thank you may please the court i'm elizabeth block i'm here on behalf of the petitioner in this administrative appeal couper alaska nc in with me is my law partner donna pryor if you tried the case and i'd like to i intend reserve three minutes for rebuttal so i'll try to run through quickly there are nine safety citations issue in this case under and they were issued under two different safety standards and i certainly want to answer any questions the court may have about any aspect of the case but i intend to focus my short time with you this morning on the safety standard governing the ground support system and that's section fifty seven point thirty three sixty and i'll shorthand that to thirty three sixty both safety standards that issue that they're part of the c f r is addressing ground control and when you're talking about ground control in a mine the ground is everything that surrounds the miner while he or she is underground it's the floor it's the the walls or the ribs and it's the the the roof as well or the back of the mine so there are two aspects of ground control there's a ground support system and those are things like rock bolts or timbers there are other kinds of systems that can be in use and those are installed to prevent cave ins and rafal xina mine the other aspect of ground control is scaling scaling is an every day activity in the mine where the miners use these bars or poles of various links and what they do is they go around and look for possible loose rock on the walls or the or the roof and they tap it and if it looks like it'll break loose they they just knock it loose so that it controls in a it  e and i'll get to that in just a moment ground support the ground support system in contrast to scaling is not necessary in every mine it depends on the actual ground conditions and it's up to the mott the mine operator to determine what type of ground support system if one is necessary it's up to the mine operator to determine what type of system should be in use so when corps kensington mine the mine operator made the decision that rock bolts would be the appropriate ground support system and that's the support system that's been in place in the mine since one thousand nine hundred five there's also wire mesh as you mentioned judge b there's also wire some wire mesh in the mind but it's not part of the ground control system and in fact wire mesh wasn't used at all in the mine until two thousand and ten and it's not every where in the min now the only evidence from the miners representatives and remember it's the mine operator that gets to decide what type of ground support system is appropriate given the ground conditions in the mine the only evidence from the mine representatives is that the wire mesh is there only for as a convenience for the miners and what it does is it reduces the need to scale to not down this potentially loose material so what happens is when the w where the wire mesh is present in the mine again it's not everywhere in the mine it reduces the need to scale because what otherwise would have been not down by the miners with the scaling pole tends to accumulate behind the wire so there are the seven citations that were issued under thirty three sixty core was cited for failing to maintain the wire mesh and that can be a violation of thirty three sixty if there's a failure to can only be a violation of thirty three sixty under the plane express language of that regulation if the wire mesh is put is a necessary part of the ground support system and here it is not and if you look at the language of thirty three sixteen you can find that on page twelve of our brief the first sentence tells us where ground support is necessary and that's where ground conditions indicate that it's necessary the second sentence since tells us that when ground support is necessary that it and again it's the it's up to the mind to determine what type of ground support system is going to be used when ground support is necessary it has to be designed installed and maintained you know order to control the ground so here the wire mesh was not chosen by the operator as part of the ground support system it was not designed by the operator as part of the ground support system it was not installed as part of the ground support system and it doesn't need to be maintained as part of the ground support system and that makes sense if it's not part of the ground support system you don't have to have the same level of vigilance to maintain it it in again keep in mind the distinction between ground support which is holding up the road and knocking down loose material that is a daily occurrence and that's the scaling that's a daily occurrence in the mind it if you think of a bridge now i am trying to trying to come up with some some good analogies a bridge needs a support system and there are different kinds might be held up by pillars and might be a suspension bridge where the bar over above it is holding it up it's absolutely crucial to maintain those port systems whatever that is now there are other there may be other things you should do position that wire match can never be part of a ground support system no that's not our position oh why couldn't the agency reasonably say look i think that this is part of your ground support system and your clients response of you to say no it's not that's not what we intended c y agency reasonably say you're looking at the mine that this this appears to be part of the crown support system because really all those for convenience according to operator it actually is providing rocks from falling and being a house let me answer that a couple of ways first of all it's clear and they acknowledge is in their brief that it is up to the mine operator to determine the appropriate ground support system and it's undisputed that in this case who are determined that there is rock bolts we're going to be the ground support system so they don't get to come in and just second guess that determination if they are going to try to reach that conclusion they have to supply a factual background a factual basis for reaching that conclusion and they didn't do that here well those that really wasn't my first part of my question my first part of the question is you say we made the determination that wire mesh would not be part of the ground support system isn't it the agencies if the agency says now we think actually the operator did make that choice even in the course they'd have to support it was something but if they couldn't they reasonably conclude that that was the choice made by the mine operator yes that that's a little bit stick your question but that's not happened here what they did is the engine inspectors simply jump to the conclusion that it was necessary ground support because it was there and because it happened to be doing its job of holding up  material that would otherwise have been scaled down and similarly the l a l j simply jump to the conclusion it's kind of a race ipsa type analysis where it must be necessary because it was there so there was no factual analysis that it was in fact part of the necessary ground support system and let me tell you about the kinds of facts that would support a finding of what's necessary for ground support in a in a mine the cases are very clear that if you're going to make that determination it's got to be based on actual facts the courts talk about are at the courts and the commission in their decisions talk about geological studies scientific testing monitoring data and then physical aspects such as popping noises cracks fissures a drummy sound in the roof those are the factual indicators that a ground support system may be necessary we don't have any of those facts here so there's nothing in the record to support any finding that ground support was needed at all in these areas in the in the location cited and certainly no evidence to support a finding that the wire mesh was serving as the necessary ground support and let me let me suggest this to you well let me let me do two things first of all encourage you to look at the white pine copper cases cited in both but praise both parties breeze there the mind had for a long time use certain spacing of bars as its chosen ground support but they decided in a new area they didn't need to use these the same type of spacing of the bars and they were cited for failure to use necessary ground support now the commission upheld the o'jays finding of necessity but only based on the actual physical evidence of popping noises drummy sound the appearance of cracks and fissures the commission though went further to specifically reject the male gaze simple conclusion not based on fact but conclusion because the brought bolting had been used as habit in other parts of the mind it also needed to be there so a finding of necessity and a finding that this particular system is part of that necessary ground support system has to be supported by factual evidence and there's none here and i suggest to you that the ultimate test of determining whether something is necessary or a necessary part of the ground support system is to ask what would happen if it wasn't there and the ale jaivin answer that question for us in the record excerpt at seven the l j noted and i'm quoting here without the wire mesh the material would have to be scaled down or it could create a hazard we agree with that but the undisputed evidence in this record is that without the wire mesh that was serving as a convenience to reduce the need for scaling without that wire mesh the miners would have done their job in would have scale down so we would have had a problem we would not have had a hazard because they would have done their job and scaled it down so if you can remove something without incident by definition that means it's not  necessary as far as the l g is for specially assessed penalties are concerned you argue that the l j failed to describe an aggravating circumstance assent to consider mitigating circumstances and upholding the special  t but to make his height negligence finds the l j didn't reject much of your supposed medicating evidence because you were not following your own safety procedures what's your best response to  that well i ask you to consider there were three m sion specters and one of the engines specters one with most of the underground mining experience issued only one citation not for thirty three sixty but for thirty two hundred and he found mitigating circumstances the other two inspectors looked at the same factors the rehab program the training that the miners received the fact that there were no injuries here there was no history of a ground fall in through please the court and only twelve are for the secretary of labor and the inspections in this case revealed obvious severe and pervasive damage to the wire mesh that was supposed to keep rock from falling on miners in this case loose rocks  were over one foot square and weight hundreds of pounds were hurting so much force on the mess that it was forced on the mesh that they were pushing them out they were perched near poles and miners walked and worked underneath this damaged mash every day it should have been impossible to walk through the mine without noticing or without replacing or at the very least noticing the damage to the mash but that's exactly what kerr did and kurz ignorance of these dangerous conditions jeopardized miners lives and the findings in this case amply supported by the evidence and should be upheld i want to begin with the with presuming exactly the question on appeal here which i think we agree on but the question is not whether wire mesh was necessary ground support the conceded that at the very least rock bolts are necessary ground support in this mine and since that's been conceded under the plain language of the section thirty three sixty the question is whether the ground support system itself has been designed installed and maintained previously clear from the record that in fact the wire mesh is an integral part of the mind's ground support system as our brief explains in detail occurs own ground support manual repeatedly refers to the wire mesh as parts of the ground support system  iran or specifically to page three ninety nine in the third volume of the exercise record which which states in part that support consists of two components rock reinforcement which are the bolts and surface support which are the plates mat and mash additionally there are a number of experts on that page that i think are relevant but it's clear that the mash which is installed by driving bolts through the mesh into the top of the mine it's installed with the bolts it is necessary to make sure that the whole thing functions together that same page explains that surface support contains the rock between the rock reinforcement which are the bolts and that if surface support is lacking in the head a rock enforcement comes undermined and it cannot the arcs together in other words if the mesh isn't there or the rock bolts can't do their job and the support system is not going to fail or if the mesh is not adequately maintained then the rockets are going to fail and the whole support system is not going to do its job  well if you actually put mash up can you ever argue that you were just being super safe and it was recently necessary yes absolutely that but that's not this case and this instead this absolutely conceivable that a mind might not need to control the ground mine might not even need ground support at all but that's not this case and in this case not only is there evidence or not only is the ground support manual evidence of this what the inspector evidence that the wire mesh does more than just reduce the need for scaling and virtually every place that the inspection party visited the inspectors saw evidence of rock loose rock that was not just falling on top of the mesh but was pushing on it so far that it was causing it to bulge out in places the machine been torn whether by equipment or through falls and this was not small but not really dangerous material there were some violations that involved smaller pieces of rock or less damage to the mash and those violations were properly designated as not significant substantial or the result of modern negligence but some of the violations in this case involve much more serious conditions which were very large pieces of rock twelve by sixteen by eighteen inches and pieces of rock that weighed hundreds of pounds and were sitting on the edge of holes that were feet wide and long in some cases and to suggest that the mesh isn't necessary to hold that material back or isn't part of the ground support system is i think it's difficult for me at least to understand i also want to address what conditions are necessary to support a finding that ground support is necessary and a suggested that geological studies are necessary or monitoring is necessary but what kurt didn't quote is what the commission is actually held which is that all relevant factors are are relevant to has been installed in the mines operating experience and every single one of those factors was present in this case the inspectors testified and took photographs of this material that had already slipped off the ribs or had fallen off the roof and was resting behind the mash the inspectors also testified that they saw cracks or fractured areas in the roof and ribs and that testimony as the commission has held is itself substantial evidence and when the judge credits  which the judge did in this case additionally the fact that her did install the mash with roof bolts that courier's ground control manual described the mash as part of the ground support system and explain why it is necessary to keep the rock from falling in this case but that is the presence of you support and also the mines operating experience which indicate and are substantial evidence supporting the judge's finding that ground support was necessary in this case that part of the ground support system and so it needed to be adequately maintained judge roberts i want to follow up on thomas yeah i wanted to follow up with with one remark that you made which was a distinction perhaps intent and the actual function that the wire mesh is performing so even assuming that kurt is intent was to install the wire mesh simply to reduce the scaling responsibilities of miners although for the reasons that i've already discussed i think the ground support the very least gives the lie it's at that assertion but even assuming that the minds intent was to put it up for convenience at some point the function of the money or the function of the mesh could become two to perform roof support capabilities and the practical consequences of of that emphasis on function versus intent i think are really significant because accepting curves argument that the only thing that matters is why we think we put it up or why we say we put it up would mean that kirk could put mesh in accordance with his ground support manual it could put it up knowing that it's all its job is to support the roof and to do so so that the rock bolts are then the roof bolts will also do their job to say well we're just doing that as a matter of convenience and then allow miners to rely on that mesh for at this at this one i suppose it been been years that the miners have been relying on this mash and then say well we're going to allow that to fail we have no obligation to maintain it and i think that result is is not only extremely dangerous so minor safety and health it's inconsistent with the purpose of the mine act and i don't think it is a result that this court should countenance can i ask you about the reason why likely stand need to decide whether the last or standard have could result standard replies it's not necessary to decide this case now why is that because the judge found that even applying the more stringent is a reasonably likely result w satisfied here and so i think that simply as a matter of logic less stringent result would also necessarily be satisfied i should also point out our brief erroneously states that i've i think five of the citations were affirmed as significant substantial that should actually be six and so i want to point that out for the courts and for it if we found it necessary to reach the actual standard i want to make sure i understand your position so under math as i guess originally you have four factors on the or at the very or at the very least understood more the secretary's interpretation of the statute which is section eight fourteen d i believe for us eight hundred fourteen d that the question of are the test for what's significant and substantial  interpretation did change after well i don't know that it changed i think the secretary has not challenge the matthews test and doesn't do so here in the secretary's interpretation however is simply consistent with the fo circuits interpretation and with interpretation of two commissioners in the newtown case which is to take the fourth circuit at its word and to say that at step three of math the are step three of the math the existence of the hazard is assumed and that at step two of the math he says the question is not whether there is a reasonable likelihood that the violation will contribute to a hazard whether the violation could contribute to a hazard and that's consistent also with the means by which the fourth circuit reached that conclusion that if the court wishes to address this issue in more depth than i do think supplemental briefing would aid the court's determinacy argument on that yes always that that you wanted to administrative state and you want to say because we  d you know if the supreme court's going to allow agencies to enjoy the same kind of deference and maybe this double speak is part of the reason i read it there are certainly are questions and obviously we know there was a case this pretty closely but i i would respectfully disagree with the characterization of the secretary's position in this case as changing positions i think as i mentioned the secretary has never to my knowledge directly challenged the matthys criteria and is not doing so here the secretary  so i think that rather than arbitrarily changing its view and then demanding deference this is simply a case of the secretary incorporating what the fourth circuit has held and what the commission which also it engages an interpretation of the might act though explains and mark mining and the commission's decision cited in that case it's clear that the commission and its algy's are not but not bound by inches regulations and so are free to find the high negligence even if mitigating circumstances  did exist the judge in this case found one that the mitigating circumstances her suggested the rehab program and training were not actually mitigating circumstances because they want to festive but even if the judge had found that they were mitigating circumstances the judge still could have an appropriate we did find that the violations resulted from negligence or current representatives were able to identify mitigating factors with respect to at least some of the violations admitted that the conditions were  bad the judge found that these violations had existed for several shifts at least with respect to the december twenty fourth teen citations kerr had known for months this was an issue and ultimately the problem or the facts supporting the high negligence designations are that are that the damage was obvious it was severe and it was extensive and there was not and any reasonable mine operator should have known about those conditions i think by way of conclusion  regulation which says that can only be a violation if there's a failure to maintain a necessary ground support system so in order for there to be a mile a violation there the wire mesh has to be part of that necessary ground support system and here it's not the wire mesh was not designed as ground support it was not installed as ground support and it need not be maintained and as ground support you don't get to jump to the third step and say failure to maintain something is a violation of thirty three sixty even if it wasn't designed for that purpose or installed for that purpose you don't get to do that they mention the ground control manual i'd simply point out that the portions they cite are general statements of what should be considered but the preface of the ground control manual also says you've got to look at specific conditions and the record excerpts on pages for twenty correct it references wire mesh but also the plates and the mats and so whatever is used is an integrated system and as a practical matter the wire mesh is held up by the bolts but it does again it doesn't mean that the wire mesh is necessary ground support again if you take it away you're not cramped for my eyes in the ground support system while you're having to do is putting in additional burden on the miners to scale more that means it's not necessary as a matter of law there  swatting at a fly with a baseball bat in this case they are alleging a violation of the safety standard that was not designed to ensure the maintenance of wire mesh and we asked that the citations be vacated and