# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2009 Decided July 21, 2009

No. 08-1312

S ECRETARY OF L ABOR

, M INE S AFETY AND H EALTH
A DMINISTRATION

, P ETITIONER

v.

N ATIONAL C EMENT C OMPANY OF C ALIFORNIA

, I NC

., ET AL

., R ESPONDENTS

On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission

Robin A. Rosenbluth , Attorney, Mine Safety & Health Administration, argued the cause for petitioner. With her on

the briefs were Carol A. De Deo , Deputy Solicitor, and W.

Christian Schumann , Counsel.

Margaret Lopez argued the cause for respondent National Cement Company of California, Inc. With her on the brief

was Michael T. Heenan

.

Daniel W. Wolff argued the cause for respondent Tejon Ranchcorp. With him on the brief was Thomas C. Means

.

Before: T ATEL , G ARLAND , and G RIFFITH

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge G RIFFITH

.

G RIFFITH

, Circuit Judge : The Secretary of Labor, acting through the Mine Safety and He alth Administra tion, cited the National Cement Company of California for its failure to install guardrails along a private road leading to its cement plant. The question before us is whether MSHA has jurisdiction over the road. The answer depends on whether the

road falls within the definition of “mine” in the Federal Mine Safety and Health Act of 1977 (Mine Act), Pub. L. No. 95- 164, § 102(b)(3), 91 Stat. 1290, 1290 (codified at 30 U.S.C. § 802(h)(1)). We hold that the Secr etary’s view that it does is a reasonable interpretation of the statute and remand this matter for proceedings on the merits of the citation.

I.

A.

The Mine Act requires the S ecretary of Labor to develop and promulgate mandatory safety and health standards for the

nation’s mines. See 30 U.S.C. § 811 (2006). MSHA, acting on behalf of the Secretary, en sures compliance with these standards by, among other things, conducting regular mine inspections and issuing cita tions to noncompliant mine

operators. See id. §§ 813(a), 814(a). A mine “operator” is “any owner, lessee, or other pers on who operates, controls, or supervises a . . . mine.” 1 Id. § 802(d). A “mine” is defined as

(A) an area of land from wh ich minerals are extracted . . . , (B) private ways and roads appurtenant to such

1 The Mine Act defines “person” broadly, as “any individual, partnership, association, corporation, firm, subsidiary of a corporation, or other organization.” Id. § 802(f).3

area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property . . . used in . . . the work of extracting such minerals . . . , or used in . . . the milling of such

minerals . . . .

Id. § 802(h)(1).

The Federal Mine Safety a nd Health Review Commission is an independent adjudicatory body that resolves disputes arising under the Mine Act. See id. §§ 815, 823. Mine operators may contest MSHA c itations before a Commissionappointed administrative law judge, id. § 823(d)(1), and any person aggrieved by an ALJ’s decision is entitled to request Commission review, id. § 823(d)(2)(A). Persons aggrieved by an order of the Commission may obtain judicial review in an appropriate court of appeals. See id. § 816(a)–(b).

B.

The National Cement Compa ny of California owns and operates a cement processing pl ant located on the southern portion of a 270,000-acre ranch owned by Tejon Ranchcorp. 2
National Cement occupies th e land pursuant to a lease agreement that includes an easement to use an access road

that runs 4.3 miles north from State Route 138 to the cement plant. The access road is the only paved road that runs from the state highway to the plan t. Under the terms of the easement, only National Cement, Tejon, and persons

2 The facts of this case are largely undisputed and have been set forth in our prior decision regarding this matter. See Sec’y of Labor v. Nat’l Cement Co. of Cal. , 494 F.3d 1066, 1068–73 (D.C. Cir. 2007). We describe them here only to the extent necessary to provide context for our decision.4

authorized by the State of California may use the access road. Signs posted at the entrance fr om the highway and along the initial segment of the road provide notice of this restriction. National Cement has built a guardhouse and gate where the road ends at its facility.

Most of the traffic along this access road is related to the cement plant. National Cement’s customers, contractors, vendors, and employees use the road to travel to and from the plant, which operates continuousl y, and heavy trucks drive on the road day and night for more than 45,000 round trips a year. But as one of the few paved roads on the ranch, the access road is also used on occasion by Tejon and its associates for purposes unrelated to mining. The Federal

Aviation Administration uses the road to reach a communications tower, and th e California Department of Water Resources uses the road to maintain an aqueduct and bridge.

The lease agreement grants National Cement the right to alter, maintain, and repair the access road, and National Cement has generally kept th e road in us eable condition without seeking Tejon’s pe rmission. Past maintenance includes resurfacing, resealing, a nd repaving the road, as well as installing speed bumps and speed limit signs. National Cement has not, however, inst alled protective barriers on sections of the road by dr op-offs—an omission that led MSHA to cite the company for violating 30 C.F.R. § 56.9300(a), which states: “Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grad e or depth to cause a vehicle to overturn or endanger persons in equipment.” 3

3 MSHA first cited National Cement for its failure to install berms or guardrails in March 1992. A month later, MSHA vacated the5

National Cement challenge d the citation, and Tejon intervened in support. The ALJ granted the Secretary’s motion for summary judgment that MSHA has jurisdiction over the road, ruling that the ro ad is a mine under subsection (B) of the Mine Act’s definition of that term because it is a private road appurtenant to an extraction area. See Nat’l Cement Co. of Cal. v. Sec’y of Labor , 27 F.M.S.H.R.C. 84, 99 (2005). The Commission ordered interlocutory review and vacated the ALJ’s decision, conc luding that the Secretary’s interpretation of subsection (B) would lead to results that are

absurd or inconsistent with the purpose of the Mine Act. See Sec’y of Labor v. Nat’l Cement Co. of Cal. , 27 F.M.S.H.R.C. 721, 728, 735 (2005). The Commissi on determined that only

those sections of the access ro ad over which National Cement

and its customers have exclusive use can be considered “appurtenant” to an extraction area and remanded the matter for the ALJ to determine whether any such section exists. Id.

at 735.

The Secretary responded by filing the first of two petitions for review in this court, arguing that subsection (B) unambiguously includes the ac cess road. We disagreed, concluding that the statute is not clear on the issue. See Sec’y of Labor v. Nat’l Cement Co. of Cal ., 494 F.3d 1066, 1074 (D.C. Cir. 2007). We noted that under s ubsection (B), a road

citation on the erroneous belief that the access road was a public highway and National Cement ha d no control over personnel using the roadway until they arrived at the mine site. On February 13, 2003, a MSHA inspector issued another citation to National

Cement for its failure to install berms or guardrails. In late 2003, MSHA made clear it had authority to regulate the road but vacated the citation because National Cement had inadequate notice that the road was subject to its jurisdiction. On February 9, 2004, MSHA issued the citation that is the subject of this action.6

is a mine if it meets two criteria: it must be (1) “private” and (2) “appurtenant to” an extraction area. Id. We also pointed out that each of these terms is capable of a broad reading and a narrow reading. “Private” means “intended for or restricted to the use of a particular pers on or group or cl ass of persons

. . . .” See id. (quoting W EBSTER ’ S T HIRD N EW
I NTERNATIONAL D ICTIONARY 1804–05 (1993)). This could be read broadly to mean use restrict ed to “a particular . . . group or class of persons,” or it coul d be read narrowly to mean use restricted to “a particular person.” Id. “Appurtenant” means “a: annexed or belonging lega lly to some more important thing (a right-of-way—to land or buildings); b: incident to and passing in possession with real estate—used of certain profits or easements.” See id. (quoting W EBSTER ’ S T HIRD at 107). This definition, we state d, could be read broadly to encompass easements benefiting some “more important thing” or more narrowly to include only easements dedicated exclusively to use by some more important thing. See id. We determined that although the broad readings of “private” and “appurtenant” would cover the access road, the narrow readings would not. Id.

Because the Secretary failed to recognize this ambiguity in subsection (B) and errone ously thought its meaning was plain, we could not defer to her interpretation. Id. at 1075 (“[D]eference is reserved for t hose instances when an agency recognizes that the Congress’s in tent is not plain from the statute’s face.” (quoting Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin. , 471 F.3d 1350, 1354 (D.C. Cir. 2006))). We vacated the Commission’s decision and remanded the matter “for [the Commission] to obtain from the Secretary a Chevron step 2 interpretation” made in light of the statute’s possible meanings. Id. at 1077. We also observed that the Secretary’s broad in terpretation of subsection (B)

raised three concerns about how the exercise of MSHA’s7

jurisdiction over the access road might relate to the Mine Act’s overall enforcement scheme. First, does National Cement, which does not own the road, have authority to alter the road as MSHA might require? Second, would National Cement be responsible for all road users, not just those it controlled? Third, would MSHA jurisdiction extend to those with no connection to the cement plant but who exert some

control over the access road? See id. at 1075–76. We instructed the Secretary to address these questions on remand and explain how her interpretati on of subsection (B) could be harmonized with the Act’s enforcement provisions. 4

On remand, the Secretary t ook the view that “private”

roads are those restricted to a particular group or class of persons (not to a part icular person) and th at “appurtenant to” requires only that the road be long and provide a right of way to some more important thing (not dedicated exclusively to use by some more important thing). See Sec’y of Labor v. Nat’l Cement Co. of Cal. , 30 F.M.S.H.R.C. 668, 672 (2008);

see also Br. of Sec’y at 23–26. Under those broad readings, the Secretary concluded once agai n that the access road is a mine because its use is limited to a particular group of persons, making it “private,” and it is subject to a transferable easement benefitting National Cement’s plant, making it “appurtenant to” an extraction area. The Secretary tried to address our concerns by explaining that she would apply

4 Judge Rogers dissented, finding the text of subsection (B) unambiguous and suggesting that the court “improperly relie[d] upon policy considerations to find ambiguity where there is none.”

Id. at 1077 (Rogers, J., dissenting). The cement plant is an extraction area and, according to Judge Rogers, the access road is both “private” and “appurtenant to” the cement plant. Id. at 1077– 78. Judge Rogers also found it c onsistent with the history and purpose of the Act to interpret “m ine” to include the access road.

Id. at 1078–80.8

subsection (B) to the road itself and subsection (C), which covers equipment used in mining, to those vehicles that use the road to suppor t mining activity. See Nat’l Cement , 30 F.M.S.H.R.C. at 672, 675–78. Unde r this interpretation, the Secretary would hold National Cement responsible only for

the conditions of the road itself and for vehicles on the road

that are under its control an d covered by subsection (C) as mining equipment.

The Commission again found the Secretary’s interpretation unreasonable and vacated the citation. It considered the Secretary’s use of subsection (C) a

contravention of the Act because it seemed to limit the reach of subsection (B) to only certain kinds of road uses. See id. at 676–77. According to the Commission, subsection (C) is “clear” and “has been interprete d to plainly mean that Mine Act jurisdiction extends beyond subs ections (A) and (B) . . . .”

See id. at 675. The Commission also determined that the Secretary’s view did “not do nearly enough to prevent MSHA jurisdiction from potentially attaching to the possible nonmine uses of the Access Road should the road be subject to MSHA regulation as a mine.” Id. at 678. Thus the

Commission concluded that the Secretary’s interpretation not only misconstrued the statute but failed to address our

concerns.

The Secretary has again peti tioned for review, arguing that her interpretation of subs ection (B) is reasonable. We have jurisdiction to consider her petition under 30 U.S.C. § 816(b).

II.

As noted, previously we he ld that it is not clear subsection (B) covers the access road. See Nat’l Cement , 4949

F.3d at 1077. Accordingly, we proceed to Chevron step two
and determine whether the Secret ary’s interpretation of that provision, advanced in this litigation, is reasonable. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 843 (1984); see also Sec’y of Labor v. Excel Mining, LLC , 334 F.3d 1, 6 (D.C. Cir. 2003) (“‘[T]he Secretary’s litigating position befo re [the Commission] is . . . an exercise of [her] delegated lawmaking powers’ . . . and is therefore deserving of deference.” (quoting RAG Cumberland

Res. LP v. FMSHRC , 272 F.3d 590, 596 n.9 (D.C. Cir. 2001)) (second alteration in original)).

Tejon asserts that Chevron does not apply because the Secretary failed to “follow[] this Court’s remand mandate.” Br. of Tejon at 12. Rather than harmonizing her interpretation of subsection (B) with the overa ll enforcement scheme of the Mine Act, so the argument goes, the Secretary “engage[d] in interpretative alchemy” a nd created “an entirely new

rationalization for her actions.” Id. at 12–13. As Tejon sees it, her “ever-shifting” reasoning “i s nothing more than a post-hoc

rationalization.” Id. at 13–16.

Distilled from its rhetoric, Tejon is making two separate but related points: that the S ecretary impermissibly changed

both the rationale for the cita tion and her interpretation of subsection (B). But the Secretar y’s rationale on remand used the same reasoning for citing National Cement as the first

instance. The access road fell within the definition of a mine under her broad reading of subs ection (B). Tejon is correct that the Secretary read subsect ion (B) differently in response

to our concern that her broa d interpretation might extend MSHA jurisdiction in problematic ways. She had originally interpreted subsection (B) to c over private roads appurtenant to extraction areas and everything on those roads. See Nat’l

Cement , 494 F.3d at 1075–76; see also Reply Br. of Sec’y at10

8. This interpretation tracked her longstanding view that subsection (A) covers extracti on areas and everything within

their boundaries. See Br. of Sec’y at 28. But now the Secretary interprets subsecti on (B) to cover the access road but not the vehicles on it. A change in interpretation, however, is no reason to withhold Chevron deference provided the agency explained th e basis for its reconsidered

view. See Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs. , 545 U.S. 967, 981–82 (2005). The reason for the Secretary’s change is obvi ous. Following our directions, she tried to read subsection (B ) in a way that addressed our

concerns and still made sense within the overall enforcement

scheme of the Mine Act. See Nat’l Cement , 30 F.M.S.H.R.C. at 672; cf. FCC v. Fox Television Stations, Inc. , No. 07-582, slip op. at 10–11 (U.S. 2009) (stati ng that an agency changing course must ordinarily “d isplay awareness that it is changing position” but “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one”).

Tejon also argues that Chevron does not apply because the Secretary’s interpretati on of subsection (B) does not reflect a “policy choice.” Br. of Tejon at 48–52. Assuming for the sake of argument that such a rule exists, the Secretary’s decision to adopt the broad in terpretation of subsection (B) clearly involves a policy choice at the core of her regulatory mission under the Mine Act. Congr ess directed the Secretary to protect the safety and health of the nation’s miners. See 30 U.S.C. § 801. The Secretary’s in terpretation of subsection (B) to encompass roads, like the access road, that have a significant connection to mini ng implements this policy. Cf. Otis Elevator Co. v. Sec’y of Labor , 921 F.2d 1285, 1291 (D.C. Cir. 1990) (calling the decision to s ubject non-mine personnel who are servicing mine elevators to MSHA11

jurisdiction “the kind of expert policy judgment” courts are “ill-equipped to make”).

Accordingly, the Secretary’s interpretation of subsection (B) is entitled to Chevron deference.

III.

Applying the standard of review called for by Chevron step two, we ask in Part A whether the Secretary has advanced a reasonable interpretati on of subsection (B). In Part B, we consider whether the Se cretary adequately addressed

the concerns we raised when this matter was last before us.

A.

Subsection (B) provides that “private ways and roads appurtenant to [extraction ar eas]” are “mines.” 30 U.S.C. § 802(h)(1)(B). On remand the Secretary adopted the broad reading of this provision to bring the access road within MSHA’s jurisdiction. We held before that such a reading was

not inconsistent with the language of s ubsection (B) and we

will not revisit that decision. See PNC Fin. Servs. Group, Inc.

v. Comm’r , 503 F.3d 119, 126 (D.C. Cir. 2007) (“[W]hen a court decides upon a rule of la w, that decision should continue to govern the same issues in subsequent stages in the same case.” (quoting Arizona v. California , 460 U.S. 605, 618 (1983))).

But there is more to the matter. We also expressed

concern whether a broad r eading of “private” and “appurtenant,” although consis tent with the wording of subsection (B), could be harmonized with the Mine Act’s overall enforcement scheme. For example, we wondered if operators of roads used fo r both mining and non-mining12

purposes would be responsible for all road users. See Nat’l

Cement , 494 F.3d at 1075–76. The Secretary tried to address this concern by reinterpreting subsection (B) to cover roads but not the vehicles on them. National Cement and Tejon assert that the Secretary cannot limit subsection (B) in this way. This is an odd argument coming from these parties, whose effort throughout this li tigation has been to oppose the extension of MSHA’s jurisdicti on to the access road. Yet now they argue that subsection (B) compels a more expansive interpretation of MSHA’s jurisdiction than that advanced by the Secretary on remand. Of course, their intent is to show there is no reasonable interpre tation of subsection (B) that covers the access road. In their view, subsection (B) necessarily includes vehicles, su ch that the Secretary’s broad reading cannot avoid the problem we raised. Operators of roads not used exclusively for mining purposes will be responsible for non-mining vehicles outside of their control. This, they claim, is unreasonabl e, as our previous opinion suggested, leaving the Secretary no choice but to adopt the narrow reading of subsection (B ) in which only private roads used exclusively by mining vehicles fall within the jurisdiction of MSHA.

We must thus consider whether the Secretary acted reasonably in reinterpreting subsection (B) to cover the road but not vehicles. The parties’ arguments highlight three distinct questions for us to consider. Is the Secretary’s decision to exempt vehicles c onsistent with the language of subsection (B)? Is it reasonable for the Secretary to interpret subsection (B) differently than (A)? And is the Secretary’s reliance on subsection (C) to cove r mining-related vehicles on the road a permissible construction of the statute? We take each question in turn.13

First, the Secretary argues that we must defer to her interpretation that subsection (B ) does not cover vehicles on the access road because the statute is not clear on that point. We agree. National Cement a nd Tejon argue that the phrase “ways and roads,” like the term “area” in subsection (A), is geographically “all-encompassing” and covers everything on

the road. See, e.g. , Br. of Nat’l Cement at 29–31. Perhaps. But the Secretary’s view is also reasonable and has the added virtue of being more consistent with the common meaning of “road,” which is not normally used to refer to both the road itself and the vehicles traveling on it, see W EBSTER ’ S T HIRD at 1963 (defining “road” as “an open way . . . for vehicles [and] persons”).

Second, we also find reasonabl e the Secretary’s decision to interpret subsection (B) to cover roads but not vehicles even though she interprets subsection (A) to cover extraction areas and everything within th eir boundaries. In subsection (A), Congress provided that a “m ine” is an “area of land from which minerals are extracted.” 30 U.S.C. § 802(h)(1)(A). The Secretary interprets the word “ar ea” in this provision as allencompassing because “virtually everything in an extraction area . . . is necessarily related to [mining] activity,” Br. of Sec’y at 30–31. The same is not true, however, for private roads appurtenant to extraction areas. As demonstrated by the facts of this case, vehicles on such roads may have no connection to mining, making it sensible to exclude them from MSHA’s jurisdiction unde r subsection (B). Subsection (A) concerns an area of land in which almost everything is dedicated to mining. Subsec tion (B) does not. It was reasonable for the Secretary to adopt different interpretations for different things. Cf. Atl. Cleaners & Dyers, Inc. v. United

States , 286 U.S. 427, 433 (1932) (sta ting that the same words in a statute may be interpreted differently “[w]here the subject matter to which the words refer is not the same”).14

And third, we conclude that the Secretary’s view that subsection (C) covers mining-re lated vehicles traveling on mining roads is also reasonable. Subsections (B ) and (C) can

be read to work in tandem. Because subsection (C), which covers mining-related equipment, clearly encompasses mining vehicles, it is reasonable to read (B) in a way that does not. See Qi-Zhuo v. Meissner , 70 F.3d 136, 139 (D.C. Cir. 1995) (“An endlessly reiterated princi ple of statutory construction is that all words in a statute are to be assigned meaning, and that nothing therein is to be constr ued as surplusage.”). National Cement and Tejon argue that s ubsection (C) is intended to continue the expansion of MSHA jurisdiction beyond the geographic bounds of (A) and (B ), and the Se cretary cannot use subsection (C) to limit the reach of (B). But their argument rests on a mistaken pr emise. Under the Secretary’s interpretation, subsection (C ) actually works to expand MSHA jurisdiction. Subsection (A ) confers jurisdiction over

extraction areas and all activ ities within their boundaries. Subsection (B) extends jurisdiction to private roads appurtenant to extraction area s, and subsection (C) reaches vehicles used in mining but not located within an extraction area. The Secretary’s constructi on of subsections (B) and (C) is entirely consistent with a broad statutor y definition of “mine,” which extends the protections of the Mine Act beyond the actual site wher e mining takes place.

Accordingly, we hold that the Secretary has provided a reasonable interpretation of subsect ion (B) that is entitled to

Chevron deference.

B.

We now ask whether the Secretary has adequately explained how her broad interp retation of subsection (B) can15

be harmonized with the Mine Act’s enforcement scheme. In our prior opinion, our first conc ern was that National Cement would lack authority to alter th e road as the Secretary might

direct. See Nat’l Cement , 494 F.3d at 1075. The Secretary notes, however, that liability unde r the Mine Act is dependent upon a finding of control: only mine “operators” can be cited

and held liable for violations. See 18 U.S.C. §§ 802(d), 814(a); Sec’y of Labor v. Berwind Natural Res. Corp ., 21 F.M.S.H.R.C. 1284, 1293 (1999) (stating that to be an “operator,” an entity must have “substantial involvement” in the operation of the mine). In other words, an entity cannot be held liable unless it “operates, controls, or supervises” the mine. 18 U.S.C. § 802(d). For ex ample, “if National Cement does not have the requisite control over the road to install berms or guardrails, it is not an ‘operator’ and cannot be cited

for a violation of the berm or guardrail requirement.” Br. of Sec’y at 38. Tejon argues that the Secretary’s response ignores the longstanding rule th at mine operators are subject to strict liability for violations of MSHA standards. See Br. of Tejon at 18 (citing Sec’y of Labor v. Twentymile Coal Co.

, 456 F.3d 151 (D.C. Cir. 2006)). But strict liability means liability without fault. W. P AGE K EETON

, P ROSSER & K EETON

ON THE L AW OF T ORTS 534 (5th ed. 1984). It does not mean liability for things that occur outside one’s control or supervision. The Secretary’s re sponse alleviates our first

concern.

Our second concern was that the Secretary may hold National Cement responsible for all users of the road, including those over whom it ha s no authority or control. See

Nat’l Cement , 494 F.3d at 1075–76. Unde r the Mine Act, a determination that a property is a mine entails significant consequences for mine operators. For example, mine operators must comply with w ithdrawal orders and remove “all persons” from specified areas upon MSHA’s request, see,16

e.g. , 30 U.S.C. § 814(b), (d), (e); they must provide sitespecific hazard awareness training to any person present at a “mine site,” 30 C.F.R. § 46.11(b); and, in the event of an accident, they must notify the Se cretary and take appropriate measures to prevent the destru ction of relevant evidence, see 30 U.S.C. § 813(j). See also Nat’l Cement , 494 F.3d at 1075– 76 (explaining enforcement scheme). The Secretary assures us she will not interpret these provisions in a way that requires

National Cement to take unreason able measures or act beyond its authority. See Br. of Sec’y at 40–47. For example, in the event of a withdrawal order the Secretary states she will only require National Cement to w ithdraw those persons over whom it has control. She argues that the statutory requirement to withdraw “all persons” can be met by ordering Tejon to withdraw anyone else on the road solely within its control. Likewise, the Secretary will not require National Cement to provide site-specific training to persons whose only contact

with the mine is their use of the access road because she interprets the phrase “mine site” to refer only to extraction areas, not roads appurtenant to such areas. The Secretary will, however, require National Ceme nt to take reasonable and necessary actions within its control, such as immediately reporting to MSHA road accidents involving death or the possibility of death.

By explaining how her readin g of subsection (B) makes sense within the enforcement provisions we identified, the Secretary has addressed our concern. We will not declare the Secretary’s interpretation of subsection (B) unreasonable simply because there is a remote chance it may lead to problematic results with regard to a small subset of the Mine Act’s enforcement provisions. C ongress defined private roads appurtenant to extraction areas as mines. The question before us is whether the Secretary’s in terpretation of this provision is reasonable. Not only is the Secretary’s interpretation17

consistent with the statute’s language, it is perfectly aligned with a key objective of the Mine Act. The Secretary must act

to ensure the “health and safety of [the mining industry’s] most precious resource—the mi ner.” 30 U.S.C. § 801(a). By extending MSHA jurisdiction to ro ads that, like the access road, are plainly related to mining activity and traveled extensively by mine personnel, sh e has done just that. “[T]he theoretical possibility that an agency might someday abuse its authority is of limited relevance in determining whether the agency’s interpretation of a congressional delegation is

reasonable.” PDK Labs. Inc. v. U.S. Drug Enforcement

Admin. , 438 F.3d 1184, 1192 (D.C. Ci r. 2006). Should MSHA use its jurisdiction over the access road to unduly burden National Cement or Tejon, “t he courts remain open to consider a challenge to that action,” id.

Our final concern was that Te jon and other right-of-way grantees who may operate, cont rol, or supervise the road would be deemed mine “operato rs” even though they have no connection to mining. See Nat’l Cement , 494 F.3d at 1076. The Secretary responds that an entity like Tejon should be required to shoulder certain respon sibilities to the extent it maintains enough control over a mining road to be a mine “operator.” It is reasonable, for example, that such an entity be required to perform necessary road maintenance and comply with withdrawal orders. See Br. of Sec’y at 47. 5 In the Secretary’s view, these are “m odest burden[s] compared to the importance of the health an d safety concerns involved,” Reply Br. of Sec’y at 28 (quoting D.H. Blattner & Sons v. Sec’y of Labor , 152 F.3d 1102, 1108 (9th Cir. 1998)). We

5 National Cement and Tejon argue that Tejon’s control and authority over the road are insuffi cient to make Tejon an operator because it has no connection to mining. We need not resolve this issue as the Secretary seeks only to hold National Cement responsible for the conditions of the access road.18

agree. It is noteworthy that although Tejon is not a typical mine operator, it does have a significant connection to mining. After all, Tejon direc tly benefits from National

Cement’s use of the road. In ex change for the easement that permits National Cement to haul cement and equipment over its land, Tejon receives payments from National Cement

based on cement sales. Gran ting National Cement an easement was a business decision in which Tejon determined

that the costs associated with the cement company’s use of its land were outweighed by the expected benefits of the

transaction. It canno t argue in good faith that it lacks any

relation to National Ceme nt’s mining operations.

Accordingly, we hold that the Secretary has adequately

addressed our concerns. Her in terpretation is reasonable in light of the overall enforcement scheme of the Mine Act.

IV.

For the foregoing reasons, we grant the petition for review, vacate the decision of the Commission, and remand for proceedings on the merits of the citation.

So ordered.