[00:00:00] Speaker 01:
Case number 22-1071, Secretary of Labor, Mine Safety and Health Administration Petitioner versus KC Transport Inc and Federal Mine and Health Review Commission.

[00:00:11] Speaker 01:
Ms.

[00:00:11] Speaker 01:
Maltz for the petitioner, Mr. Dynar for the respondents.

[00:00:16] Speaker 03:
Good morning.

[00:00:17] Speaker 03:
We'll hear from secretary.

[00:00:20] Speaker 07:
Good morning.

[00:00:21] Speaker 07:
May it please the court.

[00:00:22] Speaker 07:
I'm Susanna Maltz for the secretary of labor.

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I'd like to reserve two minutes for rebuttal, please.

[00:00:28] Speaker 07:
I don't know whether I've effectively done that.

[00:00:32] Speaker 07:
Thank you.

[00:00:34] Speaker 07:
The court is familiar with this case, so I'll be brief in my opening remarks.

[00:00:39] Speaker 07:
The Mine Act covers facilities and equipment used in mining.

[00:00:43] Speaker 07:
This court has already recognized this in Donovan versus Carolina's daylight.

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This court can resolve this case on the basis of the facility at issue here alone.

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This facility was used in mining.

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I'll turn to the court's first supplemental question.

[00:01:02] Speaker 03:
I think there's a problem with you and having us rely on Donovan v. Stay Light and you relying on Donovan v. Stay Light because it's a case where the court deferred to the secretary's interpretation and characterized itself as

[00:01:20] Speaker 03:
accepting it because it was within the bounds of reasonableness, I'm paraphrasing.

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And that's not the way that we do things anymore after local right.

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So the reasoning may have some independent force, but it would have to have independent force for us to follow that reasoning as opposed to the methodology that the court used to get there.

[00:01:50] Speaker 03:
Yes, your honor.

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But we think that if you disagree with that, please explain.

[00:01:55] Speaker 07:
The secretary is not asking for deference.

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But I do agree that the independent reasoning in Donovan versus Carolina's daylight is sufficient for this court to rely on now, post-Lobre-Brite, in deciding this case.

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I would characterize the reasoning

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Donovan versus Carolina's Daylight as based on the text of the statute and the use in mining language.

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And so I do think that that's useful for the court here.

[00:02:33] Speaker 03:
So on the issue of whether location has any basis as far as interpreting this subsection, you say no.

[00:02:49] Speaker 07:
not quite um location is relevant and the secretary has has argued that location can be relevant to or is relevant to whether or not something is used in mining um but it need not be dispositive and so you know in so far as the court's supplemental questions get at whether um a subsection c piece of equipment or facility need be located on subsection a lands or a subsection b road or

[00:03:17] Speaker 07:
at a subsection C custom coal processing plant or whether movable items need to be located in a particular place on non movable items.

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You know, location is a consideration, but no those subsection C items need not be located on those those things.

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So.

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I have been intrigued by.

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trying to understand the relationship between A, B, and C of the subsection H1.

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And if you look at B, so A is the area of land basically where extraction occurred.

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And then B are private ways and roads pertinent to such an area where extraction occurred.

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And one way

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of thinking about a pertinent is, well, maybe that means some sort of kind of rotational basis or proximity.

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But usually when discussing land and whether something is pertinent to a piece of land, you look at Black's Law Dictionary and Supreme Court cases about this.

[00:04:39] Speaker 03:
um it's a pertinent if it's kind of necessary to and connected with the use and enjoyment of the land um so an easement isn't a pertinent because you need it to get across the neighboring property to access the road from your property or you need it to access a lake that's a few miles away in your development because

[00:05:08] Speaker 03:
One of the amenities of having land in that development is that you can dock your boat at the lake.

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So an appartment might be adjacent.

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It might be distant away.

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But the thing that matters is that it's necessary and connected to the use of the land.

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Reason I think that might be significant is under C, where it says used in to be used in resulting from

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maybe congress was getting at the same thing and using those phrases with those verbs in that way so that the location the tool or equipment isn't a mine just wherever it is but where it's located at a place that is necessary to the extraction or milling or preparation of minerals in

[00:06:06] Speaker 03:
um, that place is necessary to and connected with that operation.

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What do you think about that?

[00:06:15] Speaker 07:
I think that that makes sense.

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Um, you know, I just want to be careful to be clear that the secretary's position is that, you know, a movable subsection C item, of course, has a physical location in the world.

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You know, it's physically extant.

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But, um, let me, well, let me say I agree with that characterization.

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Um, and I just want to be clear that, you know, if there were a piece of equipment

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not located on a facility.

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It's a secretary's position that if it were necessary and connected to mining operation use and mining, then it would be covered under the act.

[00:06:48] Speaker 03:
And that's different than I think perhaps saying that it has to be at a location that or facility that is itself necessary to and connected with the extraction refining preparation milling.

[00:07:06] Speaker 07:
Yes, and that's not the secretary's argument, though this court could determine that this facility here was covered by the act and not reach that additional question of equipment out in the world.

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What's your view of, as far as any responses to the other questions that we asked for supplemental brief?

[00:07:48] Speaker 07:
I have several views, which I'm happy to speak about.

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So if it's useful, I'll focus on the movable subsection C items and whether they need to be located on the non-movable items in that list, if that's of interest here.

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You know, the secretary's argued there's no support for that in the text of the statute.

[00:08:12] Speaker 07:
The statutory language doesn't distinguish between the movable and non-movable items.

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That would violate the rule against surplusage.

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You know, we must assume that Congress included that entire list of items deliberately.

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The secretary's also not aware of any case law interpreting that section that way.

[00:08:31] Speaker 06:
It seems that you rely on the used in mining

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limitation to kind of rationalize what could be viewed as a kind of limitless jurisdiction.

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And so I'm interested in how you interpret used in mining.

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Does it have to be presently used in mining and predominantly used in mining?

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Or how do you interpret that?

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Sure.

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So as the secretary has argued, perhaps frustratingly to this court, use in mining is very, very fact intensive.

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Um, so, you know, there's not the broad guidelines for that.

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Some considerations trying to use to prove like, what are you trying to prove?

[00:09:13] Speaker 07:
Some considerations have emerged from the case law.

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Um, location is quite relevant and, and, um, here in this particular case, location is quite relevant.

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This, this facility was located a thousand feet from the subsection B road.

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Uh, it, you know, it's only accessible through a private security gate.

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These are considerations that would

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speak to its use in mining.

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It's sort of at the center.

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The thing is, if you just tell us used in mining is in fact intensive and it's what we say it is, that's difficult for me to accept.

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But if you tell me used in mining is it's presently and predominantly used in mining, and then we look at the facts to see if that's true, that gives me a standard to apply.

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But if you say it's whatever we say it is and it's fact intensive, then that is not a good standard.

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I apologize, Judge Pan.

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I don't mean to imply that.

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There are considerations in the secretary's initial opening brief in November 2022.

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We speak about the sort of present nature of use in mining.

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It doesn't, you know, it doesn't mean that once an item is used in mining, it's perpetually used in mining.

[00:10:12] Speaker 07:
So there's

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there is a present tense.

[00:10:14] Speaker 06:
So presently and more than 50% use in mining?

[00:10:17] Speaker 07:
Well, I would be reluctant to ascribe a percentage to it.

[00:10:21] Speaker 07:
Would it have to be at least 50%?

[00:10:25] Speaker 07:
I don't know that I can answer that.

[00:10:27] Speaker 06:
Then you get the hypotheticals that, oh, we used it once in mining, or we use it once a year in mining, and now it's in the parking lot of a diner.

[00:10:37] Speaker 06:
Can you inspect that?

[00:10:38] Speaker 06:
Right.

[00:10:38] Speaker 06:
So if you say it's predominantly

[00:10:40] Speaker 06:
and presently used in mining, then I think it goes a little bit more towards limiting your jurisdiction.

[00:10:47] Speaker 07:
Yes.

[00:10:47] Speaker 07:
So some case law speaks to sort of a de minimis use in mining wouldn't be use in mining.

[00:10:54] Speaker 07:
So let me back up and just say it's fact intensive, but there are these considerations, location, like a de minimis consideration, the function.

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And then there is the interagency agreement between MSHA and OSHA that sort of lays out specific

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You know, that sort of a lot specific types of things to either agency.

[00:11:14] Speaker 07:
So those that that those considerations are, you know, some of what would be useful in making that back intensive decision.

[00:11:27] Speaker 03:
I hear your friends on the other side point out that there are criminal provisions in the mine act.

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I think they're at section 813 or no 820 rather for willful violations.

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And if the test is just some sort of amorphous

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standardless fact intensive test.

[00:12:02] Speaker 03:
They say that that raises due process type problems and so we can't have that.

[00:12:11] Speaker 03:
So what's your response to that?

[00:12:14] Speaker 07:
So 820 imposes criminal penalties on manufacturers who misrepresent equipment as permissible for use in mines.

[00:12:23] Speaker 07:
That has nothing to do with them, just civil enforcement.

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provision of the act that's enforced by the Department of Justice.

[00:12:30] Speaker 07:
But just to address sort of the broader concept of whether or not operators have sufficient notice, the secretary has been enforcing this.

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This has been the secretary's approach for decades.

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Donovan versus Carolinas Daily demonstrates that.

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So operators do have notice.

[00:12:51] Speaker 07:
I hope I've answered your question.

[00:12:54] Speaker 03:
Notice of what?

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I mean, if an operator, if a person drives a truck that's used in excavation to the local diner and parks in the parking lot and has brunch,

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and there's some sort of a violation that is observed at that location.

[00:13:36] Speaker 03:
How do they have notice or not as to whether or not they have willfully violated a mandatory health or safety standard?

[00:13:47] Speaker 03:
That's the language in A-20D.

[00:13:53] Speaker 07:
I'm reluctant to engage with that type of hypothetical in that, you know, KC Transport has cited no instance of this type of enforcement in diner parking lots.

[00:14:03] Speaker 03:
I don't care whether it's happened or not.

[00:14:07] Speaker 03:
I mean, your job, respectively, is to answer our hypotheticals.

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I understand.

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Whether you're concerned about it doesn't matter to the court.

[00:14:17] Speaker 03:
If I'm concerned about it, that ought to matter to you.

[00:14:22] Speaker 07:
Of course.

[00:14:24] Speaker 03:
I'm sorry, can you repeat the question?

[00:14:27] Speaker 03:
So how do you deal with the kind of due process notice vagueness concerns?

[00:14:33] Speaker 03:
Of.

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Of your proposed standard for figuring out whether something is a. Why why why should we not have any?

[00:14:47] Speaker 03:
Such concerns.

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And the answer can't be just trust us.

[00:14:53] Speaker 07:
Well, the statute does lay out this used in mining language.

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And so insofar as the operator can speak with Emsha about whether something, operators can engage with and communicate with Emsha over use in mining.

[00:15:09] Speaker 06:
Isn't the notice that you're on notice that you are liable for any violations that might occur in your equipment that's used in mining?

[00:15:20] Speaker 06:
Yes.

[00:15:21] Speaker 06:
And so they don't need to have specific notice of where they're going to be inspected, because I think I read in Carolina's Daylight, you don't get notice of when the inspection is happening, because that's part of the process.

[00:15:33] Speaker 06:
It can happen at any time.

[00:15:36] Speaker 06:
Yes.

[00:15:37] Speaker 06:
So the notice is really about the violation and not where the inspection might occur, isn't it?

[00:15:44] Speaker 07:
Yes, that's fair.

[00:15:46] Speaker 07:
You know, I anticipate that this answer won't be entirely satisfying to the court.

[00:15:49] Speaker 07:
But to the extent that EMSA did cite something at a diner parking lot, the operator could challenge it in court.

[00:15:56] Speaker 07:
I recognize that that's not a totally responsive answer.

[00:16:00] Speaker 07:
But the statute says what it says.

[00:16:03] Speaker 07:
And it means equipment used in mining.

[00:16:08] Speaker 06:
But why is it absurd to, if you see a blatant violation in a diner parking lot

[00:16:14] Speaker 06:
a pressure dredger or auger, something that's definitely used in mining, is it so absurd to cite the operator in a diner parking lot?

[00:16:26] Speaker 07:
Well, I think my colleagues would have a lot to say about that, my colleagues on the other side.

[00:16:34] Speaker 07:
Given that I think the Mine Act obviously has a health and safety purpose.

[00:16:39] Speaker 07:
So you think that is absurd?

[00:16:41] Speaker 07:
No, I don't necessarily think that's absurd.

[00:16:43] Speaker 07:
But I do understand concerns about a totally limitless.

[00:16:46] Speaker 07:
Well, I shouldn't say totally limitless, because we certainly don't concede that it's totally limitless.

[00:16:50] Speaker 07:
But I do understand concerns about these very, very fringe, extreme hypothetical circumstances.

[00:16:57] Speaker 07:
But no, I would not call it absurd.

[00:16:59] Speaker 07:
And I do.

[00:17:00] Speaker 04:
What are the geographic limits?

[00:17:03] Speaker 07:
Well, the limits are use in mining.

[00:17:05] Speaker 07:
And so if something, imagine.

[00:17:08] Speaker 07:
I understand.

[00:17:09] Speaker 07:
I apologize.

[00:17:11] Speaker 07:
I don't mean to speak over you or be non-responsive.

[00:17:18] Speaker 07:
If a truck were quite close, that would probably speak to its use in mining more than if it were 5,000 miles away.

[00:17:26] Speaker 07:
And I understand that this is not the most useful answer.

[00:17:32] Speaker 07:
But there's not a specific geographic limit.

[00:17:34] Speaker 07:
It would be a fact-intensive inquiry.

[00:17:37] Speaker 04:
And it's conceivable that a piece of equipment 5,000 miles away would be a mine.

[00:17:45] Speaker 07:
It would be quite unusual.

[00:17:48] Speaker 07:
It would be very strange and bad business practice, I think, if KC Transport had a erstwhile 5,000 mile away.

[00:17:58] Speaker 04:
I agree with KC Transport's trucks, but let's say that I

[00:18:06] Speaker 04:
I'm an independent contractor for a mining company.

[00:18:10] Speaker 04:
And they have me use my hammer and chisel every day.

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And I do it five days a week.

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And I've done it for five years.

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And I take a weekend trip to Alaska.

[00:18:24] Speaker 04:
I fly there, 5,000 miles away from the mine, take my hammer and chisel with me.

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Probably check that baggage instead of carrying it on.

[00:18:33] Speaker 04:
And I'm going to bring it back the next week and keep using it every day of the week.

[00:18:37] Speaker 04:
Keep using it for five years.

[00:18:39] Speaker 04:
So would that hammer and chisel wilds in Alaska be a mine?

[00:18:43] Speaker 07:
Judge Walker, I cannot say.

[00:18:44] Speaker 07:
I understand that that's not satisfying.

[00:18:47] Speaker 07:
But I think that would be quite unusual.

[00:18:50] Speaker 04:
What would it take to make it not a mine?

[00:18:53] Speaker 07:
If it were not used in mining.

[00:18:55] Speaker 04:
I just told you, though, it's used every day in mining.

[00:18:59] Speaker 07:
Well, I don't know that it's used in mining when it's in Alaska.

[00:19:03] Speaker 07:
I think, you know, that would require some.

[00:19:06] Speaker 04:
I apologize for speaking over you, but it's used every day in a Virginia mine.

[00:19:14] Speaker 04:
And I take it for the weekend to Alaska.

[00:19:19] Speaker 04:
I'm not using it while I'm on vacation in Alaska.

[00:19:22] Speaker 04:
But I'm going to use it the next Monday when I come back to the Virginia mine.

[00:19:28] Speaker 07:
And in this hypothetical, MSHA's issue is inspecting the pickaxe in Alaska.

[00:19:34] Speaker 07:
I think that's a very, you know, I should say, I don't think that that's a realistic

[00:19:42] Speaker 07:
outcome, but I do understand my role is to respond to these hypotheticals.

[00:19:45] Speaker 06:
Is it the natural implication of your argument, yes, the pickaxe is a mine?

[00:19:50] Speaker 06:
But we probably wouldn't.

[00:19:51] Speaker 06:
The answer is yes.

[00:19:52] Speaker 05:
We wouldn't inspect it in Alaska, but yes, we could.

[00:19:55] Speaker 05:
Isn't that the natural implication of your position?

[00:19:57] Speaker 07:
I don't agree that that's entirely the natural outcome, because location is relevant.

[00:20:07] Speaker 06:
How consistent with your position that the literal reading of the statute

[00:20:11] Speaker 06:
controls, and the pickaxe is not a mine.

[00:20:13] Speaker 07:
Well, if the pickaxe is in Alaska on a Sunday afternoon, the considerations about the location far from the mine and about the use of that pickaxe at that moment, which we've.

[00:20:28] Speaker 06:
So you think location does matter?

[00:20:29] Speaker 06:
Because the fact that it's in Alaska.

[00:20:30] Speaker 07:
We think that location is relevant to the question of whether or not it's used in mining.

[00:20:35] Speaker 06:
It's just not this positive.

[00:20:36] Speaker 06:
But it is used in mining all the time.

[00:20:37] Speaker 06:
It just happens to be in Alaska for the weekend.

[00:20:39] Speaker 07:
I understand.

[00:20:40] Speaker 07:
But is it used in mining at that moment?

[00:20:42] Speaker 07:
And I should say.

[00:20:43] Speaker 07:
It has to be used in mining at that moment.

[00:20:44] Speaker 07:
No.

[00:20:45] Speaker 07:
I should say that this is in the secretary's opening brief.

[00:20:49] Speaker 07:
But it's not a hyper literal interpretation of a present tense.

[00:20:53] Speaker 07:
So it seems possible that it is used in mining.

[00:20:57] Speaker 07:
But again, that's a question.

[00:20:59] Speaker 06:
understood your brief to be saying location doesn't matter if it's used in mining.

[00:21:03] Speaker 06:
It matters only in deciding whether it's used in money or not.

[00:21:07] Speaker 06:
But the ultimate question is, is it used in mining?

[00:21:10] Speaker 06:
And the natural implication of your position is under Judge Walker's hypothetical, this pickaxe is a mine.

[00:21:16] Speaker 06:
We probably or we wouldn't

[00:21:19] Speaker 06:
realistically inspected in Alaska, but we could.

[00:21:22] Speaker 06:
But I thought that's the natural implication of your argument.

[00:21:25] Speaker 06:
And also, your whole argument about dredges, augers, and pushers is they're not on extraction sites or processing plants, but they are used in mining.

[00:21:33] Speaker 06:
No matter where they are, you can inspect them.

[00:21:35] Speaker 06:
They could be in Alaska and you can inspect them.

[00:21:38] Speaker 06:
You can inspect them wherever they are because you put them on roads that are not near extraction or

[00:21:42] Speaker 06:
processing sites and they're still mines.

[00:21:45] Speaker 06:
That was my understanding of your brief.

[00:21:46] Speaker 07:
So I think that's a fair understanding, although I should say, you know, the secretary isn't arguing that location has no relevance at all, just that it's not dispositive.

[00:21:54] Speaker 07:
And, you know, the dredger, the dredges, excuse me, can't take a dredge on an airplane.

[00:22:00] Speaker 07:
So it doesn't, you know, fit into that hypothetical, but.

[00:22:04] Speaker 06:
But the point is, it doesn't matter where it is.

[00:22:07] Speaker 06:
Your position is it doesn't matter where it is.

[00:22:09] Speaker 06:
If it's used in mining.

[00:22:11] Speaker 06:
Then it's a mine.

[00:22:13] Speaker 05:
That's your position.

[00:22:14] Speaker 07:
I think there's there's a it's not that it doesn't matter where it is.

[00:22:19] Speaker 07:
It's just that, you know, even when it is not on land from which minerals are extracted or on a road or on another non movable sea item, even when it's not on those, it's still used in mining.

[00:22:34] Speaker 07:
I recognize that that's very close, but I do think that there's a distinction between

[00:22:40] Speaker 07:
location not mattering at all and location not requiring a dredge to be in any of those particular places in order for EMSA to inspect it.

[00:22:51] Speaker 03:
I think the other thing to consider when we're trying to figure out what used in mining or to be used or resulting from the work

[00:23:02] Speaker 03:
what that means in subsection C is that if you compare H2 to H1 to H2 and 802H2 is the definition of COLEMOT and that had been, you know, the definition that was in existence long before these 1977 amendments that added this new definition that we are struggling with.

[00:23:32] Speaker 03:
But the coal mine definition talks about an area of the land and all structures, facilities, machinery, tools, et cetera, placed upon, under, or above the surface of such land.

[00:23:47] Speaker 03:
So it links the tools, equipment, et cetera,

[00:23:55] Speaker 03:
to the land directly by saying it has to be placed upon under or above the surface.

[00:24:03] Speaker 03:
For whatever reason, Congress in its wisdom didn't write H1 that way.

[00:24:08] Speaker 03:
And so you have subsection A, this area of land where minerals are extracted, but unless we have C,

[00:24:21] Speaker 03:
we wouldn't even be able to know for sure that tools, equipment that are being used in the mining right at the extraction site would be considered mines.

[00:24:35] Speaker 03:
There'd be an argument that only the land is the mine, but the tools aren't, because you didn't say anything about that in A, the same, it's not written the way that H2 was written.

[00:24:48] Speaker 03:
So that's some of the work

[00:24:50] Speaker 03:
that subpart C does, it makes sure that equipment, machines, and tools that are at the extraction site or at a preparation site or milling site, that those are considered mines as well and can be inspected.

[00:25:08] Speaker 03:
Is that correct?

[00:25:10] Speaker 07:
No, I disagree with that interpretation.

[00:25:17] Speaker 07:
Subsection A lands, if EMSA had jurisdiction over the land itself, but not anything on it, that would defy common sense and be purpose-defeating because then EMSA couldn't inspect a continuous mining machine or a longwall mining machine, just the earth around it.

[00:25:33] Speaker 07:
And that's simply not how Subsection A has played out.

[00:25:40] Speaker 07:
then there's of course the lands on land issue.

[00:25:43] Speaker 03:
Whether it played out and whether whether courts in the past have interpreted that way I kind of don't care about.

[00:25:51] Speaker 03:
I can't speak for the other members of the panel but we're supposed to at this point just look anew at the text and give it give our best shot at the best interpretation and so when I look at

[00:26:09] Speaker 03:
When I read the text and I compare H2 to H1, there's that obvious difference in how they're drafted.

[00:26:20] Speaker 03:
And to get to all of the equipment on the land where extraction is happening, that's some of the work that C does.

[00:26:30] Speaker 03:
But you're saying no.

[00:26:32] Speaker 03:
C isn't doing that work at all.

[00:26:36] Speaker 07:
That's right.

[00:26:36] Speaker 03:
And then why does it even say used and or to be used and or resulting from the work of extracting such minerals if tools and equipment and machinery from extraction were already covered in A?

[00:27:00] Speaker 07:
Well, tools and machinery, et cetera, from extraction are covered in A, when they are on those lands where minerals are extracted.

[00:27:08] Speaker 07:
But in C, they're covered when they are used in mining.

[00:27:12] Speaker 07:
So there's a distinction there.

[00:27:16] Speaker 07:
And the text of it.

[00:27:17] Speaker 03:
So when Congress says a coal or other mine is an area of land, they mean an area of land and any bulldozers sitting on it.

[00:27:30] Speaker 07:
Yes, because land can't bulldoze itself, which I think Congress recognized.

[00:27:35] Speaker 07:
And Congress has instructed that the definition be given the broadest possible effect, which I think would tend to support an argument that- They said that in legislative history.

[00:27:46] Speaker 03:
Yes.

[00:27:46] Speaker 03:
They didn't say that anywhere in tech.

[00:27:48] Speaker 07:
Yes.

[00:27:50] Speaker 07:
Yes, that's correct.

[00:27:53] Speaker 07:
I should say, just very briefly, H2.

[00:27:57] Speaker 07:
deals with entitlement to black lung benefits and it doesn't have to do with the scope of anxious enforcement authority.

[00:28:03] Speaker 07:
So, you know, I recognize why it's relevant to sort of compare the two, but it's just not terribly relevant to what each one is driving at and the purpose of each one, which is to define the scope of anxious enforcement authority and of the of anxious inspection authority, et cetera.

[00:28:22] Speaker 04:
And I do have a list of questions.

[00:28:25] Speaker 04:
And I beg for your patience and my colleagues' patience as well.

[00:28:29] Speaker 04:
I want to nail down the Alaska hypothetical to start with.

[00:28:34] Speaker 04:
It sounds like I gave the hypothetical you said maybe it would be a mine, maybe it wouldn't be mine.

[00:28:40] Speaker 04:
What facts would it take to make it not a mine?

[00:28:46] Speaker 07:
I think if you took it to Alaska and it

[00:28:49] Speaker 07:
We're lost in the vast tundra.

[00:28:52] Speaker 07:
That's not the hypothetical.

[00:28:54] Speaker 07:
I understand.

[00:28:55] Speaker 07:
I apologize that I don't think I can give you a satisfying set of facts, because there isn't a multi-factor test.

[00:29:02] Speaker 07:
But there are these considerations.

[00:29:04] Speaker 04:
My facts.

[00:29:05] Speaker 04:
I used it every day in mine.

[00:29:06] Speaker 04:
I ate Alaska for the weekend.

[00:29:07] Speaker 04:
I'm going to bring it back.

[00:29:07] Speaker 04:
I used it every day in the mine afterwards.

[00:29:08] Speaker 04:
I had it with me the whole time.

[00:29:10] Speaker 04:
You can think of no facts that would make it not a mine, other than facts that are inconsistent with my hypothetical.

[00:29:18] Speaker 04:
Is that correct?

[00:29:20] Speaker 07:
I suppose that's correct, you know, accepting that premise, but, um, facts inconsistent with the hypothetical.

[00:29:29] Speaker 07:
I just, you know, there's a whole universe of potential facts that could make it out of mine and, um, that are consistent with my hypothetical.

[00:29:39] Speaker 07:
I wouldn't be able to, to articulate them for you.

[00:29:42] Speaker 07:
I just can't articulate a fact, a multifactor test or something like that.

[00:29:45] Speaker 07:
That's, that's just not,

[00:29:46] Speaker 07:
with the case law.

[00:29:48] Speaker 04:
One more hypothetical, then I think I'm done with hypotheticals.

[00:29:51] Speaker 04:
Same guy uses the pickaxe every day in the mine for years on the weekdays.

[00:29:56] Speaker 04:
He's going to continue to.

[00:29:57] Speaker 04:
He brings it home and puts it in his garage.

[00:30:00] Speaker 04:
Actually, even better.

[00:30:00] Speaker 04:
He just puts it in his living room every night.

[00:30:05] Speaker 04:
Is it a mine overnight in his living room?

[00:30:08] Speaker 07:
You know, I can't say.

[00:30:10] Speaker 04:
What fact would it take to make it not a mine?

[00:30:13] Speaker 07:
I understand, but this is a frustrating answer.

[00:30:16] Speaker 07:
I cannot, you know, put forward facts about that particular hypothetical items use in mining.

[00:30:23] Speaker 04:
I think happily that my question, which is that you there, you cannot think of any fact in the universe that would make the hammer in his living room, not a mine.

[00:30:34] Speaker 07:
I don't, I wouldn't characterize it that way.

[00:30:36] Speaker 04:
No.

[00:30:36] Speaker 04:
Well, if you can think of a fact, why can't you name the fact?

[00:30:40] Speaker 07:
I don't quite know how to answer that either, but I just can't put forward various facts in these hypothetical situations.

[00:30:49] Speaker 04:
Let me ask about a question that Judge Wilkins asked in the previous oral argument.

[00:30:53] Speaker 04:
He said, you may not know the answer to this, but I guess as a practical matter, does IMSA have some sort of regulatory process whereby it requires mining companies to give it an inventor, so to speak?

[00:31:07] Speaker 04:
all their various facilities that might fall within the definition.

[00:31:12] Speaker 04:
And you didn't know at the time.

[00:31:15] Speaker 04:
Do you know now?

[00:31:18] Speaker 07:
So there is a regulation.

[00:31:21] Speaker 07:
This is not quite responsive to that precise question, but I think it's helpful.

[00:31:25] Speaker 07:
There's a regulation that requires operators to inform EMSHA when they begin mining, when they temporarily pause mining or permanently pause mining.

[00:31:37] Speaker 07:
communicate that to Emsha.

[00:31:40] Speaker 07:
So I think that captures some of what that question was driving at.

[00:31:46] Speaker 04:
Does the notification include an inventory?

[00:31:49] Speaker 07:
Well, the notification would be about the land or the subsection C item, hypothetically.

[00:31:58] Speaker 07:
If there were a portable crusher, the operator of that crusher would speak with Emsha about when it and where it's mining.

[00:32:07] Speaker 07:
So not an inventory per se, but it would communicate about that.

[00:32:11] Speaker 07:
That communication would involve some information about these items.

[00:32:17] Speaker 07:
But to my knowledge, I don't know that there's a list that operators provide.

[00:32:22] Speaker 04:
I appreciate that.

[00:32:25] Speaker 04:
The Sixth Circuit seems like it's, I think last time you were here, you said the Sixth Circuit's in conflict with where the D.C.

[00:32:31] Speaker 04:
Circuit was, at least pre-loper.

[00:32:33] Speaker 04:
And the Sixth Circuit would be in conflict with where you want the D.C.

[00:32:37] Speaker 04:
Circuit to go, correct?

[00:32:39] Speaker 07:
Yes.

[00:32:40] Speaker 07:
And, you know, I should say, I apologize.

[00:32:43] Speaker 04:
You can remember that thought.

[00:32:44] Speaker 07:
I'll write it down.

[00:32:46] Speaker 04:
Please.

[00:32:47] Speaker 04:
The Fourth, Seventh, and Eighth Circuits, would you want us to be

[00:32:52] Speaker 04:
consistent with, where are they in this place?

[00:32:56] Speaker 07:
We have argued that, you know, where they've considered subsection C, they have, you know, determined as this court has that, and you know, I shouldn't say that, where they've considered H3H1, they are consistent with the secretary's interpretation of what you want us to do here.

[00:33:18] Speaker 04:
there would be a 4-1 circuit split, the 6th circuit on one side, DC, 4th, 7th, 8th, the other side.

[00:33:25] Speaker 07:
I would disagree that the 4th, 7th, and 8th, their decisions are speaking to the same issue.

[00:33:34] Speaker 07:
So I would characterize the split as between the 6th and DC circuit, not involving those other circuits.

[00:33:41] Speaker 07:
But I guess what I mean is the

[00:33:45] Speaker 07:
the sort of premises, the sort of broad reasoning employed by those circuits is not inconsistent with Donovan versus Carolinas Daylight.

[00:33:55] Speaker 04:
And it is inconsistent with the sixth?

[00:33:58] Speaker 07:
Well, the sixth, I mean, insofar as the sixth sort of speaks to this specific issue, I wouldn't say that it has a relationship with the sixth circuit's finding in maxim, necessarily.

[00:34:13] Speaker 07:
But if those chords were to

[00:34:15] Speaker 07:
be faced with this type of inquiry about subsection C, then their prior findings would ideally inform an outcome that is consistent with the secretary's approach.

[00:34:28] Speaker 04:
Let me ask, if you have a case in the fourth, seventh, or eighth circuits, and it's the exact issue that you have in this case, would you say in your brief your precedence

[00:34:42] Speaker 04:
suggest you should rule for our position.

[00:34:45] Speaker 07:
Yes.

[00:34:46] Speaker 04:
Yes, you would.

[00:34:46] Speaker 07:
But I wouldn't say your precedents already create a circuit split with the Sixth Circuit necessarily.

[00:34:55] Speaker 07:
Or I just wouldn't say that full stop, I should say.

[00:34:59] Speaker 04:
I think this was maybe Judge Wilkins' first question of the day.

[00:35:01] Speaker 04:
And it sounded like you were kind of agreeing with the theory that he laid out.

[00:35:07] Speaker 04:
And I think I followed.

[00:35:10] Speaker 04:
I'm not sure.

[00:35:11] Speaker 04:
I'm just going to read.

[00:35:12] Speaker 04:
from this order or supplemental briefing that we gave you, and you tell me if you agree with it.

[00:35:21] Speaker 04:
The statute's, it's Fraser's question.

[00:35:24] Speaker 04:
I'm gonna state a statement and then ask if you agree with it.

[00:35:26] Speaker 04:
Okay.

[00:35:27] Speaker 04:
The statute's definition applies to movable objects in H1C only when they are located in or at a physical manifestation enumerated in the same list.

[00:35:41] Speaker 04:
And that physical location is used in or to be used in or resulting from the work of money.

[00:35:49] Speaker 04:
Is that statement correct?

[00:35:50] Speaker 07:
No.

[00:35:53] Speaker 04:
You want to say why or do you feel like your brief already said why?

[00:35:57] Speaker 04:
You don't have to repeat.

[00:35:58] Speaker 07:
That's sort of your call to judge, Walker.

[00:36:01] Speaker 04:
OK, I'll go that.

[00:36:01] Speaker 04:
This is my last question.

[00:36:02] Speaker 04:
Thank you for letting me go through that.

[00:36:04] Speaker 04:
Of course.

[00:36:06] Speaker 04:
I mentioned this in the footnote in my original dissent, but like two sides of the V two briefs filed.

[00:36:13] Speaker 04:
One of them is filed by Department of Labor.

[00:36:16] Speaker 04:
That is an executive branch agency, correct?

[00:36:19] Speaker 04:
Yes.

[00:36:20] Speaker 04:
And then one of them is filed, at least on behalf

[00:36:26] Speaker 04:
On the other side of the D is KC Transport and the Federal Mine Safety and Health Review Commission.

[00:36:33] Speaker 04:
The Federal Mine Safety and Health Review Commission.

[00:36:35] Speaker 04:
Is that in the executive branch?

[00:36:38] Speaker 07:
I believe it.

[00:36:40] Speaker 07:
Well, I actually I'm so sorry I don't know.

[00:36:42] Speaker 07:
I should know the answer that but don't.

[00:36:44] Speaker 07:
But they're you know in so far as they're not participating in this case, they're not you know they're the they're the underlying judicial body.

[00:36:52] Speaker 07:
They're the body that produced what would be equivalent to the

[00:36:55] Speaker 07:
district court decision in a classical federal court approach.

[00:37:02] Speaker 04:
Were, if they're not in the executive branch, what branch?

[00:37:06] Speaker 07:
Well, the reason that I hesitate is because I think it's possible that it's judicial, but I actually, I'm sorry, I'm almost certain that it's an executive branch agency.

[00:37:14] Speaker 07:
It's also, it's an agency that's not invested with policymaking authority, so

[00:37:18] Speaker 07:
You know, it's in so far as these questions are sort of driving at Lope or Bright.

[00:37:21] Speaker 04:
Let's go with almost certain executive branch agencies.

[00:37:23] Speaker 07:
Yes.

[00:37:24] Speaker 04:
That means you have two executive branch agencies on either side of the V. Have you talked to the current Department of Justice about whether they think an intra-executive branch dispute is justiciable in a federal court?

[00:37:39] Speaker 07:
No, I have not.

[00:37:39] Speaker 07:
And I just, to be clear, the review commission is essentially the trial body.

[00:37:46] Speaker 07:
So when they produce a decision that the secretary disagrees with, the secretary is empowered to appeal that decision to the courts of appeals.

[00:37:55] Speaker 07:
So it's a judicial body.

[00:37:59] Speaker 07:
And I understand what your question is driving at.

[00:38:03] Speaker 04:
But you don't know the current Department of Justice's position.

[00:38:06] Speaker 07:
I do not know the Justice Department's position on that, but it would be, I think.

[00:38:12] Speaker 04:
Can you find out?

[00:38:15] Speaker 07:
Theoretically, yes.

[00:38:17] Speaker 07:
Yes, I could potentially find out, but I just, again, I don't mean to repeat myself, but just to emphasize, it would be, it would sort of defeat the purpose of the commission as a judicatory body if,

[00:38:32] Speaker 07:
you know, the secretary was, you know, these are separate, they're just, they're simply separate, independent of one another.

[00:38:39] Speaker 07:
And, you know, I'm not aware of any law that would require a, a coherence in that way.

[00:38:48] Speaker 04:
I just wonder if the new head of the civil division or the new attorney general thinks the law that would, the law that you're looking for would be article two or

[00:38:58] Speaker 07:
I understand the question.

[00:38:59] Speaker 07:
I don't.

[00:39:01] Speaker 07:
As far as I'm aware, nothing has changed in this case since it was filed.

[00:39:06] Speaker 04:
I have no more questions, and I'm grateful again to you for your patience and to my colleagues for theirs.

[00:39:14] Speaker 06:
I just want to go back to Judge Walker's hypotheticals about his pickaxe in Alaska, et cetera.

[00:39:21] Speaker 06:
And I'm just wondering why you're so resistant to just saying, yeah, that's mine.

[00:39:26] Speaker 07:
I'm not empowered to, you know, just to, I think- You're not empowered?

[00:39:31] Speaker 06:
You can't state the government's- No, I apologize.

[00:39:35] Speaker 06:
In an oral argument where that's kind of a central question?

[00:39:38] Speaker 06:
That's not the framework I should have used, so I do apologize.

[00:39:42] Speaker 07:
The fact-intensive nature of use in mining just sort of is incompatible with assessing that type of hypothetical without

[00:39:57] Speaker 07:
I think he gave you the facts.

[00:39:59] Speaker 06:
I understand.

[00:40:00] Speaker 06:
And it just seems to me that the natural, I guess, implications of your brief and your position is like, yes, that's a mine.

[00:40:08] Speaker 06:
And I don't know why that's a problem, because the used in mining limitation makes sure that things are not completely absurd.

[00:40:19] Speaker 06:
And while we could,

[00:40:21] Speaker 06:
inspect that pickaxe in Alaska, we wouldn't.

[00:40:26] Speaker 06:
I just don't know why it's such a problem for you just to accept the natural implications of your own position in your briefs.

[00:40:35] Speaker 06:
Because his hypothetical talks about pickaxes, but your brief talks about dredges.

[00:40:39] Speaker 06:
Same idea.

[00:40:41] Speaker 06:
If it's used in mining, I thought your position was the location does inform whether it's used in mining or not.

[00:40:48] Speaker 06:
But if it is used in mining, if it's located in Alaska,

[00:40:52] Speaker 06:
or Hawaii or anywhere.

[00:40:55] Speaker 06:
we have a broad mandate to make sure it's safe for mining.

[00:40:59] Speaker 06:
And it should be presently and predominantly used in mining to rationalize this.

[00:41:04] Speaker 06:
But if so, we want to make it safe.

[00:41:07] Speaker 06:
Why isn't that your position?

[00:41:08] Speaker 06:
I don't understand.

[00:41:09] Speaker 07:
I agree with that characterization.

[00:41:11] Speaker 07:
Just with respect to the hypothetical pickaxe, the facts of that hypothetical, the dredge would be, I think, considered used in mining based on the relevant facts of that dredge.

[00:41:25] Speaker 06:
But the relevant facts of the pickaxe are just like a dredge, the way Judge Walker gave it to you.

[00:41:29] Speaker 06:
And I just don't understand why you can't say, yes, the pickaxe is a mine.

[00:41:33] Speaker 07:
I appreciate your position and I appreciate the point of the question, but I should say that, you know, it's not that EMSA has jurisdiction over every dredge in any circumstance.

[00:41:44] Speaker 07:
The dredges are also subject to this use in mining.

[00:41:46] Speaker 06:
Are they ever not used in mining?

[00:41:49] Speaker 06:
I thought you said they were portable mines.

[00:41:50] Speaker 07:
Well, they are not used in mining.

[00:41:52] Speaker 07:
There are certain types.

[00:41:55] Speaker 07:
So there are essentially two types of dredging, one to remove.

[00:41:58] Speaker 07:
I think it was the pusher.

[00:41:59] Speaker 06:
The pusher, you said.

[00:42:00] Speaker 06:
It's a portable mine.

[00:42:01] Speaker 07:
So there's the portable crusher, portable screeners, you know, these things are... Regardless of the details.

[00:42:09] Speaker 06:
Yes.

[00:42:11] Speaker 06:
A piece of machinery that is used only in mining.

[00:42:14] Speaker 06:
That's all it does.

[00:42:14] Speaker 06:
It's a portable mine.

[00:42:16] Speaker 06:
If it is used in mining, yes.

[00:42:17] Speaker 05:
Its location actually doesn't matter.

[00:42:20] Speaker 07:
Correct?

[00:42:20] Speaker 07:
Well, its location might be relevant to determining if it's used in mining, but its location is not.

[00:42:24] Speaker 06:
But it can't be used in anything but mining.

[00:42:26] Speaker 07:
If it's used in mining, then it's covered by the act.

[00:42:28] Speaker 06:
And it could be in Alaska.

[00:42:29] Speaker 06:
It could be in Hawaii.

[00:42:30] Speaker 06:
It could be anywhere that MSHA has, I guess, geographical jurisdiction.

[00:42:36] Speaker 06:
Right.

[00:42:36] Speaker 06:
MSHA is... Yes?

[00:42:38] Speaker 07:
I... So sorry.

[00:42:39] Speaker 07:
I don't mean to interrupt.

[00:42:41] Speaker 07:
I think I was reacting to the wrong thing.

[00:42:42] Speaker 07:
MSHA is empowered.

[00:42:45] Speaker 07:
If it is used in mining, EMSHA has jurisdiction to enforce the act with respect to that item.

[00:42:51] Speaker 07:
So that means it can enforce as to the pickaxe as well?

[00:42:54] Speaker 07:
If the pickaxe is used in mining.

[00:42:56] Speaker 07:
Thank you.

[00:42:57] Speaker 07:
Thank you.

[00:42:58] Speaker 07:
There was one more point that I wanted to make about Donovan, if I may.

[00:43:03] Speaker 03:
Yeah, if you can make that point, and then we'll give you some time on rebuttal.

[00:43:06] Speaker 07:
Sure.

[00:43:07] Speaker 07:
Just very briefly, Donovan was

[00:43:10] Speaker 07:
Donovan, I think, was quite recently after the Chevron decision.

[00:43:16] Speaker 07:
I apologize that I don't have the date right in front of me.

[00:43:18] Speaker 07:
But I do want to revisit your question about whether or not I agree that the court's reasoning there was really based in a deferential posture.

[00:43:30] Speaker 07:
And my read of Donovan versus Carolina's daylight is that it's not terribly reliant on that deference.

[00:43:37] Speaker 07:
And again, the secretary is not

[00:43:39] Speaker 07:
asking for deference.

[00:43:40] Speaker 07:
So the reasoning in Donovan, by my read, is about the use in mining language and the court can follow that same reasoning here.

[00:43:49] Speaker 03:
Thank you.

[00:43:53] Speaker 03:
Thank you.

[00:44:08] Speaker 02:
Good morning.

[00:44:10] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:44:13] Speaker 02:
Adi Dinar for KC Transport, Inc.

[00:44:16] Speaker 02:
I would like to start with attempting to answer many of the questions that my friend on the other side received.

[00:44:23] Speaker 02:
Judge Wilkins, the plain text of the Mine Act prohibits MSHA from asserting jurisdiction over trucks or truck repair shops that are not at locations

[00:44:35] Speaker 02:
where extraction, milling or preparation takes place at the time the violation occurs.

[00:44:40] Speaker 02:
And that is the best reading of subsection C as well as section H2.

[00:44:45] Speaker 03:
And what in the text tells us that?

[00:44:49] Speaker 03:
What has to be located at a location where extraction occurs when doesn't use, could have said use the same language it's in H2, but it didn't.

[00:45:04] Speaker 02:
So I would point to the way that subsection H1A, B, and C are structured.

[00:45:10] Speaker 02:
So 1A talks about an area of land where extraction occurs.

[00:45:16] Speaker 02:
And that is tied directly to subsection C, which says areas of land and facilities, tools, equipment, et cetera, used in three specific activities.

[00:45:28] Speaker 02:
So I think location remains central.

[00:45:30] Speaker 05:
I'm sorry, where in C are you getting areas of land?

[00:45:32] Speaker 02:
I'm sorry, Your Honor.

[00:45:34] Speaker 02:
In subsection C, the list of things like shafts and passageways are all connected to the location, the mine itself.

[00:45:45] Speaker 02:
So it is very integral to the mining.

[00:45:49] Speaker 06:
The equipment machines and tools are not, which is also in C. Which is where I was going.

[00:45:55] Speaker 02:
And the equipment machines, tools, equipment is used in or to be used in

[00:46:01] Speaker 02:
three different and specific things, extraction, milling, and preparation.

[00:46:06] Speaker 02:
So the best reading of subsection C is driven by location, and then the activity being performed is conformatory as to the location.

[00:46:17] Speaker 06:
But it can be used in without being on the land where the extraction occurs.

[00:46:20] Speaker 06:
That's the crux of the issue here.

[00:46:24] Speaker 02:
Well, so we disagree that just the use in mining analysis is the best reading of the statute.

[00:46:31] Speaker 06:
But that language is in the statute, used in mining.

[00:46:36] Speaker 02:
Yes, but then the plain text of that statute does say used in mining.

[00:46:42] Speaker 02:
But it's not used in mining.

[00:46:44] Speaker 02:
It's used in extraction.

[00:46:46] Speaker 02:
And the facility, the truck repair shop, is not used in extraction.

[00:46:50] Speaker 02:
It doesn't say used in extraction.

[00:46:51] Speaker 06:
It says used in mining.

[00:46:53] Speaker 06:
I'm trying to understand your textual argument.

[00:46:55] Speaker 06:
I know you have other arguments, but textually,

[00:46:58] Speaker 06:
I don't see it.

[00:46:59] Speaker 06:
I don't see the words of the statute saying what you're saying the words say.

[00:47:03] Speaker 02:
Well, Your Honor, Subsection C says used in the work of extraction.

[00:47:09] Speaker 06:
Where does it say that?

[00:47:10] Speaker 06:
I'm looking at it right now.

[00:47:11] Speaker 02:
In Subsection C, it says used in or to be used in or resulting from the work of extracting.

[00:47:18] Speaker 06:
Okay.

[00:47:18] Speaker 02:
So it's not just mining, you know, without definition, it's used in extraction.

[00:47:23] Speaker 02:
That's the first activity that the subsection C lists.

[00:47:27] Speaker 02:
The second activity is milling, which is not defined in the statute.

[00:47:30] Speaker 02:
The third activity is preparation plans, which is defined in subsection 802 or 802 subsection I. So those activities are relevant to the analysis.

[00:47:43] Speaker 06:
So do you read A, to be an area of land where minerals are extracted, but not to cover equipment and tools on the land?

[00:47:53] Speaker 06:
And then you read C to cover the equipment and tools on the land?

[00:47:57] Speaker 02:
Correct.

[00:47:58] Speaker 02:
When they are at those locations.

[00:48:00] Speaker 02:
So the location, again, remains the same.

[00:48:02] Speaker 02:
Right.

[00:48:02] Speaker 06:
But I'm just trying to understand the relationship between A and C under your reading, because the secretary says A is an area of land where extraction occurs and anything that's on it.

[00:48:11] Speaker 06:
You're saying A is just the land, but C is the equipment that's on it?

[00:48:17] Speaker 06:
Correct.

[00:48:19] Speaker 02:
And Congress chose to define it that way for several reasons, because Congress wanted to contain MSHA's inspection obligation a certain way.

[00:48:29] Speaker 02:
And that finite reading is also necessary, Judge Walker, to implement all of the other provisions of the Mine Act, because otherwise those other provisions start looking like surplusage and unworkable.

[00:48:40] Speaker 06:
I'm sorry.

[00:48:41] Speaker 06:
I thought I read that the amendment

[00:48:43] Speaker 06:
that brought us C was to address things that were not at the extraction site, like dams.

[00:48:49] Speaker 06:
Isn't that why they added this?

[00:48:52] Speaker 06:
Because they wanted to cover things that were not at the extraction site.

[00:48:56] Speaker 02:
Well, I think that's exactly right, because Congress wanted to ensure that it's not just the land and the shafts and the passageways themselves, but all of the equipment that is actually used in the creation of those shafts and in the creation of removing ore from the side of the mountain are covered by

[00:49:18] Speaker 02:
by the Mine Act.

[00:49:21] Speaker 03:
Well, that answer isn't really responsive to Judge Pan's question because the very first item in C is lands, right?

[00:49:32] Speaker 03:
So if A is an area of land from which minerals are extracted, then why do they need to put lands in C?

[00:49:42] Speaker 03:
It could be other lands, right, where minerals aren't extracted.

[00:49:50] Speaker 03:
Isn't that what?

[00:49:52] Speaker 03:
Why else would Congress have used lands as the very first word in subsection C?

[00:49:59] Speaker 03:
Unless it meant some other land where extraction isn't occurring under your.

[00:50:05] Speaker 03:
Reading of how A and C work together.

[00:50:09] Speaker 02:
I grant you its repetitive subsection A and C does repeat the word lands, but I think that shows Congress's intent to make sure that all of the machinery and equipment that is on the land where extraction milling or preparation takes place is covered.

[00:50:27] Speaker 02:
and under Amstrad jurisdiction.

[00:50:28] Speaker 02:
So the cases that I would point you to.

[00:50:30] Speaker 03:
Well, when is land in part C land that would be a mine that is, but it is land where extraction is not happening.

[00:50:48] Speaker 03:
So milling or preparation is not happening.

[00:50:52] Speaker 02:
So there are certain tailing ponds where some of the sludge from the mining activity is stored or collected before it is released into, say, a river over which the Environmental Protection Agency would have jurisdiction.

[00:51:07] Speaker 02:
So there are pieces of land that are connected or at the mine site that collect all of the

[00:51:16] Speaker 02:
refuse and all of that.

[00:51:17] Speaker 03:
Precisely.

[00:51:18] Speaker 03:
And that's what they're getting at with excavations as well.

[00:51:22] Speaker 03:
You know, excavations are pieces of land.

[00:51:27] Speaker 03:
It's not just that they're talking about.

[00:51:31] Speaker 03:
My point is that your textual argument kind of falls apart if lands and excavations aren't located, you know,

[00:51:47] Speaker 03:
where extraction is occurring.

[00:51:53] Speaker 03:
Does it not?

[00:51:55] Speaker 02:
It does not fall apart.

[00:51:56] Speaker 02:
And I was trying to point to some cases that might shed some light on this.

[00:52:02] Speaker 02:
So if you look at Maxim itself, it is talking of a repair shop that is at least more than one mile from the place where extraction, milling, or preparation takes place.

[00:52:15] Speaker 02:
The Sixth Circuit had no trouble in concluding that that repair shop is not a location where extraction, milling, or preparation takes place.

[00:52:26] Speaker 02:
And therefore, MSHA lacks jurisdiction over it.

[00:52:29] Speaker 03:
Now, the reality is... You just told me that a land where there might be a retention pond is a mine even though no extraction, milling, or preparation takes place there.

[00:52:42] Speaker 02:
if it is connected and adjacent to the actual mine site, because otherwise the tailing... Where it's connected or adjacent in the text.

[00:52:51] Speaker 02:
Well, again, Maxime talks about this concept of adjacency.

[00:52:54] Speaker 02:
And that's, I think, where you started, Your Honor, which is this concept of appurtenance is no different than the concept of adjacency that Maxime talks about.

[00:53:03] Speaker 02:
Because appurtenance is something that is integral to the mining activity itself.

[00:53:08] Speaker 02:
And that appurtenance is important.

[00:53:11] Speaker 02:
And Maxime has taken that concept into account.

[00:53:18] Speaker 03:
Yeah, pertinent, you know, lacks law definition of a pertinent.

[00:53:25] Speaker 03:
You know, one of them, the one that seems most relevant to me is necessarily connected with the use and enjoyment of whatever it's pertinent to.

[00:53:38] Speaker 03:
Why then isn't a tool or piece of equipment a mine when it's located at a site that is necessarily connected with the use and enjoyment or operation of an extraction site or a milling site or preparation site?

[00:54:01] Speaker 02:
So your honor, I think, so we are saying all of those tools and equipment when they are at locations.

[00:54:08] Speaker 02:
where extraction, milling, and preparation takes place.

[00:54:12] Speaker 02:
Emsha has jurisdiction over those tools and equipments, and Emsha has jurisdiction over the generic repair work that happens at those mine sites.

[00:54:21] Speaker 02:
But if repair work is happening several miles, several thousand feet, 500 miles, 5,000 miles in Alaska,

[00:54:28] Speaker 02:
MSHA does not have jurisdiction over any of that.

[00:54:31] Speaker 02:
And the reality is when MSHA does not.

[00:54:33] Speaker 03:
But MSHA has jurisdiction over an appurtenant road, right?

[00:54:37] Speaker 02:
Yes.

[00:54:37] Speaker 03:
The road is not where milling or extraction or preparation takes place.

[00:54:43] Speaker 03:
It's necessary and connected with that.

[00:54:47] Speaker 02:
And that is independently, the jurisdiction is independent of subsection C because subsection B covers it.

[00:54:53] Speaker 03:
Yes.

[00:54:54] Speaker 03:
What I'm saying is that Congress

[00:54:57] Speaker 03:
seemed to want IMSHA to have jurisdiction at locations, not just where the extraction milling preparation takes place.

[00:55:08] Speaker 03:
One way we know that is because they added B. And why is it one way we know that is because they added C and they used words like used in or to be used in or resulting from.

[00:55:25] Speaker 03:
And that sounds a whole lot like kind of the test of when we know something is pertinent to something else, when it's like its usage is kind of necessarily connected with the land.

[00:55:46] Speaker 03:
So that's...

[00:55:49] Speaker 03:
I guess what I'm trying to get you to explain to me is how looking at this text, why isn't it natural for us to construe the text in C to include areas outside of where the extraction takes place so long as it's an area that's necessary and kind of connected with the extraction process.

[00:56:16] Speaker 02:
Because a host of other federal, state, and local agencies have jurisdiction over those things that are not at locations where mining activity occurs.

[00:56:25] Speaker 02:
So EPA is involved in some tailing ponds because that refuse or those minerals or whatever's in the water is getting released into the environment.

[00:56:36] Speaker 06:
But I understand Judge Wilkins's question to be about the text of the statute.

[00:56:39] Speaker 06:
And you started out by talking about the text of the statute.

[00:56:42] Speaker 06:
So I'm still not understanding why the text of the statute

[00:56:45] Speaker 06:
supports your argument.

[00:56:47] Speaker 06:
Why wouldn't Congress have just said lands, et cetera, on extraction sites as opposed to used in the work of extracting if it was the way you think it should be?

[00:57:00] Speaker 02:
Judge Pan, Congress chose the words it chose to write, Section 802.

[00:57:06] Speaker 02:
And to the extent that there is any sort of frustration with those, with the way the words are written, it would be a policy decision that, after a law provided, is left to Congress.

[00:57:17] Speaker 02:
It's not left to the agency.

[00:57:18] Speaker 02:
It's not left to the courts.

[00:57:19] Speaker 02:
So I'm trying to say that the text does not extend to give MSHA this open-ended, we know it when we see it, using my name.

[00:57:27] Speaker 06:
I understand that.

[00:57:27] Speaker 06:
I'm trying to understand why.

[00:57:29] Speaker 06:
and understand your textual argument?

[00:57:31] Speaker 02:
Well, the textual, if you look at the actual phrase in subsections, used in or to be used in.

[00:57:37] Speaker 02:
So let's take to be used in, for example.

[00:57:40] Speaker 02:
MSHA does not have jurisdiction over manufacturing of equipment.

[00:57:43] Speaker 02:
They admit it in their supplemental brief.

[00:57:46] Speaker 02:
It's in section 820 of the Mein Act as well.

[00:57:50] Speaker 02:
So to be used in, if that were read in isolation, the context of the act and the text of the act simply does not

[00:57:57] Speaker 02:
Extend and shares jurisdiction to everything that can be used in mining activity.

[00:58:03] Speaker 03:
Just you're just now you're just like ignoring all the conversation that we had about a pertinent

[00:58:11] Speaker 03:
I mean, you could read to be used in resulting from used in and similar to a pertinent to say that if it's at a location, what those words mean is that it's at a location that is necessarily connected with the use and operation of extraction, et cetera, et cetera, then it is used in or to be used in or resulting from.

[00:58:37] Speaker 03:
And so we don't have some amorphous, standardless definition that no one has due process, fair notice of.

[00:58:48] Speaker 03:
That's what those words mean.

[00:58:51] Speaker 03:
Why isn't that what those words mean?

[00:58:54] Speaker 03:
Just looking at the text in the whole provision as a whole, because we're supposed to look at context.

[00:59:02] Speaker 03:
all of those things that Loper-Bright and other statutory interpretation cases tell us that we're supposed to.

[00:59:10] Speaker 02:
So as we briefed in our supplemental filings, the ordinary meaning canon does carry weight, and it carries more weight maybe in an act like the Mayan Act because it is written for a quintessential blue collar worker who has to figure this thing out in the middle of the trenches.

[00:59:26] Speaker 02:
And location does remain central.

[00:59:29] Speaker 02:
And everything else in the Mayan Act is tied to that location.

[00:59:33] Speaker 02:
Now we aren't saying location is

[00:59:36] Speaker 02:
is the only factor.

[00:59:37] Speaker 02:
There is the location plus approach.

[00:59:40] Speaker 02:
As Your Honor knows, we briefed that question in front of the Supreme Court as well.

[00:59:44] Speaker 02:
So under the location plus approach, the activity, because there are three activities listed in subsection C, those do matter.

[00:59:51] Speaker 02:
And that's the contextual clue in the text of the act itself that tells you that the location where these three activities occur

[01:00:01] Speaker 02:
MSHA does have jurisdiction over those locations.

[01:00:03] Speaker 03:
How do we know where, if something is to be used in mining, how do we know where that location is?

[01:00:13] Speaker 02:
We do not need to know where that location is because MSHA does not have jurisdiction over it.

[01:00:17] Speaker 02:
Manufacturing is not covered by the Mine Act.

[01:00:20] Speaker 02:
It's covered by other federal agencies' jurisdiction.

[01:00:22] Speaker 03:
It doesn't have to be manufacturing.

[01:00:25] Speaker 03:
I mean, if I used the dump truck

[01:00:29] Speaker 03:
in mining today, and then I park it at a storage facility somewhere outside of the excavation site, and I'm going to be used for mining tomorrow.

[01:00:45] Speaker 03:
That's not manufactured.

[01:00:48] Speaker 03:
So where that dump truck is sitting overnight, we have to figure out whether that's a mine or not.

[01:00:57] Speaker 03:
And it's to be used in mining within a few hours.

[01:01:01] Speaker 03:
It's not manufactured.

[01:01:04] Speaker 03:
So you can't just like build a straw man to tear down and say, you know, construction's absurd.

[01:01:15] Speaker 02:
Well, so that parking lot is not a mine.

[01:01:18] Speaker 02:
That truck is not a mine under our interpretation.

[01:01:21] Speaker 02:
And that finite reading is necessary because otherwise

[01:01:23] Speaker 02:
The secretary is arguing that all of these support services are included, but if support services are included, then every gas station, electric utility company, Home Depot, Lowe's, a chapel, restaurant, movie theater, all of them become mined.

[01:01:37] Speaker 03:
That's very hyperbole, respectfully, but if the test is, and I'm gonna say it again, if it is locations that are necessarily connected with the use of the mine,

[01:01:53] Speaker 03:
and that that's what that means, and we can kind of take that clue from a pertinent, then the dump truck isn't a mine when it's at Home Depot or at the diner or at those other places.

[01:02:05] Speaker 03:
But it might be a mine if it's at a storage facility that is operationally a part of or integrated with extraction.

[01:02:18] Speaker 03:
So why isn't that?

[01:02:21] Speaker 03:
a proper definition of how we define the scope and narrow the scope of what locations can be mined.

[01:02:30] Speaker 02:
So I'm saying adjacency or pertinence, I'm not meaning to say connected to because I think that again is too broad.

[01:02:38] Speaker 02:
I'm saying it has to be integral to the mining activities itself.

[01:02:42] Speaker 02:
There are three specific mining activities listed in subsection C. That is the best reading of subsection C is my argument.

[01:02:49] Speaker 06:
How do you respond to the argument that under your reading of the statute, something that clearly is mining equipment used in a mine.

[01:02:56] Speaker 06:
The operator could just move it off site to avoid inspection.

[01:03:03] Speaker 02:
So the law evasion argument, Your Honor, doesn't work in this particular context.

[01:03:08] Speaker 02:
And I'll tell you why.

[01:03:09] Speaker 02:
Because if the violation occurs at the mine site, Emsha does have jurisdiction over it.

[01:03:15] Speaker 02:
So this circuits Otis Elevator's case, which then Judge Clarence Thomas wrote.

[01:03:21] Speaker 06:
But I guess the argument is you could just move it off site, and then Emsha couldn't inspect it when it's off site.

[01:03:30] Speaker 06:
Emsha could inspect it when it's on site and when it comes to follow up to make sure that you've made corrections, you could have moved it off site.

[01:03:36] Speaker 06:
So Emsha can't confirm that.

[01:03:39] Speaker 06:
And so there's an argument that it frustrates Emsha's, I guess, regulatory purpose to tie this to the land because they can't effectively guarantee safety under those circumstances.

[01:03:57] Speaker 06:
And I guess there are examples in their brief of people actually moving equipment to avoid inspection.

[01:04:02] Speaker 06:
So how do you respond to that?

[01:04:05] Speaker 02:
So MSHA can issue citations if the violation occurs at the mine site.

[01:04:10] Speaker 02:
And then if that piece of equipment is moved, that original citation is still valid.

[01:04:15] Speaker 02:
Now, the point of moving the equipment is to fix it.

[01:04:20] Speaker 02:
And that abatement concern is valid.

[01:04:23] Speaker 02:
But when the equipment comes back to the mine, that's when the MSHA has jurisdiction to inspect it.

[01:04:28] Speaker 06:
MSHA does not have jurisdiction to go.

[01:04:32] Speaker 06:
An operator who wanted to evade inspection could move the equipment off site, either as a general matter, not keep it on site to avoid inspections, or once it's been inspected, it could move it off site and not correct the problem.

[01:04:49] Speaker 06:
And it would be at least difficult for MSHA to follow up and figure out what's going on.

[01:04:55] Speaker 06:
They'd have to wait for the equipment to be brought back to the site for them to have authority

[01:05:01] Speaker 06:
to check that equipment and that doesn't seem to follow from the statutory language if it's used in mining, it seems that I'm sure should be allowed to follow up and make sure that that equipment safe.

[01:05:14] Speaker 02:
So I would point you to Zeigler Coal, which is a case from the Seventh Circuit that deals with this kind of hypothetical, where the equipment, there was an electrical equipment that was taken to a repair shop for purposes of fixing it.

[01:05:29] Speaker 02:
That repair shop was more than one mile from the actual mine site where the equipment functioned.

[01:05:36] Speaker 02:
MSHA, the Seventh Circuit said, did not have jurisdiction to go inspect that repair shop.

[01:05:41] Speaker 02:
because that equipment, once it's brought back to the mine site, Emsha has jurisdiction at that point.

[01:05:47] Speaker 06:
Well, these are very fact-intensive questions, but do you agree that a facility that is 100% used for mining that is away from an extraction site can be inspected to mine?

[01:05:58] Speaker 02:
I would disagree that it can be inspected because that facility is not a place where extraction milling or preparation takes place.

[01:06:04] Speaker 03:
But I thought that you, the test in your brief, and I'm looking at pages five and six, is you're saying that it has to be at a physical location where some activity integral to mining occurs.

[01:06:17] Speaker 03:
That's what you think we should, we write this opinion, you think that's what we should write?

[01:06:23] Speaker 03:
Yes, and the- What is integral to mining

[01:06:27] Speaker 02:
the three activities listed in subsection C. And why didn't you just say that?

[01:06:33] Speaker 03:
Where, where, where.

[01:06:39] Speaker 03:
But you know, it's just like we're a dog chasing our tail at this point.

[01:06:44] Speaker 03:
Because, because to be used in

[01:06:50] Speaker 03:
the dump truck at the storage lot across the street from the mine is to be used in mining?

[01:06:59] Speaker 03:
Or if it's a repair shop across the street from the mine, why isn't that integral to mining?

[01:07:08] Speaker 02:
Because the location has to remain central.

[01:07:11] Speaker 02:
Otherwise, Emsha has nationwide global jurisdiction.

[01:07:15] Speaker 03:
I'm talking about a location across the street from the extraction site where dump trucks and all the other equipment is stored and repaired.

[01:07:28] Speaker 02:
In your hypothetical, is that location under local jurisdiction?

[01:07:32] Speaker 02:
Because local cops do inspect and do see if there is a broken down equipment just sitting in a parking lot.

[01:07:39] Speaker 03:
I don't answer my hypothetical.

[01:07:43] Speaker 03:
Those are all the facts you know, and you have the text of the statute.

[01:07:49] Speaker 03:
Why isn't that facility a mine under the text and even under the test that you propose?

[01:07:56] Speaker 03:
You don't say some activity integral to mining occurs, but only if local cops or local OSHA

[01:08:09] Speaker 03:
doesn't inspect it.

[01:08:11] Speaker 03:
I mean, that wasn't part of the test in your brief, so why is it relevant to answering my hypothetical?

[01:08:18] Speaker 02:
Parking a piece of equipment anywhere in the world doesn't give Emsha jurisdiction over that parking lot.

[01:08:23] Speaker 02:
And that's the argument I'm making, because that parking lot should be a location where extraction, mailing, or preparation takes place.

[01:08:30] Speaker 02:
And because those three activities do not take place at that parking lot, even if it is across the street, Emsha does not have jurisdiction.

[01:08:36] Speaker 03:
So when you said in your briefs, activity integral to mining, you didn't really mean that.

[01:08:44] Speaker 03:
You just meant where extraction or milling or preparation takes place.

[01:08:48] Speaker 02:
I grant you that was a shorthand we used in the brief, but the text of the statute lists three specific activities.

[01:08:55] Speaker 02:
And that is what we meant when we said that has to be integral to mining.

[01:08:58] Speaker 02:
And we were answering the first question, which sort of clubs mining into one word where there's three specific activities listed in the statute.

[01:09:09] Speaker 03:
So why then is a road that's pertinent to an extraction site

[01:09:19] Speaker 03:
Why did Congress include that?

[01:09:22] Speaker 03:
I mean, I'm assuming that you concede because it's right there in subsection B that such a road is a mine under the Act, right?

[01:09:33] Speaker 02:
Yes, subsection B is an independent basis for MSHA jurisdiction.

[01:09:38] Speaker 03:
So I guess all I'm asking you is why shouldn't we think that C could mean the same thing, that it could mean that there could be locations outside of where extraction milling preparation occurs, where IMSA has jurisdiction the same way that they have jurisdiction over roads, even though extraction doesn't necessarily occur on the road.

[01:10:05] Speaker 02:
because Congress did not write subsection C that way.

[01:10:08] Speaker 02:
And I want to be clear about the scope of the appurtenant road subsection B. It actually has to be appurtenant road because the Department of Transportation and local authorities have jurisdiction over all roads.

[01:10:20] Speaker 02:
You have to follow traffic laws when you're transporting equipment, for example.

[01:10:24] Speaker 03:
And all of the machinery of government that... That argument doesn't seem to me very persuasive because

[01:10:34] Speaker 03:
you would concede that if MSHA doesn't have jurisdiction over any of this stuff, then OSHA does, right?

[01:10:44] Speaker 02:
OSHA, EPA, a bunch of other agencies.

[01:10:47] Speaker 03:
So we are interpreting this to fill the gap.

[01:10:52] Speaker 03:
We're interpreting this statute to see where this specific agency should have jurisdiction as opposed to another one.

[01:11:02] Speaker 03:
So your whole argument about, well, don't worry, because somebody else regulates that doesn't, it doesn't seem particularly relevant because that's not really the exercise.

[01:11:17] Speaker 03:
We're trying to see what, what, what Congress intended for MCHA to have jurisdiction.

[01:11:23] Speaker 03:
We know that DOT or OSHA or EPA or someone else

[01:11:30] Speaker 03:
might have jurisdiction of whom she does.

[01:11:34] Speaker 02:
I'm sorry, Your Honor, but I was answering this law evasion concern that Judge Pan started with and that my friend on the other side briefed.

[01:11:41] Speaker 02:
So that is a concern, but I am here to tell you that that concern is easily addressed by the fact that there is a bunch of regulations that a host of other agencies, federal, state, and local,

[01:11:53] Speaker 02:
have that does affect all of these, you know, KC transport trucks and the repair facility.

[01:11:59] Speaker 02:
So there is no law evasion happening the way that my friend would like you to believe.

[01:12:05] Speaker 02:
That was the point I was trying to make when I was addressing those questions.

[01:12:10] Speaker 04:
Can I get some clarity on the, I guess, how you, well, just ask.

[01:12:17] Speaker 04:
A piece of equipment that's on an extraction site, that's mine, right?

[01:12:24] Speaker 02:
Well, it's not always a mine.

[01:12:26] Speaker 02:
So it is within MSHA's jurisdiction.

[01:12:30] Speaker 02:
At the time, the equipment is at a location where extraction milling or preparation takes place.

[01:12:35] Speaker 04:
So if it's a piece of equipment on an extraction site, it's within MSHA's jurisdiction?

[01:12:39] Speaker 04:
Is that what you just said?

[01:12:41] Speaker 02:
Yes, at the time the violation occurs.

[01:12:43] Speaker 02:
OK.

[01:12:43] Speaker 04:
And then same thing if it's at a milling site, right?

[01:12:48] Speaker 04:
Yes.

[01:12:49] Speaker 04:
Same thing if it's at a preparation site.

[01:12:52] Speaker 04:
Yes.

[01:12:53] Speaker 04:
What if it's on a road, a pertinent to an extraction?

[01:12:59] Speaker 02:
Then I'm sure I would have jurisdiction over it.

[01:13:01] Speaker 02:
And is that because of B or is that because of C?

[01:13:05] Speaker 02:
Because of the appurtenant road, the subsection B provision.

[01:13:07] Speaker 02:
That's because of B. Yes.

[01:13:09] Speaker 04:
And so if there were no C, IMSHA would have that jurisdiction over the appurtenant road because of B. That's what you just said.

[01:13:18] Speaker 04:
An IMSA would have jurisdiction over a piece of equipment on an extraction site because of A. If there is no C, they have it because of A. I'm not disagreeing.

[01:13:31] Speaker 04:
It might sound like I'm being hostile.

[01:13:33] Speaker 04:
I'm just trying to figure out.

[01:13:35] Speaker 03:
Yes.

[01:13:35] Speaker 03:
That's it.

[01:13:36] Speaker 03:
OK.

[01:13:36] Speaker 03:
So now I'm confused, because I thought you said earlier that A does not cover equipment

[01:13:49] Speaker 03:
that's at the extraction site.

[01:13:51] Speaker 02:
That's why we have to have C. So I was answering the fact that it was repetitive in A and C. So to answer Judge Walker's hypothetical, yes, subsection A covers areas of land where extraction occurs.

[01:14:07] Speaker 02:
If the equipment is at an area of land where extraction occurs, then that equipment would have jurisdiction over it just by virtue of subsection A.

[01:14:14] Speaker 03:
there is no subsection C. So, okay, let's live in a world for a second where Congress wrote the statute and did not include subsection C, just A and B as they are written.

[01:14:27] Speaker 03:
And there is a bulldozer and auger or whatever it is at the extraction site.

[01:14:36] Speaker 03:
If all we had were A and B and there is no C, is that equipment a mine?

[01:14:44] Speaker 02:
Yes, when it is at that site.

[01:14:50] Speaker 03:
So why are we interpreting subsection A differently when there's no C than when there is a C?

[01:15:01] Speaker 02:
Well, I think because this case comes to you from the Secretary of Labor's appeal and subsection C was put at issue in the

[01:15:08] Speaker 02:
in the review commission and in front of the ALJ of the review commission.

[01:15:11] Speaker 02:
So that's why we're looking at subsection C. But I agree with you that subsection A standing alone without B or C does answer the question.

[01:15:20] Speaker 02:
Whether Casey's repair shop is a facility?

[01:15:24] Speaker 02:
No, not under subsection A, not under subsection B. Are the trucks themselves mines?

[01:15:29] Speaker 02:
No, under subsection A and subsection B.

[01:15:35] Speaker 03:
We are trying to do a textual analysis.

[01:15:37] Speaker 03:
We're trying to see how the best read the statute.

[01:15:42] Speaker 03:
So if there were no C and the best reading of A is that it's land where there's extraction occurring, but also equipment and machinery and tools that are on that land when extraction occurs.

[01:15:57] Speaker 03:
You're saying that would be the best reading of A if there were no C. Yes.

[01:16:04] Speaker 03:
Why isn't it still the best reading of A once C is added and then maybe C does something else?

[01:16:13] Speaker 02:
So what C is adding is the milling and preparation.

[01:16:16] Speaker 02:
So it's not just extraction, three different things are happening in subsection C. So extraction is repetitive of subsection A, but then there is milling that is covered and preparation facilities that are covered.

[01:16:27] Speaker 02:
under subsection C. So that's basically what C is doing.

[01:16:30] Speaker 03:
Well, it also, instead of saying used in, it says to be used in or resulting from extraction, right?

[01:16:41] Speaker 02:
And that's where I'm trying to say the ordinary meaning and the canons of construction do matter in that circumstance.

[01:16:47] Speaker 02:
Because ultimately, you can't read the word mine, which is not defined in the statute, totally out of the statute.

[01:16:54] Speaker 02:
And that's what the ordinary meaning canon does.

[01:16:56] Speaker 02:
And now after low purse specifically, we have to exhaust the tools of statutory construction.

[01:17:02] Speaker 02:
And the ordinary meaning canon is an especially potent tool for constructing or construing subsection C. So it's not just used in or to be used in

[01:17:12] Speaker 02:
in a vacuum, it's within the context of reality.

[01:17:17] Speaker 02:
And that's when I was telling the other agencies do have jurisdiction over trucks and truck repair shops.

[01:17:24] Speaker 02:
The point is the use and mining analysis or the know it when we see it analysis doesn't provide any notice or due process to the regular parties.

[01:17:37] Speaker 02:
The quintessential hammer in some parking garage in someone's living room becomes a mine.

[01:17:43] Speaker 02:
So we have to take into account that ordinary meaning.

[01:17:47] Speaker 02:
to construe the meaning, the text of subsection C. That was my basic point.

[01:17:53] Speaker 02:
Because Congress did not choose to hide all these elephants in the subsection C mouse hole.

[01:17:59] Speaker 02:
The reality is that Emsha is asking you to procure basically an open-ended self-serving interpretation that has no limiting principle.

[01:18:08] Speaker 02:
I did not hear my friend offer any limiting principle.

[01:18:11] Speaker 03:
Well, a retention pun.

[01:18:14] Speaker 03:
you know, might be an elephant, but I don't think it's Congress was hiding it in a mouse hole.

[01:18:21] Speaker 03:
When they use the word lands as the first word in C, it's part of the preparation plan.

[01:18:27] Speaker 03:
You, you agree that there can be lands that aren't, um, where extraction occurs, right?

[01:18:40] Speaker 02:
So it's a preparation plant.

[01:18:41] Speaker 02:
And the best case for that, actually, is Carolina Stay Like because it was a processing facility.

[01:18:48] Speaker 03:
There can be lands that aren't associated with preparation plants.

[01:18:52] Speaker 03:
A lot of these retention ponds and other lands that Congress talked about in the hearings and the reports were lands resulting from extraction.

[01:19:04] Speaker 03:
You know, these slurry ponds and other things that where water is dammed up and then the dam breaks and it kills a bunch of people or damages a bunch of property.

[01:19:20] Speaker 03:
So extraction isn't occurring at those lands.

[01:19:24] Speaker 03:
When those lands aren't milling for preparation, they are lands resulting from extraction.

[01:19:34] Speaker 02:
those are preparation plans.

[01:19:35] Speaker 02:
It's not under the resulting from provision of subsection C. And I would draw your attention to the Fourth Circuit Herman mining case where the rail cars were being loaded with coal.

[01:19:48] Speaker 02:
Now the court said that was a preparation facility because subsection I defines preparation as including loading.

[01:19:55] Speaker 03:
Are you telling me that when Congress used subsection lands in subsection C that

[01:20:04] Speaker 03:
They only were talking about lands associated with milling and preparation, but not lands associated with extraction.

[01:20:13] Speaker 03:
Is that your answer?

[01:20:14] Speaker 02:
No.

[01:20:15] Speaker 02:
Congress was talking about extraction, milling, and preparation.

[01:20:18] Speaker 02:
And Congress did put those three things in subsection C. What I'm saying is, if it is not preparation, if it's not milling, if it is not extraction, then MSHA does not have jurisdiction.

[01:20:29] Speaker 03:
And my point is, if there is land

[01:20:33] Speaker 03:
that results from extraction, like some sort of retention pond or something of that nature, that it's not where extraction occurs, is it your contention that that is a mine undersea or that it's not a mine undersea?

[01:20:53] Speaker 02:
If it is a preparation plant, it is a mine.

[01:20:57] Speaker 02:
If it is not, then it I'm sure does not have jurisdiction because EPA does regulate these tailings.

[01:21:01] Speaker 03:
Can you answer my question, yes or no?

[01:21:04] Speaker 03:
is a pond that is created as a result of extraction that is not a preparation plant or not a milling facility.

[01:21:16] Speaker 03:
Is that a mine under subsection C, yes or no?

[01:21:19] Speaker 02:
No, that is not a mine.

[01:21:22] Speaker 03:
Okay, I have your answer.

[01:21:24] Speaker 03:
Does anybody else have any questions?

[01:21:26] Speaker 04:
I have one question.

[01:21:28] Speaker 04:
I understand because of binding precedent, it would have been somewhat futile to make this argument in this court, but you have an opportunity to preserve it if you file a cert.

[01:21:38] Speaker 04:
Do you agree, do you believe that a petition by one executive agency, the Labor Department,

[01:21:48] Speaker 04:
against another executive agency, the Federal Mine Safety and Health Review Commission, is non-justiciable because it is an intra-branch dispute.

[01:22:01] Speaker 02:
It could potentially be, and I'm aware that then Judge Brett Kavanaugh wrote a concurring opinion precisely on that point.

[01:22:07] Speaker 02:
And I believe Judge Rao has written an opinion on that point as well.

[01:22:12] Speaker 02:
So I would say that it does seem odd that the review commission is on one side of the V and MSHA is on the other side of the V. But I think the answer is also that Congress chose to have this split enforcement mechanism.

[01:22:28] Speaker 02:
There are very few split enforcement schemes.

[01:22:30] Speaker 02:
OSHA is one of them because there is the OSHA review commission.

[01:22:34] Speaker 04:
I get that.

[01:22:34] Speaker 04:
I'm surprised you don't want to preserve an argument that that's unconstitutional for your start petition.

[01:22:39] Speaker 02:
We have and we do because I think it's unconstitutional.

[01:22:42] Speaker 02:
We do think that is unconstitutional.

[01:22:45] Speaker 06:
Thank you.

[01:22:46] Speaker 06:
Is that preserved?

[01:22:47] Speaker 06:
I mean, it's not in your briefing.

[01:22:49] Speaker 02:
Well, I mean, it's preserved in the sense that, you know, if the court thinks that is a dispositive thing, then, you know, that would be preserved.

[01:22:58] Speaker 05:
But I also... Isn't it forfeitable?

[01:23:00] Speaker 03:
I don't understand how you preserve something that you don't reap.

[01:23:05] Speaker 03:
But that can be decided by our betters another day.

[01:23:10] Speaker 03:
Any other questions?

[01:23:11] Speaker 06:
I just have one question.

[01:23:12] Speaker 06:
I guess there's a whole line of argument that the provision we're looking at

[01:23:18] Speaker 06:
can't mean things that are not physical locations because there are other parts of the mining statute that very clearly from their context are talking about a physical location, addresses, things of that nature, registration.

[01:23:35] Speaker 06:
And the government's response is that the doctrine of reading

[01:23:41] Speaker 06:
a term consistently throughout a statute is really just a presumption that is defeasible, that we have to look at it.

[01:23:48] Speaker 06:
It doesn't need to be applied rigidly.

[01:23:49] Speaker 06:
And so it's perfectly OK to look at the meaning of a mind in this section as not necessarily applying only to physical locations, even though in other parts of the statute, it is a physical location.

[01:24:08] Speaker 06:
And I'd like to understand your response to that.

[01:24:11] Speaker 06:
Because it seemed to me that one reason perhaps we have this kind of inconsistent use of the word mine is that in some parts of the statute, Congress wanted to address physical locations, and there's no other thing to call it but mine.

[01:24:26] Speaker 06:
So then it becomes inconsistent with their definition of mine in this section.

[01:24:31] Speaker 06:
But I'm interested in your response to that.

[01:24:36] Speaker 02:
maybe say that location remains central.

[01:24:38] Speaker 02:
And I think all three members of this panel have recognized that.

[01:24:42] Speaker 02:
But the activity is confirmatory, because if you step on KC Transport's repair shop, you'll see straight away that no extraction, milling, or preparation takes place at that facility.

[01:24:55] Speaker 02:
So just by some mine inspector, virtue of the fact that the mine inspector visited this facility and immediately saw none of those three things listed in the statute are occurring there, that should have been the dispositive clue

[01:25:10] Speaker 02:
that the mine inspector did not have jurisdiction to inspect at that location.

[01:25:14] Speaker 02:
So location, everything is tied to location.

[01:25:16] Speaker 02:
It's maximum.

[01:25:17] Speaker 06:
You're answering sort of a different question than the one that I asked, which is I'm just looking at the argument that as a matter of statutory interpretation, we're supposed to construe the word mine consistently throughout this statute.

[01:25:29] Speaker 06:
And there are other parts of the statute where contextually, clearly it means a physical location.

[01:25:35] Speaker 06:
But in this provision,

[01:25:37] Speaker 06:
It seems, contextually, that it doesn't, because it talks about tools, equipment, things of that nature.

[01:25:41] Speaker 06:
And the government says, that's just a presumption.

[01:25:44] Speaker 06:
It's defeasible.

[01:25:45] Speaker 06:
We can just look at this in context.

[01:25:46] Speaker 06:
And it doesn't need to be rigid.

[01:25:48] Speaker 06:
And I want to know if you have a response to that.

[01:25:51] Speaker 02:
So our response is that that renders those other provisions surplusage or unworkable, which is true, because physical location is what everything else in the MINAC talks about.

[01:26:03] Speaker 02:
So if the definition section is interpreted to

[01:26:07] Speaker 02:
cover non-location things, then that makes the rest of the act unworkable and surplusish.

[01:26:14] Speaker 02:
That would be the argument in response to that.

[01:26:19] Speaker 02:
Your Honor, I just wanted to put a pin, if you'll allow me, Judge Wilkins, to Judge Walker's point about the non-justiciability because of the two agencies being on different side of the V.

[01:26:33] Speaker 02:
the court determines that this issue is non-justiciable, we win.

[01:26:39] Speaker 02:
Because that means the only option available for this court is to affirm the commission's decision.

[01:26:44] Speaker 06:
But you haven't briefed it.

[01:26:46] Speaker 06:
It's forfeited.

[01:26:48] Speaker 02:
Yes, and if you want supplemental briefs, we would be glad.

[01:26:50] Speaker 05:
Why should you give you that chance?

[01:26:51] Speaker 05:
You should have put in your brief.

[01:26:52] Speaker 02:
Well, I was simply answering the question.

[01:26:56] Speaker 02:
The answer to the question is, if that is a dispositive question in this panel's mind, then at the very least, we should be able to answer that question.

[01:27:08] Speaker 02:
I was merely answering the question.

[01:27:09] Speaker 06:
I just don't think that's the way it works.

[01:27:11] Speaker 06:
You get to make your arguments.

[01:27:12] Speaker 06:
And if you don't make an argument that you would have won on, you forfeited it.

[01:27:17] Speaker 02:
Unless the court mentions it.

[01:27:19] Speaker 02:
But if the court does not mention it, we, I think, have a strong case on the arguments that we have.

[01:27:24] Speaker 03:
But your position is that if we reach that argument and we agree that it's non-justiciable, then we dismiss the case.

[01:27:35] Speaker 03:
And then whatever the last decision that was rendered is the one that is binding.

[01:27:45] Speaker 03:
And that was a decision in your favor.

[01:27:47] Speaker 02:
Yeah, so that is the commission's decision.

[01:27:51] Speaker 02:
Yes.

[01:27:52] Speaker 02:
And if the court answers that question, we won't be the aggrieved party.

[01:27:57] Speaker 02:
It would be up to the secretary to file a cert petition to get that question before the court.

[01:28:02] Speaker 02:
So it's not a question of forfeiture.

[01:28:04] Speaker 02:
It's a question of if the court reaches that question, if the court is free to do so.

[01:28:09] Speaker 02:
But if it does, then the commission's decision is simply affirmed because then this court lacks jurisdiction to decide it.

[01:28:15] Speaker 02:
And then it's up to the secretary to take it upstairs.

[01:28:19] Speaker 03:
Understand.

[01:28:20] Speaker 03:
Thank you.

[01:28:21] Speaker 02:
Thank you.

[01:28:22] Speaker 02:
Your Honor, I think we have covered everything.

[01:28:24] Speaker 02:
The court should reject the secretary's interpretation and affirm the commission's decision vacating MSHA's two citations for warrant of jurisdiction.

[01:28:33] Speaker 02:
Thank you.

[01:28:35] Speaker 03:
All right.

[01:28:38] Speaker 03:
Ms.

[01:28:38] Speaker 03:
Maltz, you were out of time, but we'll give you three minutes on rebut.

[01:28:46] Speaker 07:
Thank you, Your Honor.

[01:28:48] Speaker 07:
Excuse me.

[01:28:50] Speaker 07:
I'd like to address Judge Pan's point about one of the secretary's concerns with KC Transport's proposed interpretation.

[01:29:02] Speaker 07:
The operator could just move.

[01:29:06] Speaker 07:
equipment off of, you know, across an arbitrary line in order to avoid inspection.

[01:29:11] Speaker 07:
That's, you know, purpose defeating in terms of the Mine Act.

[01:29:14] Speaker 07:
And that's what KC Transport did in this case.

[01:29:17] Speaker 07:
KC Transport had a facility adjacent to the road.

[01:29:22] Speaker 07:
And then after EMSA sighted that facility, KC Transport moved its facility 1,000 feet from the road in an effort to avoid EMSA inspection.

[01:29:34] Speaker 07:
And so, you know,

[01:29:35] Speaker 07:
Insofar as an interpretation would require facilities, et cetera, to be, or equipment, I should say, movables, et cetera, to be located in a particular place, operators could avoid entry enforcement by running across a line.

[01:29:53] Speaker 07:
I'll very briefly speak.

[01:29:58] Speaker 07:
The court referred to Buffalo Creek and to Congress's purpose in

[01:30:03] Speaker 07:
writing subsection C the way that it did.

[01:30:07] Speaker 07:
In Buffalo Creek in 1972, an impoundment dam burst and killed 125 people.

[01:30:14] Speaker 07:
Those are 125 real lives, not some hypothetical hammer in someone's living room.

[01:30:19] Speaker 07:
And I do understand the court has to probe the definition, but this case deals with the facts here.

[01:30:31] Speaker 07:
actually didn't have to deal with extraction milling worth repairing it was an impoundment dam related to a coal preparation plant I believe but it wasn't located at the coal preparation plant so you know Congress specifically referred to that