Marshall v. Halquist Stone Co., Inc.
| Decision Date | 28 April 1981 |
| Docket Number | Civ. A. No. 78-C-463. |
| Parties | Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. HALQUIST STONE COMPANY, INC., t/a/d/b/a Halquist Stone Company, Inc., Lannon Quarry and Mill, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Joseph P. Stadtmueller, U. S. Atty., by William E. Callahan, Jr., Asst. U. S. Atty., Milwaukee, Wis., and Thomas A. Mascolino, Counsel, and Frederick W. Moncrief, Trial Atty., U. S. Dept. of Labor, Arlington, Va., for plaintiff.
Stephen C. Raymonds, Kraemer & Binzak, S. C., Menomonee Falls, Wis., for defendants.
DECISION AND ORDER
This is an action brought by the Secretary of Labor under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., to permanently enjoin the defendant Halquist Stone Company, Inc. ("Halquist") from refusing to permit warrantless inspections of its stone and gravel quarry in Waukesha County, Wisconsin. See 30 U.S.C. § 818(a)(1). The action is before the court on the Secretary's motion for summary judgment, which motion will be granted.
The Federal Mine Safety and Health Act of 1977 is a successor statute to the Federal Coal Mine Health and Safety Act of 1969, formerly 30 U.S.C. § 801 et seq., and it also incorporates the subject matter of the former 1966 Federal Metal and Nonmetallic Mine Safety Act, formerly 30 U.S.C. § 721 et seq. There is no dispute in this case that the Act includes stone and gravel quarries within its definition of mines, see 30 U.S.C. § 802(h)(1); 1966 U.S.Code Congressional and Administrative News at pages 2851-2852, 2870, and 2874, nor is it disputed that the Act authorizes warrantless inspections of mines for the purpose of determining if the mines are in compliance with mandatory health and safety standards and if any imminent dangers to the safety of the miners exist. 30 U.S.C. § 813; 1977 U.S.Code Congressional and Administrative News at page 3427.
The defendant challenges the warrantless inspection provision of the Act on Fourth Amendment grounds. It argues that in contrast to underground mines and coal mines in particular, stone and gravel quarries are not a pervasively regulated industry and therefore do not fall within the exception to the warrant requirement of the Fourth Amendment established by the Supreme Court for such industries, see Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), making the warrantless inspection provision of the Act unconstitutional. See Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).
A threshold issue is whether or not an actual case or controversy between the parties exists. On May 31, 1978, Walter Brey, a federal mine inspector, arrived at the defendant quarry for a health and safety inspection. He was allowed to perform the inspection and was also allowed in when he returned the following day. After Brey had been at the quarry for several hours on June 1, however, the owner Albin Halquist arrived and told Brey that he was harassing the employees. Brey contends that Halquist also told him to leave and not return without a warrant. Halquist has filed an affidavit stating that he did not tell Brey to leave and said nothing about a warrant.*
The dispute is of minor significance since the defendant has taken the position that it will not allow future inspections of the quarry without a warrant, see page 37 of Exhibit 1 to defendant's brief filed June 23, 1980, and 30 U.S.C. § 813(a) requires a twice yearly health and safety inspection of each surface mine. Since both parties seek injunctive relief with regard to the inspections, an actual dispute does exist between them. In addition, following the June 1, 1978, incident, Brey issued a citation to the defendant which was heard before an administrative law judge. See 30 U.S.C. §§ 814 and 815. Defendant raised as a defense at the hearing his claim that Brey had not been ordered to leave and that the issue of a warrant had not arisen. That issue was determined adversely to the defendant by the judge. The administrative findings are appealable to the United States courts of appeals and findings of fact, "if supported by substantial evidence on the record considered as a whole, shall be conclusive." 30 U.S.C. § 816(a)(1). That section is not directly applicable to this action which is brought instead under 30 U.S.C. § 818(a), but it does suggest the deference which this court owes to the findings of the administrative law judge. The record made before him has been submitted in its entirety to this court, and it does contain substantial evidence to support his finding of fact with reference to the search warrant issue.
With regard to the merits of the constitutionality issue, there is no dispute that the warrantless inspection provision is constitutional as applied to the coal mining industries, and courts have uniformly so held. See, e. g., Youghiogheny and Ohio Coal Company v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973) (3-judge); Marshall v. Donofrio, 465 F.Supp. 838 (E.D.Pa.1978), aff'd without opinion 605 F.2d 1196 (3d Cir. 1979), cert. denied 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980); Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980). See also Andrus v. P-Burg Coal Company, Inc., 495 F.Supp. 82 (S.D.Ind.1980), affirmed 644 F.2d 1231 (7th Cir. 1981), upholding warrantless inspections under § 502 of the Surface Mining and Reclamation Act of 1977, 30 U.S.C. § 1252(e). This is also not a case where the defendant is alleging abuse of process aside from the absence of a warrant in the manner in which the inspection was carried out. Compare Youghiogheny and Ohio Coal Company v. Morton, supra, at 52. Thus, the only issue before the court is whether 30 U.S.C. § 813(a)(1) is unconstitutional because it includes stone and gravel quarries within the class of mines which are subject to warrantless inspections.
In Camara v. Municipal Court of the City of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court held that warrantless inspections of private property to determine compliance with municipal health codes violate the Fourth Amendment. That prohibition was extended to areas of commercial property not regularly open to the public in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), however, the Court upheld a federal statute authorizing warrantless entries onto the premises of liquor dealers for the purpose of ensuring compliance with federal revenue provisions. It based its exception to the warrant requirement on the long history of federal supervision and inspection of the liquor industry. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), upholding the Gun Control Act of 1968, the Court approved the warrantless entry onto the premises of licensed gun dealers for the purpose of ensuring compliance with federal reporting and licensing requirements. The Court noted that "federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry," 406 U.S. at 315, 92 S.Ct. at 1596, but that regulation is crucial to preventing violent crime, that inspection is a crucial part of the regulatory scheme, and that inspection without prior notice is reasonable because of the ease with which violations can be hidden if warning is given. The Court also noted that:
406 U.S. at 316, 92 S.Ct. at 1596.
Finally, in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Court struck down a provision of the Occupational Safety and Health Act of 1970 authorizing warrantless inspections of any business operating in interstate commerce. The Court found the section to be overbroad and unreasonable in that it included within its purview almost every business in the country. Whereas Colonnade and Biswell created exceptions for industries with such a history of governmental oversight that no reasonable expectation of privacy can exist for one who chooses to enter that business, the objectionable provision in OSHA attempts to make that exception the rule for all businesses in the United States.
In Marshall v. Barlow's, Inc., supra, at 321, 98 S.Ct. at 1825, the Court also stated:
***"
In a decision issued September 15, 1978, this Court declined to find that Congress' statement of purpose in 30 U.S.C. § 801 was sufficient evidence to establish that a stone quarry is part of a "pervasively regulated industry" within the meaning of the Colonnade-Biswell exception to the warrant requirement, and, therefore, it denied the Secretary's request for a preliminary injunction in this case.
Since that time other courts have had occasion to...
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