Secretary of Labor, Mine Safety v. Nat. Cement Co., 06-1094.

• Decision Date: 20 July 2007
• Docket Number: No. 06-1094.,06-1094.
• Citation: 494 F.3d 1066
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 1066

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.

No. 06-1094.

United States Court of Appeals, District of Columbia Circuit.

Argued February 26, 2007.

Decided July 20, 2007.

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 petitioner. With her on the briefs was W. Christian Schumann, Counsel.

Margaret S. Lopez argued the cause for respondent. With her on the brief was Michael T. Heenan. 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.

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 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, 98 S.Ct. 2053, 56 L.Ed.2d 591 (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, 85 S.Ct. 1162, 14 L.Ed.2d 75 (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, 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 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 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 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...