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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

 April 16, 2021

DECISION AND ORDER

Appearances: Felix Marquez, Esq., Office of the Solicitor, U.S. Department of Labor, 

Dallas, Texas 75202 for Petitioner

Mr. Charles Mosely, pro se, President and CEO, The Creator’s Stone, 

Subiaco, Arkansas, 72865

Before: Judge William B. Moran

This matter is before the Court upon a petition for the assessment of civil penalties under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d), (“Mine 

Act” or “Act.”) Two section 104(a) citations were issued to The Creator’s Stone, (“Creator’s 

Stone” or Respondent), one for failure to notify MSHA of the operation’s opening and the other 

for failure to provide a record of miner training, but the larger issue and chief contention in this 

matter is the Respondent’s position that his location is not a mine and that the activity carried out 

there does not constitute mining. For the reasons which follow, the Court finds that while the 

Respondent’s business and the activity carried out at its business location is on the very low end 

of the spectrum of jurisdiction under the Mine Act, The Creator’s Stone is a mine and the activity 

carried out there constitutes mining pursuant to 30 U.S.C.§802 (h)(1) and §803 of the Mine Act 

and case law determinations issued by the Federal Mine Safety and Health Review Commission 

(“Commission”) and Federal Court of Appeals. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

 Petitioner

v.

THE CREATOR’S STONE,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2020-0067

A.C. No. 03-02067-504511

Mine: The Creator’s Stone
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Findings of Fact regarding Mine Act jurisdiction of The Creator’s Stone

As noted above, two citations spawned this litigation, but the challenge here is 

fundamentally about The Creator’s Stone’s position that its operation is not a mine. The 

Findings of Fact relating to the jurisdictional issue are first presented, while the Findings relating 

to the citations which were issued will follow.

A virtual hearing was held on February 2, 2021, with the testimony from that hearing 

reflected in the following findings of fact. The Respondent contends that his operation is not a 

mine and accordingly there was no duty to notify MSHA of the business and, from that premise,

that the two employees cited in one of the citations are not miners. Tr. 16. Preliminarily, the 

Court noted, based on one of the Respondent’s exhibits, which included five photos, that the 

description with those photos stated: “The first five photos of the quarry that the DOL is calling 

a mine, The Creator's Stone quarry.” Tr. 17 (emphasis added). Given those descriptive words 

associated with the photos, the Court inquired whether the Respondent agreed that his operation 

is a quarry. The Respondent answered, “I am calling [it] rock, and I would say quarry best 

depicts it, a quarry or a borrow pit.” Id. Amplifying his response, Mr. Mosley added, “[w]hat 

we do there is very comparable to a borrow pit, yes. ...but it's not a mine, and it's not a quarry in 

the sense that I'm pulling rock out and crushing it and sizing it either.” Tr. 18. Mr. Mosley’s 

position, in part, was expressed as his “underlying point of all of that is, if there are no risks and 

there's no imminent danger in all of the definitions that are in the CFRs and acts that don’t apply, 

how can I be a mine.” Tr. 38.

Dave E. Smith, an inspector for the Mine Safety and Health Administration testified, as 

the government’s first witness. Tr. 47. He has been an MSHA Inspector since 2008. His mining 

background includes working as an assistant quarry manager at a dimensional stone quarry, 

which he described as “much like Mr. Mosley’s [quarry].” Tr. 48-49.

Regarding the inspection for this matter, which took place on May 14, 2019, the inspector 

went to the Respondent’s site in order to determine if it was a mine. Tr. 50. The site is located 

in between Midway and Subiaco, in Logan County, Arkansas. Tr. 117. When making such 

visits, Smith will “look for evidence of heavy equipment having been traveled in and out.1 That 

would usually mean excessive dirt and mud on the turnout for the driveways, ruts, things of that 

nature.” Tr. 52. 

When the inspector arrived at the potential mine site, there was no signage, and nothing 

identifying it as The Creator’s Stone. He did see “large ruts, roads that had been traveled by 

heavy equipment, such as semis and such.” Tr. 52. He then traveled the road “to another gate at 

the edge of this property, which opened up into what [he] saw, which [he described as] a quarry.” 

1 The government’s exhibits, numbering 1 through 35, were all admitted. Tr. 118. From the 

Respondent’s Exhibits, Ex. 3 at page 4, the inspector identified the skid steer he had previously 

referred to in his testimony. Tr. 120, 121. 
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Id. He stated observing “dimensional stone stacked [and as he] entered to the right there was a 

miner stacking stone onto pallets.” Id. Elaborating on the term “dimensional stone,” the 

inspector explained 

it can vary in sizes, ... [and] [i]t can be 1 to 2 inches, 2 to 4 inches, and they're 

stacked accordingly as they're classified. And they’ll stack this on a pallet, a typical 

pallet, and stack it upwards of 3 to 4 feet high. And it'll weigh about 1 to 2 tons.

Tr. 55. 

Explaining the removal process generally, the inspector stated, “[t]his stone is removed 

from the earth in laminated layers.” Tr. 55. After first clearing overburden, which consists of 

dirt, sand, mud, and things that are less desirable, such an operation will pull the stone up in 

laminated layers and break them up. Id. Then the stone will be classified “in different ways in 

1 to 2 inches, 2 to 4 inches, depending on the size, depending how they're selling the stone.” Id. 

The inspector stated that he observed the same process at The Creator’s Stone. Tr. 56. 

Elaborating, Smith stated he 

could see evidence of heavy equipment usage, land being cleared, and ... [he] ... 

could see that there was a miner in a skid steer, which is a small piece, specialized 

piece of equipment with a bucket that’s used to load material or to remove material 

... [and he saw a person] actually pulling this stone from there. 

Tr. 56-57. That person, seeing Smith, stopped his work to determine who he was. Id. 

The inspector confirmed to the Court that he observed the material being put on pallets and that 

the material appeared to be coming from the site. Tr. 59. Smith saw the material being removed 

from the ground, observing that it had been pulled from the ground. In terms of the material 

being put on pallets, it was broken into triangular or trapezoidal shapes one to two inches in 

thickness. Tr. 62. He informed that such material typically is used for patio or house siding. Id. 

He also saw where land had been cleared and a bulldozer and a skid steer, which was 

being operated, pulling stone up from the ground. Tr. 50, 56-57. Adding more detail to his 

observations upon first arriving at the site, he saw a person stacking stone onto pallets. Tr. 54. 

That person “was stacking stone onto pallets. There was in excess of 20 or so pallets that had 

been stacked. And these pallets are going to weigh between 1 to 2 tons.” Tr. 54.

The inspector added that upon entering the property through a gate, to the right, off the 

road, was a palletizer and approximately 50 yards further down the road he saw the skid steer, 

and learned it was being operated by Brandon Boss. Boss was the first person he spoke with. 

Tr. 64. The inspector stated that it appeared he was “removing stone from the ground, breaking 

it into smaller sizes and preparing it to be palletized.” Tr. 65. He was performing this with the 

skid steer bucket. Tr. 65, 68. The inspector elaborated about the function of a skid steer, 

informing it is “machinery that [ ] does not have a steering wheel, ... [and is] controlled by 

levers and by foot pedals. ... it has [a] single seat.” Tr. 65. It has a bucket on the front and it is 

hydraulically driven, and it is used much like a front-end loader. The bucket is used “to pull 

material up or to move material or to clear material.” Tr. 66. 
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In terms of the size of the property, the inspector stated it was not more than 2 acres, at 

least as to the land that was excavated. Tr. 68. It is a small operation. Tr. 113. The inspector 

stated there was no mine office at the site. Tr. 81-82. The individuals the inspector met on that 

day informed him that they were employees of The Creator’s Stone. Tr. 83.

Regarding other equipment at the property, the inspector saw a bulldozer “directly in 

front as [he] entered the property.” Tr. 69. Compared to the skid steer he saw, the bulldozer was 

five to six times larger. Tr. 70. While the dozer was not running at that time, he saw tracks

reflecting it had been moved and that it appeared to be ready for use. Tr. 71.

After identifying the purpose of his presence at the property, the inspector asked about 

training and whether the site had registered with MSHA. Tr. 71-72. As for the training issue, 

the inspector informed that some training is transferable from another operation but there is a 

separate requirement for “site-specific” training. Tr. 73. 

The inspector also saw a second individual during his inspection; that person was 

palletizing stone. Tr. 74. That process, palletizing, was described as “several different pieces of 

stone piled up near [the individual who] was using a chisel to clean off the flat surface of [the 

pieces] ... to break off rougher ends, sizing it a little bit further” by breaking it down so that the 

pieces could fit on the pallet. Tr.74. Thus, the individual “was using his hammer and chisel to

clean off the edges, to clean off the flat surface, and then to actually fit and palletize -- fit the 

stone to the pallet. So stacking the, stacking it in layers on the pallet.” Id. The pallets were 

about 3 1⁄2 feet in height. Tr.75. 

On the subject of training, the inspector determined that one individual, Mr. Cabrera, the 

one doing the palletizing, had received some training, but not site specific nor task training. Tr. 

78-79. However, the skid steer operator, Mr. Boss, did not have training. Later, the inspector 

determined that another person, Mr. Noyce,2the bulldozer operator, did not have training. Tr.

76-77. Only Boss and Noyce were listed in the inspector’s citations. Tr. 78.

In the inspector’s process of deciding to issue a citation for an alleged violation of 30 

C.F.R. § 56.1000, a standard requiring mines to inform MSHA of openings and closings, the 

inspector believed he had observed enough to conclude that the site was a mine. Tr. 84. In his 

experience, the inspector stated that he had viewed 20 to 30 mines of this size and nature. Id. 

His determination that The Creator’s Stone is a mine was based upon concluding that it was 

engaged in removing minerals from the earth, which minerals entered commerce. Tr. 85. This 

was based on seeing active removal of minerals, evidence that minerals had been removed in the 

past and upon learning that the site was selling stone, the latter determination of sales being 

derived from the inspector’s speaking with Mr. Mosely. Tr. 85. 

2 Although Respondent, through the testimony of Mr. Barnes suggested that Mr. Noyce did little 

at the site, stating that “[i]t would be hard to say. Mostly he just stops by to drop off a little 

fuel,” [Tr. 184], the Court finds that the inspector’s more detailed testimony is a more reliable 

description of that individual’s activity at the site. 
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The inspector stated that he did consider whether The Creator’s Stone could be deemed 

outside of the Mine Act’s jurisdiction by being classified as a borrow pit. Tr. 88. He defined a 

borrow pit as “generally a one-time use or infrequently used pit where they remove the material 

and place it in a nearby location in virtually the same state. So basically dig a hole, fill a hole.” 

Tr. 88. Elaborating, he stated, a borrow pit 

would generally be close to [the] site that they were moving the material to. ... 

[there] won't be sizing going on, and ... to the extent there is sizing going on, it 

may be removing large rocks from the dirt to be filled. A lot of times they're used 

on construction sites and such to build pads and things like that. ... [t]he material 

is not used for its intrinsic value. It's just used for its fill.

Tr. 89-90. As an example, the inspector continued,

[a] borrow pit would be ... on a construction site if they had a shale pit, and they 

would be removing the shale and taking out the larger rocks, you know, too large 

to make a pad out of. And they would remove the shale from this borrow pit and 

then either build a pad or, like I said, they could also potentially fill holes with. ... 

[a]nd that’s generally what it is. They're just using the material for fill. It's removed

and replaced in basically the same state it's removed.

Tr. 90.

The inspector determined that The Creator’s Stone was a mine, not a borrow pit, 

[b]ecause the stone was being sized on at least three different occasions, the initial 

removal, the breaking up into smaller pieces, and then onto the pallets. It was being 

sized in that way. It was being removed because of its intrinsic value because it 

was to be sold as stone patio.

Tr. 90-91. Mr. Mosley informed the inspector that the stone was being sold. Tr. 95. 

The inspector, having determined that the Respondent’s site was a mine, cited it for not 

complying with standard 56.1000 because mining operations are to notify MSHA of their intent

to engage in that activity prior to mining. Tr. 91. No such notification was made to MSHA. Id.

The inspector did later learn from Mr. Mosley that a newspaper, the Paris Express, in Logan 

County, contained a notification about the business but that is not a substitute for notifying 

MSHA. Tr. 92. Instead, a mine is to notify MSHA of “their intent to mine, their company name, 

their location, their owner's name, contact information, and address is [the inspector] believe[d] 

the majority of what is [required] on that standard.” Tr. 92. Although the Paris Express 

contained much of that information, the inspector stated that does not displace the notification 

requirements which are to be made directly to MSHA. Tr. 96-97. In fact, driving home the 

importance of informing MSHA directly, the inspector informed that he lives in Paris but did not 

see that notice in the local paper. Tr. 93. As a practical matter, the inspector noted that MSHA 
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can’t be in the business of scouring all the publications in a given state in search of such notices.3 

Id.

While the inspector could not recall the source of the information, his citation asserted 

that The Creator’s Stone had been in operation for a year or so, and therefore this was not a new 

start up. Tr. 96. There is no dispute in the record on this point. 

Addressing the inspector’s evaluation of the citation for failing to notify MSHA of the 

operation’s start-up, the inspector noted his determinations of the negligence and gravity 

associated with the alleged violation. Tr. 98, 100. Regarding those evaluations, the inspector 

characterized the citation as a “paperwork violation.” Tr. 101. The inspector then described his 

evaluation of the training violation. Tr. 103. This was more than a paperwork violation. 

Underpinning his evaluation regarding the lack of training, the inspector noted that the Mine Act 

itself states that “an untrained miner is a hazard to themselves and to others.” Tr. 104. In the 

inspector’s view, the new miner training is the most important one: 

That’s going to be the 24 hours of training that they're required to receive to 

indoctrinate them into mining, you know. These are the hazards you can expect. 

These are, these are the hazards you need to avoid, or these are the things you need 

to be made aware of. It's the most important training that they receive, should have 

received.

Tr. 105.

He marked the gravity as “fatal” because, once again, he stated:

this is the most important training they receive. ... [t]here's overturn hazards. 

There's special equipment. They're in a confined area, and that was my reasoning 

for fatal. Whether they could be caught in a piece of equipment, struck by a piece 

of equipment, run over by a piece of equipment, overturn a piece of equipment, and 

they hadn't received the training that would pertain to specifically all those 

instances. ...[and by equipment the inspector was referring to] the [ ] skid steer 

and the bulldozer that was on-site.

Tr. 106. In deciding to mark the citation as “significant and substantial,” the inspector again 

referred to the:

new miner training [as] the most important training that is provided to these 

gentlemen. Them not having that training makes them unaware of any hazards that 

are on-site, you know, other than what they could determine personally. But there's

very specific things that [they] ... have to deal with the equipment that, you know,

again, it was evaluated as reasonably likely and -- loss of work days, loss or 

restricted work days.

3 Later, the inspector’s supervisor would confirm that publishing a notice in the local newspaper 

is not a substitute manner for complying with the required notice to MSHA. Tr. 156.
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Tr. 107. 

Applying standard 46.5(a), the inspector identified the discrete hazard as:

[m]iners operating equipment without the proper task training. There was a raised 

area in which the skid steer could have overturned on. There were no berms in 

place. There was no signage as to hazards that were on-site ... they were in a 

confined area ... it's a small area to be operating a large piece of equipment in. So 

and there's training that’s supposed to be given and received that’s going to have 

them do their checks to ensure that all the safety features on that equipment are 

being checked and that they are working. And there was no evidence of that having 

been done.

Tr. 108-109. He added that the training was especially important as it is a confined area to be 

operating heavy equipment. Id. Underscoring his view of the hazards associated at the site, as 

the individuals did not have the required training, the inspector issued a section 104(g)(1) order 

and by invoking that provision, those individuals could not continue to work at the site until they 

had completed the required training. Tr. 111.

Inspector Smith was cross-examined by Mr. Mosley, who began with questions about 

the authority of the inspector and the basis for his determination that The Creator’s Stone is a 

mine. Tr. 124-125. The Court would note that the inspector identified himself as an authorized 

representative of the Secretary and that the question of whether the site is a mine is a legal 

question for the Court to decide based upon the factual record, as reflected in the Court’s 

findings of fact and the application of those facts to the definition of a mine under the Mine Act, 

as that term has been set forth in that Act as amplified and explained in decisions of the Federal 

Mine Safety and Health Review Commission and the Federal Courts. 

Mr. Mosley challenged the basis for the inspector’s determination that “sizing” was 

occurring, contending that his operation is “not creating the size. [It is] not making anything 

uniform out of it. We're just looking at it and laying it on a pallet.” Tr. 126. The inspector 

responded that:

[s]izing is a process of separating particles of mixed sizes into groups and particles 

of the same size or into groups in which particles range between maximum and 

minimum sizes, and that is sizing. And as for the stone being in the ground, the 

stone is in the ground as one continuous sheet.

Tr. 127. The inspector affirmed that, in his view, using equipment to pull up rock constitutes 

sizing. Tr. 129. 

He also affirmed that placing the rock on a pallet is also considered sizing, stating, 

Yes. As it states in the -- policy manual, into groups in which particles range 

between maximum and minimum sizes, and generally it's put, stacked on pallets. 
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I'm not certain how you do yours, but it's 1 to 2 inches or 2 to 4 inches, depending 

on the stone that you're categorizing and selling.

Id. 

In terms of the hazards he identified, the inspector repeated his earlier testimony that an 

untrained miner is a hazard to himself. Id. To that, he added his view that there were turnover 

hazards at the site,

which is going to be the elevated area of the land, ... and the excavated portion of 

the land. Berming if you are traveling on or near your overburden. The equipment 

itself, you have restricted views to the rear ... [w]ith your skid[-]steer you have a 

restricted -- semi-restricted view to the rear. With your bulldozer you have safety 

checks that weren't being performed on all these pieces of equipment, which could 

relate to having [overturn] hazards. 

Tr. 129-130.

Though the Court does not consider it at all critical, in response to Mr. Mosley’s question 

asking what the inspector believes constitutes “dimensional stone,”4the inspector answered: 

“As for the actual definition, I don’t know. The lay term is, you know, sized or cut, I believe is 

going to be a dimensional stone. Stone that -- dimensional stone is generally stone that you 

could handle by hand.”5 Tr. 131. 

4 The Court takes judicial notice that “dimension stone” is defined as “natural stone or rock that 

has been selected and finished (e.g., trimmed, cut, drilled, ground, or other) to specific sizes or 

shapes. Color, texture and pattern, and surface finish of the stone are also normal requirements.” 

Dimension Stone, Wikipedia, the Free Encyclopedia, https://en.wikipedia.org/wiki/

Dimension_stone (last visited Apr. 15, 2021). See also, the National Minerals Information 

Center’s description, which essentially repeats the first definition. Dimension Stone Statistics and 

Information, National Minerals Information Center, https://www.usgs.gov/centers/nmic/

dimension-stone-statistics-and-information (last visited Apr. 15, 2021).

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In another issue that the Court does not consider significant to the jurisdictional issue, although 

the inspector referred to the equipment at the site as “highly specialized,” he only meant 

specialized in the sense of performing certain tasks but that it could be used for other tasks and 

not simply for mining tasks. Tr. 131-132. Mr. Mosley pointed out that the equipment at his site 

may be used in many situations, including farming. Tr. 132. There is no dispute about this; the 

equipment at the Respondent’s site is not exclusively used for mining. A recurring theme by Mr. 

Mosley was that he questioned the idea that such equipment was “inherently dangerous” or made 

“death imminent.” See, for example, Tr. 132 and Tr. 135, 137. In this respect, the Court notes 

that it does not need to find either of those situations are present for Mine Act jurisdiction to 

apply. Such characteristics, where found, simply make the situation more serious, but they are 

not prerequisites to jurisdiction. 
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Turning to Respondent’s Exhibit 3, at page 1, Mr. Mosley asked about the site’s 

highwall, with the inspector responding that it was about a foot to a foot and a half high, possibly 

two feet. Tr. 133-134.

Asked again what constitutes “mining,” the inspector answered that 

it's going to be removing minerals from the earth and those minerals entering 

commerce. And that’s what mining activity is going to go into the removal of that

material, the selling of that material, the sizing of that material is how it's going to 

-- how you would -- some of the ways you would define mining activity.6 

Tr. 138. Thus, the inspector expressed that simply by removing the material and loading it 

directly onto a truck, such actions would constitute mining.7 Id. As also explained, infra, the 

Court finds that, as long as such activity was more than a mere borrow pit, the inspector is 

correct. 

The Court explained to the Respondent during the hearing that the Mine Act itself 

describes a mine “very simply as an area of land f[ro]m which minerals are extracted in nonliquid form. And then it includes a whole lot more in 30 U.S. Code ... section 802, definitions 

under G, which describes ... a ... coal or other mine.” Tr. 139-140.

Because of Mr. Mosely’s particular expressed frustration with “bureaucrats,” the Court 

took special pains to note that this definition of a mine “was created by Congress, not by 

bureaucrats.” Tr. 140. 

The Court then went on to explain that its responsibility was “to determine whether 

what's involved at [the Creator’s Stone] site is an area of land from which minerals were 

extracted in non-liquid form,” but then adding that “borrow pits are a recognized exception.” Tr.

140. The Court followed up that comment, noting that under subsection (h)(1) of that provision, 

it's all about resulting from the work of extracting minerals from their natural 

deposits ...[with the Court then adding that] [i]t talks about private ways and roads 

are pertinent to such area, lands, excavations, shafts -- tunnels, working structures, 

facilities, equipment, machines, tools, or other property on the surface, as in your 

case, or underground as it may be marginally underground, but it's all about 

resulting from the work of extracting minerals from their natural deposits.

Tr. 140-141 (emphasis added). 

6 The Court finds, as elaborated infra, that the essence of the inspector’s statement is accurate. 

7 As also explained infra, case law supports the inspector’s view. Sizing is not a critical element 

for Mine Act jurisdiction to apply. 
10

While Mr. Mosely took in the Court’s observations, he expressed his view that he didn’t 

“believe that the Mining Act or the legislature's intent was to apply mine status to what's going 

on at The Creator's Stone.” Tr. 142. Although the Court respectfully accepts that to be Mr. 

Mosley’s view, the definitions from the Mine Act, as cited above, and the case law from the 

Commission and the Federal Courts of Appeal, do not agree with his view, unless a site fits 

within the very narrow definition of a borrow pit. 

The Secretary then called Dwight Shields as its next witness. Mr. Shields is the field 

office supervisor for Mine Safety and Health Administration’s Little Rock, Arkansas field office. 

Tr. 148. His testimony essentially echoed that of Inspector Smith. He considered The Creator’s 

Stone to be a mine because:

[t]hey're extracting minerals or rock out of the ground, which rock is comprised of 

many minerals. We don’t know what all is in those things without analyzing them. 

But you're extracting that out of the ground, you're sizing those, and then you're 

selling them. So you're affecting commerce. That’s mostly the three criteria we 

use.

Tr. 151. Shields acknowledged that borrow pits are under OSHA’s jurisdiction. He explained 

that a borrow pit is “material [which] is extracted just in its -- whatever state it's in, it's dug out 

and used basically for fill more so than it's intrinsic value I believe is what the program policy 

says.” Tr.152. 

With that in mind, he distinguished the activity at the Respondent’s site because it’s 

“taking the stone out. It's probably laminated, and typically the dimensional stone places are. 

So they're breaking that stuff out. They’ll break it down to a size they can put on a pallet. Then 

they’ll sell that for folks for construction.” Id.

Adding to Inspector Smith’s explanation of dimensional stone, and essentially agreeing 

with it, Shields stated:

[i]t's usually laminated or in layers, and it may be anywhere -- thicknesses from --

I guess it could be a foot thick, but typically when they're using that in the building 

industry -- and in other word they’ll call it flagstone. That’s the thinner stuff. It 

may be 1 inch thick. And you'll see that on patios or floors or hearths around 

fireplaces or build up fireplaces with, that type.

Tr. 153. By that description, Shields agreed that the Respondent’s operation involves 

dimensional stone. Id.

Upon cross-examination, Mr. Mosley asked Inspector Shields to distinguish the activity 

at The Creator’s Stone from a borrow pit.8 Tr. 158. Shields responded that the Respondent’s site 

8

In a separate concern expressed by Mr. Mosley, referring to Section 101(7)(c) of the Mine Act, 

[30 U.S.C. § 811 (7)(c)], he noted that the Secretary of Labor may modify the application of a 

safety standard to a mine “if the [S]ecretary determines that an alternative method of achieving 
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was “sizing material [and] selling that material for its value as a -- not just a fill, but as a building 

stone ... for ... fireplaces, a rock floor, whatever, depending on the thickness of the material 

that they would need.” Tr. 158. As to whether the action of “sizing” material Shields could not 

say if the level of hazards for that would be different from that of a borrow pit.

9 Tr. 159.

Inspector Shields also maintained that there is no commerce, nor sizing, associated with a 

borrow pit.

10

 Tr. 161. 

In a very real sense, Mr. Mosley expressed his overall objection to Mine Act jurisdiction 

on the grounds that:

common sense would say regardless of what precedent there is that I should not fall 

under the Mining Act because that’s [not] why the Mining Act was even created. 

You know, there is nothing in the Mining Act or CFRs that would suggest that they 

ever intended for a simple operation like [The Creator’s Stone to be covered under 

the Mine Act]. 

Tr. 168-169.

As examples of the inapplicability of the Mine Act to his site, he continued, 

[as] I show in one of my pictures a little hammer and chisel. Yeah, someone can 

get something in his eye, but I can drive down the street and see porches that don’t 

have any handrails in them that are far more hazardous than a 1-foot wall in the 

quarry. And just the application of this to this operation is to me obviously moronic. 

It's just impediment, overreach, burdensome regulation. 

Tr. 169. 

The Court does not treat Mr. Mosley’s concerns and frustrations dismissively. However, 

as it suggested to him during the hearing, the Court’s responsibility is to determine whether, 

presently, the activity at the Respondent’s site constitutes mining under the Mine Act. Whether 

the result of such standard exists.” Tr. 164. The Court would simply note that provision does 

not impact Mine Act jurisdiction. Instead, upon filing a petition, it allows for an alternative 

method of compliance where the same measure of protection is provided. 

9 The Court would point out that, as discussed further infra, it is not the level of hazard that 

determines whether an activity is classified as a borrow pit or a mine.

10 The Court then posed a hypothetical question for the Inspector, asking if one assumes there 

was no sizing at all and that the Respondent’s operation only removed the rock from the site, 

loaded it directly onto a truck, and delivered it to some other location, whether that would be 

classified as a mine or a borrow pit. Inspector Shields answered “If they're just dumping [the 

material] into a hole and using it for fill only, they're not using it for its intrinsic value then.” Tr. 

162-163. In such cases it would not be a mine. Id.
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that activity should be relieved from coverage under the Mine Act is a legislative issue, and as 

such it is not a matter for this Court to address. 

The Secretary, having rested, Mr. Mosley called Mr. Jerry Barnes as its witness. Barnes 

was asked if he viewed the activity at the Respondent’s site to be mining. Tr. 176. Barnes

expressed that 

segregating, separating the rock, you know, getting it to a uniformity where you 

can sell it is different than what [The Creator’s Stone] is doing. [The Respondent]

is taking the rock out of the ground like it was put there, and they are stacking it on 

pallets, but they're not making it dimensional. They're not making it an inch thick. 

They're not making it two inches thick. They may be separating it, yes, but they're 

not making it dimensional ... they are using a raw product out of the ground, natural 

resource.

Tr. 177.

Barnes also informed as to the use of the rock derived from the site, stating, “[i]t's used 

in, you know, in various products. You know, it's from flower beds to building materials to 

mausoleums. You know, it just -- there's no way to say just exactly, you know, what the limits 

are for the natural stone.” Tr. 177-178. He elaborated that “[i]t's [used] for building projects, 

whether it be a home project or a federal project, you know, it's used for building.” Tr. 178. 

Continuing, he stated, Respondent “has some building home supply places, you know, a small 

individual place[s] [that buy the pallets] or by the piece, ... a lot of times they just ship it on 

pallets because that is the most efficient way to ship it.” Tr. 179. 

When the Court noted, looking at Respondent’s Exhibit 3 at page 5, a photo of an 

industrial type hammer and chisel resting on rock, and queried if together those tools would be 

used to size the material that had been removed from the ground, Barnes did not agree that it 

would be called sizing. Instead, he described their use for “cleaning purposes. You know, when 

it comes from the ground it's laminated, you know. And you have to take part of it off. If you'll 

see in that picture, there's shale on top of these rocks. That has to be removed.” Tr. 181. 

The Court would comment that, apart from the nomenclature preferred, sizing or 

cleaning, Barnes still described processing the rocks, and therefore not merely removing material 

and depositing it in a new location without altering its mined state.11 As Barnes described the 

activity, “[w]hat you're doing is just picking it up off the ground, making it usable, and putting it 

11 The Respondent brought out, through Mr. Barnes, that it is in The Creator’s Stone economic 

interest to have the pieces as large as possible, as larger pieces fetch more money. Tr. 183. 

Smaller pieces, he noted, are called a “builder,” and are “[w]hat a homeowner would use for 

around a flowerbed or stepping stones or something similar to that.” Id. But, minimal 

processing or not, the Court notes that this testimony underscores that the site was not 

functioning as a borrow pit. 
13

on a pallet.” Tr. 184. One could accurately call this activity to be mining, though as this Court 

has noted, mining on the low end of the spectrum. 

Though intended to show the absence of any “inherent risk” at the site,12 Barnes’

description also shows that the activity is more than a borrow pit, with his stating “[y]ou have the 

operator on the skid steer in one area, and then he is transporting the rock up to another area 

where the other guy's working. ... He digs it up out of the ground and carries it up on top of the 

hill.” Tr. 186-187. Thus, compared to the activity at a large quarry, Barnes described The 

Creator’s Stone as “just a completely different operation.” Tr. 192. 

The Court would observe that it is fair to state that the Respondent’s operation is 

“completely different,” but only in the sense of scale, as minerals are being removed from the 

ground, and though with minimal action to it, then placed on a vehicle for transportation to a 

sales’ site. This activity is not consistent with that of a borrow pit. 

Mr. Barnes has had extensive experience working in mines, most of it with rock quarries. 

Tr. 192. In those years most of his work was for large quarries, though he had a few instances 

involving:

one to two acre spots in the woods where we'd go out and find something usable, 

and we would, you know, capture it. And in the early days we'd just load that on

the truck by hand. We didn’t use pallets. And then we'd haul it to our destination 

and unload it there.

Tr. 193-194. In his experience, there were three such small operations, like the Respondent’s. 

Tr. 194. He did not agree that those small operations were mines. Tr.194-195. He 

acknowledged that two or three of them were inspected in the past, but “since they were not 

sizing the material, the inspectors have not been back.”13 Tr. 195.

It was Barnes’ opinion is that the Respondent’s operation is a borrow pit. Tr. 200. 

However, Barnes did concede that, in response to the question whether “there were activities 

that were going on here at The Creator's Stone where they're extracting stones and [those 

stones] have value, and they're being sold for a commercial purpose,” his answer was “Yes. 

That’s the only reason for working isn't it?” Tr. 202-203. Thus, by Barnes’ own description 

of the activity at the subject site, he established that the operations at The Creator’s Stone is a 

mine.

12 Describing the skid steer operation, he stated, “I don’t know how you could be a danger to 

yourself. That, you know, that the operator on the machine, that’s all he's doing, you know. 

He [ ] very seldom get[s] off the machine. He just stays on the machine.” Tr. 186.

13 Two comments by the Court are in order regarding Mr. Barnes’ remark. First, those two or 

three other unidentified operations are not the subject of this litigation. Second, the Court must 

determine whether the factual record supports a determination whether The Creator’s Stone is a 

mine or not. 
14

DISCUSSION

The Secretary’s Post-Hearing Brief14

The Secretary notes that, per 30 U.S.C. §§ 802(h)(1), “coal or other mine” means:

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) 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. In making a determination of what 

constitutes mineral milling for purposes of this Act, the Secretary shall give due 

consideration to the convenience of administration resulting from the delegation to 

one Assistant Secretary of all authority with respect to the health and safety of 

miners employed at one physical establishment. 

Sec. Br. at 3 (emphasis added).

Given that definition from the Mine Act, the Secretary states:

[t]hese activities fall within the meaning of a mine covered by the Mine Act and, 

accordingly, The Creator’s Stone, a dimensional stone mining operation, is a mine 

subject to MSHA’s jurisdiction. Further, Boss and Noyce, who work at this mine, 

are considered miners defined by § 802(g) as “any individual working in a coal or 

other mine.” As such, MSHA has properly asserted jurisdiction over Respondent. 

Id. at 4.

Observing that the Respondent has asserted that its operation is a borrow pit, the 

Secretary, in response to this contention, points to the “MSHA and OSHA Memorandum 

Interagency Agreement as the source of authority for jurisdiction disputes relating to borrow 

pit operations. Jermyn Supply Co., 39 FMSHRC 1472, 1483-84, (July 31, 2017).” Id. at 4. 

The Jermyn Supply decision, the Secretary adds, also holds that in decisions as to whether an 

operation is a borrow pit, “deference is given to the Secretary’s interpretation as long as the 

interpretation is within reason. Jermyn Supply at 1486.” Id.

14 The Secretary advised that he would not be filing a response brief in this matter. Email from 

Felix Marquez, Esq., Department of Labor, to the Court (Apr. 1, 2021). 
15

The Secretary also points to MSHA’s Program Policy Manual’s interpretation on Mine 

Act coverage, noting from that Manual that “MSHA has jurisdiction over operations whose 

purpose is to extract or to produce a mineral,” but it acknowledges that it does not have 

jurisdiction “where a mineral is extracted incidental to the primary purpose of the activity.” 

Sec. Br. at 5 (citing MSHA Program Policy Manual, Volume I, Section 4.)

15

 

Case law in support of the Secretary’s position that The Creator’s Stone is within the 

jurisdiction of the Mine Act was also cited in its brief. The cases cited – Kerr Enterprises, 26 

FMSHRC 953, 954-58 (Dec. 21, 2004); New York State Department of Transportation, 2 

FMSHRC 1749, 1758-61 (July 3, 1980) – do indeed establish that a “borrow pit” is a narrowly 

defined concept. To qualify as such, terms such as “fill material,” that is to say, material 

extracted for its bulk as opposed to its intrinsic qualities, with that material used relatively near 

the extraction site, with the lack of any sizing, and the process occurring on a one-time basis or 

intermittently as need occurs, come into play. In contrast, things like continuously extracting 

materials for sale to customers located nearby do not fit within the scope of borrow pits. 

To its credit, and of value in better understanding the distinction between activity which 

constitutes mining in comparison to mere borrow pit activity, the Secretary notes a decision 

where the activity was determined to not constitute mining. David Duquette Excavating, 37 

FMSHRC 744, 745-52 (April 8, 2015) is one such case outside of Mine Act jurisdiction 

“because the extraction occurred intermittently (approximately three times in two years), the 

extracted material was used as fill in the form it was extracted, the fill material was used more 

for its bulk to fill low places in a yard than for its intrinsic qualities, and the only milling 

involved was with a scalping screen to remove large rocks, wood and trash.” Sec. Br. at 8

(citing David Duquette Excavating, 37 FMSHRC at 750-52).16

15 The same Program Policy Manual addresses “Borrow Pits,” and nothing in that discussion 

conflicts with MSHA’s position in this case, as that manual informs that 

‘Borrow Pits’ are subject to OSHA jurisdiction except those borrow pits located on 

mine property or related to mining. (For example, a borrow pit used to build a road 

or construct a surface facility on mine property is subject to MSHA jurisdiction.) 

‘Borrow Pit’ means an area of land where the overburden, consisting of 

unconsolidated rock, glacial debris, or other earth material overlying bedrock is 

extracted from the surface. Extraction occurs on a one-time basis or intermittently 

as need occurs, for use as fill materials by the extracting party in the form in which 

it is extracted. No milling is involved, except for the use of a scalping screen to 

remove large rocks, wood and trash. The material is used by the extracting party 

more for its bulk than its intrinsic qualities on land which is relatively near the 

borrow pit. 

Sec. Br. at 5-6 (emphasis added).

16 However, the Secretary mistakenly cites State of Alaska, Dept. of Transportation, 34 

FMSHRC 179, 181 (Jan. 2012)(ALJ) as a second example of activity deemed outside of Mine 
16

However, the Secretary asserts that the activities being carried out by The Creator’s Stone 

is not like the case just referenced. A critical distinction, it cannot be denied that the 

“Respondent is in business of selling dimensional stones for their intrinsic value. ... [t]he 

activities are ongoing, rather than on a one-time or an intermittent basis [and] .... the activities 

have been performed continuously since operations started on May 23, 2018.” Id. at 9. 

In sum, the Secretary contends that the purpose of the Respondent’s operation is 

preparing the dimensional stones for commercial sales, a process which requires extraction of the 

stones with heavy equipment, such as a skid steers and bulldozers, and also involves “cleaning, 

sizing, and milling the unearthed stones to create various sizes, as a stone’s size impacts its 

market value.” Id.

The Respondent’s Post-Hearing Brief and Response Brief

Respondent begins its post-hearing brief with expressions of frustrations over the manner 

in which MSHA handled this matter. In voicing these feelings, Respondent contends that the 

government has infringed upon the rights of its citizenry, citing the Declaration of Independence. 

Respondent believes that, in enforcing its authority, the government has acted bureaucratically, 

“assum[ing] authority rather than assist[ing] the public.” R’s Br. at 1. 

Turning to its view of the facts, Respondent sees its activity at The Creator’s Stone as 

“placing layered material on a pallet. The material is not sized or processed. The material 

comes out of the ground just as The Creator placed it there. The desirable material is placed on a 

truck by a skid steer.” Id. at 2. Respondent contends that the chief argument advanced by the 

government is the claim that the operation performed “sizing.” But, Respondent counters that no 

sizing is actually involved. It takes issue with the inspectors’ claim that material is derived in 

one continuous sheet, asserting instead that the material has “natural seams where it comes 

apart,” giving it a character that makes it desirable and thus smaller pieces occur by virtue of 

handling it. Id. 

The Respondent then makes an argument of a different nature, namely that not only 

does its operation not perform what is recognized as sizing, but also that its activity is not 

hazardous. Respondent asserts that it merely “look[s] at a rock or lay[s] a tape measure on a 

rock,” and, in The Creator’s Stone’s understanding or interpretation of such activity, that does 

not “constitute sizing or mining.” Id. at 3. As for the equipment it uses at the site, none of it is 

highly specialized, as it all can be rented at an equipment rental shop. Id. Further, one renting 

such equipment is not required to receive training before renting it. Id. On the subject of 

Act jurisdiction because that judge found that “the extraction activities were relatively close to 

the maintenance sites (approximately one-quarter mile), conducted intermittently (seasonal use), 

and had no intrinsic value. ... [a]lthough the material may have had ‘commercial value’ it did not 

have intrinsic value to the end-user.” Sec. Br. at 8. As described infra, in fact the Commission 

reversed the administrative law judge, rejecting the determination that it was a borrow pit and 

finding that the Alaska operations were subject to the Mine Act. State of Alaska, Dep’t of 

Transportation, 36 FMSHRC 2642, 2649 (Oct. 2014).
17

training, Respondent adds its own take that “[t]here is nothing but On-The-Job-Training that 

makes [one] qualified, certified, or capable of doing a good job on a piece of equipment.” Id. 

Respondent has other criticisms of MSHA’s claim of jurisdiction over his operation, 

contending that there are no “imminent dangers” nor “occupational diseases” present. Id. at 4.

As the Respondent sees it, given the Mine Act’s statement, per section 2(d) of that Act, that 

“unsafe and unhealthy conditions and practices in the Nations coal or other mines is a serious 

impediment to future growth,” it should be considered that “it is over zealous regulators that are 

creating conditions that impede future growth.” Id. at 4. Underlying all of these objections to 

these contested citations is the Respondent’s sincere belief that his place of business is a “nonmining situation.” Id. 

The Respondent then turns to a very different line of defense, namely that The Creator’s 

Stone no longer engages in milling or sizing and no longer stacks material on pallets. Instead, it 

intends to make operational changes under which it 

will put the material on a dump truck, take to an area that is not considered confined 

and tailgate the material onto the ground. This will allow natural occurrences, rain, 

sun, heat and cold to clean and separate the material. At that point the only sizing 

that will need to be done is to measure and put on the truck. 

Id. at 5. 

Turning to the two citations, and first addressing the jurisdiction issue, Respondent states 

he had no idea that MSHA would apply to his operation. Id. at 6. Therefore, he claims his 

failure to notify was not negligent nor willful. He asserts that none of the state agencies he 

contacted ever mentioned the Mine Act. Id. at 6. As Respondent’s friend, Jerry Barnes, with 

many years of dealing with MSHA did not think that The Creator’s Stone was a mine, he claims 

it is unreasonable to expect the Respondent’s start-up company to know this. Id. 

As for the lack of training citation, Respondent asserts that Jerry Barnes stated that Tom 

Noyce “was not an employee of the pit.” Id. In support of this contention, Respondent refers to 

“Subchapter H, 46.2 (2) [which] specifically states that delivery people, commercial truck 

drivers, maintenance workers and service workers who are not frequent or there for extended 

periods are not miners.” Id. In terms of the penalty ascribed to this, Respondent contends that 

Barnes testified that there is no risk from a reasonable person standard and that this makes sense 

because, returning to its jurisdictional argument, the Respondent again argues that The Creator’s 

Stone is not a mine. Id. at 7. Further, Respondent takes special note that his operation is not a 

mine because “[a]ll of the elements of an industrial operation with high-walls, moving parts, 

crushers, processors, conveyors, large equipment, detailed operations, hazardous chemicals, cat 

walks, ventilation systems, dust, explosives, blasting, drilling, occupational diseases and 

imminent danger don't exist” at his operation.” Id. 

In light of all of his arguments, Respondent asks that the citations be vacated. Id
18

Respondent’s Response Brief 17

Respondent again contends that “[due] to the nominal nature of cleaning and the lack of 

sizing or milling, [The Creator’s Stone] did not and do[es] not feel that [it is engaged in] sizing 

or milling.” R’s Response at 1. Speaking to its contention that The Creator’s Stone is a borrow 

pit, Respondent, asks for reasonableness in making that determination. Id. However, the 

Respondent then translates that reasonableness determination “to the level of hazard.” R.’s 

Response Br. at 1-2.

Another argument made by the Respondent is that it has changed its operation so that it 

operates only intermittently, asserting that it has only been used in “nine days out of the last 45 

days.” Id. at 2. Respondent repeats its contention that it does not clean, size18 or mill the 

material it removes from its natural deposit, contending that the material it removes only has 

“nominal cleaning.” Respondent adds that it no longer palletizes the material it gets from the pit. 

Id.

Additional arguments presented include the Respondent’s belief that the Secretary must 

prove that its activity is “somewhat likely to result in harm.” Id. The Respondent contends that 

the Secretary must establish such reasonable likeliness of injury or illness. Respondent asserts 

that was not established by the Secretary, as The Creator’s Stone has a perfect safety record for 

this “pit [which] has been open for about 3 years.” Id.

Turning away from the jurisdictional arguments, the Respondent then contends that civil 

penalties do not deter unsafe mine operations. Id. at 3-4. This claim is wholly immaterial to this 

proceeding and will not be further addressed for that reason. This does not mean that the Court 

agrees with the assertion.

Shifting to the citation involving lack of miner training, Citation No. 9451586, 

Respondent asserts that it “does not take miner training to operate a skid steer.” Id. at 4. 

Respondent also contends that one employee, Mr. Noyce, “was performing no function at the pit 

other than fueling or general maintenance.” Id. at 5. Regarding employee Mr. Boss, 

Respondent, citing 30 C.F.R. § 46.5,19 “New Miner Training,” contends that, as Mr. Cabrera was 

present, Boss “could be on location without training.” Id. at 6. 

17 As with the parties’ initial briefs, the Court considered all contentions raised in those 

submissions. That particular arguments may not be expressly addressed does not mean they 

were not considered. Rather, the Court determined that its other findings and statements 

sufficiently spoke to those issues, directly or indirectly, and therefore did not require additional 

discussion.

18 The Respondent continues its argument that it does not engage in sizing, going so far as to 

assert that “[t]he inspectors want [The Creator’s Stone] to be breaking and sizing in order for 

them to have jurisdiction. The only breaking taking place is during the excavation. The layers 

(thickness) were already established by The Creator.” Id. at 4 (emphasis added). 

19 The cited provision, 30 C.F.R. § 46.5, titled “New miner training,” provides: 
19

CASE LAW REGARDING MINE ACT JURISDICTION

In Drillex, Inc., 16 FMSHRC 2391 (Dec. 1994), the only issue to be decided by the

Commission was whether the Respondent’s operations were subject to Mine Act jurisdiction. 

In finding that the operation was a “mine” within the meaning of section 3(h)(1) of the Mine Act, 

the administrative law judge found that Drillex had engaged in both mineral “extraction” and 

“milling.” Distinguishing the Respondent’s activities from a “borrow pit,” the judge found that 

the Respondent did not extract minerals on a one-time or intermittent basis and that it milled 

minerals for a specific purpose.20 The Commission affirmed the judge’s decision. 

The Respondent had argued that “it did not extract and process rock for the material’s 

intrinsic qualities but, rather, performed such activities merely as an ‘incidental operation ... for 

the construction of ... roads ... .’” Id. at 2394 (emphasis added). In deciding that Drillex was a 

mine, the Commission first turned to Section 4 of the Mine Act, 30 U.S.C. § 803, which provides 

that each “coal or other mine” affecting commerce shall be subject to the Act. It also noted that 

(a) Except as provided in paragraphs (f) and (g) of this section, you must provide 

each new miner with no less than 24 hours of training as prescribed by paragraphs 

(b), (c), and (d). Miners who have not yet received the full 24 hours of new miner 

training must work where an experienced miner can observe that the new miner is 

performing his or her work in a safe and healthful manner.

The record matters. In this case, there is no evidence of a record that the miner was working 

“where an experienced miner can observe that the new miner is performing his or her work in a 

safe and healthful manner.” Mr. Cabrera did not testify. 

The Respondent makes similar arguments along this line, invoking 30 C.F.R. § 46.2 for the 

proposition that miners do not include “maintenance or service workers who do not work at a 

mine site for frequent or extended periods.” Id. at 7. Again, there is no evidence to support this 

claim. Then, returning to his fundamental argument, the argument which is really what this case 

is about, Respondent cites to 30 C.F.R. § 46.2(h), for his belief that The Creator’s Stone is not a 

mine. Id. However, Respondent does not take account of the full text of that provision, which 

provides that “[m]ining operations means mine development, drilling, blasting, extraction, 

milling, crushing, screening, or sizing of minerals at a mine; maintenance and repair of mining 

equipment; and associated haulage of materials within the mine from these activities.” 30 

C.F.R. § 46.2(h) (emphasis added).

20 If something were a “borrow pit,” as opposed to a “mine,” it would be subject to the 

jurisdiction of the Department of Labor’s Occupational Safety and Health Administration rather 

than MSHA jurisdiction, pursuant to the interagency agreement between MSHA and OSHA. 

However, as set forth in this decision’s Findings of Fact, The Creator’s Stone is a mine, not a 

borrow pit. See, MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22827 (Apr. 17, 1979), 

amended, 48 Fed. Reg. 7521 (Feb. 22, 1983) (“Interagency Agreement.”).
20

Section 3(h)(1) of the Mine Act defines “coal or other mine,” in part, as “an area of land from 

which minerals are extracted ... and ... lands, excavations, ... facilities, equipment, ... used in, or 

to be used in, the milling of such minerals ....” Id. (quoting 30 U.S.C. § 802(h)(1)) (emphasis 

added).

Although the Commission observed that “the Act does not further define ‘extracted’ or 

‘the milling of minerals,’” it took note that both the Commission and courts have recognized that 

the legislative history of the Mine Act indicates that a broad interpretation is to be applied to the 

Act’s definition of a mine. Id. (citing Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589, 

592 (3rd Cir. 1979); Cyprus Indus. Minerals Corp., 3 FMSHRC 1, 2-3 (January 1981), aff’d, 664 

F.2d 1116 (9th Cir. 1981)). Those sources also took note that this view is supported by the 

legislative history of the Mine Act. Id. at 2394 (citing S. Rep. No. 181, 95th Cong., 1st Sess. 14 

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 

(1978) (“Legis. Hist.”)).

In finding that Drillex engaged in both mineral extraction and milling, the Commission 

pointed out that either of those activities independently qualifies as a basis to constitute the 

operation as a “mine” within the meaning of the Act. Id. at 2395. The Commission then turned 

to the definitions of the terms “extraction” and “milling,” looking to the commonly understood 

definitions for those words. Those definitional sources informed that “‘extraction’ means the 

separation of a mineral from its natural deposit in the earth” and that “‘milling’ includes 

processes by which minerals are made ready for use.”

21 Id. at 2395. 

As the Court explained during the hearing and in conference calls with the parties in 

advance of the hearing, it is not for this Court to fashion its own determinations of what is a 

21 For the term “extraction,” the Commission cited the Bureau of Mines, U.S. Dept. of Interior, 

Dictionary of Mining, Mineral, and Related Terms 404 (1968) (“DMMRT”) at 932. Concerning 

“milling,” the same source defined that term to include “processes by which minerals are made 

ready for use.” Id. at 706. It noted that Webster’s Third New International Dictionary, 

Unabridged 1434 (1971) is in accord with that definition of “milling.” The Commission also 

pointed out that the Interagency Agreement is in concert with those sources. That Interagency 

Agreement 

defines “milling” as: the art of treating the crude crust of the earth to produce 

therefrom the primary consumer derivatives. The essential operation in all such 

processes is separation of one or more valuable desired constituents of the crude 

from the undesired contaminants with which it is associated.

Id. at 2395 (citing the Interagency Agreement at 44 Fed. Reg. at 22829). The same Agreement 

defines “crushing” as “the process used to reduce the size of mined materials into smaller, 

relatively coarse particles,” among milling processes subject to MSHA’s regulatory authority.” 

Id. 
21

mine, but rather to look at what Congress,22 the Commission, and the Federal Courts have said 

about the subject.

The Commission also specifically addressed whether an operation could be deemed a 

“borrow pit.” In that regard it looked to the Interagency Agreement, remarking that borrow pits 

are subject to OSHA jurisdiction, but even borrow pits are not always under OSHA, as MSHA 

has jurisdiction over those borrow pits located on mine property or related to mining. A

“Borrow pit” means an area of land where the overburden, consisting of 

unconsolidated rock, glacial debris, or other earth material overlying bedrock is 

extracted from the surface. Extraction occurs on a one-time only basis or only 

intermittently as need occurs, for use as fill materials by the extracting party in the 

form in which it is extracted. No milling is involved, except for the use of a scalping 

screen to remove large rocks, wood and trash. The material is used by the 

extracting party more for its bulk than its intrinsic qualities on land which is 

relatively near the borrow pit.” 

Drillex at 2396 (citing 44 Fed. Reg. at 22828) (emphasis added). 

22 Regarding Congress’ intent, the report of the Senate Committee on Human Resources states:

“the definition of ‘mine’ is clarified to include the areas, both 

underground and on the surface, from which minerals are extracted ... 

and areas appurtenant thereto.... 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 [the] Act be 

given the broadest possibl[e] interpretation, and ... that doubts be resolved 

in favor of inclusion of a facility within the coverage of the Act.” 

Legis. Hist. at 602.

Drillex at n. 4.
22

Although Respondent has called his activity a “borrow pit,”

23 the facts clearly demonstrate that it 

is not a borrow pit at all.

24

 

23 Mr. Mosley stated that his site was “very comparable to a borrow pit.” Tr. 18. At hearing, he 

said, “I’m declaring it to be a borrow pit.” Tr. 27. At other times, he described it as a “quarry.” 

For example, in Respondent’s Exhibit 1, photos are described as “The first five photos of the 

quarry that the DOL is calling a mine, The Creator's Stone quarry.” Tr. 17. However, when 

asked about calling it a quarry, Mr. Mosley responded, “I am calling [it] rock, and I would say 

quarry best depicts it, a quarry or a borrow pit.” Id. The Court cannot ignore that in the 

Respondent’s Exhibit 2, his various local state filings continually refer to the operation as a 

quarry. For example, within that Exhibit 2, a filing with the State of Arkansas Mining Program, 

The Creator’s Stone filed a “Notification of Intent to Quarry in June 2018. Of course, the names 

either side attaches to the description of the activity at The Creator’s Stone do not determine the 

outcome. Rather, the underlying facts determine the correct appellation for the site. 

24 The limited scope of a borrow pit was highlighted in a different State of Alaska case, State of 

Alaska, Dep’t. of Transportation, 36 FMSHRC 2642 (Oct. 2014) (“Alaska DOT”). There, the 

Commission determined that sand and gravel operations performed by the State of Alaska 

Department of Transportation (“AKDOT”), which operations were conducted in conjunction 

with maintaining a highway used by vehicles to service the Alaska Pipeline, were subject to the 

Mine Act’s jurisdiction. Although the Interagency Agreement generally accords OSHA, and not 

MSHA, jurisdiction over borrow pits, it: 

limits what can be considered a “borrow pit” to an area of land where 

“[e]xtraction occurs on a one-time only basis or only intermittently as need 

occurs, for use as fill materials by the extracting party in the form in which 

it is extracted. No milling is involved, except for the use of a scalping screen 

to remove large rocks, wood and trash. The material is used by the 

extracting party more for its bulk than its intrinsic qualities on land which 

is relatively near the borrow pit. [Interagency Agreement] at 22,828.

Alaska DOT at 2649. But contrast that MSHA describes a borrow pit as applicable to situations 

“where a landowner uses material in basically the same form as it is extracted to fill potholes in a 

road, the excavation will be considered a borrow pit and thus not subject to MSHA jurisdiction.” 

Id. at 2649 (quoting underlying ALJ decision at 34 FMSHRC 179, 184-185 (Jan. 2012) 

(Administrative Law Judge Feldman)) (emphasis added). So too, the Commission found that 

“milling” occurred. Again the Commission looked to the Interagency Agreement and its 

statement that:

[m]illing consists of one or more of the following processes: crushing, grinding, 

pulverizing, sizing,.... 44 Fed. Reg. at 22,829 (emphasis added). “Sizing” is defined 

in the Interagency Agreement as “ [t]he process of separating particles of mixed 

sizes into groups of particles of all the same size, or into groups in which particles 

range between maximum and minimum sizes. ” 
23

Although the foregoing is more than sufficient to resolve this matter, another instructive 

decision on the issue of jurisdiction is the D.C. Circuit’s decision in Carolina Stalite Co., 734 

F.2d 1547, (D.C. Cir. 1984). That case involved a slate gravel processing facility. Finding that 

the operation was a mine within the meaning of section 3(h) of the Act, 30 U.S.C. § 802(h) 

(1982), the Court of Appeals upheld Mine Act jurisdiction. In fact, applying Carolina Stalite to 

this case, the Court finds that the operation at The Creator’s Stone, small as it indisputably is, to 

be a more compelling case for jurisdiction. 

Carolina Stalite owned and operated a slate gravel processing facility. Stalite’s property 

was immediately adjacent to a quarry owned and operated by another company but the two 

businesses were entirely independent of each other and their interaction was solely as buyer and 

seller. A percentage of the quarry’s stone was transported from the quarry to Stalite via 

conveyors. There was no dispute that the quarry was subject to Mine Act jurisdiction. Instead 

the court was determining if Stalite’s activity, upon receiving the stone from the quarry, was also 

within the Mine Act’s coverage. Stalite subjected the material from the quarry to intense heat in 

a rotary kiln and then crushed and sized the material. That end product was thereafter sold for 

making concrete masonry blocks. 

The D.C. Circuit’s analysis focused on Section 3(h) of the Mine Act. It observed that the 

distinction within that section involved milling and preparation as compared to manufacturing, 

with the latter covered by Occupational Safety and Health Act regulation, but with milling and 

preparation under the Mine Act.

Though separate and legally independent entities, the Court of Appeals could not ignore 

that the two businesses, the quarry and Stalite, constituted “a unified mineral processing 

operation.” Id. at 1551. The Court also referenced that Section 3(h)(1)(C) of the Mine Act 

includes within the definition of a mine all facilities engaged in the milling or the work of

preparing minerals. By Congress employing both those terms, the Court held it signaled that 

“an expansive reading is to be given to [the] mineral processes covered by the Mine Act.” Id. 

Thus, all those terms can be viewed “interchangeably to describe the entire process of treating 

mined minerals for market.” Id. Accordingly, the Court of Appeals rejected the view that the 

Mine Act only covers facilities which engage in mineral milling and preparation in conjunction 

with the initial extraction of the mineral.25 Id. at 1552. It emphasized that “the Act was intended 

to establish a ‘single mine safety and health law, applicable to all mining activity.’” Id. at 1554 

(citing S.Rep. No. 461, 95th Cong., 1st Sess. 37 (1977)) (emphasis original).

Alaska DOT at 2649 (citing Interagency Agreement at 22,829-30).

25 The Court of Appeals also held that the determination by the Secretary of Labor in deciding 

the whether an activity should be ascribed to OSHA or to MSHA is due deference. Carolina 

Stalite Co., 734 F.2d at 1552-1553..
24

The Court of Appeals then took note that decisions “by the Third, Ninth, and Fourth 

Circuits accord with our interpretation of the Act, and uniformly recognize section 3(h)’s 

‘sweeping definition’ of a mine.” Id. (citing Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 

589 (3d Cir.1979), Cyprus Industrial Minerals Co. v. Federal Mine Safety & Health Review 

Commission, 664 F.2d 1116 (9th Cir.1981), and Harman Mining Corp. v. Federal Mine Safety & 

Health Review Commission, 671 F.2d 794 (4th Cir.1981)).

26

These cases drive home the point that even in cases where the extraction has occurred 

that does not preclude Mine Act jurisdiction. In The Creator’s Stone’s very minimal operation, 

all of the elements for jurisdiction obtain, as it removes, that is to say “extracts,” what is 

undeniably a mineral and then loads those extracted minerals for transportation to sale sites. 

Thus, The Creator’s Stone’s miniscule operation nevertheless carries the mining process from 

start to finish. 

Accordingly, on the basis of the foregoing findings of fact, the discussion of the 

definitional terms in the Mine Act, the legislative history, and relevant case law, the Court finds 

that The Creator’s Stone is a mine. Although the Respondent’s operation is of extremely small 

size, a description which is both undeniable and undisputed, in every other respect Mr. Mosley’s 

tiny operation is a mine: it extracts minerals and loads the excavated material onto a vehicle for 

delivery to a point of sale.

Penalty Determination

In assessing civil monetary penalties, Section 110(i) of the Act requires that the 

Commission consider six statutory penalty criteria: [1] the operator's history of previous 

violations, [2] the appropriateness of such penalty to the size of the business of the operator 

charged, [3] whether the operator was negligent, [4] the effect on the operator's ability to 

continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

As the Commission has noted, “Administrative Law Judges are accorded broad discretion 

in assessing civil penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 

(Apr. 1986). A Judge's penalty assessment is reviewed under an abuse of discretion standard. 

Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000).” Knight Hawk Coal, LLC, 

38 FMSHRC 2361, 2373 (Sept. 2016).

26 Ever so briefly, this Court notes that in Marshall v. Stoudt’s Ferry, though the operation didn’t 

extract minerals, it still prepared them. In Cyprus Industrial Minerals, drilling exploratory drifts 

into hill in search of “a commercially exploitable deposit” was enough, even without any 

extraction, for the Mine Act to apply. Perhaps the most striking example of the breadth of the 

Mine Act is Harman Mining Corp., where jurisdiction was upheld under circumstances where 

the mineral had been extracted and prepared. Harman was engaged only in car dropping, which 

was loading the coal on railroad cars. 
25

Penalty Factors, as applied to this case

The Creator’s Stone was issued two citations: Citation No. 9451585, for an alleged 

violation of notification of commencement of operations and closing of mines, citing 30 C.F.R. § 

56.1000; and Citation No. 9451586, for an alleged a violation of standard 46.5(a). That latter

standard speaks to new miner training and the citation alleged that two employees, Mr. Boss and 

Mr. Noyce did not have that training. At the hearing, Respondent’s owner, Charles Mosley 

conceded that if he does not prevail on the jurisdictional issue, he would concede the fact of 

violations for the two citations, but not the penalties assessed for them. Tr. 15. In a case of this 

nature, an extended discussion of the application of the penalty factors to the citations is 

unwarranted. 

History of violations: The Respondent mine's history of violations is reflected in Ex. P-1. Its 

history consists only of the two citations in this matter. Accordingly, this factor is of no 

consequence in the penalty determination. 

Size of operator's business: The mine act does not exempt small mines. However, the size of a 

mine is taken into account, as it is one of the six statutory factors to consider when imposing a 

civil penalty. The Respondent's mine is very small. Tr. 130, 213. Consideration of this factor 

warrants a lower penalty.

Good faith in compliance after notification of a violation: For the two citations involved in 

this docket the Respondent demonstrated good faith.

Effect on the operator's ability to continue in business: The Court finds that the Respondent 

did not meet its affirmative obligation to establish that the proposed penalties would have a 

cognizable effect on the mine's ability to continue in business. As the penalties imposed in this 

decision are, in total, less than the amounts proposed, this conclusion is reinforced.

Negligence and Gravity are discussed separately for these two violations.

Negligence: For the failure to notify of commencement of mining operations, citing 30 C.F.R. § 

56.1000, Citation No. 9451585, the penalty was assessed at a proposed $121.00. The negligence 

was assessed as high for that violation, but the Court finds that it is more properly designated as 

‘low.’ The Respondent made no attempt to hide its operation and believed, albeit incorrectly, 

that the Mine Act did not apply to its operation. 

The same low negligence rationale applies to the other established violation, Citation No. 

9451586, for the violation of the miner training standard 30 C.F.R. § 46.5(a), which was assessed 

at a proposed penalty of $355.00. 

Gravity: For Citation No. 9451585, the failure to notify of commencement of mining 

operations, the inspector marked the gravity as ‘unlikely,’ with ‘no lost workdays,’ one person 

affected, and not significant and substantial. The Court finds each of those designations as 

consistent with the evidence at the hearing. 
26

For Citation No. 9451586, the violation of the miner training standard, the inspector marked the 

gravity as ‘reasonably likely,’ ‘fatal,’ with two persons affected, and significant and substantial. 

The Court finds, based on the evidence at the hearing, that an ‘unlikely’ designation is more 

appropriate. That determination means that the significant and substantial designation is 

unsupported. While a fatal accident is within the realm of possibilities, given the use of heavy 

equipment, the unlikely injury designation is given more weight for this factor. 

Conclusion 

Upon consideration of the each of the statutory penalty factors, the Court concludes 

that the appropriate civil penalty for Citation No. 9451585, the violation of notification of 

commencement of operations is $50.00 and the appropriate civil penalty for Citation No. 

9451586, the violation of the miner training standard, is $75.00. The Respondent should not be 

lulled by the imposition of these reduced penalties to assume that future Mine Act violations will 

be similarly treated. Each proven violation is determined on the basis of the particular facts 

established, which are then applied to the statutory criteria. 

ORDER

 For the reasons set forth above, Citation No. 9451585, is AFFIRMED and a civil penalty 

of $ 50.00 (fifty dollars) is imposed for that violation and Citation No. 9451586 is also 

AFFIRMED and a civil penalty of $ 75.00 (seventy-five dollars) is imposed for that violation

 A total civil penalty of $125.00 is hereby imposed upon Respondent for these two violations. 

Payment is to be made to the Mine Safety and Health Administration within 30 days of the date 

of this Decision. Upon timely receipt of payment, the captioned civil penalty matters are 

DISMISSED. 

 

 William B. Moran

 Administrative Law Judge

Distribution:

Felix Marquez, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street,

Suite 501, Dallas, TX 75202 

marquez.felix.r@dol.gov

Charles S. Mosley, The Creator’s Stone, 12118 E. State Hwy 22, Subiaco, AR 72865

csmosley@hotmail.com