CLAY KITTANNING COAL CO., INC. v OSM;  Docket No. CH 9-181-R (October 26, 1979)

TYPE:  ALJ Hearing: Order  

NAME: CLAY KITTANNING COAL CO., INC., Applicant v OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT (OSM), Respondent  

DATE: October 26, 1979 [Amends October 2, 1979 decision]  

CASE-NO: Docket No. CH 9-181-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-I-44-13  

OPINION:  ORDER  

   The notice of violation issued by the Office of Surface Mining is apparently framed to inform an operator of his rights
to a review of the notice of violation (a copy of the regulations was sent), however, the information given an operator
upon which he is expected to rely is not only insufficient and incomplete but totally misleading as to the operator's
obligations under 43 CFR Part 4.  

   In bold letters, the notice of violation first reads:  

   IMPORTANT - PLEASE READ CAREFULLY  

   and then follows:  

   1.  Review.  You may apply for review of this Notice by submitting an application for review, within 30 days of
receipt of this Notice by you or your agent to:  

   Hearings Division  
   Office of Hearings and Appeals  
   U.S. Department of the Interior  
   4015 Wilson Boulevard  
   Arlington, Virginia 22203  

   43 CFR Part 4 is not cited anywhere in the violation notice nor instructions to serve the Field Solicitor with copies.  

   There is no indication to the operator of either how to file an application (contents) or where to obtain information on
how to file such application.  In fact, CFR is not mentioned at all.  

   Even under the penalty section the proper citation is not given.  

    {2}  OSM undertakes to advise an operator of its right to a review but does it in such an incomplete manner as to
cause an ordinary person under same or similar circumstances to take for granted that the writing of a letter requesting a
review is sufficient.  If OSM wishes to provide instructions on the right to review, it should be complete and OSM
cannot take advantage of a  defective situation that their "Notice" caused to be set into operation. n1  

   n1 Order (June 4, 1979) (Kaiser Steel Corporation, Docket No. DV 9-6-R).  

      The Office of the Field Solicitor in its motion for reconsideration cites immediately that the applicant failed to
comply with 43 CFR 4.1109(a) and serve the Field Solicitor with a copy of the application; however, the Solicitor
admits it received notice of the appeal April 13, 1979, from the Office of Hearings and Appeals.  Since notice pleadings
are accepted in administrative law as preserving the right of appeal, though some may be incomplete and subject to
motion for more definite statement, the respondent may not take advantage of its own omission for the purpose of
penalizing applicant for its omissions which is the result of the negligence of respondent.  

      It is only the opinion of the respondent that the filing of an application for review with the Office of Hearings and
Appeals in Arlington, Virginia, does not "trigger the time requirement for filing an Answer under 43 CFR 4.1165."  

   43 CFR 4.1107(e) states that the effective filing date for documents "initiating proceedings" is the date it is received
by OHA in Arlington.  

      43 CFR 4.1165 provides the mandatory requirement ("shall") of an answer to be filed within 20 days of service of a
copy of an application.  Since OSM received a copy from OHA on August 13, their time began to run as of that date and
was not tolled as a result of failure of applicant to send them a copy.  

      The respondent states that the time for filing an answer or any other responsive pleading is "directory" not
"jurisdictional" to the extent of its application.  With this I do not completely agree, but that depends on further
definitions of the terms directory and jurisdictional.  The mere fact that the administrative law judge has jurisdiction
over a case for specific time frames does not excuse OSM from the mandatory requirement of filing an answer if it
wishes to pursue its prosecution of a violation.  

      The "logic" of the Solicitor escapes me when he argues in his motion that the "authority" of the Administrative Law
Judge to accept a late answer relieves OSM from its responsibilities of requesting permission to file a late answer within
the time set by 43 CFR 4.1165 for filing an answer regardless of the reason.  

     {3}  OSM attacks the section cited by the undersigned in its order of October 2, 1979, on an individual basis as if
each were cited as the singular reason for the order; however, the sections were collectively cited as appearing in a
similar decision in Addington Brothers Mining, Inc., NX 9-53-P (October 2, 1979), wherein they were used to indicate
that failure to file an answer by OSM amounts to a resulting "default judgment" and an abandonment of its
"prosecutorial posture by failure to answer."  

   It is the collective interpretation of these sections that leads the undersigned to make such a holding.  

   Further, OSM states that it has not waived its "rights to a hearing" as per 43 CFR 4.1115.  

      OSM was "deemed" to have waived its right to a hearing by its failure to file a timely answer.  Although the order
did not specifically recite such, it is axiomatic that the effect of the order os dismissal was a ruling that OSM had waived
its right to a hearing.  

      Respondent raises the issue that applicant has filed no motion to dismiss for failure to file an answer.Once again,
OSM is attempting to shift their own burden of responsibility.  There is no burden on the applicant to make such a
motion since it was the negligence of OSM in failing to answer.  

      It is true that there may be several reasons why a "late" answer may be accepted, but to obtain that privilege, which
is contrary to the directions of the ergulations, requires a request or a showing to the Administrative Law Judge of such a
necessity, or an agreement by the applicant to request of the Administrative Law Judge that such a request be granted. 
OSM has no authority nor power to create the privilege of a late answer.  It is immaterial when the undersigned issued
the order, since the effect of the ruling was the rendition of a judgment in favor of the applicant as of the date of default. 
The mere fact that the ruling came after the late answer was filed conferred no further rights, exceptions or powers on
respondent.  

      The respondent must be reminded that the Secretary of the Interior is bound by his own regulations as they are
written and unless or until the regulations are rewritten to excuse OSM for its failure to comply with a mandatory rule,
then OSM shall be required to strictly comply with the procedural regulations as they are written.  

      The undersigned does not offer an interpretation of the word "shall" since judicial notice is universal that that is a
mandatory term, not a permissive term.  

   The motion to reconsider is denied.
 
Distribution:  

   William A. Ray, President, Clay Kittanning Coal Co., Inc., Bickmore, WV 25019 (Certified Mail)  

   John R. Woodrum, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Dept. of the Interior, 723
Kanawha Blvd., E., 9th Floor, Charleston, WV 25301 (Certified Mail)  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Dept. of the Interior, Washington,
DC 20240 (Certified Mail)  

   Assessment Office - OSM, Room 215, So. Bldg., U.S. Dept. of the Interior, Washington, DC 20240