.
MARIPOSA AGGREGATES
May 16, 2001
WEST 2000-231-M

        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 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 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  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:

          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
          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 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

       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

       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

     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

**FOOTNOTES**

     [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.