORDER

 The issue in the above cases is whether respondent, Sanger

Rock & Sand (Sanger), is subject to MSHA's jurisdiction.

 As a threshold matter, Sanger asserts MSHA has not acquired

jurisdiction over it for the reason that the federal government
has failed to comply with Article I, Section 8, Clause 17(FOOTNOTE 1) of
the United States Constitution. Specifically, it is argued that
since the United States does not possess fee simple title to
Sanger's property and since the State of California did not cede
the property to the United States then the case should be
dismissed for lack of "territorial jurisdiction."

 For the purpose of this ruling I assume the federal

government does not own this property and I further assume the
property has not been ceded to the federal government by the
State of California. But I nevertheless conclude that Sanger's
arguments are misdirected. The cited portion of the Constitution
relied on by Sanger relates to the District of Columbia, the seat of
government of the United States. Its plain words do not
constitute a grant of power to the Congress to regulate commerce
nor is it a restriction on the power of Congress to regulate
commerce.

 Specifically, this section of the Constitution relates to

the Congress having exclusive authority over the District of
Columbia, (the seat of government), as well as all other places
purchased by the federal government.

 In support of its position Sanger relies upon and cites

United States v. Benson, 495 F.2d 475 (1974).

 The Benson case is not controlling. In Benson the defendants

were convicted of robbery that was committed within the
territorial jurisdiction of the United States. The territorial
jurisdiction of the United States in the case was Fort Rucker,
Alabama, a military installation. The federal military code, by
virtue of Clause 17, was exclusive in this area which was a
federal military reservation.

 Contrary to Sanger's views, the grant of authority for

Congress to regulate mines rests in Article 1, Section 8, Clause
3(FOOTNOTE 2) of the Constitution, the "Commerce Clause."

 When Congress enacted the Mine Act it considered and defined

commerce as it related to mining. Specifically, Section 4 of the
Act provides:

      Each coal or other mine, the products of which enter
      commerce, or the operations or products of which affect
      commerce, and each operator of such mine and every
      miner in such mine shall be subject to the provisions
      of this Act.

    Further, "Commerce" is defined in section 3(h) of the Act as:

         Trade, traffic, commerce, transportation or
         communication among the several states, or between a
         place in a state and any place outside thereof, or
         within the District of Columbia, or a possession of the
         United States, or between points within the same state
         but through a point outside thereof."

 The use of the phrase "which affect commerce" in Section 4

of the Mine Act indicates the intent of Congress to exercise the full
reach of its constitutional authority under the commerce clause. See:
Brennan v. OSHA, 492 F.2d 1027 (2nd Cir. 1974); U.S. v. Dye
Construction Co., 510 F.2d 78 (10th Cir. 1975); Polish National
Alliance v. NLRB, 332 U.S. 643 (1977); Godwin v. OSHRC, 540 F.2d
1013 (9th Cir. 1976).

 In Perez v. United States, 402 U.S. 146 (1971), it was held

that Congress may make a finding as to what activity affects
interstate commerce, and by doing so it obviates the necessity for
demonstrating jurisdiction under the commerce clause in individual
cases. Thus, it is not necessary to prove that any particular
intrastate activity affects commerce if the activity is included in
a class of activities which Congress intended to regulate because
that class affects commerce.

 In short, mining is among those classes of activities which

are regulated under the Commerce Clause of the United States
Constitution and thus is among those classes which are subject to
the broadest reaches of Federal regulation because the activities
affect interstate commerce. Marshall v. Kraynak, 457 F. Supp.
907, (W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert.
denied, 444 U.S. 1014 (1980). Further, the legislative history of
the Act as well as court decisions, encourage a liberal reading of
the definition of a mine found in the Act in order to achieve the
Act's purpose of protecting the safety of miners.
Westmoreland Coal Company v. Federal Mine Safety and Health
Review Commission, 606 F.2d 417 (4th Cir. 1979). See also: Godwin
v. Occupational Safety and Health Review Commission, supra, where
the court held that unsafe working conditions of one operation,
even if in initial and preparatory stages, influences all other
operations similarly situated, and consequently affect interstate
commerce. Godwin v. Occupational Safety and Health Review
Commission, supra.

 The courts have consistently held that mining activities which

may be conducted affect commerce sufficiently to subject the mines
to federal control. See: Marshall v. Kilgore, 478 F. Supp. 4 (E.D.
Tenn. 1979); Secretary of the Interior v. Shingara, 418 F. Supp.
693 (M.D. Pa. 1976); Marshall v. Bosack, 463 F. Supp. 800, 801
(E.D. Pa. 1978). Likewise, Commission judges have held that
intrastate mining activities are covered by the Act because they
affect interstate commerce. See: Secretary of Labor v. Rockite
Gravel Company, 2 FMSHRC 3543 (December 1980); Secretary of Labor
v. Klippstein and Pickett, 5 FMSHRC 1424 (August 1983); Secretary
of Labor v. Haviland Brothers Coal Company, 3 FMSHRC 1574 (June
1981); Secretary of Labor v. Mellott Trucking Company, 10 FMSHRC
409 (March 1988).

 In a decision involving the same parties, Commission Judge

August F. Cetti ruled against Sanger's "territorial jurisdictional
argument." Sanger Rock & Sand, 11 FMSHRC 403 (March 1989).

 Sanger also states that the State of California has its own

laws and regulations that protect the safety and health of its
people.

 This argument has been raised in a number of cases.

Commission judges have consistently held that state and federal
OSHA statutes do not preempt the 1977 Mine Act. See: Brubaker-Mann,
Inc., 2 FMSHRC 227 (January 1980); Valley Rock and Sand
Corporation, 4 FMSHRC 113 (January 1982); Black River Sand and
Gravel, Inc., 4 FMSHRC 743 (April 1982); San Juan Cement Company,
Inc., 2 FMSHRC 2602 (September 1980); Sierra Aggregate Co., 9
FMSHRC 426 (March 1987). I agree with these holdings, and I also
take note of the fact that section 506 of the 1977 Mine Act permits
concurrent state and federal regulation, and that under the federal
supremacy doctrine, a state statute is void to the extent that it
conflicts with a valid federal statute. Dixie Lee Ray v. Atlantic
Richfield Company, 435 U.S. 151, 55 L. Ed. 2d 179 (1978); Bradley
v. Belva Coal Company, 4 FMSHRC 982, 986 (June 1982).

 In WEST 89-71-M Sanger has also moved to dismiss the case on

the grounds that MSHA has lost or misplaced records.

 It is not possible at this time to identify what records, if

any, may be lost. Further, any evidence on that issue will relate
to the merits of the cases.

 For the foregoing reasons I conclude that the Secretary of

Labor, on behalf of MSHA, has jurisdiction in this matter. Further,
Sanger, as a sand and gravel operation, is generally subject to the
Secretary's authority by virtue of MSHA.

                             ORDER

 1. In WEST 88-275-M: Petitioner's motion for a preliminary

finding that respondent is subject to the jurisdiction of the
Secretary under the authority of the Federal Mine Safety and
Health Act is granted.

 2. In WEST 89-71-M: Respondent's motion to dismiss on the

merits and for a lack of territorial jurisdiction are denied.

 3. These cases will be shortly set for a hearing on the

merits.

                           John J. Morris
                           Administrative Law Judge

FOOTNOTES START HERE

1. The cited portion of the Constitution provides that Congress
   shall have the right:

     "To exercise exclusive Legislation in all Cases
   

   whatsoever, over such District (not exceeding ten Miles square)
   as may, by Cession of particular States, and the Acceptance of
   Congress, become the Seat of the Government of the United States,
   and to exercise like Authority over all Places purchased by the
   Consent of the Legislature of the State in which the Same shall
   be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,
   and other needful Buildings; . . . "

2. The cited portion of the Constitution provides that Congress
   shall have the right

     "To regulate Commerce with foreign Nations and among
   

   the several States, and with the Indian Tribes."