Wayne Heimer: Compliance or common sense? The feds and their harassment of local miners

By WAYNE HEIMER

I’ve often written about regulatory overreach by the central government.  It’s a target-rich environment, and I’m at it again.  This time I’ll limit myself to one national, several Alaskan, and a recent Fairbanks example. 

The management mantra of federal regulatory agencies is consistently, “compliance with administrative regulations.”  The challenge for Alaskans is that, too often, these administrative regulations don’t make Alaskan sense. 

Today’s big example is the federal take-over of fish and wildlife management by the feds. That one hangs on the difference between Alaska’s Constitution and the federal interpretation of a land control law known as ANILCA. 

Alaska’s Constitution says Alaska can’t discriminate against anyone because of where they live. The federal law (ANILCA) says “rural residents” have priority use of fish and game on federal public lands. The issue is more about semantic compliance with legal definitions than actually providing fish and game use opportunities for Alaskans.  There’s a current move to change Alaska’s Constitution to  allow this discrimination.

On a slightly smaller level, the now-several-years-old National Park Service ranger abuse of Central resident Jim Wilde happened because the feds mistakenly thought their ANILCA-inferred “administrative interest” in Alaska’s navigable water turned Alaska’s water into federal public land. Jim Wilde paid the price. 

Next, Alaskan John Sturgeon got sucked into that same administrative whirlpool, and took it to the U.S. Supreme Court — twice — at a cost of about $7 million dollars. He won unanimous decisions both times. 

Alaska’s water isn’t federal public land, and never was. Nevertheless, the feds still pretend it is (see the ongoing Kuskokwim salmon case). Also, activist federal Judge Sharon Gleason agrees the feds can do whatever they want (Kake ‘food security’ decision). 

The state must appeal those word-parsed administrative decisions.

On the local level, the federal Mining Safety and Health Administration is moving to force administrative compliance by local miner with a leased claim near the original Felix Pedro strike on the Steese Highway. MSHA exists to make mining safe for miners. Sounds noble, so what’s the overreach problem? Because of conflicting MSHA regulations, our local Fairbanks miner got cross-threaded with MSHA because he’s only a one-man operation. That means he technically has no employees. MSHA regulations require safe working environments for employees. This fellow has none. He works alone, and has successfully mined alone for 30 years.

So, when an MSHA inspector showed up at his mine to assure compliance with safety regulations relevant to big mines with employees, our miner was working alone behind a locked gate on his leased ground. When told he had to comply with inspection regulations, our miner explained he had no employees, and asked why MSHA was inspecting him when he, alone, is responsible for his personal safety. The inspector cited an “anonymous complaint.” 

The local miner’s requests for proof of legal authority didn’t go down well with the MSHA inspector. 

Even though you can drive to his claim on the Steese Highway, inspectors landed on his claim with a helicopter two weeks later. Inspectors found cracked windows in his “dozer” (limiting visibility, they said), no “life ring” on a post near his pond, and no acceptable access to first aid kit. There were also some “unsafe” drive sprocket shields on factory-purchased equipment, as well as a couple of minor uncertified Alaskan problem-solving solutions. 

In spite of our miner asking how he could back his dozer over himself while operating it or throw a flotation ring to himself if he fell into his pond, the MSHA inspectors wrote him up, got into their helicopter, flew away, and summoned our miner to court for a hefty fine. 

Why? Noncompliance.

It turns out our local miner was “whipsawed” because he thought he could read and practically comply with MSHA regulations.  He couldn’t.  The regulations exist for large operations with employees.  However, the fine print in the “administrative code” seems to define an owner-operator as an “employee.” Hence, the MSHA inspectors nailed our local miner on technicalities about technicalities.

This is another example of administrative regulations crafted for circumstances that are not applicable (except on paper) in practical Alaska. That’s federal overreach.

There’s a rhetorical principle called “Toulmin’s fallacy.” It argues the impracticality of making a one-size-fits-all rule. That’s because there will always be a significant exception. We might call that common sense, but it has been long lost on helicopter-chartering MSHA administrators who flew out to the Pedro Monument to bust a miner who was only a federally perceived danger to himself, and no danger to anyone else.

Wayne E. Heimer is a long-term Alaskan who believes Toulmin had it right, and recommends ‘googling’ Roger Miller’s “Big River” musical, and listening to the “Guv’ment” track.

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