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PRONGHORN DRILLING COMPANY
EAJ 2001-4
January 15, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        January 15, 2002

PRONGHORN DRILLING COMPANY,   : EQUAL ACCESS TO JUSTICE
               Applicant      :   PROCEEDING
                              :
               v.             : DOCKET NO. EAJ 2001-4
                              :
SECRETARY OF LABOR,           : Formerly WEST 2000-537-M/538-M
   MINE SAFETY AND HEALTH     : A. C. Nos. 48-00837-05501 N5Y
   ADMINISTRATION (MSHA),     :            48-00837-05502 N5Y
               Respondent:    :
                              : Smith Ranch Project

                            DECISION

Before: Judge Melick

     This  proceeding  is before me upon the application  of  the
Pronghorn Drilling Company  (Pronghorn)  for an award of fees and
expenses pursuant to the Equal Access to Justice  Act, 5 U.S.C. 
504,  the "EAJ Act."  Pronghorn prevailed over the Department  of
Labor's Mine Safety and Health Administration (MSHA) before trial
by summary  decision  in  the underlying penalty proceeding under
the Federal Mine Safety and  Health Act of 1977, 30 U.S.C.  801,
et seq. (1994) the "Mine Act."   The  EAJ  Act  provides  that  a
prevailing  party  may  be  awarded  attorney's  fees  unless the
position of the United States is substantially justified  or that
special  circumstances  make an award unjust.  Secretary v. Black
Diamond Construction Inc.,  21  FMSHRC 1188 (November 1999).  The
Supreme Court has defined substantially  justified  as "justified
in  substance  or  in  the  main,"  or  a  position  that  has  a
"reasonable  basis  both  in law and fact."  Pierce v. Underwood,
487 U.S. 552, 565 (1998).  In Pierce, the Supreme Court set forth
the test for substantial justification as follows:

          "A position can be justified even though it is not
     correct and we believe  it can be substantially, "i.e.,
     for the most part" "justified  if  a  reasonable person
     could think it correct, if it has a reasonable basis in
     law  and fact."  Id. at 566n.2.  The Court  also  noted
     that certain "objective indicia" such as the terms of a
     settlement  agreement,  the stage of the proceedings at
     which the merits were decided  and  the  views of other
     Courts on the merits can be relevant to the  inquiry of
     whether  the  government's  position  was substantially
     justified.  Id. at 568.  In proceedings  under the Act,
     the  agency bears the burden of establishing  that  its
     position   was   substantially  justified.   Lundin  v.
     Mecham, 980 F.2d 1450, 1459 (D.C. Cir. 1992).

     In  the  underlying  proceeding   under  the  Mine Act,
the Secretary charged independent contractor, Pronghorn, with
Mine Act violations at the Smith Ranch Project, owned  and
operated by Rio Algom  Mining  Corporation  (Rio  Algom)  and
arising out  of  an accident  which  killed truck driver Philip
Robideoux. Pronghorn and Rio Algom filed motions for summary
decision in the underlying proceedings based  on  the  claim
that the Secretary was without jurisdiction under the Mine Act.
The motions for summary decision were  granted  by  decision
dated  September  7,  2001,  and  the Secretary did not seek
review.

    The rationale for the decision is set forth below:

          Whether  the  "Smith  Ranch Project" is  a  "mine"
     depends on whether it meets the definition set forth in
     Section  3(h)(1) of the [Mine]  Act.   Section  3(h)(1)
     provides as follows:

               "Coal  or  other mine" means (A) an area
          of land from which  minerals are extracted in
          nonliquid form or, if  in  liquid  form,  are
          extracted   with   workers  underground,  (B)
          private ways and roads  appurtenant  to  such
          area, and (C) lands, excavations, underground
          passageways,   shafts,  slopes,  tunnels  and
          workings, structures,  facilities, equipment,
          machines, tools, or other  property including
          impoundments,  retention dams,  and  tailings
          ponds, on the surface  or  underground,  used
          in,  or to be used in, or resulting from, the
          work of  extracting  such minerals from their
          natural deposits in nonliquid  form, or if in
          liquid  form,  with  workers underground,  or
          used in, or to be used  in,  the  milling  of
          such  minerals, or the work of preparing coal
          or other  minerals,  and includes custom coal
          preparation   facilities.     In   making   a
          determination  of  what  constitutes  mineral
          milling  for  purposes  of  this   Act,   the
          Secretary shall give due consideration to the
          convenience  of administration resulting from
          the delegation  to one Assistant Secretary of
          all authority with  respect to the health and
          safety  of miners employed  at  one  physical
          establishment.

          In  connection  with  their  motions  for  summary
     decision the parties have reached joint stipulations on
     the  jurisdictional   issue   and   more   particularly
     regarding  the  processes  and  activities involved  in
     uranium  recovery  at  the  Smith Ranch  Project.   The
     process  utilized  at  the  Smith   Ranch   Project  is
     described  in  an  article  entitled, "The Smith  Ranch
     Uranium  Project" published in  the  Uranium  Institute
     Twenty Second  Annual International Symposium 1997, and
     authored by R. Mark  Stout  and  Ennis  E.  Stover  (SJ
     Exhibit No. 2).  For purposes of this decision however,
     it  is  sufficient  to note, and it is undisputed, that
     the mineral here at issue,  i.e., uranium, is extracted
     in liquid form without any workers underground.

          As previously noted, Section 3(h)(1)(A) of the Act
     defines "coal or other mine" as "[a]n area of land from
     which minerals are extracted  in  nonliquid form or, if
     in   liquid   form,   are   extracted   with    workers
     underground."    (emphasis  added).   It  is  therefore
     beyond dispute that  the  Smith  Ranch Project at issue
     herein is not a "mine" within the  meaning  of  Section
     3(h)(1)(A) of the Act.

          The Secretary nevertheless argues that Rio Algom's
     processing of this mineral, which has been extracted in
     liquid  form  without  workers  underground, is covered
     under Section 3(h)(1)(C) of the Act  as "the milling of
     such minerals."  "Coals or other mine" is there defined
     to   also   include  ".  .  .  structures,  facilities,
     equipments, machines,  tools,  or other property, . . .
     used in, or be used in, or resulting from, with workers
     underground, or used in, or to be  used in, the milling
     of such minerals . . ."  (emphasis added).

          It is well established that "[w]hen the meaning of
     the language of a statute or regulation  is  plain, the
     statute or regulation must be interpreted according  to
     its terms, the ordinary meaning of its words prevails."
     W.  Fuels-Utah,  Inc.,  11 FMSHRC 278, 283 (Mar. 1989).
     If it is plain on its face,  effect  should be given to
     its  clear meaning.  Exportal Ltda. v.  United  States,
     902 F.2d 45, 50 (D.C. Cir. 1990).

          Under  the  clear  and  plain  language of Section
     3(h)(1)(C) those milling operations covered  under  the
     Act  are  only  those  involving  the  milling of "such
     minerals," i.e., "minerals extracted from their natural
     deposits in nonliquid form, or if in liquid  form, with
     workers   underground."   Clearly  when  the  adjective
     "such"  is  used  to  modify  the  noun  "minerals"  it
     qualifies the word "minerals" limiting it to only those
     minerals previously  qualified  in  the  statute, i.e.,
     only   those  minerals  extracted  from  their  natural
     deposits  in nonliquid form, or if in liquid form, with
     workers underground.

          The adjective  "such"  sometimes  serves  a useful
     purpose,  as  where it saves having to repeat a concept
     that cannot be  referred  to  in  a  word  or  two.  In
     statutes  and  regulations,  for  example,  it  may  be
     necessary  to make clearly that the second reference is
     exactly the  same  concept  mentioned  previously.  The
     word "such" is the simplest way to do so.   See  People
     v. Jones, 46 Cal 3d 585, 250 Cal Rptr 635, 759 P2d 1165
     (1988).   The  legislative  history  is also consistent
     with this construction.  As that history  reflects, the
     definition  of  mining  was  intended to encompass  the
     milling process, but only those operations "related" to
     minerals  defined by and incorporated  into  the  Act's
     provisions.

          Within  this framework of law it is clear that the
     operations  here   at   issue,   whether  or  not  they
     constitute "milling" within the meaning of the Act, are
     excluded from coverage under the Act  and the Secretary
     has no jurisdiction in these  proceedings.  Accordingly
     all citations  herein must  be vacated and these  civil
     penalty proceedings dismissed.

23  FMSHRC  at 1042-1044.

     Pronghorn asserts that it is entitled to the requested award
because  the  position  of  the  Secretary was not "substantially
justified  in  law  or fact," and that  its  assertion  is  fully
supported by the summary decision.  I agree.  The clear and plain
language of the Mine Act as applied herein limits jurisdiction to
only operations involving  the milling of minerals extracted from
their natural deposits in nonliquid  form, or, if in liquid form,
with workers underground.  When it has  never  been disputed that
the mineral at issue herein is extracted in liquid  form  with no
workers underground there is no ambiguity and no room for debate.
Indeed,  the Secretary had no reasonable basis in law or fact  to
assert jurisdiction  in  the underlying proceedings.  Accordingly
the Secretary's position was  not  "substantially justified."  In
light  of  the  plain and clear language  of  the  jurisdictional
statute, I cannot  find  that  "reasonable people could genuinely
differ" over this issue.

     In reaching these conclusions  I  have  not  disregarded the
Secretary's argument that she had a reasonable basis  to  proceed
herein because neither the owner of the Smith Ranch Project,  Rio
Algom,   nor   the   Applicant   herein,  independent  contractor
Pronghorn,  had claimed at the time  of  the  accident  that  the
Secretary did  not have jurisdiction and that they challenged her
lack of jurisdiction  only  after  litigation had commenced.  The
Secretary  has  also  argued  that  MSHA   had   been  conducting
inspections  at  the  Smith  Ranch Project for years,  apparently
without being challenged for lack  of  jurisdiction by either Rio
Algom  or Pronghorn.  I give such arguments  but  little  weight,
however,  since  following  an  unreasonable  interpretation over
several years or the acquiescence by lay persons who may be
ignorant of the law in the Secretary's   enforcement   actions,
does   not  transform   an unreasonable  interpretation  into  a
reasonable one.   See  F.J. Vollmer Company, Inc. v. Magaw
(BATF),  1
02  F.3d  591 (D.C. Cir. 1996).

     The  Secretary  also  argues,  however,  that even assuming,
arguendo,  that  her  position  in the underlying cases  was  not
substantially  justified,  an  award   under   the   Act   should
nevertheless  be  denied  because  special  circumstances make an
award unjust.  See 5 U.S.C.  504(a)(1).  She argues that such an
award  would  be  unjust because Pronghorn has been  relieved  of
civil penalties only  because  the  Secretary mistakenly believed
that   MSHA,   not   OSHA   (Occupational   Safety   and   Health
Administration)  had jurisdiction over the accident.   She  notes
that  she is now statutorily  time-barred  from  bringing  action
under OSHA  jurisdiction.  See 29 U.S.C.  658(c).  This argument
presumes,   however,   that  Pronghorn  was  in  fact  guilty  of
violating some unidentified OSHA standards.  Because of the early
dismissal  of  the  underlying  penalty  proceedings  by  summary
decision no evidence  was  heard  on  the  merits  concerning any
violations and accordingly the argument is indeed presumptuous.

     The Secretary's argument is also patently absurd.  According
to her argument, an award would be unjust where she  has  wrongly
and  unreasonably  asserted  jurisdiction in the underlying case,
thereby depriving herself of the  opportunity  to  litigate.  The
Secretary also cites the case of  Mester Mfg. Company v. INS, 900
F.2d 201, 204 (9th Cir. 1990) in support of her argument  that an
award  would  be  unjust.   Mester did not, however, address this
particular issue and it is therefore inapposite.

     In summation I conclude  that  the  Secretary  has failed to
sustain her burden of proving that her position in the underlying
case  was substantially justified or that an award in  this  case
would be  unjust.  Accordingly, Pronghorn is entitled to an award
under  the  EAJ  Act.   The  Secretary  does  not  challenge  the
Applicant's requested  fees,  costs  and  expenses of $50,942.45,
through September 2001.  I have reviewed the application and find
that  the listed fees, costs and expenses are  allowable.   Since
those fees,  costs  and expenses apply only to the period through
September 2001, however, a final order will not be issued in this
case until a final application  has been submitted by stipulation
or otherwise and ruled upon by the undersigned.  Such application
must be submitted to this judge on or before January 31, 2002.


                              Gary Melick
                              Administrative Law Judge


Distribution:  (By Certified Mail)

Sean P. Durrant, P.C., Palmerlee  &  Durrant,  LLC, 11 North Main
Street, Buffalo, WY 82834

Edward Falkowski, Esq., Office of the Solicitor,  U.S.  Dept.  of
Labor, P.O. Box 46550, Denver, CO 80201-6550

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