.
MARIPOSA AGGREGATES
May 16, 2001
WEST 2000-231-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 16, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-231-M
Petitioner : A.C. No. 04-04785-05553
:
: Docket No. WEST 2000-232-M
: A.C. No. 04-04785-05554
:
: Docket No. WEST 2000-239-M
v. : A.C. No. 04-04785-05555
:
: Docket No. WEST 2000-240-M
: A.C. No. 04-04785-05556
:
: Docket No. WEST 2000-241-M
: A.C. No. 04-04785-05557
:
MARIPOSA AGGREGATES, : Docket No. WEST 2000-520-M
Respondent : A.C. No. 04-04785-05560
:
: Docket No. WEST 2000-521-M
: A.C. No. 04-04785-05561
:
: Mariposa Aggregates Quarry
DECISION
Before: Judge Manning
These cases commenced when the Secretary of Labor filed
proposed penalty assessments against Mariposa Aggregates under
the authority of section 105(a) of the Federal Mine Safety and
Health Act of 1977 (the "Mine Act" or the "Act"), 30 U.S.C
� 815(a) and the Commission's Procedural Rules at 29 C.F.R.
� 2700.25. Bevan Builders, Inc., doing business as Mariposa
Aggregates ("Mariposa Aggregates") contested the proposed
penalties in accordance with 29 C.F.R. � 2700.26, by checking the
boxes on the preprinted forms that state "I wish to contest and
have a formal hearing on ALL of the violations listed in the
Proposed Assessment." (emphasis in original). These cases
involve 107 citations and orders of withdrawal (the "citations")
issued at the Mariposa Aggregates Quarry. The Secretary proposes
a total civil penalty of $108,067.
In response to Mariposa Aggregates' contests of the
penalties, the Secretary filed a petition for assessment of civil
penalty in each case as required by 29 C.F.R. � 2700.28. When
Mariposa Aggregates did not file an answer within thirty days as
required by 29 C.F.R. � 2700.29, the Commission's Chief
Administrative Law Judge issued an order to show cause. In
response, Mariposa Aggregates filed a document entitled: "Notice
of Fraud; Certified Demand to Cease and Desist Collection
Activities Prior to Validation of Purported Debt" ("Notice of
Fraud"). The Chief Judge assigned the cases to me.
In its Notice of Fraud, Mariposa Aggregates did not address
the citations, orders, or the proposed penalties. Instead, it
stated that the Secretary had failed to establish that she had
jurisdiction over its quarry. Its notice of fraud also raised a
number of other issues that are irrelevant to these proceedings.
In my prehearing order, I described the broad nature of Mine Act
jurisdiction and suggested that it may be more efficient to
resolve any jurisdictional issues prior to hearing. I also
explained how cases proceed before the Commission and stated that
many of the issues raised by Mariposa Aggregates were not
relevant to these proceedings. When the parties were unable to
settle the cases, I set them for hearing. I canceled the hearing
well before the hearing date on motion of the Secretary. The
Secretary filed a motion for summary decision that counsel stated
would dispose of all issues in the cases.
The first part of the Secretary's motion for summary
decision concerns MSHA's jurisdiction to inspect the quarry. The
Secretary argued that there were no genuine issues of material
fact on this issue and that she was entitled to summary decision
as a matter of law. 29 C.F.R. 2700.67(b). She relied on the
declaration of MSHA Inspector Jaime Alvarez and an order of the
U.S. District Court. She stated that Mariposa Aggregates has
been periodically obstructing MSHA inspections by denying entry
to MSHA inspectors. On September 12, 1996, the U.S. District
Court for the Eastern District of California granted the
Secretary's motion for summary judgment and permanent injunction
against Mariposa Aggregates. Sec'y of Labor v. Bevan Builders,
Inc., No. CV-F-95-5842 REC (E. D. Cal.) (S. Motion Ex. A). The
court found that "defendants' quarry operation, `Mariposa
Aggregates,' constitutes a mine whose products affect commerce
and which, as such, is subject to the jurisdiction of the [Act]."
Slip op. at 20. The court also found that MSHA "has clear and
express authority under the Act to conduct periodic, warrantless,
and unannounced health and safety inspections of [the quarry]. .
. ." Id. The court also enjoined Mariposa Aggregates from
obstructing or impeding future MSHA inspections.
Mariposa Aggregates responded to the Secretary's motion for
summary decision with a document entitled "Petition for Redress
of Grievance" (the "Grievance Petition"). This Grievance
Petition was signed by Mr. Wayne R. Bevan, President of Mariposa
Aggregates and Bevan Builders, Inc. It is styled as a "Private
International Administrative Remedy" brought against the
undersigned, the Commission's Chief Administrative Law Judge and
two employees of the Department of Labor. The Grievance Petition
contains a series of "Statements of Fact." In these statements,
Mariposa Aggregates maintains that its quarry is "within the
boundaries of Mariposa County in the Republic of California" and
the quarry is "outside the exclusive legislative jurisdiction of
the United States." (G.P. at 4). It also states that it "is not
the operator of the quarry" and that there are no employees at
the quarry. Id. The Grievance Petition contains numerous other
"statements of fact" relating to the Uniform Commercial Code
("UCC") and previous correspondence with representatives of the
Secretary. The Grievance Petition also contains a series of
inquiries directed to MSHA and the undersigned. For example, it
asks whether the United States is a municipal corporation,
whether California is a republic, and whether the persons to whom
it is addressed are "willing participants in aiding or abetting
in carrying out a deceptive, false and fraudulent scheme to
extort contracts, signatures, funds and/or securities from the
citizens of the several united States." Id. at 8.
Mariposa Aggregates also filed another document entitled
"Notice of Return of Erroneous Presentments." Attached to this
document are the cover pages of the Secretary's motion and the
attachments for the motion. Handwritten across each of these
pages are the words, "Returned, Erroneous, January 25, 2001,
Wayne R. Bevan." The Notice of Return of Erroneous Presentments
states:
I am returning your erroneous presentments
WITHOUT DISHONOR, UCC 3-501. You have sent
me incomplete instruments. UCC 3-115. These
documents are returned timely, in according
to all applicable rules.
This notice makes additional references to the UCC and demands
that the Secretary provide "proof of your claim that you maintain
a security interest, UCC 1-102(37)(A)."[1]
I granted the Secretary's motion for summary decision on the
jurisdictional issue by order dated March 15, 2001. 23 FMSHRC
354. In granting the motion, I relied upon the Secretary's
motion, the order of the District Court, and the declarations of
Jan M. Coplick and MSHA Inspector Alvarez.
In her motion for summary decision, the Secretary also
sought summary decision on the merits in these cases because
Mariposa Aggregates did not deny the allegations set forth in the
citations and orders. She argued that she was entitled to
summary decision because the answer filed by Mariposa Aggregates
did not contain a short and plain statement responding to each
allegation in the petition for assessment of penalty, as required
by 29 C.F.R. � 2700.29. The Secretary also stated that the other
documents filed by Mariposa Aggregates in these cases indicate
that Mr. Bevan does not contest the citations and orders.
Counsel for the Secretary stated that she filed this motion
because Mariposa Aggregates has a history of "raising a
kaleidoscope of ever-shifting yet always meritless objections."
(Motion at 11). For example, she notes that, in its Order
Granting the Secretary's Motion for Summary Judgment, the
District Court stated that the arguments set forth by Mariposa
Aggregates were "without merit," were "frivolous," and were made
in "bad faith." (S. Motion at 9-10; slip. op. at 15 and 18).
Counsel further states that "[r]equiring the Secretary to
repeatedly relitigate these legally insupportable objections,
interposed for wrongful reasons, is a waste of taxpayer dollars
. . . [and] threatens the safety and health of Respondent's
miners, and of other miners employed by other operators who may
be encouraged to emulate Respondent's blatant defiance of a
remedial statute designed to save worker's lives." (S. Motion at
11-12).
The declaration of Inspector Alvarez states that when he
arrived at the quarry for one of the inspections involved in
these cases, he could see by the activities that were occurring
that it was in operation. (Alvarez Decl. �� 4-7). After the
person in charge at the quarry called Mr. Bevan by telephone,
the operations were shut down and everyone was sent home. Id. at
� 12. Inspector Alvarez was told that he was free to look around
but that no questions would be answered and no information would
be provided. Id. Inspector Alvarez was also told that the
people who work at the quarry are not employees because they all
signed a "unique labor agreement." Id. at � 16. Inspector
Alvarez, who is a health specialist, was unable to sample for
silica dust because the operations were shut down. Id. at � 18.
In his declaration, he stated that during the previous
inspection, MSHA determined that miners were "significantly
overexposed to silica-bearing dust." Id. Thus, it appears that
although Mr. Bevan permitted MSHA inspectors in the quarry, he
continued to impede inspections in violation of the District
Court order.
In an order dated March 15, 2001, I held that I could not
grant summary decision on the merits of the citations. 23 FMSHRC
350. I further held that the Secretary's motion could be more
accurately described as a motion, filed under 29 C.F.R. ��
2700.10 and 2700.66, requesting that Mariposa Aggregates' contest
of the proposed penalty assessments, brought under 29 C.F.R. �
2700.26, be dismissed. I noted that Mr. Bevan stated "I deny
having requested a hearing before your commission" in his Notice
of Fraud. (N.F. at 1). Because none of the documents filed by
Mariposa Aggregates actually contested the merits of the penalty
petitions, I ordered it to show cause why its contests of the
citations, orders, and proposed penalties should not be
dismissed. 23 FMSHRC at 352. Mariposa Aggregates was ordered to
state whether it was contesting the allegations set forth in the
citations and orders. If so, Mariposa Aggregates was ordered to
briefly state the basis for its contests. I also warned Mariposa
Aggregates that if it failed to comply with my order to show
cause, I would dismiss its contests of the citations, orders, and
penalties, and that I would assess MSHA's proposed penalties.
In response, Mariposa Aggregates filed a document entitled
"Notice of Additional Time to Answer Notice of Fraud, Demand to
Answer Prior to Taking Any Official Acts," dated April 20, 2001.
This Notice of Additional Time did not address the concerns of my
order to show cause. Instead, it states that I again failed to
respond to Mariposa Aggregates' Grievance Petition and, for that
reason, I admitted all of the statements contained in it by
operation of law. The Notice of Additional Time "granted" me
another extension of time to respond.
The Notice of Additional Time also contains the following:
Your [order to show cause] . . . is refused
for fraud since there is no contract with the
court to hear any matter it may have before
it involving Mariposa Aggregates. Your
contention that MSHA had received a request
from Mariposa Aggregates for a hearing is
clearly fraudulent and there has been no
attempt on MSHA's part to provide the
document whereby Mariposa Aggregates
requested such a hearing. . . .
DEMAND is made that you answer fully the
Petition for Redress of Grievances referenced
above prior to taking any further actions.
Should you not do so you may be personally
liable in a court of law for operating under
color of law, color of office in a conspiracy
to extort money from this company and
violating other rights that even a
corporation has under the Constitution and
International Treaty subjecting yourself to
treble damages and RICO charges.
(Notice at 2).
On April 20, 2001, in response to Mariposa Aggregates'
Notice of Additional Time, I issued an order requiring it to file
an amended answer in these cases. This order was another order
to show cause giving Mariposa Aggregates a second opportunity to
state whether it was contesting the merits of the citations and
whether it wanted a hearing. In this order I stated that I had
addressed the issues raised in its Grievance Petition in my order
granting the Secretary's motion for summary decision on the
jurisdiction issue. I also reminded Mr. Bevan that the other
issues it raised are irrelevant to these proceedings, including
its arguments concerning the law of contracts, the UCC, and the
"Republic of California." I also described how these cases
arose, what a mine operator's rights are under the Mine Act, and
the Commission's Rules of Procedure.
I explained in this order that the only way for Mariposa
Aggregates to contest the citations, orders, and penalties
proposed by MSHA is at a hearing before me. I stated that if
Mariposa Aggregates did not file an appropriate response to my
order I would affirm all of the citations and that I would assess
MSHA's proposed penalty of $108,067.
In response, Mariposa Aggregates filed a document entitled
"Notice of Fraud, Demand to Answer Prior to Taking Any Official
Acts," dated May 8, 2001. In this document, Mr. Bevan repeats
the demands he made in previous documents. He "refused for
fraud" my order requiring an amended answer; he states that he
did not request a hearing; and he demands that I answer his
Grievance Petition. With respect to his Grievance Petition, Mr.
Bevan states:
DEMAND is made that you timely answer fully
the [Grievance Petition] . . . prior to
taking any further official actions. The
proper method of answering the Petition would
be to change any answer with which you
disagree. For example, you refer to the
issue of the California Republic. I have not
put it forth as an argument, but as a simple
statement of fact. If you should disagree,
then change the answer, e.g. Item number # I
disagree. The State of California is not a
republic because ...., with evidence in
support. Should you take any official
actions prior to answering or challenging the
Petition, you may be personally liable in a
court of law for operating under color of
law, color of office in a conspiracy to
extort money from this company and violating
other rights that even a corporation has
under the constitution and International
Treaty subjecting yourself to treble damages
and RICO charges. Your failure to answer
will be deemed an exhaustion of my
administrative remedies and your permission
for me to remove this matter to a court of
competent jurisdiction, of my choice, to have
it resolved.
(Notice at 2).
Mr. Bevan made no attempt to advise me of his position on
the allegations contained in the citations. He also did not
request that these cases be set for hearing. The documents that
Mr. Bevan filed on behalf of Mariposa Aggregates do not contest
the merits of the Secretary's penalty petitions. Instead, Mr.
Bevan raises irrelevant issues or makes meaningless arguments.
Another example is instructive. In his Notice of Fraud, Mr.
Bevan stated that the failure of counsel for the Secretary to
produce a valid licence to practice law constitutes a fraud on
the court which "is further exacerbated by [counsel's] deliberate
usage of foreign private copyrighted `law' owned by British
companies." (N.F. at 4). He further stated that "British
companies own United States and State of California copyrighted
`law' commonly known as `codes.'" Id. Mr. Bevan based this
argument on the fact that some legal publishers, including
West Publishing Company, are owned by British companies. On
this basis, he stated that counsel for the Secretary is legally
required to be registered as a foreign agent and demanded a copy
of the attorney's foreign agent registration card. Id. at 5.
Despite my best efforts, Mariposa Aggregates continued to offer
such arguments rather than "a short and plain statement
responding to each allegation of the petition," as required
by 29 C.F.R. 2700.29.
ORDER OF DEFAULT
I provided Mariposa Aggregates two opportunities to comply
with the Commission's Procedural Rules and my orders. Mariposa
Aggregates did not make any attempt to comply with my order to
show cause or my order to file an amended answer. Consequently,
under the authority set forth in 29 C.F.R. � 2700.66, I hold that
Mariposa Aggregates is in DEFAULT and that it has waived its
right to a hearing in these cases.
Each of the citations and orders of withdrawal in these
cases are hereby AFFIRMED, as written by the MSHA inspector.
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I base my
findings with respect to the civil penalty criteria on the
information contained in the Secretary's petitions for assessment
of penalty. I find that 62 citations were issued at the quarry
during the two years preceding the first inspection involved in
these cases. Mariposa was a relatively small operator that
worked about 38,480 hours in the previous year. Section 104(b)
orders of withdrawal were issued for four citations. The
Secretary determined that with respect to 39 citations and
orders, the penalties should not be reduced because Mariposa
Aggregates failed to demonstrate good faith in attempting to
achieve rapid compliance after notification of the violation.
Mariposa Aggregates did not submit any evidence that the proposed
penalties will have an adverse effect on its ability to continue
in business. My gravity and negligence findings are as set forth
in the citations and orders. Penalties for 21 of the citations
and orders were specially assessed by the Secretary under 30
C.F.R. � 100.5. Thirty of the citations and orders were issued
under section 104(d) of the Mine Act. Based on the penalty
criteria, I find that the penalties set forth below are
appropriate.
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), and the information contained in the Secretary's
penalty petitions, I assess the following civil penalties:
Citation No. 30 C.F.R. � Penalty
WEST 2000-231-M
7969028 56.14103(b) $5,280.00
7969029 56.14132(a) 2,531.00
7969030 56.14130(a)(3) 2,531.00
7969031 56.14107(a) 1,247.00
7969053 56.4203 2,531.00
7969033 103(a) of Act 6,000.00
3914242 56.9100(a) 760.00
3914243 56.4430(a)(2) 760.00
3914244 56.4200(b)(2) 475.00
3914245 56.12004 993.00
3914246 56.14205 340.00
3914247 56.12018 340.00
3914248 56.12032 224.00
3914249 56.16006 277.00
3914250 56.16005 340.00
3914251 56.14115(b) 340.00
3914252 56.12004 1,771.00
3914253 56.11027 1,771.00
3914254 56.12004 340.00
WEST 2000-232-M
3914255 56.12032 $1,771.00
3914256 56.4011 340.00
3914257 56.12030 2,531.00
3914258 56.12013(a) 475.00
3914259 56.12008 277.00
3914260 56.11003 760.00
3914401 56.12034 340.00
3914402 56.11001 1,270.00
3914403 56.12004 1,771.00
3914404 56.12004 1,771.00
3914405 56.4202 277.00
3914406 56.12005 1,771.00
3914641 56.15003 1,815.00
3914642 56.14107(a) 1,270.00
3914643 56.4102 1,270.00
3914644 56.4200(a)(1) 340.00
3914645 56.14100(b) 4,400.00
3914646 56.4402 993.00
3914648 56.4101 1,771.00
WEST 2000-239-M
3914649 56.16006 1,957.00
3914650 56.14100(b) 475.00
3914653 56.9300(a) 1,771.00
3914654 56.20003(a) 1,270.00
3914655 56.14107(a) 1,815.00
3914656 56.14107(a) 1,086.00
3914657 56.14112(b) 1,815.00
3914658 56.14112(b) 1,815.00
3914659 56.14112(b) 1,815.00
3914660 56.3131 2,391.00
3914663 104(d) of Act 3,000.00
3914664 104(d) of Act 3,000.00
3914665 104(d) of Act 2,000.00
7969088 56.12028 655.00
7969117 56.12032 993.00
7969118 56.12004 993.00
7969119 56.14107(a) 872.00
7969120 56.14107(a) 1,247.00
7969121 56.14107(a) 399.00
WEST 2000-240-M
7969122 56.12008 $655.00
7969123 56.15006 655.00
7969124 56.15001 277.00
7969125 56.20003(a) 1,086.00
7969126 56.4102 475.00
7969127 56.12004 317.00
7969128 56.14107(a) 655.00
7969129 56.14101(a) 993.00
7969131 56.14100(c) 993.00
7969134 56.14112(a)(2) 347.00
7969135 56.16005 264.00
7969142 50.30(a) 55.00
7969186 56.12034 55.00
7969187 56.12004 55.00
7969188 56.4603 55.00
7969189 56.12032 161.00
7969190 56.12028 264.00
7969191 56.4402 131.00
7969192 56.14107(a) 131.00
WEST 2000-241-M
7969193 56.14109(b) 131.00
7969194 56.12004 161.00
7969195 56.12004 161.00
7969196 56.20001 55.00
7969197 56.11003 97.00
7969198 56.12004 161.00
7969199 56.20003(a) 97.00
7969200 56.12013(a) 55.00
7981001 56.14101(a)(2) 161.00
7981002 56.14100(c) 161.00
7981004 56.14100(b) 55.00
7981005 56.14132(a) 55.00
7981006 56.12005 55.00
WEST 2000-520-M
7981052 56.5002 850.00
7981056 56.5001(a)/.5005 850.00
7981059 104(b) of Act 750.00
7981060 104(d)(2) of Act $3,500.00
7981061 109(a) of Act 55.00
7981063 104(d)(2) of Act 3,500.00
WEST 2000-251-M
7969707 56.12002 550.00
7969709 56.12002 550.00
7969710 56.12002 550.00
7969711 56.12001 550.00
7969712 56.14100(b) 300.00
7969713 56.12002 550.00
7969714 56.12002 550.00
7969715 56.12008 300.00
7969716 56.12001 550.00
7969717 56.12002 550.00
7969718 56.12002 550.00
7969722 56.12008 550.00
Total Penalty $108,067.00
ORDER DIRECTING THAT PENALTIES BE PAID
Bevan Builders, Inc., doing business as Mariposa Aggregates,
is ORDERED TO PAY the Secretary of Labor the sum of $108,067.00
within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Jan Coplick, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-2999
(Certified Mail)
Wayne R. Bevan, President, Mariposa Aggregates, P.O. Box 942,
Mariposa, CA 95338 (Certified Mail)
RWM
**FOOTNOTES**
[1]: Mariposa Aggregates also filed a document entitled
"Notice of Fault - Opportunity to Cure." This document noted
that I had not responded to Mr. Bevan's Grievance Petition and
"granted" me an extension of time to respond. Apparently the
Postal Service failed to deliver this document to my office.
Mariposa Aggregates also filed a copy with the Commission's Chief
Judge on March 1, 2001, and that copy was immediately forwarded
to me.