United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 26, 2007 Decided July 20, 2007
No. 06-1094
SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER
v.
NATIONAL CEMENT COMPANY OF CALIFORNIA, INC. AND
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS
TEJON RANCHCORP,
INTERVENOR FOR RESPONDENT
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Robin A. Rosenbluth, Attorney, Mine Safety & Health
Administration, argued the cause for the petitioner. W.
Christian Schumann, Counsel, was with him on brief.
Margaret S. Lopez argued the cause for the respondent.
Michael T. Heenan was with her on brief. John T. Sullivan and
Thomas A. Stock, Attorneys, entered appearances.
Thomas C. Means was on brief for intervenor Tejon
Ranchcorp in support of the respondent.
2
Before: SENTELLE, HENDERSON and ROGERS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON, Circuit Judge: The Secretary
of Labor (Secretary) petitions for review of a decision of the
Federal Mine Safety and Health Review Commission (FMSHRC
or Commission) which reversed the decision of the
administrative law judge (ALJ). The ALJ upheld the
jurisdiction of the Mine Safety and Health Administration
(MSHA) to issue a citation to the National Cement Co. of
California, Inc. (National Cement) for failing to install
guardrails or berms along a road National Cement uses to access
its cement processing plant (Access Road) pursuant to a non-
exclusive right-of-way grant from National Cement’s lessor,
Tejon Ranchcorp (Tejon). Section 4 of the Mine Safety and
Health Act (Mine Act or Act) provides that “[e]ach coal or other
mine . . . shall be subject to the provisions of this chapter.” 30
U.S.C. § 803. Section 3(h)(1) of the Act defines the term “coal
or other mine” to include “(A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground[ or] (B) private ways and
roads appurtenant to such area.” 30 U.S.C. § 802(h)(1). The
ALJ concluded that the Access Road is a “mine” under section
3(h)(1)(B)—so as to come within the jurisdiction of
MSHA—because, under the unambiguous language of section
3(h)(1)(A) and the undisputed facts, it is both “private” and
“appurtenant to” National Cement’s Lebec Cement Plant, which
is undisputedly a “mine” under section 3(h)(1)(A). Nat’l
Cement Co. v. Sec’y of Labor, 27 F.M.S.H.R.C. 84 (2005) (ALJ
Dec.). The FMSHRC reversed the ALJ, concluding that,
although the road met the two unambiguous statutory criteria,
the Congress did not intend such a road to be classified as a
mine subject to Mine Act jurisdiction because this classification
3
will yield “absurd results.” Sec’y of Labor v. Nat’l Cement, 27
F.M.S.H.R.C. 721 (2005) (FMSHRC Dec.); see In re Trans
Alaska Pipeline Rate Cases, 436 U.S. 631, 643 (1978) (“This
Court, in interpreting the words of a statute, has ‘some scope for
adopting a restricted rather than a literal or usual meaning of its
words where acceptance of that meaning would lead to absurd
results . . . .’ ” (quoting Comm’r v. Brown, 380 U.S. 563, 571
(1965)) (internal quotation omitted)). Because we conclude that
the language of section 3(h)(1)(B) is ambiguous, we vacate the
Commission’s decision and remand for the Secretary to interpret
the statute’s ambiguous language.
I.
The material facts are not disputed. See Joint Stipulations
(FMSHRC Docket No. WEST 2004-182-RM filed Nov. 17,
2004) (Joint Appendix (JA) 7) (Stip.). The Access Road runs
across Tejon’s 27,000-acre ranch (Ranch), near the town of
Lebec in southern California. National Cement operates a
cement processing plant on leased property within the Ranch,
extracting minerals such as limestone, shale and silica from
quarries and processing them with other trucked-in materials to
produce Portland cement for sale. National Cement is not the
only commercial entity that conducts business on the Ranch and
uses the Access Road. Tejon and several of its other lessees
also use the Access Road in the course of their respective
business, as set out below.
The cement processing plant property, which consists of
about 5,000 acres, was initially leased, with easement rights over
the Access Road, to Pacific Western Industries, Inc. (Pacific
Western) in 1966 for three successive 20-year terms and a final
19-year term. Cement Manufacturing Plant Lease (Lease) at 3-4
(JA 41-42). The lease and easement rights were later assigned
to National Cement. Under a “Road Easement Deed” filed
October 13, 1965, National Cement has “a non-exclusive right-
of-way and easement for the purpose of constructing,
4
reconstructing, altering, maintaining, repairing and using a road
upon, over and across” a sixty foot-wide strip of land “for use
and enjoyment by [National Cement] in connection with the
construction and operation on [Tejon’s] land of a plant or plants
for the processing and manufacture of portland cement and
related by-products pursuant to lease terms between [Tejon] and
[National Cement]” for the duration of the lease. Road
Easement Deed at 1 (JA 29). Under the deed, Tejon “reserves
for itself, its successors and/or assigns, the right to use and cross
over said road and the right to grant to others easements in
proximity to, crossing or overlapping the right of way and
easement [t]herein granted provided such other easements shall
not materially interfere with the use and enjoyment of the right
of way and easement [t]herein granted.” Id. Road maintenance
is governed by the 1966 lease which provides:“Lessee [National
Cement] and the other grantees, if any, of joint-use easements
and rights of way, pro rata in accordance with their respective
use thereof, shall maintain all such easements and rights of way
in such condition as necessary for use thereof by Lessee in the
usual conduct of its business.” Lease at 18 (JA 56).
Pacific Western developed the Access Road in the mid-
1960s from an existing network of dirt roads on the Ranch. In
the early 1970s, the California Department of Water Resources
(DWR) constructed an aqueduct across the Ranch with a bridge
running over it where it intersects the Access Road. DWR then
realigned the Access Road to traverse the bridge. Today the
Access Road is a paved 4.3-mile, two-lane road running north
from State Route 138 to the cement plant. The Access Road’s
use is restricted to “Tejon’s employees, vendors, contractors,
lessees, licensees and visitors; National Cement’s employees,
vendors, contractors and visitors; and those persons so
authorized by the State of California.” Stip. ¶ 21 (JA 11). Signs
indicating the restricted access are posted at the intersection with
State Route 138 and along the initial segment of the road leading
to the cement plant. Fencing, which encloses ranch land, runs
5
along either side of the road, with gates located at various points
opening onto dirt roads, trails and livestock corrals. Tejon
maintains locks on most of the gates. None of the gates is used
by National Cement, which has its own gate and guardhouse at
the north end of the Access Road in front of the cement plant.1
The Access Road provides the only vehicular access to the
cement plant. While “[t]he majority of traffic on the road is for
cement-plant-related purposes,” id. ¶ 38 (JA 16),2 the road is
also used by (1) Tejon’s ranch management staff, which travels
it two to three times per month; (2) the Centennial Livestock
Company, which leases 200,000 acres in the southern part of the
Ranch where it maintains 7,000-9,000 head of cattle that are
rotated among various fields every 6 months—its employees
1
Adjacent to the the guardhouse is a sign advising:
ANYONE ENTERING THIS FACILITY MUST STOP AT
THE FRONT OFFICE AND CHECK IN BEFORE
PROCEEDING TO ANY OTHER LOCATION WITHIN
THE PLANT.
EXCEPT NATIONAL CEMENT EMPLOYEES, DELIVERY
WORKERS and OVER THE ROAD TRUCK DRIVERS.
THIS INCLUDES, BUT IS NOT LIMITED TO VENDORS,
SALESMEN, CONTRACTORS, SERVICEMEN, AND
VISITORS.
This is a Mine Safety and Health Administration, (MSHA)
regulated site and as such requires all those who enter to
comply with 30 Part 46 of the Code of Federal Regulations
(CFR).
Stip. ¶ 27 (JA 14).
2
That mining activity accounts for a “majority” of road use, as the
parties stipulated, is not to say that it “dwarf[s]” road use, as the
dissent asserts in its fifth “undisputed” fact, drawing on the ALJ’s
characterization. Dissent at 6 n.2.
6
make about 300 round trips on the road annually; (3) customers
of Tejon’s “Film Department” which contracts with
entertainment production companies, commercial photographers
and others to provide locations on the Ranch for filming; (4)
patrons of Tejon’s hunting program who use the road to access
hunting areas (sometimes with Tejon guides) during 11 months
of the year; (5) participants in Tejon’s “Explorer Program” who
pay an annual fee to explore and camp on the Ranch from
February through August each year; (6) Tejon security personnel
who make daily rounds; (7) consultants performing work on a
planned 12,000-acre commercial and residential development,
which Tejon hopes to begin constructing in 2009 and which will
use the Access Road both during construction and after
completion; (8) Federal Aviation Administration agents who use
the road for access to a communication tower located on the
Ranch; (9) utility agents who use the road for access to
transmission lines and related facilities; and (10) DWR which
uses the road to access its aqueduct and bridge. Id. ¶¶ 45-66, 33
(JA 17-24, 15).
Since the mine’s inception, National Cement (and its
predecessor cement plant operators) “have always maintained
and kept in usable condition the road,” without seeking
permission of Tejon. Id. ¶¶ 35-37 (JA 16). In November 2003,
for example, National Cement at its own expense resurfaced,
sealed and restriped the road and installed speed bumps and
speed limit signs. Id. ¶ 36 (JA 16). DWR, however, maintains
“the bridge and its approaches” and National Cement “does not
perform any construction or maintenance on this part of the
road.” Id. ¶ 31 (JA 15). DWR has installed “speed bumps and
related warning signs on the road in both directions at the
approaches to the bridge.” Id. ¶ 34 (JA 15).
In 1992, a MSHA inspector cited National Cement for
violating 30 C.F.R. § 56.9300(a), which requires: “Berms or
guardrails shall be provided and maintained on the banks of
7
roadways where a drop-off exists of sufficient grade or depth to
cause a vehicle to overturn or endanger persons in equipment.”3
See JA 155. On April 9, 1992, MSHA vacated the citation
through the following notice:
This action is to “vacate” this citation since it was
issued in error.
The main entrance roadway was from a public
highway to the mine site office traveled by the company
and public to reach the mine property.
At the mine site near the main office where mine site
activities begin was a posted guard shack indicating the
restrictions and the actual activities of the mining
operation.
The main entrance from the main public highway was
leased by the mine operator but used/traveled by various
other personnel and the public—once arriving at mine
property signs were posted that the mine office must be
contacted prior to entering the work sites.
The mine operator had no control over personnel using
the entrance roadway until they arrived at the mine site
office—(no security-locked gate at entrance off public
highway).
Id. at 156.
3
The Secretary’s regulations define a “berm” as “a pile or mound
of material along an elevated roadway capable of moderating or
limiting the force of a vehicle in order to impede the vehicle's passage
over the bank of the roadway.” 30 C.F.R. § 56.2. The required berms
or guardrails “shall be at least mid-axle height of the largest self-
propelled mobile equipment which usually travels the roadway.” Id.
§ 56.9300(b).
8
On February 4, 2003, a MSHA inspector issued a citation
(No. 6351224) to National Cement because the Access Road
contained “faded and missing delineators for the entire distance
of the haulway” in violation of 30 C.F.R. § 56.9300(d)(3).4 Id.
at 157. During a routine review of the citation, MSHA’s district
office determined that the inspector incorrectly cited National
Cement because 30 C.F.R. § 56.9300(d)(3) applies to “elevated
roadways” that “are infrequently traveled and used only by
service or maintenance vehicles.” See ALJ Dec., 27
F.M.S.H.R.C. at 97. Accordingly, on February 13, 2003,
Citation No. 6351224 was vacated and a new citation (No.
6351230) was issued for failing to install berms or guardrails in
violation of 30 C.F.R. § 56.9300(a). The citation stated:
The primary access road to the plant had no guard rails
or berms to protect vehicles and persons from going over
the edge of the road. There are drop off[s] all along the
highway ranging up to approximately 25 feet where a
vehicle could easily roll over. The road is used
extensively by large over the highway trucks, miner's
4
This regulation provides:
(d) Where elevated roadways are infrequently traveled and
used only by service or maintenance vehicles, berms or
guardrails are not required when all of the following are met:
...
(3) Delineators are installed along the perimeter of
the elevated roadway so that, for both directions of
travel, the reflective surfaces of at least three
delineators along each elevated shoulder are always
visible to the driver and spaced at intervals sufficient
to indicate the edges and attitude of the roadway.
30 C.F.R. § 56.9300(d)(3).
9
vehicles, and various other vehicles. The two lane road
without berms or guard rails presents a hazard,
especially during inclement weather where the
possibility of sliding and crashing may be prevalent.
JA 160.5
On April 14, 2003, after National Cement brought to
MSHA’s attention the vacatur of the 1992 citation, the MSHA
inspector lowered the citation’s negligence level from
“Moderate” to “Low” because “[i]nformation . . . indicated that
a previously issued citation for this condition was vacated,
therefore the company's negligence was less than originally
evaluated.” Id. at 161. The MSHA District Manager concluded
that MSHA had jurisdiction over the road but nonetheless on
November 17, 2003 had the notice “vacated without prejudice
due to inadequate notice that the road in question was subject to
the Agency's jurisdiction.” Id. at 162.
On December 16, 2003, the MSHA District Manager sent
National Cement a letter informing it that MSHA considered the
road subject to MSHA jurisdiction:
This letter is to inform you that MSHA has carefully
reviewed the facts regarding the Wayne Hand Road
which is located between National Cement Company’s
Lebec Plant, and Highway 138. The Mine Safety and
Health Act Section 3(h)(1)(B) specifically includes
“private ways and roads appurtenant to” mines, as
“mines” subject to MSHA jurisdiction. MSHA,
therefore, examines all pertinent facts to determine
whether such roads are to be considered as part of a
5
No one has suggested that the fencing along both sides of the
road, which appears from photographs in the record to be strung wire,
see, e.g., JA 132, 135, 142, is an adequate substitute for the required
berms or guardrails.
10
mine. Here, MSHA has determined that it has
jurisdiction over the Wayne Hand Road leading from
Highway 138 to the Lebec Plant. This jurisdiction is
based on our finding that National Cement Company
maintains this road, that it holds an easement on this
road and that this road is the sole means of egress to and
from the mine. It also appears that traffic to and from
the Lebec Plant constitutes the vast majority of traffic
along this road.
National Cement Company is hereby put on notice that
conditions which violate applicable MSHA regulations
with respect to the road shall be subject to MSHA's
enforcement authority, effective immediately.
Id. at 163. Accordingly, on February 9, 2004, a MSHA
inspector issued National Cement the subject citation (No.
6361036) for violating 30 C.F.R. § 56.9300(a). The citation
reads:
The mine operator failed to provide berms and
guardrails on the banks of the primary access road to the
Lebec Cement Plant. There were drop offs along the
roadway ranging from 6 ft. [t]o approximately 25 ft. and
sufficient to cause a vehicle to overturn or endanger
persons in equipment. The roadway was used
extensively by large over-the-road trucks, delivery
vehicles, and personal vehicles of mine personnel and
vendors. The l[a]ck of berms or guardrails on the two
lane road presented a hazard particularly during
inclement weather when vehicles could be expected to
slide and potentially become involved in accidents.
JA 164. National Cement filed a Notice of Contest of the
citation and Tejon intervened in support of National Cement.
On cross-motions by MSHA and National Cement for
summary decision on the issue of Mine Act jurisdiction, the ALJ
11
ruled in MSHA’s favor in a decision dated January 12, 2005.
Nat’l Cement Co. v. Sec’y of Labor, 27 F.M.S.H.R.C. 84 (2005).
The ALJ concluded that the access road is a “mine” under the
plain language of section 3(h)(1) of the Mine Act, 30 U.S.C.
§ 802(h)(1), and rejected National Cement’s argument that “the
circumstances of this case create ambiguity.” Id. at 99. The
ALJ then directed the parties to advise him within 30 days
whether they had reached a settlement or wished to proceed to
a hearing on the merits of the citation.
Upon motion filed by National Cement on November 17,
2005, the FMSHRC vacated the ALJ’s decision, concluding that
under the plain meaning of section 3(h)(1), the entire Access
Road cannot be characterized as a “mine” under the Mine Act
because to do so would violate the structure of the Act and
produce “absurd results.” Sec’y of Labor v. Nat’l Cement, 27
F.M.S.H.R.C. 721 (2005). The Commission “h[e]ld instead that
only such portion of the access road over which National
Cement and its customers have exclusive use can be considered
an appurtenant road” and remanded the matter to the ALJ to
establish the parameters of the specified portion. Id. at 735.
The Secretary filed a petition for review of the Commission’s
decision on March 17, 2006.6
II.
On review,“the Secretary’s interpretation of the law must
‘ “be given weight by both the Commission and the courts.” ’ ”
Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 5-6 (D.C. Cir.
2003) (quoting Sec’y of Labor v. Cannelton Indus., Inc., 867
F.2d 1432, 1435 (D.C. Cir. 1989) (quoting S. Rep. No. 95-181,
at 49 (1977))). “When, as here, ‘the Secretary and the
6
In a letter filed December 12, 2006, the FMSHRC informed the
court it “w[ould] not file a brief” and “w[ould] not participate as an
active litigant.”
12
Commission divide, it [is] . . . the Secretary rather than the
Commission [who] is entitled to the deference described in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).” Id. at 6 (quoting Cannelton Indus., 867
F.2d at 1435 (alterations in original) (parallel citation omitted)).
“Moreover, in the statutory scheme of the Mine Act, ‘ “the
Secretary’s litigating position before [the Commission] is as
much an exercise of delegated lawmaking powers as is the
Secretary’s promulgation of a . . . health and safety standard,” ’
and is therefore deserving of deference.” Id. (quoting RAG
Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 596 n.9 (D.C.
Cir. 2001) (quoting Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 157 (1991))). In this case,
however, we do not accord the Secretary’s litigating position
Chevron deference because she incorrectly treated the statute as
unambiguous and interpreted it accordingly. See Peter Pan Bus
Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350,
1354 (D.C. Cir. 2006) (“ ‘[D]eference to an agency's
interpretation of a statute is not appropriate when the agency
wrongly “believes that interpretation is compelled by
Congress.” ’ ” (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786,
798 (D.C. Cir. 2004) (quoting Arizona v. Thompson, 281 F.3d
248, 254 (D.C. Cir. 2002)))).
Under step one of Chevron, we “ask ‘whether Congress has
directly spoken to the precise question at issue,’ in which case
we ‘must give effect to the unambiguously expressed intent of
Congress.’ ” Bluewater Network v. EPA, 372 F.3d 404, 410
(D.C. Cir. 2004) (quoting Chevron, 467 U.S. at 842-43). “If the
‘statute is silent or ambiguous with respect to the specific issue,’
however, we move to the second step and defer to the agency’s
interpretation as long as it is ‘based on a permissible
construction of the statute.’ ” Id. (quoting Chevron, 467 U.S. at
843). Before the Commission, as here, the Secretary has relied
on the plain meaning of the statute, viewing its language as
unambiguous. See FMSHRC Dec., 27 F.M.S.H.R.C. at 726
13
(“The Secretary argues for affirmance of the judge’s decision
because the definition of ‘coal or other mine’ plainly includes a
road such as the one at issue.” (emphasis added)); see also id. at
728 (rejecting “literal interpretation of the specific words used
in section 3(h)(1)(B) offered by the Secretary”); Sec’y’s Br. at
19-33 (asserting road is “mine” under section 3(h)(1)(B)’s “plain
meaning”).7 The statute has no plain meaning, however,
because section 3(h)(1)(B)’s language is, in our view,
ambiguous.
As explained earlier, section 3(h)(1)(B) establishes that a
road is a “mine” subject to MSHA’s jurisdiction if it meets two
criteria: it must be (1) “private” and (2) “appurtenant to” an
“area” that constitutes a “coal or other mine” under section
3(h)(1)(A). 30 U.S.C. § 802(h)(1)(B). The FMSHRC,
following the lead of the ALJ and with the approval of the
parties, relied on the dictionary definition of “private” as
“intended for or restricted to the use of a particular person or
group or class of persons: not freely available to the public.”
Webster’s Third New Int’l Dictionary, 1804-05 (1993)
(Webster’s). Under this definition, the term may be construed,
as the Secretary argued and the Commission concluded, to mean
restricted to the use of “a particular . . . group or class of
persons”—in this case, all of the grantees to whom Tejon may
grant a right of way—and their invitees—which, as it turns out,
are many and varied, see supra p. [5]. Under the same
definition, however, “private” may be construed more narrowly
to mean restricted to the use of “a particular person” such as
National Cement. See also Webster’s at 1805 (setting out
alternative definition “belonging to or concerning an individual
7
In her reply brief the Secretary argues for the first time that her
interpretation is reasonable and is therefore due deference under
Chevron step 2. See Reply Br. at 23-25.
14
person, company, or interest”). Given these alternative
meanings, the word “private” is, in our view, ambiguous.
The term “appurtenant to” is also ambiguous under the
dictionary definition applied by both the ALJ and the
Commission. “Appurtenant” is defined as “ ‘a: annexed or
belonging legally to some more important thing (a
right-of-way—to land or buildings); b: incident to and passing
in possession with real estate—used of certain profits or
easements.’ ” See FMSHRC Dec., 27 F.M.S.H.R.C. at 728
(quoting Webster’s at 107). Under this definition, the phrase
may be construed to encompass a road such as the Access Road
because it is subject to a transferable right of way benefitting the
mine lessee. Or, again, the term might have been used in a
narrower sense, as suggested by the definitional language
“annexed or belonging legally to,” to mean dedicated
exclusively to the use of the mine. See Webster’s at 87
(defining “annex” as “to join in a closely united but subordinate
capacity: take possession or control of : assume rights or
jurisdiction over”); id. at 201 (defining “belong” as “to be the
property of a person or thing”).
In sum, both of the relevant statutory terms are ambiguous
and the Secretary therefore erroneously interpreted them as
bearing a plain meaning. In the event of such ambiguity, “ ‘it is
incumbent upon the agency not to rest simply on its parsing of
the statutory language’—‘[i]t must bring its experience and
expertise to bear in light of competing interests at stake.’ ”
Peter Pan, 471 F.3d at 1354 (quoting PDK Labs., Inc., 362 F.3d
at 797-98 (citing Chevron, 467 U.S. at 865-66) (alteration in
original)). If the agency has not done so, “ ‘at this stage it is not
for the court “to choose between competing meanings.” ’ ” Id.
(quoting PDK Labs., Inc., 362 F.3d at 798 (quoting Alarm Indus.
Commc’ns Comm. v. FCC, 131 F.3d 1066, 1072 (D.C. Cir.
1997))). “Chevron step 2 deference is reserved for those
instances when an agency recognizes that the Congress’s intent
15
is not plain from the statute’s face.” Id. Because the Secretary
did not recognize the ambiguities inherent in the statutory terms,
we do not defer to her plain meaning interpretation but instead
remand for her to treat the statutory language as ambiguous. See
id. at 1352. We recognize that we do not ordinarily remand a
case with instructions regarding the decisionmaking process of
a litigant. As we have demonstrated above, however, it is well
established that the Congress intended us to afford Chevron
deference to the Secretary—a litigant below—not the
Commission—the adjudicator below. Coupling that principle
with the principle drawn from Peter Pan and PDK Labs, Inc.,
requiring a Chevron-worthy agency to recognize ambiguity, we
are left with no other rational result. Accordingly, we follow
that course of action.
Both National Cement and Tejon identified “absurd results”
they claimed would arise from the Secretary’s plain meaning
interpretation of the statute—because of National Cement’s
status as a non-exclusive right-of-way grantee, with only limited
control or authority over the Access Road or its users outside the
cement plant premises. These are not frivolous concerns.
First, it is questionable that National Cement, as a
“nonexclusive” right-of-way grantee, has the authority to alter
the road as the Secretary requires—notwithstanding National
Cement has sua sponte, without interference, previously
performed routine maintenance and made minor alterations (e.g.,
installing speed bumps and speed limit signs). National
Cement’s easement is subject to the right Tejon reserved to itself
to use the road—and to grant others the right to use it—along
with National Cement. Alteration of the Access Road might
interfere with the others’ right to use it and Tejon’s right as
property owner to control it. In addition, it is undisputed that
National Cement lacks authority to make any changes to the
portion of the bridge approaching or crossing the aqueduct as
DWR has the exclusive right to maintain this portion of the road
16
and has in the past installed speed bumps and signs. Stip. ¶ 34
(JA 25).
Second, under the Secretary’s interpretation, National
Cement as the mine “operator” would be required to assume
responsibility for all road users, including those over whom it
has no authority and with whom it has no business connection
whatsoever. For example, as “operator” of the “mine,” National
Cement would be required to (1) comply with a withdrawal
order of the Secretary requiring it to cause “all persons,”
including invitees of Tejon and other right-of-way grantees, to
withdraw from a specified area of the Access Road, 30 U.S.C.
§ 814(b), (d)(1)-(2), (e);8 (2) “[i]n the event of any accident
occurring [on the road] . . . notify the Secretary thereof and . . .
take appropriate measures to prevent the destruction of any
evidence which would assist in investigating the cause or causes
thereof,” id. § 813(j); and (3) “provide site-specific hazard
awareness training, as appropriate, to any person who is not a
miner . . . but is present [on the road],” 30 C.F.R. § 46.11(b).
National Cement could thus be liable for violating the cited
provisions notwithstanding it lacks authority to comply with
them because it lacks control over all Access Road users. See
FMSHRC Dec., 27 F.M.S.H.R.C. at 732 (“[O]n appeal the
Secretary has reaffirmed her authority to hold National Cement
strictly liable for all violations, including those committed by
unrelated third parties. Thus, as National Cement fears, it
appears that the Secretary would issue a citation for Mine Act
violations committed by a user of the road who had no
connection to National Cement’s operations.”) (internal citation
omitted).
8
“[P]erson” is broadly defined in the Mine Act as “any individual,
partnership, association, corporation, firm, subsidiary of a corporation,
or other organization.” 30 U.S.C. § 802(f).
17
Third, because the Act defines a mine “operator”
expansively to include “any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any
independent contractor performing services or construction at
such mine,” 30 U.S.C. § 802(d), under the Secretary’s
interpretation Mine Act jurisdiction would extend to Tejon as
the “operator” (owner) of the Access Road and to any other
party with right-of-way control over the Access Road
notwithstanding the party lacks any relation whatsoever to the
mine’s operations. Each of them could be liable as a mine
operator for mine safety infractions occurring on the Access
Road.9
The Secretary responds that she will, “as a matter of
prosecutorial discretion,” refrain from citing “Tejon users whose
conduct has no appreciable effect on the safety of National
Cement miners.” Sec’y’s Br. at 39. This vague, open-ended
(and unenforceable) representation offers scant comfort to the
various road users who would be subject to liability under the
Secretary’s expansive construction of Mine Act jurisdiction. In
any event, the Mine Act itself does not authorize such
prosecutorial discretion but mandates that a citation issue when
its provisions or the regulations promulgated thereunder are
violated by a party within Mine Act jurisdiction. See 30 U.S.C.
§ 814(a) (“If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator of a coal
or other mine subject to this chapter has violated this chapter, or
any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this chapter, he shall, with
reasonable promptness, issue a citation to the operator.”
(emphasis added)).
9
In fact, the Secretary acknowledges that she would treat Tejon as
an operator subject to Mine Act jurisdiction. See Sec’y’s Br. at 37 n.9;
Reply Br. at 15-16.
18
These are problems the Secretary must confront on remand
if she continues to interpret section 3(h)(1) to extend Mine Act
jurisdiction over the entire Access Road. Although a statutory
interpretation that is “employed in the course of an adjudication
constitutes an ‘interpretative’ statement and as such is exempt
from the APA notice and comment requirements,” nonetheless,
under Chevron the Secretary must “offer a reasoned analysis” of
her statutory reading. Orengo Caraballo v. Reich, 11 F.3d 186,
195, 193 (D.C. Cir. 1993). Reasoned analysis requires that the
words of the statute “ ‘be read in their context and with a view
to their place in the overall statutory scheme.’ ” Ne. Md. Waste
Disposal Auth. v. EPA, 358 F.3d 936, 944-45 (D.C. Cir. 2004)
(quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809
(1989)). Here, this means that the Secretary must address the
concerns raised by National Cement and Tejon and harmonize
her interpretation of section 3(h)(1)(B) with the Mine Act’s
overall enforcement of mine safety standards. Given that
National Cement lacks control over the Access Road or those
traveling upon it beyond the well-marked boundaries of the
cement processing plant itself such harmony may be difficult to
achieve. As the Sixth Circuit has observed, the reach of Mine
Act jurisdiction under section 3(h)(1)(B) is not limitless:
Without some limitation on the meaning of “roads
appurtenant to,” MSHA jurisdiction could conceivably
extend to unfathomable lengths since any road
appurtenant to a mine that connects to the outside world
would necessarily run into yet other roads, thus
becoming one contiguous road. Because of the potential
reach of MSHA jurisdiction if the definition in
§ 802(h)(1)(B) is left unfettered, “private ways and
roads” cannot simply mean “any road.” Otherwise, there
could conceivably be no limit to MSHA jurisdiction, a
result Congress clearly did not intend.
19
Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 937 (6th Cir.
1997).
Because the terms “private” and “appurtenant to” in section
3(h)(1)(B), 30 U.S.C. § 802(h)(1)(B), are ambiguous and the
Secretary instead interpreted them as having a plain,
unambiguous meaning, we vacate the Commission’s decision
and remand for it to obtain from the Secretary a Chevron step 2
interpretation of section 3(h)(1)(B), which addresses the
problematic issues raised by National Cement and Tejon.
So ordered.
ROGERS, Circuit Judge, dissenting: In issuing a citation to
the National Cement Company of California for failing to install
berms or guardrails along its access road, the Secretary of Labor
relied on the jurisdiction of the Mine Safety and Health
Administration under the plain text of the definition of a “mine”
under section 3(h)(1)(B) of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 801 et seq. Today, the
court holds that the definition of “mine” is ambiguous and
remands this case so that the Secretary may exercise discretion
in interpreting her jurisdiction. But there is only one legitimate
interpretation of whether the access road is a “private” road
“appurtenant to” land from which minerals are extracted, and
thus is subject to Mine Act jurisdiction. The Secretary adopted
that plain text interpretation and the Federal Mine Safety and
Health Review Commission (the “Commission”) unanimously
agreed that the literal interpretation of the text was
unambiguous. See Sec’y of Labor v. Nat’l Cement Co. of Cal.,
Inc., 27 F.M.S.H.R.C. 721, 728 (2005); id. at 737-38 (Jordan,
Comm’r, dissenting). The court improperly relies upon policy
considerations to find ambiguity where there is none.
I.
Under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984), the court must give
effect to the unambiguously expressed intent of Congress.
Under the plain meaning of the terms, the access road is
“private” and it is “appurtenant to” land from which minerals are
extracted. The history and purpose of the Mine Act fully
support the plain text reading and National Cement has offered
no reason to avoid the literal meaning.
The Mine Act defines a “mine” to include “an area of land
from which minerals are extracted,” 30 U.S.C. § 802(h)(1)(A),
and “private ways and roads appurtenant to such [an] area,” id.
§ 802(h)(1)(B). The parties agree that the cement plant at the
2
end of the access road is “an area of land from which minerals
are extracted,” meaning that it is subject to Mine Act jurisdiction
if it is both “private” and “appurtenant to” the cement plant.
The access road is unambiguously a “private” road. It is
located on private property and it is not open to the general
public. There is, in fact, a sign posted by National Cement
where the access road meets the public state highway that says,
in large red lettering, “PRIVATE ROAD NO TRESPASSING.”
In a statutory provision, words are presumed to have their
ordinary, common sense meanings. See, e.g., United States v.
Johnson, 529 U.S. 53, 57 (2000). As this court has previously
recognized, “[i]t is beyond cavil that the common usage of
‘private’ refers to that which is not public or governmental.”
Inner City Broad. Corp. v. Sanders, 733 F.2d 154, 158 (D.C.
Cir. 1984). In determining Mine Act jurisdiction, the Sixth
Circuit has taken the natural step of looking to whether a road is
“public” as opposed to “private.” See Bush & Burchett, Inc. v.
Reich, 117 F.3d 932, 936-38 (6th Cir. 1997). The court must
engage in tortured reasoning to conclude that in specifying that
Mine Act jurisdiction extends only to “private” roads, Congress
plausibly may have meant to exclude more than just the natural
antonym, “public” roads. As the Supreme Court has
acknowledged, “[a]mbiguity is a creature not of definitional
possibilities but of statutory context.” Brown v. Gardner, 513
U.S. 115, 118 (1994); see also Cal. Indep. Sys. Operator Corp.
v. Fed. Energy Regulatory Comm’n, 372 F.3d 395, 400 (D.C.
Cir. 2004). Nothing in the plain text of the Mine Act supports
the court’s dissection of the statute in search of ambiguity.
Similarly, by the plain text of the Mine Act, the access road
is “appurtenant to” the cement plant. The court suggests that
Congress might have been saying something about an operator’s
exclusive access to the road by requiring appurtenance. But the
common meaning of appurtenance has nothing to do with
3
exclusivity. “An easement is appurtenant to land when the
easement is created to benefit and does benefit the possessor of
the land in his use of the land.” RESTATEMENT (FIRST) OF
PROPERTY § 453 (1944); accord RESTATEMENT (THIRD) OF
PROPERTY: SERVITUDES § 1.5(1) (2000). It is unsurprising that
the court’s anointing of ambiguity in the word “appurtenant” is
accompanied by no references to authorities in which
appurtenance has been interpreted to require exclusivity.
Counterexamples are plentiful.1 Again, by the ordinary meaning
of this term, the road is “appurtenant to” the cement plant
because Tejon Ranchcorp has granted National Cement an
easement providing a “right of way for the purpose of ingress
and egress to and from” the cement plant.
The purpose of the Mine Act fully supports the literal
interpretation of the statute supplied by a plain reading of its
terms. Congress expressly declared that “the first priority and
concern of all in the coal or other mining industry must be the
health and safety of its most precious resource – the miner,” 30
U.S.C. § 801(a), noting, among other things, that “the existence
of unsafe and unhealthful conditions and practices in the
Nation’s coal or other mines is a serious impediment to the
future growth of the coal or other mining industry and cannot be
tolerated,” id. § 801(d). As part of this initiative, Congress
defined “mine” in a manner that this court has characterized as
“sweeping,” Donovan v. Carolina Stalite Co., 734 F.2d 1547,
1554 (D.C. Cir. 1984), and that courts have acknowledged
1
See, e.g., Bush & Burchett, 117 F.3d at 937 (noting that
public roads may be appurtenant to extraction facilities); BR Assocs.
v. LaFramboise, No. 06-11870-BC, 2007 WL 1840031, at *1 (E.D.
Mich. June 26, 2007) (referencing a “non-exclusive easement
appurtenant”); Bee Tree Missionary Baptist Church v. McNeil, 570
S.E.2d 781, 783 (N.C. Ct. App. 2002) (similar); State v. Japage
P’ship, 80 S.W.3d 618, 621 (Tex. App. 2002) (similar).
4
“makes clear that the concept that was to be conveyed by the
word [‘mine’] is much more encompassing than the usual
meaning attributed to it,” Marshall v. Stoudt’s Ferry
Preparation Co., 602 F.2d 589, 591-92 (3d Cir. 1979); accord
Cyprus Indus. Minerals Co. v. Fed. Mine Safety & Health
Review Comm’n, 664 F.2d 1116, 1117-18 (9th Cir. 1981).
The legislative history of the Mine Act confirms Congress’s
intent. The Conference Committee expressed its intention to
adopt a “broad[]” definition of what constitutes a “mine” that
included “roads . . . related to the mining activity.” S. REP. NO.
95-461, at 38 (1977) (Conf. Rep.), reprinted in SENATE
SUBCOMM. ON LABOR, COMM. ON HUMAN RES., LEGISLATIVE
HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF
1977, at 1316 (1978) (hereinafter LEGISLATIVE HISTORY). The
Senate Committee on Human Resources added further emphasis,
clarifying that “all private roads and areas” appurtenant to
mineral extraction operations were covered. S. REP. NO. 95-181,
at 14 (1977), reprinted in LEGISLATIVE HISTORY, supra, at 602.
II.
To avoid the literal meaning of the Mine Act, National
Cement, Tejon Ranchcorp, and the court suggest that “absurd
results” would result therefrom. See Op. at 15-17. A party
seeking to avoid the literal text because of the policy
consequences faces “an exceptionally high burden.” Friends of
the Earth, Inc. v. EPA, 446 F.3d 140, 146 (D.C. Cir. 2006), cert.
denied, 127 S. Ct. 1121 (2007). To succeed, such a claim must
be accompanied by a showing that “as a matter of historical fact,
Congress did not mean what it appears to have said, or that, as
a matter of logic and statutory structure, it almost surely could
not have meant it.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,
1089 (D.C. Cir. 1996). Here, the express purpose and history of
the statute indicate that Congress meant precisely what it said.
5
The court concludes that National Cement and Tejon Ranchcorp
have “valid” concerns that this interpretation will result in
“absurd results,” but this conclusion is flawed.
The “absurd results” doctrine is narrow in order to avoid
having courts act as super-legislatures that balance the pros and
cons of potential policies. Here, the court adopts the position of
the Commission majority that Congress could not have intended
a mine “operator” to be liable for what happens on a road for
which it lacks complete control. Op. at 15-17. But as the
dissenting Commissioner noted, “[p]ermitting concerns about
future National Cement liability for non-mining related activity
to guide the outcome of this case is letting the tail wag the dog.”
27 F.M.S.H.R.C. at 741 (Jordan, Comm’r, dissenting).
The court’s approach adds a requirement of exclusivity to
the definition of a “mine” when its true concern is who
constitutes an “operator,” which is defined in section 3(d) of the
Mine Act, 30 U.S.C. § 802(d). Not only has Congress set only
two requirements for roads to be subject to the Mine Act, the
necessary inference of which, in the absence of legislative intent
suggesting otherwise, is that Congress intended no others, cf.
TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001), nothing suggests
Congress acted absurdly by determining, in a separate section,
who should be liable for Mine Act violations. If National
Cement does not have sufficient control over the access road,
then it might not be the “operator” of the access road, as the
Secretary acknowledges. See Appellant’s Br. at 36-37. But the
conclusion to be drawn is not that the access road is beyond the
jurisdiction of the Mine Act. The consequences of this reverse
inference leave the possibility that a dangerous road covered by
the plain text of the statute and referenced in the legislative
history will not require berms or guardrails, despite steep drops
(up to 25 feet), on a road traversed by heavy cement trucks more
than 45,000 times a year.
6
The court’s related concern that National Cement will be
strictly liable for Mine Act violations involving non-mining
activities on the access road is resolved similarly. If National
Cement does not have the requisite control, then it might not be
an operator that can be cited. The facts of this case2 do not
present an occasion to further speculate on how the Act would
be interpreted, let alone enforced, should the issue arise. Before
the court today is the definition of a “mine,” and the Secretary
was correct to conclude that the definition plainly includes
National Cement’s access road. A speculative concern about a
tiny fraction of access-road users should not be used to uproot
the major purpose of the Mine Act.
Finding no ambiguity in the definition of a “mine,” I would
remand the case to the Commission for adjudication of the
citation on the merits. Accordingly, I respectfully dissent.
2
It is undisputed in this court that: (1) the access road on the
Tejon Ranch is privately owned; (2) National Cement operates the
quarry to which the road provides the only vehicular access; (3)
National Cement and Tejon Ranchcorp have entered into a long term
lease that gives National Cement an easement, which transfers to
successor lessees of the cement plant, to use the road to access the
quarry from the state highway and allows National Cement to grant
access to others; (4) the lease preserves the right of Tejon Ranchcorp
to use the road and grant easements to others so long as those
easements do not materially interfere with National Cement’s
operations; (5) National Cement’s activities at the cement plant, which
operates 7 days a week, dominate use of the access road in that the
vast majority of traffic is related to the cement plant and other use of
the road, the Administrative Law Judge found, “is dwarfed by
National Cement traffic,” Nat’l Cement Co. of Cal., Inc. v. Sec’y of
Labor, Mine Safety & Health Admin., 27 F.M.S.H.R.C. 84, 101
(2005); and (6) its heavy trucks traverse the access road hundreds of
times a day and accidents have occurred on the road.