tragic accidental death of an employee coworker and friend minor mark fossil on november sixth two thousand all parties agree that mr fossils test death with the unfortunate result of his own negligence as a secretary points out the min act stablished a system of strict liability so mr fossils negligence inevitably resulted in citations against the mine the sixteen to one has contested the citations because some of them are based purely on speculation instead of on trying to understand what this tragic accident and because the secretary has sought to impose that never get liability against the sixteen to one based on the imputed negligence of mr fossils one moment fatal thoughtless specifically referred to the other citation the p d our has to two items that are listed in it that i that we rely on here on this appeal the first one says the record lacks substantial evidence to support the findings of the second one so the allegation that marc klaas the lead miner has management responsibilities suggested by petitioner is acting contrary to law and the decisions of the commission we can see that the three causes that putting in is clear enough to give the agency some indication of what's being argued in this case we're going to what we were is the portion of the jurisdictional statute that allows the court case under exceptional circumstances and the exceptional circumstances that we rely on in this case are the fact that the p r was combined with a request for extension of time to specifically identify the substantial evidence issues  it's important to and the p r points out some of the reasons for that extension of time the request for an extension of time is consistent with the commission's published rules that purport to permit extensions of time  particularly section twenty seven hundred point nine which says that under extensions of time the time for filing or serving any document maybe it's the extended for good cause shown and it goes on to say that a request for extension of time should be fi are extensive and of course the sixteen zero one didn't know what it was going to challenge until it got the elegies decision that decision happened to come out at a time of year where when the ale when the sixty no one as a small company in a small mine was just overwhelmed with other issues including the year end financial filings the fact that there was no no electricity they have to get the power back on the pump went out all kinds of things that were listed on its website which are referred to in the future are and the commission is asked to look at those and in addition to that the the sixteen to one was looking at a decision by the ale j that it yet thought it had significant issues that there were a lot of things that they think the ale j got wrong this is not something they could sit down and knock out in an hour and that's why they requested it they requested an additional time also the record reflects that the sixty no one at this time was technically insolvent yet two people who were basically working without pay to try to get this done and as i said the under these circumstances with their request which tension of time in the record in this case we asked that you apply the exception for exceptional circumstances there isn't i haven't found a case that's directly on point on something like this but the cases that are out there interpret that exception according to the plain meat meaning of the words something along the lines of good cause it would be fundamentally unfair to the petitioner and that's what we're that's what we're talking about here it's also consistent with both the act and the commission's regulations which encourage participation by miners themselves which is what the sixteen the one was doing in this case and which encouraged a decision on the merits and a decision that accurately reflects the causes of an accident so a similar accident can be prevented and so that mines aren't put out of business for things that that when they didn't do anything  decision it refers to exceptions to the rule and it leads you on to other cases and that's that's where you can find it that case says a review of the cases that shows that the extraordinary circumstances provision of section ten he different section but similar language court did not agree with the sixty no one on the agency claim we still have objections to the substantial evidence supporting the second citation which is some seven thousand five hundred dollars claiming that the tram or less defective part of the reason the sixteen the wanted text of that is because the  fines are a lot for a small company that's struggling but another important reason for that and this may sound hokey but it's true is because they work with mr fossil and for a secretary to assume that he did something like work with a defect equipment that he knew he wasn't supposed to do and and they don't believe he did and the evidence suggests that it wasn't defective that morning is just plain wrong it's the dishonor to mr fossil and it doesn't it doesn't it shows that the agency  inspected this wasn't looking for the true cause of the accident and was just by rote citing based on speculation and assumption but but you're right i don't i don't need to get into that because if the agency it issue is addressed and we and we actually work we were prepared to withdraw the other claims other than those two citations anyway at this argument so totally agree with that approach the only reason those of us like asians were even mentioned is because they were used to try to show negligence on the part of the min the agency decision bends on an interpretation and application of law in this section and it's and it's thirty us the section eight zero to eat in which agent for purposes of this act is defined as any person charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the miners in a coal or other mine submit that that language is not ambiguous so applied to facts like this and i think the commission so i mean that's just an example of what minefield was it was an unfair hearing and an unfair process and an unfair result the second area that he l j relies on is the testimony of the mine manager mr farrell and which mr farrell describes the duties of mr fossil i submit that if the court looks at the ale days description of mr fossils responsibilities they are no different than the responsibilities of any other ordinary miner an somebody is going to be more senior and somebody is going to have a little bit more detail about the job than not and previous commission decisions like the marietta aggregate case make clear that the responsibility for a signing work or even the responsibility for killing somebody to stop work if it's unsafe does not convert a rank and file miner into a supervisory agent and that that is exactly the type of information that the algae relied on in this case there is absolutely no evidence in the record that mr fossil had had the responsibility to prepare a report for the mine to meet with inspectors to hire and fire to discipline employees to do anything else that the those the ated with management activity and the word supervision of miners and responsibility for the operation of a mine have to mean something miners are responsible for their workplace and for the safety of that workplace that's necessary for every miner because no management person can run around and look at every piece of equipment on a minor touches before he touches it it's impossible further that's consistent with the act because the act itself says that responsibility for fixing unsafe mine conditions is a function of management with the assistance of the individual miners and that's what that's what mr fossil responsibilities were here if you look at the description of what the ail jay relied on it is no different than the description in martin marietta in the marietta aggregate case where the court said that's not enough to convert an ordinary miner into management and if the ale chave application of the rules here were applied broadly the the the accepted rule in a rank and file miner does not become management would just disappear  because the mine managers explains that every miner is responsible for every other miner they work as partners it's it's like scuba diving or any other hazardous activity when you go in there with with a partner you're responsible for one another and every individual is responsible for following the safety rules of the workplace that was the other individual there with him that forgot was when mr coutts and scout would you would answer the questions have been the same not totally clear on the record who had more seniority but one person had had for some reason had a little bit more to say about the workplace than others and again that's no different than any other work site there are always senior people there are always people who have a little bit more to say about the job than then the other person they're working with but that doesn't make them supervisors and i think just if that were the standard it would be counterproductive to what the act is because then it would expose the mind of risk whenever it allowed one person to supervise court and give experience to the other people who were he was working with and that's i mean that's the key that's what you want you want to experience people to help less experienced people to point things out but just because they do that doesn't make them responsible for the mine and it doesn't make them managers and it's not a fair basis to impute liability to the management of the mine if one person does something wrong will you excuse my dissent a quick quick question if this can cannot be answered by reference to the available in the record i don't believe any family member has made a claim i mean i know that no family member member has made a claim and my understanding is that they're all satisfied with the mine's explanation of what happened which i thought that there is nothing and i'm going outside the record to tell you that there's nothing in the records at risk just as a matter of law you obviously practiced in this area would that terminations and any impact on the us in any circumstance like this on the civil suit by someone extension the secretary writes a letter as if the you know dealing with the most egregious criminals in the country and they say oh under no circumstances should you be give them time to write a decent complaint not only we gave them tim another case and then we ruled against them and then furthermore we don't have any authority to extend the time for complaints under the law is that really true that the people must no matter walk always file in time and know you are on their no february second and asked for forty five to sixty days the department replied and said you know why should they just because you're a small mind going through all these problems and they don't have a lawyer why should we give them who told him that he was in fact testifying and that he should stop it if he should stop justifying until they came to that stage in the in talk to him cautioned him and said mr miller do you realize that you're testifying here would you like to continue this he has been sworn in at this stage and he said i'd like to finish what i was saying which he did decision you all you seem to be penalizing the secretary because the mine chose not to have an attorney but that was their choosing and it seems like you know we and i'm not a member of the commission and i don't know exactly what they use to make their determinations but i would imagine if sixty one have submitted  have submitted something to the commission that's that this is why this is coming in late i mean the commission has had instances like that before whe me we weren't making up these facts the parents allowed people to supplement their initial statement that's true for they asked for permission to supplement their initial statement to give the really minor and i know that no not at all your honor what made him different from all the others are several things your honor first of all prior to the real tragic accident on this particular day in september was in fact more just more senior and this guy you have asked the question are you or whether he was more senior and there's evidence in the record that says he was in fact very senior he had gotten more he the lead miner who working alone would not be a supervisor only miner working alone you've told us that the lead miner working alone could be his own supervisor if and you're representing this company because of the functions you're carrying out you were you are you going to close up the place you're going to be working up here by yourself you're going to but it's always designated by somebody more senior who tell you know is that like you very quickly with follow up on some of the questions that i think you ask and some of the responses that were given first off i want to correct something the secretary and i'm sorry i don't know how to pronounce your last name i really apologize but she said that there was one point five million dollars in gold assets for the sixteen to one those assets were all pledged for liabilities there were no net assets for the sixteen to one and that's testified to secondly there's testimony that there was are there was a statement that mr fossil had worked at the seven hundred level of the mine alone and that somehow distinguish him from a lead miner that's absolutely not true it's not supported by the record no one at the sixteen no one ever works alone there always a sign partners and the work records show that he was assigned park partners there is the questions that mr fossil was on how unusual is a lead miner look at the transcript that sections three seventy two to three seventy five where the work record fossil actually did the two weeks before this accident he painted railings he cleaned agrees he set up the slasher this is all things that any other miner would do if there was nothing exceptional there and this case is different than all of the other cases where there was where there was evidence where a minor was turned into turned into an agent this is not a case where somebody delegated decision making responsibilities or delegated reporting responsibilities all american asphalt ambrosia and all of those cases where a miner was deemed an agent the violation this citation issue arose directly out of the management responsibilities that the miner was doing in other words the miner was assigned to go out and meet with inspectors or the miner was in signed to do weekly inspection reports and his fraud in committing those reports was the basis of the violation what the secretary is trying to do here is to say that this miner qualifies as management because he had responsibility for his workplace that and then the ael j goes on to make the inference that really it's the speculative assumption that this miner filled out weekly work reports and that made him different first of all the evidence evidence in the record totally doesn't support that he filled out any weekly work reports nobody asked him that question it's absolutely not in the record and it's contrary to the testimony of mr farrell who said he does the weekly work reports second of all this accident didn't come about because he filled out a safety report this accident came about because he had a moment of thoughtlessness he did two things that were bad and that were that were negligent first he drove under drove the tram or under the chute instead of putting off the suit first as he was assigned to do maybe a little bit in patience then like so many accidents he made a second minor mistake something that everybody that happens the very frequently he backed up without looking and you can look at the cars on the road look at the number of dents in the rear bumper how often that happens unfortunately he did tootle wrong things and they created a fatal accident for him but that's all it was it was an accident and it was an accident he committed in his role as an ordinary minor if mr cutts had been driving that train he would have been section three sixty eight three seventy six which describes mr carroll's responsibilities and filling out those reports and which also describes that the sixteen no one has a procedure that requires every miner to check off when he gets to the work place if there was anything found defective there every single miner from the very very most junior there to the very most senior there everyone has to do that and that's just a safety policy of the sixty no one if you convert that kind of a safety policy into management and into imputed liability that's of two thousand and five and i got it's involved after mr gill gilmore unfortunately died and a traffic accident leaving the sixteen the one mind going to dinner you know why you're up to that point i'm sorry charged with criminal violations after this after this accident but i don't know exactly when i'm sorry