Reich v. Mashantucket Sand & Gravel

• Decision Date: 06 September 1996
• Docket Number: D,No. 1722,1722
• Citation: 95 F.3d 174
• Parties: , 17 O.S.H. Cas. (BNA) 1747, 1996 O.S.H.D. (CCH) P 31,137 Robert B. REICH, Secretary of Labor, Petitioner, v. MASHANTUCKET SAND & GRAVEL, and Occupational Safety and Health Review Commission, Respondents. ocket 95-4200.
• Court: U.S. Court of Appeals — Second Circuit

Page 174

95 F.3d 174

65 USLW 2186, 17 O.S.H. Cas. (BNA) 1747,

1996 O.S.H.D. (CCH) P 31,137

Robert B. REICH, Secretary of Labor, Petitioner, v. MASHANTUCKET SAND & GRAVEL, and Occupational Safety and Health Review Commission, Respondents.

No. 1722, Docket 95-4200.

United States Court of Appeals,

Second Circuit.

Argued June 17, 1996.

Decided Sept. 6, 1996.

Ellen L. Beard, Staff Attorney, Department of Labor (J. Davitt Mcateer, Acting Solicitor of Labor, Department of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, Department of Labor, Washington, DC), for Petitioner.

Henry J. Sockbeson, Tribal Attorney, Mashantucket Pequot Tribe, Mashantucket, CT, for Respondents.

Before: KEARSE, MAHONEY, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

BACKGROUND

Mashantucket Sand & Gravel ("MSG") is in the construction business. It is wholly owned and operated by the Mashantucket Pequot, a federally recognized Indian tribe. The Tribe has no treaty with the United States and maintains a reservation near Preston, Connecticut.

MSG employs approximately 100 people, both Indian and non-Indian. It works as an arm of the tribe, only on construction sites within the confines of its own reservation. The Tribal Council, the Tribe's governing body, decides the priority of MSG's construction jobs.

Among its various construction tasks, MSG workers excavate building sites, removing sand and gravel for processing. Its workers assist in the building of roads, tribal homes, and the continuing expansion of the Foxwoods High Stakes Bingo and Casino ("Foxwoods"). Foxwoods is located on the Reservation and is the principal source of income for the Tribe.

In the Spring of 1993, and with the Tribe's consent, federal inspectors entered the reservation to examine the Foxwoods site for compliance with the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et seq. The inspectors found four violations of The two serious violations were: (1) transporting employees on the tailgate of a pick-up truck; and (2) failing to develop a written hazard communication program and to train employees regarding hazardous substances in their work environment. See 29 C.F.R.1926.601(b)(8) (transporting employees); 29 C.F.R. 1926.59(e)(1) & (h) (hazardous substances communication program and training). Pursuant to § 9(a) of OSHA, the Secretary of Labor ("Secretary") issued citations for all four violations, and, pursuant to § 10(a) of OSHA, fined the Tribe two thousand dollars for the serious offenses.

                OSHA:  two "non-serious" and two "serious."   The two non-serious violations were:  (1) operation of a vehicle with a cracked windshield;  and (2) allowing employees to work in a trench which had not been properly examined for cave-in risks.  See 29 C.F.R.1926.601(b)(5) (cracked windshield);  29 C.F.R. 1926.652(a)(1) (soil tests to determine maximum allowable slope to protect against cave-in)
                

The Tribe challenged the citations and fines, filing a notice of contest with the Occupational Safety and Health Review Commission ("OSHRC"). Subsequently, the Secretary filed a complaint with the OSHRC alleging the same violations set forth in the citations. Secretary of Labor v. Mashantucket Sand & Gravel, OSHRC Docket No. 93-1985 (May 4, 1994) (Yetman, ALJ.). The matter was heard before an Administrative Law Judge ("ALJ") of the OSHRC, and the parties stipulated that the only issue for resolution was whether OSHA applied to MSG's activities at the Foxwoods site.

The ALJ, following the Ninth Circuit's three-step analysis in Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir.1985), decided that OSHA did not apply to MSG's activities. First, the ALJ determined that OSHA was a law of general applicability, thus triggering a presumption that it "appl[ied] with equal force to Indians on reservations." Coeur d'Alene, 751 F.2d at 1115 (quoting United States v. Farris, 624 F.2d 890 (9th Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 919, 920, 66 L.Ed.2d 839 (1981)).

Second, the ALJ examined whether OSHA fell within an exception to the rule of general applicability. One of these exceptions is that a federal statute will not apply to an Indian tribe if it affects " 'exclusive rights of self-governance in purely intramural matters.' " Id. at 1116 (quoting Farris, 624 F.2d at 893). The ALJ described MSG as part of the "tribal government," the activities of which were "devoted to executing political decisions of the tribal council relating to 'projects within the tribe' that benefit the tribe." Finding that MSG was a creation of the Tribe, its workers were employed by the Tribe, and all work was performed on the reservation at the behest of the Tribal Council, the ALJ concluded that MSG was engaged in governmental activities of a purely intramural nature. Accordingly, even though OSHA was a law of general applicability, MSG's intramural activities fell within the Coeur d'Alene exception to the general application of a federal statute.

The Secretary appealed the decision within the OSHRC, which largely adopted the ALJ's decision and affirmed. The Commission rejected the Secretary's contention that MSG's construction of a casino that operated in interstate commerce took MSG beyond the pale of purely intramural activities. Similarly, the Commission was not persuaded that MSG's employment of non-Indians made their operation "extramural," reasoning that " 'Indian sovereignty is not conditioned on the assent of a non-member; to the contrary, the non-member's presence and conduct on Indian lands are conditioned by the limitations the tribe may choose to impose.' " Secretary of Labor v. Mashantucket Sand & Gravel, OSHRC Docket No. 93-1985, 1995 OSHRC No. 47, 1995 WL 561587 (Sept. 20, 1995)(Weisberg, Chairman; Montoya, Comm'r) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 147, 102 S.Ct. 894, 907, 71 L.Ed.2d 21 (1982)).

The Secretary now appeals, urging us to follow the Coeur d'Alene framework, but to conclude that MSG's activities bring it under OSHA and do not fall within the intramural exception to statutory coverage. The Secretary contends that the Commission's root error lay in giving too much weight to MSG's status as an arm of the tribe; rather, he

argues, the proper focus should be on whether the employment relationship and construction activities were truly intramural. We agree with the Secretary, reverse the Commission's decision, and hold that OSHA applies to MSG's activities at the Foxwoods site.

DISCUSSION

I. Method of Analysis

The parties do not agree on how we should approach this case. The Secretary argues that, while the OSHRC properly followed the Ninth Circuit's test in Coeur d'Alene, it erred in its conclusion that OSHA would affect the Tribe's exclusive rights of self-governance in purely intramural matters. MSG argues that the OSHRC came to the right result, but should never have followed Coeur d'Alene in the first place. MSG argues that we should start with a presumption that, because it affects tribal sovereignty, OSHA does not apply unless Congress expressed its specific intent to abrogate tribal sovereignty. We reject MSG's approach as unworkable.

In Coeur d'Alene, the Ninth Circuit examined whether OSHA applied to a tribal farm. The court fashioned a three-part analysis. First, it borrowed a presumption, from a dictum in Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 553, 4 L.Ed.2d 584 (1960), that "a general statute in terms applying to all persons includes Indians and their property interests." Second, it noted three exceptions to the rule of general applicability:

A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches "exclusive rights of self-governance in purely intramural matters"; (2) the application of the law to the tribe would "abrogate rights guaranteed by Indian treaties"; or (3) there is proof "by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations...."

Coeur d'Alene, 751 F.2d at 1116 (quoting Farris, 624 F.2d at 893-94). Third, the court explained that even if a statute's application would interfere with tribal self-governance over purely intramural matters, it would still apply to Indians if Congress expressly applied the statute to Indians. See id. The Mashantucket Pequot Tribe has no treaty with the federal government, thus eliminating the second exception. And OSHA is silent as to Indians, thereby eliminating the third. We concern ourselves only with the first exception.

The Secretary wants us to begin with the Tuscarora presumption that OSHA applies to MSG's activities, and determine, under Coeur d'Alene, that OSHA does not affect "exclusive rights of self-governance in purely intramural matters."

MSG dismisses the Coeur d'Alene methodology as no longer viable in light of the Supreme Court holdings in United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), and Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). MSG would have us start with the presumption that federal statutes of general applicability touching upon sovereign rights of Indians do not apply to tribes, absent a clear indication of Congress's intent that the statute override tribal sovereignty. We conclude that Dion and LaPlante will not bear the load that MSG seeks to place on them.

In Dion the Court reviewed the Bald Eagle Protection Act, 16 U.S.C. § 668 et seq., and the Endangered Species Act, 16 U.S.C. § 1531 et seq., to determine whether either statute abrogated or modified a tribe's treaty-protected right to hunt bald eagles on its own reservation. The Court held that unless there "is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other,...