FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX: 202 434-9949

April 18, 2024

SECRETARY OF LABOR MINE

SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner v.

BRADLEY T. WILEY,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. SE 2023-0013

A.C. No. 09-01264-563440

Mine: Jackson Quarry

SECRETARY OF LABOR MINE

SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner v.

TERRA EXCAVATING, LLC,

Respondent

CIVIL PENALTY PROCEEDING 

Docket No. SE 2023-0048

A.C. No. 09-01264-563564

Mine: Jackson Quarry

VULCAN MATERIALS COMPANY,

Contestant v.

SECRETARY OF LABOR, MINE

SAFETY AND HEALTH 

ADMINISTRATION, MSHA,

Respondent

CONTEST PROCEEDING

Docket No. SE 2022-0146 

Citation No. 9637716; 06/23/2022

Mine: Jackson Quarry 

Mine ID: 09-01264
2

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), Docket No. SE 2022-0193

Petitioner A.C. No. 09-01264-561057

v.

VULCAN CONSTRUCTION MATERIALS Mine: Jackson Quarry

LLC,

Respondent

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), Docket No. SE 2023-0150

Petitioner Docket No. SE 2023-0151

A.C. No. 09-01264-574618

v.

VULCAN CONSTRUCTION MATERIALS Mine: Jackson Quarry

LLC,

Respondent

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), Docket No. SE 2023-0172

Petitioner A.C. No. 09-01264-575226

v.

TERRA EXCAVATING, LLC, Mine: Jackson Quarry

Respondent
SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner 

v.

VULCAN CONSTRUCTION MATERIALS 

LLC, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2024-0010 

A.C. No. 09-01264-584632 

Mine: Jackson Quarry

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), Docket No. SE 2024-0011

Petitioner A.C. No. 09-01264-585552

v.

BRADLEY T. WILEY, Mine: Jackson Quarry

Respondent

ORDER GRANTING ACTING SECRETARY’S MOTION FOR PARTIAL SUMMARY 

DECISION AND DENYING RESPONDENTS’ MOTIONS FOR PARTIAL SUMMARY 

DECISION ON QUESTION OF MSHA JURISDICTION

I. PROCEDURAL HISTORY

These dockets arise under the Mine Safety and Health Act of 1977, as amended (the 

“Mine Act” or “the Act”). An employee of Respondent Terra Excavating, LLC (“Terra”), a 

subcontractor for Respondent Bradley T. Wiley (“Wiley”) was killed in a June 17, 2022, 

accident at the Jackson Quarry, a site composed of land leased in part and owned in part by 

Respondent Vulcan Construction Materials, LLC (“Vulcan”). The Mine Safety and Health 

Administration (“MSHA”) issued citations and orders to all three Respondents, all of which then 

asserted that MSHA did not have jurisdiction over the Jackson Quarry, which they claimed was 

not a “mine” as defined in the Act.

The Secretary of Labor filed an unopposed motion on October 12, 2023, requesting that 

the common jurisdictional question be bifurcated from the individual dockets and consolidated 
4

for decision by a single administrative law judge. Unopposed Mot. to Bifurcate and Consolidate. 

This proceeding is the product of the motion and the Chief Administrative Law Judge’s approval 

of the Acting Secretary’s request. 

The parties requested a hearing on the jurisdictional question but were receptive to the 

suggestion of motions for summary decision as a possible means of resolving the question 

without a hearing. Each party then moved for summary decision. 

The Acting Secretary’s motion was filed and served on March 8, 2024. Acting 

Secretary’s Motion for Summary Decision (“Sec’y Mot.”). Respondents Vulcan, Terra, and 

Wiley filed and served their motions on March 20.1 Respondent Vulcan Construction Materials 

LLC’s Motion for Summary Decision and Opposition to Acting Secretary’s Motion for 

Summary Decision (“Vulcan Mot.”); Respondent Terra Excavating LLC's Motion for Summary 

Judgment (“Terra Mot.”); Respondent Brad T. Wiley’s Motion for Summary Judgment (“Wiley 

Mot.”). Vulcan’s motion was characterized as both a motion for summary decision and an 

opposition to the Acting Secretary’s motion. Vulcan Mot. at 2. The Acting Secretary filed an 

opposition on April 1. Acting Secretary of Labor’s Opposition to Respondents’ Motions for 

Summary Decision (“Sec’y Opp’n”). For the reasons given below, the Acting Secretary’s 

motion for summary decision on the question of jurisdiction is granted, and Respondents’ 

motions are denied. 

II. FACTS

A. Uncontested Facts

In 1995, Lafarge, an entity unrelated to Vulcan, began conducting mining operations at a 

stone quarry on two parcels of land in Jackson County, Ga. (“Former Quarry”). Vulcan Mot. at 

4; Ex. A to Vulcan Mot. (Jimmy Fleming Decl.), ¶ 3. In 2013, Vulcan purchased a lease on the 

two parcels of land from Lafarge. Vulcan Mot. at 4 and Ex. A (Jimmy Fleming Decl.) ¶ 4; Ex. B 

(Greg Duckett Decl.) ¶ 5.

Vulcan was not an operator of the Former Quarry at any time before 2013. Vulcan Mot. 

at 4, and Ex. A (Jimmy Fleming Decl.) ¶ 5. Upon purchasing the lease from Lafarge, Vulcan 

terminated the Former Quarry’s MSHA mine identification number (“Mine ID”) with MSHA. 

Vulcan Mot. at 4 and Ex. B (Greg Duckett Decl.) ¶ 5. Between 2013 and all relevant times 

1 In March 6, 2024, motions for an extension of time, Terra and Wiley both said that they 

intended to adopt the reasoning and position presented by Vulcan in its motion. The extensions 

were granted, and the resulting motions deferred generally to Vulcan’s argument. See Terra Mot. 

at 4; Wiley Mot. at 4. Therefore, references to Respondents’ positions rely on Vulcan’s 

presentation in its motion, which is wholly supported by the other two Respondents, and citations 

are to “Vulcan Mot.” 

Unless cited otherwise, all exhibits in this decision are exhibits submitted with Vulcan 

Mot. and cited as they were identified in that motion. 
5

thereafter, there were no active mining operations at the site. Vulcan Mot. at 4 and Ex. A 

(Jimmy Fleming Decl.) ¶ 6; Ex. B (Greg Duckett Decl.) ¶ 6.

In 2021, Vulcan acquired five additional parcels of land contiguous to the two parcels

leased from Lafarge. Vulcan Mot. at 4 and Ex. A (Jimmy Fleming Decl.) ¶ 7. On February 4, 

2022, Vulcan applied with the Jackson County, Ga., Board of Commissioners to have the seven 

parcels of land (hereinafter “Jackson Quarry”) rezoned as Heavy Industrial (HI) with a Special 

Use permit to allow mining. Vulcan Mot. at 4 and Ex. A (Jimmy Fleming Decl.) ¶ 8; Ex. C 

(Rezoning and Special Use Permit Application). Vulcan’s intended function for the Jackson 

Quarry was to operate it as a stone quarry and crushing/milling facility. Vulcan Mot. at 5 and 

Ex. A (Jimmy Fleming Decl.) ¶ 9; Ex. B (Greg Duckett Decl.) ¶ 7; Ex. D (Barry Lawson Decl.) ¶ 

4.

On the property of Jackson Quarry, there was an abandoned scale house that was in 

disrepair and could not be repaired or reused. Vulcan Mot. at 5 and Ex. D (Barry Lawson Decl.) 

¶ 5. On or about February 2022, Vulcan contracted with Wiley to remove the scale house and 

grade ground on the property. Vulcan Mot. at 5 and Ex. D (Barry Lawson Decl.) ¶ 6.

From February 2022 to May 2022, Wiley worked at the Jackson Quarry, clearing

vegetation and mulching. Vulcan Mot. at 5 and Ex. D (Barry Lawson Decl.) ¶ 7; Ex. E (Brad T. 

Wiley Decl.) ¶ 1. In March or April 2022, Wiley contracted Terra for grading work including 

clearing debris and moving dirt in preparation for the construction of a building pad at the 

Jackson Quarry. Vulcan Mot. at 5 and Ex. D (Barry Lawson Decl.) ¶ 8; Ex. E (Brad T. Wiley 

Decl.) ¶ 11; Ex. F (Wayne Yost Decl.) ¶ 2. Wiley did not contract Terra to construct the building 

pad at the Jackson Quarry. Vulcan Mot. at 5 and Ex. D (Barry Lawson Decl.) ¶ 8; Ex. E (Brad 

T. Wiley Decl.) ¶ 11; Ex. F (Wayne Yost Decl.) ¶ 2

Wayne Yost was the General Manager for Terra on the project. Vulcan Mot. at 5 and Ex. 

F (Wayne Yost Decl.) ¶ 1. Greg Duckett was Vulcan’s Safety and Health Manager responsible 

for the Jackson Quarry at all times relevant to this matter. Vulcan Mot. at 5 and Ex. B (Greg 

Duckett Decl.) ¶ 3. Robert Ashley was the MSHA Field Office Supervisor for the Macon, Ga.,

field office at all times relevant to this matter. Vulcan Mot. at 5 and Ex. B (Greg Duckett Decl.) 

¶ 8; Ex. G (Robert Ashley Memorandum of Interview); Ex. N (Robert Ashley Dep.) 21:2-21. 

In February 2022, Duckett called Ashley and told him Vulcan intended to operate the 

Jackson Quarry as a stone crushing/milling facility but was not yet ready to crush for commerce. 

Vulcan Mot. at 6 and Ex. B (Greg Duckett Decl.) ¶ 8, 9; Ex. G (Robert Ashley Memorandum of 

Interview); Ex. N (Robert Ashley Dep.) 27:5-17, 32:12-18. Duckett told Ashley that Vulcan was 

getting ready to start preparing the site and would be moving in equipment and taking steps in 

preparation of building a plant and scale house. Vulcan Mot. at 6 and Ex. B (Greg Duckett 

Decl.) ¶ 9.

On February 22, 2022, Vulcan applied for a Mine ID in anticipation of future mining. 

Vulcan Mot. at 6 and Ex. B (Greg Duckett Decl.) ¶ 11; Ex. H (Mine ID Request Information 

Form). 
6

Brett Calzaretta is an MSHA training specialist from the Macon field office. Vulcan 

Mot. at 6 and Ex. I (Brett Calzaretta Dep.) 7:19-8:2, 18:18-21. In April 2022, Calzaretta visited 

the Jackson Quarry for a special initiative on fatalities involving power haulage. Vulcan Mot. at 

7 and Ex. E (Brad T. Wiley Decl.) ¶ 2; Ex. F (Wayne Yost Decl.) ¶ 3; Ex. J (Brett Calzaretta 

Time Report Activities); Ex. I (Brett Calzaretta Dep.) 23:13-19, 27:20-28:3.

During Calzaretta’s visit, the only activities he witnessed at the Jackson Quarry were 

cleaning up (i.e., stumping and grubbing trees, cleaning up vegetation, consolidating trash piles 

and hauling them off) and workers hauling dirt in, dumping it, and smoothing it for later 

compacting. Vulcan Mot. at 7 and Ex. E (Brad T. Wiley Decl.) ¶ 4. The only equipment 

Calzaretta saw at the site during his visit were an excavator, haul trucks for dirt moving, and 

dozers moving dirt. Vulcan Mot. at 7 and Ex. E (Brad T. Wiley Decl.) ¶ 5.

Calzaretta did not see a crushing plant or equipment during his visit. Vulcan Mot. at 7 

and Ex. I (Brett Calzaretta Dep.) 37:11-12. Calzaretta did not observe any blasting, drilling, 

crushing, extraction activities, milling, screening, or sizing of materials. Vulcan Mot. at 7 and 

Ex. I (Brett Calzaretta Dep.) 47:16-22, 48:5-13. Nor did he observe any maintenance or repair of 

equipment or materials being hauled. Vulcan Mot. at 7 and Ex. I (Brett Calzaretta Dep.) 48:14-

19.

During his visit, Calzaretta did not observe any mine-related hazards. Vulcan Mot. at 7 

and Ex. I (Brett Calzaretta Dep.) 47:2-12. Calzaretta did not inquire as to the training status of 

Wiley or any Terra employee. Vulcan Mot. at 7 and Ex. E (Brad T. Wiley Decl.) ¶ 6-10; Ex. F 

(Wayne Yost Decl.) ¶ 4-6; Ex. I (Brett Calzaretta Dep.) 33:16-18. Calzaretta did not have 

authority to issue citations at the Jackson Quarry during his visit. Ex. I (Brett Calzaretta Dep.) 

20:21-22. Calzaretta also stated he visited Jackson Quarry, not to conduct an inspection, but 

because it “[c]ame up on the data retrieval system as a new mine” when he checked to see if any 

new mine properties had opened. Ex. I (Brett Calzaretta Dep.) 44:7-18, 47:11-12.

On March 16, 2022, Ashley approved Vulcan’s request for a Mine ID. Vulcan Mot. at 8 

and Ex. H (Mine ID Request Information Form). On April 18, 2022, the Jackson County Board 

of Commissioners approved Vulcan’s application to rezone the Jackson Quarry as Heavy 

Industrial (HI) with a Special Use permit to allow mining. Vulcan Mot. at 8 and Ex. K 

(Rezoning & Special Use Permit Approval Letters).

On June 17, 2022, a fatal accident at the Jackson Quarry killed Terra employee Brian 

Thigpen. Vulcan Mot. at 8 and Ex. B (Greg Duckett Decl.) ¶ 12; Ex. D (Barry Lawson Decl.) ¶ 

10; Ex. E (Brad T. Wiley Decl.) ¶ 12; Ex. F (Wayne Yost Decl.) ¶ 9. At the time of the fatal 

accident, Thigpen was operating a compactor to settle earth for future construction of the 

building pad when the compactor rolled over. Vulcan Mot. at 8 and Ex. F (Wayne Yost Decl.) ¶ 

9.

At the time of the fatal accident, construction of the building pad had not started, and the 

site was not ready for construction to begin. Vulcan Mot. at 8 and Ex. D (Barry Lawson Decl.) ¶ 

11. Ashley had no knowledge of any drilling, blasting, extraction, milling, crushing, screening, 

or sizing of material, maintenance or repair of equipment or haulage of materials taking place at 
7

the Jackson Quarry when the accident occurred. Vulcan Mot. at 8 and Ex. N (Robert Ashley 

Dep.) 47:1-48:2, 49:15-20.

On June 17, 2022, Duckett called MSHA to report the fatal accident and says that he did 

so as a courtesy because Vulcan had applied for a Mine ID in anticipation of future mining. 

Vulcan Mot. at 8 and Ex. B (Greg Duckett Decl.) ¶ 12; Ex. L (MSHA Escalation Report).

MSHA, upon receiving a report of a fatality, proceeded under the assumption that it had 

jurisdiction over the Jackson Quarry. Vulcan Mot. at 9 and Ex. M (Sec’y Amended Response to 

Resp. First Set of Interrogatories). MSHA did not consider the possibility that it did not have 

jurisdiction over the Jackson Quarry until Vulcan, Wiley and Terra contested MSHA’s 

jurisdiction. Vulcan Mot. at 9 and Ex. M (Sec’y Amended Response to Resp. First Set of 

Interrogatories).

Attorneys in the Office of the Solicitor determined that MSHA had jurisdiction over the 

Jackson Quarry. Vulcan Mot. at 9 and Ex. M (Sec’y Amended Response to Resp. First Set of 

Interrogatories).

B. Contested Facts 

Vulcan contends that during his visit, Calzaretta spoke with Wiley and Yost and informed 

them that MSHA did not yet have jurisdiction over the Jackson Quarry but would at some point. 

Ex. E (Brad T. Wiley Decl.) ¶ 8; Ex. F (Wayne Yost Decl.) ¶ 5. The Acting Secretary disputes 

that Calzaretta discussed jurisdiction during his visit to the Jackson Quarry. Sec’y Opp’n at 4; 

Ex. I (Brett Calzaretta Dep.) 56:17-58:4. 

Ashley and Duckett agreed Vulcan would apply for a Mine ID, and Duckett would 

contact Ashley thirty days before Vulcan started crushing and sizing material so MSHA could do 

a courtesy inspection. Vulcan Mot. at 6 and Ex. B (Greg Duckett Decl.) ¶ 9; Ex. G (Robert 

Ashley Memorandum of Interview); Ex. N (Robert Ashley Dep.) 33:3-9; 40:4-11; 52:17-25-

53:1-4. The Acting Secretary disputes that Ashley made any such agreement as to timing and 

asserts that Vulcan already had applied for a Mine ID at the time of the conversation. Sec’y 

Opp’n at 4; Ex. N. (Robert Ashley Dep.) 50:12-13, 52:14-15. 

Vulcan also asserts that Ashley and Duckett also agreed Vulcan would provide MSHA 

with its Mine ID information thirty days before Vulcan started crushing and sizing material. 

Vulcan Mot. at 6 and Ex. B (Greg Duckett Decl.) ¶ 9. Based on this conversation with Ashley, it 

was Duckett’s understanding that MSHA would not have jurisdiction over the Jackson Quarry 

until thirty days before Vulcan started crushing and sizing material. Vulcan Mot. at 6 and Ex. B 

(Greg Duckett Decl.) ¶ 10. The Acting Secretary states that Ashley would not have agreed to a 

date and that he testified that he did not do so. Sec’y Opp’n at 4; Ex. N. (Robert Ashley Dep.) 

54:8-15.
8

III. LEGAL STANDARDS

A. Standard for Summary Decision 

A motion for summary decision shall be granted only if the entire record, including 

the pleadings, depositions, answers to interrogatories, admissions, and affidavits, 

shows:

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a matter of law. 

29 C.F.R. § 2700.67(b). The Commission “has long recognized that . . . ‘[s]ummary decision is 

an extraordinary procedure,’” Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) 

(quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)) (alterations in original). 

The Commission has also equated summary decision with summary judgment under the 

Federal Rules of Civil Procedure. Id., citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); 

Sec’y of Labor v. Hanson Aggregates N.Y., Inc., 29 FMSHRC 4, 8-9 (Jan. 2007). Where the 

resolution of an issue depends on contested material facts, entry of summary decision is 

improper. Energy West Mining Co., 16 FMSHRC at 1419. A fact is “material” if it “might 

affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). 

B. MSHA Jurisdiction 

The Acting Secretary has noted that Respondents did not initially object to MSHA’s 

jurisdiction, and that Vulcan had applied for a Mine ID from MSHA. However, jurisdictional 

objections may be raised by any party at any time, even where a party has previously assented to 

agency jurisdiction. Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013). 

The Mine Act confers limited jurisdiction on the Mine Safety and Health Administration, 

created by the Act, over all extraction of minerals in nonliquid form (and minerals in liquid form 

extracted by miners working underground). Mine Act, §§ 2(g), 3(h), 30 U.S.C. §§ 801(g), 

802(h). 

Another federal agency under the Department of Labor, the Occupational Safety and 

Health Administration (“OSHA”), has general jurisdiction over all workplaces not regulated by 

MSHA or another specialized federal agency. See Occupational Safety and Health Act of 1970 § 

4(b)(1), 29 U.S.C. § 653(b)(1) (“Nothing in this chapter shall apply to working conditions of 

employees with respect to which other Federal agencies, and State agencies . . . exercise 

statutory authority to prescribe or enforce standards or regulations affecting occupational safety 

or health.”). 

MSHA and OSHA therefore have entered into an interagency agreement providing 

guidance to determine whether MSHA or OSHA should assume jurisdiction over a site. Mine 

Safety and Health Administration Occupational Safety and Health Administration Interagency 
9

Agreement, 44 Fed. Reg., 22,827, 22,827 (Apr. 17, 1979). The agreement assigns MSHA 

jurisdiction over working conditions “on mine sites and in milling operations.” Id. 

The Mine Act’s jurisdiction over “coal or other mine[s]” includes:

lands, excavations, underground passageways, shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds, on the surface or underground, 

used in, or to be used in, or resulting from, the work of extracting such minerals

from their natural deposits in nonliquid form, or if in liquid form, with workers 

underground, or used in, or to be used in, the milling of such minerals, or the work 

of preparing coal or other minerals, and includes custom coal preparation facilities. 

30 U.S.C. § 802(h)(1)(C) (emphasis added).

The legislative history of the Mine Acted stated the Committee’s intention to construe the 

Act broadly in favor of jurisdiction:

Finally, the structures on the surface or underground, which are used or are to be 

used in or resulting from the preparation of the extracted minerals are included in 

the definition of ‘mine’. The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee’s intention that what is considered 

to be a mine and to be regulated under this Act be given the broadest possibly [sic] 

interpretation, and it is the intent of this Committee that doubts be resolved in favor 

of inclusion of a facility within the coverage of the Act. 

S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978)

(emphasis added). 

The Mine Act also defines who is considered an “operator” and “miner” under the Act. 

An “operator” is defined as “any owner, lessee, or other person who operates, controls, or 

supervises a coal or other mine or any independent contractor performing services or 

construction at such mine.” 30 U.S.C. § 802(d). A “miner” is defined as “any individual 

working in a coal or other mine.” 30 U.S.C. § 802(g).

IV. DISPOSITION

 

A. The Acting Secretary’s Motion for Summary Decision

The Acting Secretary has asserted that there are no contested issues of material fact and 

that she is entitled to judgment as a matter of law. Generally, the Acting Secretary has argued 

that the plain language of the Mine Act supports her jurisdictional claim, and that the intent of 

the Act and its preference for inclusion of sites which could be classified as “mines” further 

bolsters her claim. Sec’y Mot. at 5-8. 
10

As the Supreme Court noted in Chevron, the initial inquiry into statutory meaning must 

be “whether Congress has directly spoken to the precise question at issue. If the intent of 

Congress is clear, that is the end of the matter; for the court, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. 

Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (emphasis added). 

The precise question here is whether the location where the accident occurred is a “mine” 

as defined by the Act. In addressing that question, it is appropriate to consider the nature of the 

property, its ownership, and its intended use. 

Vulcan acquired its interests in the Jackson Quarry, a property comprised of several 

contiguous parcels of land, for a purpose. It intended to use the land as a stone quarry—i.e. to 

“extract[ ] such minerals [i.e. rock] from their natural deposits” within or on “lands, excavations, 

. . . or other property” within the quarry. 30 U.S.C. § 802(h). Vulcan also intended that the 

Jackson Quarry property was “to be used in[] the milling of . . . minerals.” Id.

There is no dispute about this intended use of the property. Vulcan has acknowledged 

that it had applied for, and been granted, permission from Jackson County to conduct mining 

operations and milling at the Jackson Quarry. More to the point, Vulcan had applied for, and had 

been issued, a Mine ID from MSHA approximately three months before the accident. 

Thus, a refined expression of the precise question in this case is: “May jurisdiction under 

the Mine Act adhere to lands, excavations, and property for which a commercial entity with 

ownership and leasehold rights in the property has sought and received permission to extract 

minerals from their natural deposits in nonliquid form and to mill such minerals on the lands and 

property, has applied for and been issued a Mine ID from the federal agency charged with 

enforcing the Act, and has worked for three months after issuance of a Mine ID to prepare the 

site for mining and milling operations?”

The language of the Act embraces future activities, i.e. lands to be used in the extraction 

or processing of minerals. But it cannot necessarily be said that MSHA’s jurisdiction adheres 

when the minerals are discovered in exploration, or at the first application for a permit for any 

sort of activity at the site. This might conform to a literal interpretation but could empower 

MSHA to assert jurisdiction over virtually any tract in the country—any place where a deposit of 

minerals in nonliquid form might be found. 

Such an overbroad definition would be unlikely to serve the purposes served by the Act. 

One might therefore find ambiguity in circumstances where no substantial steps have been taken 

to cement the intent to use the “lands, excavations, or other property” for mineral extraction or 

milling. Therefore, the Acting Secretary, who has asserted that the plain language of the statute 

controls this decision, must prove that the site is unambiguously within the definition of a “mine” 

as defined by the Act. 

The jurisdictional facts in this case do so. This was a property not only intended for use 

but committed to it by planning, investment, official acts, and work preparing the site for mining 

and milling. Every element of the definition of “mine” is attested to by uncontroverted 
11

evidence—and, as ratification, the owner of the mine had literally submitted its property to 

MSHA’s jurisdiction by applying for, and being issued, a Mine ID from the agency three months 

before the accident.

This case is thus unlike KC Transport, Inc., 44 FMSHRC 211 (Apr. 2022), rev’d and 

remanded 77 F.4th 1022 (D.C. Cir. 2023). The issue in that case was whether there was 

jurisdiction over coal haul trucks owned by an independent company and a maintenance and 

storage facility for those trucks which was not located on the property of the mine. 44 FMSHRC 

at 211-12. The Commission held the facility was not a “mine” because it was not “located on or 

appurtenant to a mine site . . . engaged in any extraction, milling, preparation or other activities 

within the scope of subsection 3(h)(1)(A).” Id. at 225. 

On appeal to the D.C. Circuit, the court found the statute to be ambiguous as to whether 

the trucks and facility were subject to jurisdiction as a “mine.” KC Transport, 77 F.4th at 1030-

31. The court held that, as in prior cases, the Secretary “‘never grappled with’ the regulation’s 

‘clear ambiguity.’” Id. at 1029, citing Akzo Noble Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304-05 

(D.C. Cir. 2000).2

 Thus, remand was necessary to permit the Secretary to apply her 

interpretation to the language the court held to be ambiguous in that context. 

Here, though, there is no interpretive work to be done. Whatever Congress may have 

intended as regards roads, trucks, facilities, equipment, or rights of way, there can be no doubt 

about the Act’s authority over a “mine” as it is traditionally understood and defined, where the 

mine owner has notified the agency that it intends to operate a mine on the land in question, has 

received a legal identification from the agency confirming its authority over the mine, and has 

worked for months preparing the site for extraction and milling. 

In discovery, the Acting Secretary has admitted that she did not make an affirmative 

determination of jurisdiction before the accident. See Ex. M (Sec’y Amended Response to Resp. 

First Set of Interrogatories). While the Acting Secretary has not provided any authority 

establishing that a Mine ID alone is a sufficient foundation for agency jurisdiction, such 

authority is unnecessary in this case. The definition of “mine” clearly applies to the Jackson 

Quarry under the material facts agreed to by the parties. 

In KC Transport, the D.C. Circuit recognized the distinction giving rise to ambiguity in 

applying the statute’s jurisdictional reach to mobile equipment. See KC Transport, 77 F.4th at 

1031-33 (noting the crucial distinction between the “three movable items—‘equipment, 

machines, [and] tools’” enumerated in section 3(h)(1)(C) of the Mine Act and the features in that 

2 The court also cited Secretary of Labor v. National Cement Company of California, Inc., 

494 F.3d 1066, 1077 (D.C. Cir. 2007), which was similarly remanded for a traditional resolution 

of ambiguity conferring deference to the Secretary’s interpretation. 
12

section defined by physical location).3 The Court observed that the Secretary had at no point in 

the litigation “grapple[d] with the conflicting, practical implications” of the definition she had 

advanced as it related to those items. Id. at 1032. 

No such practical concerns are presented by a traditional “mine” in a fixed physical 

location. To the extent there could be any ambiguity about when the Secretary’s authority over 

the mine would arise, that too is resolved here by the application for and issuance of a Mine ID 

from MSHA:

Consider the process through which MSHA ensures compliance with the Mine 

Act’s safety regulations. To start, Congress instructs that “[e]ach operator of a coal 

or other mine subject to this chapter shall file with the Secretary the name and 

address of such mine[.]” 

KC Transport, 77 F.4th at 1030, citing 30 U.S.C. § 819(d) (emphases added by the court). 

Had there been no fatal accident in this case, if an MSHA inspector had shown up on 

June 17, 2022, and demanded entry to perform an inspection, what would have happened? Is 

there any doubt that a district court would have enforced the demand to enter a property 

designated as a “mine” in the agency’s records and committed on the public record to use for 

mineral extraction and milling? 

The answer must be “no.”4

 See id. (Secretary’s authorized representatives “shall have a 

right of entry to, upon, or through any coal or other mine.” (citing Mine Act § 103(a), 30 U.S.C. 

3 The court noted the “movable items included in the middle of the list” in subsection (C) 

could be interpreted as being analyzed “in relation [to], and as connected, to the preceding 

physical manifestations” in the list:

As applied here, there is at least a question of whether “equipment, machines, [and] 

tools,” when read within the wider Chapter 22 context, constitute “coal or other 

mine[s]” only when there is an established connection to the fixed physical 

manifestations listed before and after them. 30 U.S.C. § 802(h)(1)(C). It is unclear, 

however, whether such an established connection impacts the circumstances under 

which the three movable types of property remain “mines” when not physically 

connected to the manifestations listed in subsections (A)–(C). At a minimum, the 

statutory language, broader context, and numerous practical concerns render 

subsection (C)’s meaning ambiguous.

KC Transport, 77 F.4th at 1033. 

4 This decision is limited to the circumstances present in this case. It is far from clear that 

mere application or even approval of an application for zoning to permit mining and/or milling 

would be sufficient to establish jurisdiction over a site. The jurisdictional holding as a matter of 

(continued . . .)
13

§ 813(a))). The absence of any such doubt confirms that there is no ambiguity as to the precise 

question presented in this case. The agency is therefore entitled to summary decision on the 

question of jurisdiction over the Jackson Quarry as a “mine,” based on the clear language of the 

Act, as applied to the undisputed facts of this case.5

As a final matter, the Acting Secretary cannot be entitled to summary decision on the 

question of fair notice because the material facts on which the issue might depend are contested. 

The Acting Secretary has denied that conversations took place as described by Respondents. See 

Section II.B, supra, slip op. at 7. 

A hearing is not necessary, because the issue is resolved by resort to the plain language of 

the statute alone. But while Respondents’ approach in seeking to extend the concept of fair 

notice to the general matter of jurisdiction over a “mine” is novel, it is not unique. See Austin 

Powder Co., 37 FMSHRC 1337 (June 2015) (ALJ). That case—also decided on the plain 

language definition of “mine”—is discussed more fully at slip op. at 18, infra.

B. Respondents’ Motions for Summary Decision 

The Commission requires cross motions for summary decision to be considered 

independently, determining whether either side has demonstrated an entitlement to a decision. 

Hanson Aggregates, 29 FMSHRC 10, citing 11 James Wm. Moore, et al., Moore's Federal 

Practice § 56.l 1[5][a], at 56-105 to 107 (3d ed. 1999). Respondents’ arguments are grounded, at 

least in part, on an assertion that jurisdiction is not wholly dependent on location and should thus 

be examined to determine whether jurisdiction over them is proper, independent of whether the 

Jackson Quarry was intended “to be used” for mineral extraction and/or milling. See Vulcan 

Mot. at 10-11 (stating “(1) the nature of the activities in question in relation to activities normally 

associated with mining; (2) the relationship in time of the activities in question to active mining 

operations; and (3) the nature of the land at the time of the activities in question” must all be 

considered when determining jurisdiction). 

Vulcan suggests that the Acting Secretary has read the foundational definition on which 

jurisdiction rests in “isolation.” Id. at 11. It argues that the definition in section 3(h)(1)(C) has a 

“functional, locational, and temporal component” that must be considered. Id. But if one 

concludes—as the facts here require—that the Jackson Quarry is a “mine” under the Act, the rest 

of the problem posed by Respondents’ motions rests on that definition and essentially solves 

itself. 

4(continued . . .)

law in this case should be viewed narrowly as dependent on the application for and issuance of a 

Mine ID by MSHA. 

5 The Acting Secretary has disputed several facts asserted by Vulcan as uncontested. See 

Sec’y Opp’n at 4; Section II.B., supra, slip op. at 7. None of those facts is material to my 

decision. The Secretary is entitled to judgment as a matter of law even if Vulcan’s facts are 

accepted as true. 
14

Respondents cite Cyprus Industrial Minerals Company v. FMSHRC, 664 F.2d 1116 (9th 

Cir. 1981), as support for their assertion that the definition of “mine” has a functional component 

that must be considered. Vulcan Mot. at 16. Their reliance is misplaced. The Ninth Circuit’s 

decision did typify the operator’s activities as something that could “hardly be described as 

anything but mining,” Cyprus Indus. Minerals, 664 F.2d at 1118. But Respondents disregard the 

central point of the court’s holding, which cited several precedents in diverse circuits and the 

legislative history of the Act and concluded that “it does not matter if what is included in the 

definition fails to conform to the conventional concept of mining.” Id. 

The court adopted the view of the Third Circuit in Marshall v. Stoudt’s Ferry 

Preparation Co., 602 F.2d 589 (3d Cir. 1979):

Although it may seem incongruous to apply the label ‘mine’ to the kind of plant 

operated by Stoudt’s Ferry, the statute makes clear that the concept that was to be 

conveyed by the word is much more encompassing than the usual meaning 

attributed to it—the word means what the statute says it means.

Cyprus Indus. Minerals, 664 F.2d at 1118, quoting Stoudt’s Ferry, 602 F.2d at 592. (emphasis 

added). 

Resort to legislative history is also unhelpful to Respondents’ argument. The Act’s 

legislative history rather famously directs that its scope should be read expansively, as the court 

noted in Cyprus Industrial Minerals. See Section III.B., supra, slip op. at 9 (excerpt from a 

report of the Senate Subcommittee on Labor regarding the Mine Act); Cyprus Indus. Minerals, 

664 F.2d at 1118 (quoting from the same report). 

The Jackson Quarry, then, is a “mine” under the Act. Based on that conclusion, the 

definition of “operator” clearly applies to Vulcan (“any owner, lessee, or other person who 

operates, controls, or supervises a . . . mine”). 30 U.S.C. § 802(d) (emphasis added). 

Similarly, the inclusion of “any independent contractor performing services or 

construction at such mine” within the definition of “operator” must be read to apply to Wiley and 

Terra. See id. (emphasis added). The definition is enormously broad and provides no exclusions 

or limitations on the terms “services or construction.” 

The D.C. Circuit has expressly rejected the position that a functional limitation may 

preclude enforcement actions against independent contractors whose services are not sufficiently 

related to mining or milling operations. See Otis Elevator Co. v. Sec’y, 921 F.2d 1285, 1290 

(D.C. Circuit 1990) (“We think that the phrase ‘any independent contractor performing services . 

. . at [a] mine’ means just that—any independent contractor performing services at a mine.”).6

6 In Otis Elevator Company, a company which serviced elevators carrying mining 

companies’ employees into mines was found to be an independent contractor, and thus an 

(continued . . .)
15

The definition of “miner” as “any individual working in a coal or other mine,” 30 U.S.C. 

§ 802(g) (emphasis added), likewise does not qualify “working” in any way. Thus, the 

employees of any entity, or any independent contractor self-employed and working at the mine, 

would be “miners,” and the protections of the Act would apply to any such persons engaged in 

any type of work at the mine. 

Respondents’ arguments about temporal and functional limitations on MSHA’s 

jurisdiction are thus unsustainable in this case. The “temporal” aspect of the definition is 

rendered literally in the statute: the provisions of the Act apply not only to lands, excavations, 

etc., currently engaged in the extraction or milling of minerals but also to those “to be used” and 

“resulting from” such use. 30 U.S.C. § 802(h)(1) (emphasis added). 

This temporal component expands the Act’s jurisdiction and strengthens the Acting 

Secretary’s plain language argument. By extending the definition forward and backward to 

times when the property in question may not yet have been or may no longer be functionally

engaged in extraction or milling—which alone would satisfy the definition of a mine—the 

statute’s language establishes that a property may be a mine before those activities commence 

and after they have ceased. 

In Lancashire Coal Company v. Secretary of Labor, 968 F.2d 388 (3d Cir. 1992), the 

court found “considerable support” for and credited the Secretary’s reading of the Mine Act as 

recognizing “three potential time periods for the involvement of structures in mining activity: (1) 

the term ‘used in’ meaning current use, i.e. ‘being used in’; (2) the term ‘to be used in’ meaning 

contemplated use; and (3) the term ‘resulting from’ meaning former use.” 968 F.2d at 390-91 

(emphasis added).7

6 (. . . continued)

operator, under section 3(d) of the Mine Act because it “contracts to perform services at mines.” 

921 F.2d at 1291.

In another case, Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991 (10th Cir. 

1996), the Tenth Circuit also adopted the D.C. Circuit’s reasoning in Otis Elevator Co. to read 

“independent contractor” broadly. That case involved a manufacturer of mining equipment who 

sent a service representative to advise mine employees “with the equipment both above ground 

in the mine’s maintenance shop and below ground in the mine.” 99 F.3d at 994. The Tenth 

Circuit stated section 3(d) did not limit the definition of “independent contractor” to those 

“contractors who are engaged in the extraction process and who have a continuing presence at 

the mine.” Id. at 999 (citing Otis Elevator Co., 921 F.2d at 1290). Thus, the manufacturer was 

held to be both an independent contractor and operator under the Mine Act because the “clear” 

meaning of the statute encompassed contractors who “performed services at the mine.” Id. at 

1000.

7 Both Vulcan and the Acting Secretary also cited several cases—including some of the 

same cases—in which administrative law judges at the Commission found a physical location to 

(continued . . .)
16

No tool of statutory construction can contend with the weight of contrary authority 

marshalled by the Acting Secretary here. Leaving aside the Act’s clear language and the oftrepeated Committee instruction that its scope is to be broadly construed, any traditional 

interpretation of the definition of “mine” would consider the statute as a whole and would note 

that the definitions of “operator” and “miner” are wholly dependent on the characterization of the 

property in question. 

Linguistically, the breadth of the definitions is consistent and mutually supportive, and 

the Acting Secretary has not read the definition of “mine” in isolation. That definition is part of 

an integrated statutory scheme that Congress intended to be broadly inclusive of properties used 

in, to be used in, or resulting from mineral extraction or processing (including milling), and all 

persons working on or within such properties. 

This case, unlike KC Transport, does not approach the frontiers of the Act’s jurisdictional 

limits. And unlike KC Transport, the precise question at issue may be resolved by considering 

the plain language itself. 

Respondents appear to understate the difficulty of unseating a plain language 

interpretation. While it may not be necessary to literally show that adopting the plain language 

7 (. . . continued)

be a mine when mining operations had not yet begun or had ceased and not resumed. See Sec’y 

Mot. at 7; Vulcan Mot. at 16-17; Sec’y Opp’n at 6. The cases cited include: 

• N.J. Wilbanks Contractor, Inc., 39 FMSHRC 2069, 2076 (Dec. 2017) (ALJ) 

(upholding jurisdiction over a mine that would eventually extract and process granite 

when development activities including “site grading, drilling and blasting rock, and 

constructing dams, as well as laying down belt structures, crushers, and shakers, and 

hauling clean rock to designated locations” were being performed); 

• Hills Materials Company, 34 FMSHRC 3097, 3102-03 (Dec. 2012) (ALJ) (affirming 

jurisdiction found where mine was temporarily closed and had not “commenced 

operations,” but would start the next day);

• Royal Cement Co., 31 FMSHRC 1459, 1462 (Dec. 2009) (ALJ) (specifically noting 

Act’s language including facilities where future milling is contemplated in upholding 

jurisdiction over facility where repairs were being performed in order to reopen 

quarry and cement plant that had been closed for three years); and

• The Pit, 16 FMSHRC 2008, 2008-10 (Sept. 1994) (ALJ) (“The plain language of the 

Act” clearly provided jurisdiction over equipment at a site which will be used for 

extraction of minerals and milling). 

The anticipatory activities in these cases support the extension of jurisdiction to 

contemplated mining or milling but could not be read to constrain the breadth of the Act’s plain 

language, even if the cases were precedential. 
17

would produce an absurd result, Respondents must at least demonstrate that the outcome would 

be “an unreasonable one ‘plainly at variance with the policy of the legislation as a whole.’” U.S. 

v. American Trucking Ass’ns, 310 U.S. 534, 544 (1940). 

The pleadings and evidence provided here cannot support such a finding. On the 

contrary, the plain language is buttressed by the legislative history, the use of words in context, 

Congress’ evident choice in describing activities in the broadest possible terms, and the obvious 

intent to apply the Act’s protections to properties, like the Jackson Quarry, that were not yet 

engaged in extraction or milling but which were legally recognized by local and federal officials 

as committed to such use in the near future. 

Respondents have cited no authority where the Secretary’s exercise of jurisdictional 

authority over a piece of real property within the Act’s definition of a “mine” was rejected. See 

Sec’y Opp’n at 5-6 (noting absence of such authority and citing Cyprus Industrial Minerals, 664 

F.2d at 1117-20 and cases cited therein; and Lancashire Coal Co., 968 F.2d at 390, in support of 

jurisdiction over areas where mining is “contemplated”). Indeed, Vulcan’s motion cites 

extensively to both the Commission’s and D.C. Circuit’s decisions in KC Transport, even though 

no legal principle supporting its contentions has survived judicial review to this point.8

 See 

Vulcan Mot. at 12-14, 20-21. 

The Jackson Quarry’s qualification as a “mine”—as the term has been straightforwardly 

defined—is therefore determinative of jurisdiction, contrary to Respondents’ assertions. See 

Sec’y Opp’n at 8, noting correctly that Commission’s decision in KC Transport was based on 

location, where trucks were asserted to be a “mine”).

C. Fair Notice

As a final point, Respondents have asserted an affirmative defense of “fair notice” and

raised such an argument as a basis for summary decision, asserting that MSHA had effectively 

disclaimed jurisdiction at the Jackson Quarry. Vulcan Mot. at 19. The argument is untenable. 

First, as noted above, slip op. at 13, supra, the jurisdiction question rests on plain 

language. But the fair notice defense operates to limit deference to an agency interpretation of 

an ambiguous standard, where the position is inconsistent with or departs from a previous 

interpretation or common understanding. 

8 The Acting Secretary’s assertion that K.C. Transport is “not good law,” Sec’y Opp’n at 

8, may be premature. The D.C. Circuit did reverse and remand the case when reviewing the 

Commission’s decision. 77 F.4th at 1031. See also Section IV.A. supra, slip op. at 11. The 

operator has petitioned the Supreme Court for certiorari, and the Court has not yet decided 

whether to accept the petition. See Petition for Writ of Certiorari, KC Transport, Inc., v. Julie A. 

Su, Acting Sec’y of Labor, ___ U.S. ___, No. 23-876, 2024 WL 645391 (Feb. 12, 2024); Brief for 

the Respondents, KC Transport, Inc., v. Julie A. Su, Acting Sec’y of Labor, ___ U.S. ___, No. 23-

876 (Apr. 15, 2024).
18

“‘The due process clause prevents . . . deference from validating the application of a 

regulation that fails to give fair warning of the conduct it prohibits or requires.’” DQ Fire and 

Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014), aff’d, 632 F. App’x 622 

(D.C. Cir. 2015) (unpublished), quoting General Electric Co. v. EPA, 53 F.3d 1324, 1328 (D.C. 

Cir. 1995) (citation omitted). Deference is not an issue here, where the Secretary relies on a 

straightforward reading of the statute because the clear language therein provides an operator fair 

notice. See Dynamic Energy Inc., 32 FMSHRC 1168, 1172 (Sept. 2010); Bluestone Coal Corp., 

19 FMSHRC 1025, 1031 (June 1997). 

Second, if there were any ambiguity in the statutory definition (again, there is not), a 

decision on the fair notice question would depend on contested material facts. Relying on 

Ashley’s sworn testimony, the Secretary has denied that any representations were made about 

jurisdiction in conversations with Respondents’ representatives. 

Finally, the requirement of fair notice generally applies to particular regulatory 

provisions. See DQ Fire and Explosion Consultants, Inc., 36 FMSHRC at 3087-88. Every 

binding precedent case cited by Respondents involves a particular regulatory provision. See 

Vulcan Mot. at 19-20.9

Vulcan asserts that the “standard” is the scope of MSHA’s jurisdiction under Section 

3(h)(1)(C). Vulcan Mot. at 20. But it has provided no authority in support of its position. This 

is a foundational, statutory definition, not a safety standard, and the fair notice argument is not 

readily adaptable to the broader context, where the question is not “What conduct is prohibited or 

required?” but “Does this statute apply at all to the property in question?” 

Respondents have cited one case in which an administrative law judge rejected a 

contractor’s challenge to MSHA’s jurisdiction on notice grounds. See Vulcan Mot. at 23, citing

Austin Powder Co., 37 FMSHRC at 1358. There, the independent explosives contractor 

similarly argued that MSHA had disclaimed jurisdiction over its facility, and that it lacked fair 

notice when jurisdiction was reasserted. 37 FMSHRC at 1358. 

Unlike the present case, the facility was not itself a “mine” in the traditional sense but a 

storage facility on property located nearby and connected to the extraction area by a road on 

property owned by the mine owner. Id. Even so, the judge rejected the fair notice argument and 

determined that the plain language of the statute—the definition of “mine” at issue here—

established that jurisdiction was proper. Id. 

9 Vulcan cited the following cases which discuss fair notice within the context of specific 

regulations under the Mine Act: Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (30

C.F.R. § 56.9002); Alan Lee Good, 23 FMSHRC 995, 1005 (Sept. 2001) (Jordan, C, & Beatty, C, 

separate opinion) (30 C.F.R. § 56.14107(a)); Lodestar Energy, Inc., 24 FMSHRC 689, 694-95 

(July 2002) (30 C.F.R. § 75.364(b)(1)); Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 

2010) (30 C.F.R. § 75.521); DQ Fire and Explosion Consultants, 36 FMSHRC at 3088 (30 

C.F.R. § 48.5). 
19

The judge considered the factors established for determining whether notice of the 

standard’s requirements had been provided and determined that even if the language did not 

plainly establish jurisdiction over the facility, the Commission’s objective “reasonably prudent 

person” test would support a finding that fair notice had been provided. Id. at 1359, citing Alan 

Lee Good ̧ 23 FMSHRC 995, 1005 (Sept. 2001) (Jordan, C., & Beatty, C., separate opinion).

Thus, the fair notice argument would fail even if one were to agree that ambiguity could 

be inferred from “the inconsistency of the agency’s enforcement, including pre-enforcement 

contact from MSHA officials, and the lack of guidance informing the regulated community with 

ascertainable certainty of its interpretation.” Vulcan Mot. at 20. The due process analysis first 

asks “whether a reasonably prudent person familiar with the mining industry and the protective 

purposes of the standard would have recognized the specific prohibition or requirement of the 

standard.” DQ Fire and Explosion Consultants, 36 FMSHRC at 3087, quoting Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (emphasis added). See also Alan Lee Good, 23 

FMSHRC at 1005, citing Island Creek Coal Co., 20 FMSHRC 14, 24-25 (Jan. 1998).

A reasonably prudent person familiar with the mining industry would be familiar with the

breadth of its jurisdictional provisions and the common definition of “mine,” including its 

applicability to prospective operations. Inconsistency of agency enforcement and a lack of 

notice to the regulated community are indeed valid factors one may use to determine whether a 

party has notice of an agency’s interpretation of an ambiguous regulation. However, they do not 

apply here to a plainly worded statute that has been consistently read, by courts, the Commission, 

and its judges, to mean what it says. 10 

In sum, Congress has spoken plainly in simple declarative sentences. Such clear 

language leaves no room for ambiguity or interpretation. Thus, Respondents’ arguments about 

the type of activity involved at the mine, see Vulcan Mot. at 13, are refuted by the fact that the 

activities at issue in this case were undertaken at a mine, by miners as those terms are plainly and 

unequivocally defined. Respondents’ motions must therefore be denied. 

10 While the Secretary has proved MSHA’s jurisdictional claim over the Jackson Quarry, 

Respondents’ notice and other arguments might pertain to one or more of the citations or orders 

issued in these cases. Those standards have not been considered here because they are not 

“jurisdictional” questions and are beyond the scope of the issue assigned for disposition in this 

proceeding. However, the Acting Secretary must yet bear the burden of proving that the 

violations occurred and that the persons cited were responsible, and this decision should not be 

read as offering any opinion on the validity of the citations and orders issued in the individual 

dockets, or the vitality of a fair notice defense in response to any of the citations or orders. 
20

V. CONCLUSION

The Jackson Quarry is a “mine,” as defined in the Act. Each Respondent was an 

“operator,” as that term is defined in the Act, and the employees of each respondent who were 

engaged in any type of work at the quarry were “miners” as that term is defined in the Act. The 

Secretary’s motion for summary decision on the question of MSHA’s jurisdiction over the 

Jackson Quarry is therefore GRANTED, and Respondents’ motions for summary decision on 

the same question are DENIED. 

 

 

 Michael G. Young

Administrative Law Judge

Distribution (by electronic mail):

Counsel for MSHA: Chaunda L. Brock, Esq., brock.chaunda.l@dol.gov, Jeremy B. Dailey, 

Esq., dailey.jeremy.b@dol.gov, Danny P. Miller, Esq., miller.daniel.p@dol.gov, Office of the 

Solicitor, U. S. Department of Labor, 61 Forsyth Street, S.W., Atlanta, GA 30303, 

atl.fedcourt@dol.gov 

Counsel for Vulcan Construction Materials, LLC: Margaret S. Lopez, Esq., 

margaret.lopez@ogletree.com, Jaslyn W. Johnson, jaslyn.johnson@ogletree.com, Esq., Ogletree, 

Deakins, Nash, Smoak & Stewart, P.C. 1909 K. St. NW, Suite 1000, Washington, DC, 20006

Counsel for Terra Excavating, LLC: Melanie L. Paul, Esq., melanie.paul@jacksonlewis.com, 

Jackson Lewis P.C., 171 17th St. NW, Suite 1200, Atlanta, GA, 30363

Counsel for Bradley T. Wiley: Kristin R.B. White, Esq., kwhite@fisherphillips.com, Fisher & 

Phillips, LLP, 1125 17th St., Suite 2400, Denver, CO 80202