                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               JUN 21 2018
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

COEUR ALASKA, INC.,                               No.    16-73682

              Petitioner,
 v.

FEDERAL MINE SAFETY AND                           MEMORANDUM*
HEALTH REVIEW COMMISSION and
SECRETARY OF LABOR,

              Respondents.


                      On Petition for Review of an Order of the
                    Federal Mine Safety & Health Administration

                       Argued and Submitted June 13, 2018
                      Anchorage Old Federal Building, Alaska

Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.

      Coeur Alaska, Inc. (“Petitioner”) petitions for review of an administrative

law judge’s decision upholding, in whole or in part, seven citations under

30 C.F.R. § 57.3360 and two citations under 30 C.F.R. § 57.3200. We have

jurisdiction under 30 U.S.C. § 816(a)(1), and we deny the petition. Because the

parties are familiar with the history of this case, we need not recount it here.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                            I

      Section 57.3360 requires a determination that “ground support,” in general,

“is necessary.” “Ground conditions[ ] or mining experience in similar ground

conditions in the mine” inform this determination. § 57.3360; see also Safety

Standards for Ground Control at Metal and Nonmetal Mines, 51 Fed. Reg. 36,192,

36,192 (Oct. 8, 1986) (codified at 30 C.F.R. pts. 56 & 57) (“[G]round conditions

and mining experience are the criteria for determinating if support is required”).

When “ground support . . . is necessary,” a mine company violates § 57.3360 by

failing to “design[ ], install[ ], [or] maintain[ ]” any feature of the relevant mine’s

ground support system meant “to control the ground.” § 57.3360.

      The ALJ applied the correct interpretation of §57.3360, and substantial

evidence supports his decision to affirm the seven § 57.3360 citations. First,

Petitioner does not dispute that “ground support” was “necessary” at the locations

of the seven § 57.3360 citations. Even if this issue was disputed, the ALJ

confirmed the need for ground support by discussing the existence of “fractured or

separating rock” in the relevant areas.

      Second, the ALJ demonstrated that the wire mesh “was installed and

intended to act as [ground support],” and was not properly maintained at the

relevant areas. Petitioner’s ground control manual confirmed that “[ground]


                                            2
[s]upport consists of two components, rock reinforcement which are the bolts and

surface support which are the plates, mats, and mesh.” The presence of “torn or

rusted wire mesh. . . near or adjacent to the areas of loose rock” also revealed that

Petitioner failed to maintain the wire mesh.

                                          II

      The ALJ considered the appropriate factors when making his negligence

classifications, which substantial evidence supports. Contrary to Petitioner’s

contention, the ALJ considered proposed mitigating evidence, including

Petitioner’s training and rehab programs, when making his seven high negligence

classifications. See 30 C.F.R. § 100.3, Table X (noting that “high negligence”

requires that “there are no mitigating circumstances”). He reasonably rejected this

evidence because Petitioner had failed to follow the mitigating programs.

      The ALJ also supported his rejection of Petitioner’s argument that it lacked

constructive knowledge of all nine violations. 30 C.F.R. § 100.3, Table X (noting

that both high and moderate negligence classifications require that “[t]he operator

knew or should have known of the violative condition or practice”). For example,

he cited rust on the wire mesh, the large size of loose ground, the presence of

vehicles and workers in the area, and Petitioner’s statements that the areas were

rehabbed shortly before the inspection as evidence of constructive knowledge.


                                           3
                                           III

       Substantial evidence supports the ALJ’s decision to uphold six of the

“significant and substantial” classifications under the four-element test from

Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1 (Comm’n 1984).

       As to Petitioner’s challenge to the second element, the ALJ appropriately

relied on photographs and testimony to demonstrate that unmaintained wire mesh

and the presence of loose material nearby were at least “reasonably likely” to

contribute to the hazard of loose ground falling though broken wire mesh. Sec’y of

Labor v. Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Comm’n 2016).1

       As for Petitioner’s challenges to the third and fourth elements, the ALJ made

the reasonable conclusion that the hazard of loose material falling through

unmaintained wire mesh was “reasonably likel[y]” to result in a reasonably serious

injury. Sec’y of Labor v. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280 (Comm’n

2010) (noting that the third Mathies element requires assessing whether the hazard

contributed to by the violation, not the violation itself, is reasonably likely to result

in injury).



       1
        Because substantial evidence supports the ALJ’s conclusion that the
unmaintained wire mesh was “reasonably likely” to contribute to a safety hazard,
we need not—and do not—consider whether the second Mathies step requires a
lesser showing.
                                            4
                                          IV

      The ALJ did not abuse his discretion in upholding four of the specially

assessed penalties. Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1086 (10th

Cir. 1998) (noting abuse of discretion review standard). The ALJ considered the

six required factors when making his special penalty assessments. See 30 U.S.C.

§ 820(i) (listing factors); 30 C.F.R. §§ 100.3(a)(1), 100.5(b) (same). Of these six,

four factors—namely, Petitioner’s negligence, the gravity of the violations,

Petitioner’s large size, and the fact that the special assessments would not prevent

Petitioner from continuing business—support the ALJ’s special assessments.

                                          V

      Finally, we lack jurisdiction to review the Federal Mine Safety and Health

Review Commission’s decision to decline review of the ALJ’s decision. 30 U.S.C.

§ 823(d)(2)(A)(i) (“Review by the Commission shall not be a matter of right but of

the sound discretion of the Commission.” (emphasis added)); see also 30 U.S.C.

§ 823(d)(1) (“The decision of the administrative law judge of the Commission

shall become the final decision of the Commission . . . unless . . . the Commission

has directed that such decision shall be reviewed by the Commission . . . .”).



      PETITION DENIED.


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