Su v. Alaska Goldmine LLC
| Docket Number | 4:23-cv-00019-JMK |
| Decision Date | 01 November 2023 |
| Parties | JULIE A. SU, Acting Secretary of Labor, United States Department of Labor, Plaintiff, v. ALASKA GOLDMINE LLC; and SHELDON MAIER, Defendants. |
| Court | U.S. District Court — District of Alaska |
ORDER GRANTING PRELIMINARY INJUNCTION
Pending before the Court at Docket 3 is Plaintiff's Motion for Preliminary Injunction. Plaintiff sought expedited consideration at Docket 5. The Court granted Plaintiff's Motion for Expedited Consideration and set responsive deadlines accordingly.[1]Defendants responded at Dockets 9-11. Plaintiff replied at Docket 12. Defendants filed an unsolicited answer at Docket 15. For the following reasons Plaintiff's Motion for Preliminary Injunction is GRANTED.
Defendant Sheldon Maier, and his wife Janne,[2]operate an above-ground gold mine under the corporate moniker Alaska Goldmine LLC (“Alaska Goldmine”), also a named Defendant in this action.[3]The mining operation is located at mile marker 16 of the Steese Highway, near Fairbanks Alaska.[4] Plaintiff refers to this mining operation as “the Pedro Creek Mine; whereas, Defendants refer to it as “One Above Discovery.”[5]For clarity, the Court will refer to this mine as Pedro Creek.
On August 24, 2022, the Mine Safety and Health Administration (“MSHA”) attempted to perform an inspection of the Pedro Creek site after receiving an anonymous complaint alleging an illegal mine operation.[6]MSHA Inspector Towne made contact with Defendant Maier, presented his credentials, and informed Maier of his intent to perform an inspection per Section 103 of the Mine Act, 30 U.S.C. § 813(a).[7]Defendant Maier denied MSHA access to the site to inspect the mining operation.[8]Plaintiffs allege that subsequent observations of the site from the highway showed mining equipment moving.[9]
On September 13, 2022, MSHA Inspectors Towne and Berberich attempted to inspect the mining operation, this time accessing the site via helicopter.[10]Plaintiff alleges that upon landing, the MSHA Inspectors observed several pieces of mining equipment, including a trommel (which, based on Inspector Towne's experience is only used for gold mining), and a “fresh cut” in the earth.[11]Based on their plain view, MSHA Inspectors made the determination that the Pedro Creek site was a gold mining operation.[12]Allegedly, upon Defendant Maier's arrival, Inspector Berberich asked Defendant Maier if he was willing to register the mine with MSHA per Section 109(d) of the Mine Act.[13] Plaintiffs further allege that Defendant Maier asserted that MSHA lacked authority to inspect, denied entry to the site, and the MSHA Inspectors departed.[14]
Subsequently, on that same day, MSHA issued seventeen citations to Defendant Alaska Goldmine. The citations related to the alleged hazards caused by:
four damaged windows on dozer obstructing the driver's view; no berms on the mine's roadways; an unguarded drive chain and drive sprocket; an unguarded drive belt, pulley and fan blades; an unguarded tail pulley; a unsloped highwall containing loose and overhanging material; unguarded belt rollers; a lack of flotation devices next to water hazards; a van used to jump start water pumps parked on a down grade; a 120 volt control box missing knockouts; an unguarded drive belt and fan blades; no traffic signage; no first aid supplies . . . lack of a training plan, failing to notify MSHA of a new mining operation, failing to notify MSHA upon commencing operations, and denying MSHA entry to the mine for purpose of conducting an inspection.[15]
On September 13, 2022, MSHA issued a citation/order number 9615288 (“MSHA Order”) which directed Defendant Alaska Goldmine “withdraw all the miners until the miners have received the required training.”[16]
On June 16, 2023, Inspector Towne returned to Pedro Creek Mine, observed moving mining equipment, and attempted to serve fourteen failure to abate orders under Section 104(b).[17]Inspector Towne attached the orders to the gate lock and later that day observed that the orders were no longer attached to the gate.[18]Plaintiff alleges that “[d]espite phone calls, UPS mailing, and visits to the mine, Defendant Maier refused to respond to MSHA or provide evidence that the cited hazards had been abated.”[19]
Plaintiff alleges that Defendants are aware of the citations as evidenced by an interview posted on April 6, 2023 on the “The Michael Dukes Show” YouTube Channel titled “Thursday 4/6/2023 - Session & Mining: Rep McCabe & Sheldon Maier.”[20]Plaintiff alleges that during June and July 2023, the Department of Labor left messages requesting to speak to Defendant Maier; who responded by letter that Alaska Goldmine has never authorized inspectors to be on site and would continue to refuse MSHA inspections.[21] On September 6, 2023, Plaintiff filed a Complaint for Injunctive Relief and a Motion for Preliminary Injunction.[22]The Complaint alleges that:
Defendants have (1) refused to admit the authorized representatives of the Acting Secretary onto, and to permit the inspection of, a mine site, in violation of Section 103(a), 30 U.S.C. § 813(a); (2) interfered with, hindered, and refused to permit the Acting Secretary's representatives from carrying out the provisions of the Mine Act, in violation of Section 103(a), 30 U.S.C. § 813(a); (3) and refused to comply with Order No. 9615288, in violation of Section 104(g)(1), 30 U.S.C. § 814(g)(1).[23]
In the Complaint, Plaintiff requests the Court enjoin Defendants, agents, and employees from (1) denying representatives of MSHA or the Department of Labor entry to Pedro Creek; (2) refusing inspection of the mine and any equipment; (3) interfering, hindering, or delaying representatives from carrying out provisions of the Mine Act; and (4) refusing to comply with Order of Withdrawal No. 9615288, per Section 104(g)(1).[24]
Plaintiff's Motion for Preliminary Injunction, made pursuant to Federal Rule of Civil Procedure 65, re-summarizes MSHA's alleged attempts to inspect the Pedro Creek Mine and Defendants' refusal to comply.[25]Plaintiff requests the Court enjoin Defendants “from denying MSHA entry into the Pedro Creek Mine and from allowing any miners onto the mine site until such miners have received training required under the Federal Mine Safety and Health Act.”[26]Plaintiff argues that a preliminary injunction is necessary in order for MSHA to (1) “comply with their Congressional mandate to complete bi-annual inspections of surface mines”;[27] and (2) “enjoin Defendants from harassing, intimidating, and threatening MSHA inspectors assigned to inspect the mine.”[28]On September 8, 2023, Plaintiff filed a Motion to Expedite Consideration of its Motion for Preliminary Injunction, which the Court granted on September 11, 2023.[29]The Alaskan above-ground mining season closes approximately October 31, 2023.[30]
On September 25, 2023, Defendants filed a joint Answer to the Complaint and response to the Motion for Preliminary Injunction, along with a Motion to Deny Expedited Consideration.[31]In brief summary, Defendants answer that: Plaintiff's motion violates their Fourth Amendment right to be free from unreasonable search and seizure;[32] MSHA Inspectors repeatedly failed to provide their names, made threats against Defendants, and trespassed.[33]Defendants also deny that they harassed, intimidated, or threatened MSHA Inspectors by refusing inspection or by filming inspectors.[34]
Addressing the Motion for Preliminary Injunction, Defendants assert that Defendant Maier's media appearances are protected by the First Amendment; Defendants maintain a “right to refuse communication from MSHA when MSHA has shown no habeas corpus for their original claim of an ‘anonymous complaint'”; and they have communicated through to MSHA through Senator Sullivan's Office and the Office of Inspector General.[35]Defendants argue that “[g]ranting this injunction would also cause irreparable harm because it would allow violations of 4th [A]mendment rights and harassment and coercion under color of law” . . . and “harm the very foundation of our nation and compromise the integrity of federal employees everywhere.”[36] Defendants assert that MSHA's citations are the result of an illegal inspection and designed to punish Defendants.[37]
On September 28, 2023, Plaintiff replied with four arguments.[38]First, Plaintiff requests the Court strike the response as to Alaska Goldmine, because as a selfrepresented litigant, Defendant Maier, may not represent or file on behalf of Alaska Goldmine LLC.[39]Second, Plaintiff argues that Defendants' response does not refute any of the factual basis that would alleviate application of the Mine Act or the need for injunctive relief.[40]Third, Plaintiff argues that Defendants fail to address the framework of the Mine Act and the reliance on Marshall v. Wait, 628 F.2d 1255 (9th Cir. 1980), is inapposite.[41]Lastly, Plaintiff asserts that the anonymous complaint is not that “of a whistleblower making specific safety complaints,” but rather “information of a mine operating illegally, in that it was unregistered and not being inspected per the Mine Act requirements.”[42] On October 17, 2023, Defendant Maier filed an “Answer to Declaration of Acting Secretary's Reply to Defendant's Response to Motion for Preliminary Injunction.”[43]In brief summary, Defendant Maier addresses recent correspondence from MSHA summarizing the “anonymous complaint.”[44]Defendants contend that a complaint from a “slighted neighbor” “is not a safety complaint.”[45]This neither is a motion nor an authorized filings under the Local or Federal Rules of Civil Procedure.[46]
The Court takes judicial notice that Sheldon and Janne Maier filed a...
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