Petition — Nolichuckey Sand Co. v. Marshall

Supreme Court brief1980

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Paiwome Court, Ue

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, FEB 4 1980

No. ! VION At OOAM, IR DLE

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

NOLICHUCKEY SAND CoMPANny, Inc., Petitioner,

Uv.

Ray MarRsHAL.L, Secretary of Labor,

United States Department of Labor, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HERBERT P, STLVERS

C, BERKELEY BELL

Srivers, BELL, Rogers, LAUGHLIN,

NUNNALLY & RANDALL

P.O. Box 679

100 South Main Street

Greeneville, Tennessee 37743

JOHN T. SAPIENZA

JOHN P. Rupp

Donna M. MvurRAskKyY

Covincton & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

TABLE OF CONTENTS

Page

EE EE ey ee 1

diated cccvcces 2

ee a se kiaddin.s Mo en e900 0 0.0» 2

StTaTuToRY AND CONSTITUTIONAL Provisions | AS 2

STATEMENT OF THE CASE ........ eee 4

REASONS FOR GRANTING THE WRIT .............-2005- 7

I. The Decision in This Case Undermines the Deci-

sion in Barlow’s and Threatens a Significant

Erosion of the Fourth Amendment ............ 8

II. Review by This Court Also Is Needed To Resolve

a Conflict Among the Lower Courts on the Issue

EE EE I Se irwacsccsescccscecers.. 16

a tds cep iesccvces 18

TABLE OF AUTHORITIES

CasEs

Camara v. Municipal Court, 387 U.S. 523 (1967) ..9, 13, 14

Colonnade Catering Corp. v. United States, 397 U.S.

SN ee et Lk ke bunpc occses passim

Delaware v. Prouse, 99 S. Ct. 1391 (1979) .......... ‘eer

Frank v. Maryland, 359 U.S. 360 (1957) ............ 9

Lo-Ji Sales, Inc. v. New York, 99 8. Ct. 2319 (1979) .. 13

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ....passim

Marshall v. Cedar Lake Sand and Gravel Co., 1 M.S.

H.C. 225 (E.D. Wisc., decided November 9, 1979) 15

Marshall v. Douglas Dewey and Waukesha Lime ¢

Stone Co., No. 79-C-114 (E.D. Wisc., decided March

ee en eee 15

ii Table of Authorities Continued

Page

Marshall v. Halquist Stone Company, Inc., No. 78-C-

463 (E.D. Wisc., decided September 15, 1978) .... 15

Marshall v. Sink, No. 77-2614 (4th Cir., decided Janu-

SEE WE Esch RL eae bo ASE SOLAN OSs 16

Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d

589 (3d Cir. 1979), cert. denied, 48 U.S.L.W. 3431

( JET Gy SR ys Sues sku Skee Rew 7, 15, 16, 17

Marshall v. The Texoline Co., No. CA 4-78-49 (N.D.

Tex., decided March 23, 1979), appeal pending,

Dees Pa Ce CO GRE bc Vena gs SRRMEN Gea eae FAC

Marshall v. Wait, No. S-78-11 (E.D. Cal., decided May

1, 1978), appeal pending, No. 78-2345 (9th Cir.) .. 15

See v. City of Seattle, 387 U.S. 541 (1967) .......... 14

Torres v. Puerto Rico, 99 S. Ct. 2425 ............006. 13

United States v. Biswell, 406 U.S. 311 (1972) ...... passim

United States v. Consolidation Coal Co., 560 F.2d 214

(6th Cir. 1977), vacated and remanded, 436 U.S.

942, judgment reinstated, 579 F.2d 1011 (1978),

cert. dented, 439 U.S. 1069 (1979) .............. 6, 16

Valley Transit Miz, Inc. v. Marshall, No. 79-391-B,

consolidated with Nos. 79-393, 79-422 and 79-454

(D. N.M. decided June 15, 1979), appeal pending,

FEO Fe AEE GREG) 3c is vad sd esa hee eetesens 15

SratuTory AND CoNnSsTITUTIONAL Provisions

Comprehensive Drug Abuse Prevention and Control

Act of 1970, 21 U.S.C. § 801 et seq. (1976) ........ 14

Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (1976) 9

Federal Metal and Nonmetallic Mine Safety Act of

i sy RRR Pam eee er 10

Federal Mine Safety and Health Act of 1977, 4801

CE EE TR. TEE oe ors add eda ia cbuweaebe passim

Section 103(a), 30 U.S.C. §813(a) ........... passim

Table of Authorities Continued ili

Page

Occupational Safety and Health Act of 1970, 29 U.S.C.

Be I IIS oo 0 5.5 vec Ne ekg beiainban cha passim

RMON Os SFM OE oikik ssc nci sew essccoces 12, 14

UE I on igs cece va cee ccaceu eas 2

United States Constitution, Amendment IV ...... passim

MISCELLANEOUS

‘*Kinvironmental Protection Agency Memorandum on

the Impact of the Marshall v. Barlow’s, Inc., Deci-

sion,’’? 2 Chem. Reg. Rep. 756 (August 4, 1978) .. 14

ee CRED kale cnkdawapeesccseesceves 12

H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. (1970) .... 14

S. Rep. No. 95-181, 95th Cong., Ist Sess. (1977) ...... 14

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

NoticHuckEy Sanp Company, Inc., Petitioner,

Vv.

Ray MarsHat., Secretary of Labor,

United States Department of Labor, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nolichuckey Sand Company, Inc., petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals, reported at

606 F.2d 693 (6th Cir. 1979), is reproduced in Appen-

dix A. The unreported judgment and accompanying

memorandum opinion of the United States District

Court for the Eastern District of Tennessee are repro-

duced in Appendix B. .

JURISDICTION

The judgment of the Court of Appeals was entered

on October 5, 1979. By order dated December 26, 1979,

Mr. Justice Stewart extended the time for filing a

petition for a writ of certiorari tc and including Feb-

ruary 4, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether Section 103(a) of the Federal Mine Safety

and Health Act of 1977 (the ‘‘Act’’), which authorizes

warrantless inspections, is constitutional insofar as it

applies to the sand and gravel industry even though

that industry has no history of pervasive government

regulation and there has been no showing that war-

rantless inspections of sand and gravel facilities are

essential to effective enforcement of the Act.

STATUTORY AND CONSTITUTIONAL PROVISIONS

Section 103(a) of the Federal Mine Safety and

Health Act of 1977, 91 Stat. 1297, 30 U.S.C. § 813(a)

(I Supp. 1979), provides as follows:

‘‘Authorized representatives of the Secretary

[of Labor] or the Secretary of Health, Education,

and Welfare shall make frequent inspections and

investigations in coal or other mines each year

for the purpose of (1) obtaining, utilizing, and

disseminating information relating to health and

safety conditions, the causes of accidents, and the

causes of diseases and physical impairments origi-

nating in such mines, (2) gathering information

with respect to mandatory health or safety stan-

dards, (3) determining whether an imminent dan-

ger exists, and (4) determining whether there is

wt ga Sol

compliance with the mandatory health or safety

standards or with any citation, order, or decision

issued under this subchapter or other require-

ments of this chapter. In carrying out the require-

ments of this subsection, no advance notice of an

inspection shall be provided to any person, except

that in carrying out the requirements of clauses

(1) and (2) of this subsection, the Secretary of

Health, Education, and Welfare may give advance

notice of inspections. In carrying out the require-

ments of clauses (3) and (4) of this subsection,

the Secretary [of Labor] shall make inspections

of each underground coal or other mine in its en-

tirety at least four times a year, and of each

surface coal or other mine in its entirety at least

two times a year. The Secretary [of Labor] shall

develop guidelines for additional inspections of

mines based on criteria including, but not limited

to, the hazards found in mines subject to this

chapter, and his experience under this chapter

and other health and safety laws. For the purpose

of making any inspection or investigation under

this chapter, the Secretary [of Labor], or the

Secretary of Health, Education, and Welfare,

with respect to fulfilling his responsibilities under

this chapter, or any authorized representative of

the Secretary [of Labor] or the Secretary of

Health, Education, and Welfare, shall have a right

of entry to, upon, or through any coal or other

mine.”?

The Fourth Amendment to the United States Con-

stitution provides:

‘“‘The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.”’

4 .

STATEMENT OF THE CASE

The Federal Mine Safety and Health Act of 1977

(the ‘‘Act’’) became effective on March 9, 1978. 30

U.S.C. § 801 et seg. (I Supp. 1979). Approximately

one month thereafter, on April 11, 1978, Mr. Charles

McDaniel, an inspector employed by the Mine Safety

and Health Administration of the Department of

Labor, went to the sand and gravel pit operated by

the Nolichuckey Sand Company (‘‘Nolichuckey” or

the ‘‘company’’) and demanded access to that facility

for the purpose of making a routine safety and health

inspection. App. C, infra, p. 19a. Since Mr. McDaniel

did not have a search warrant, Mr. Thomas Bewley,

vice president of the company, declined to permit Mr.

McDaniel to proceed with the inspection. Ibid. Mr.

McDaniel returned to the N olichuckey sand and gravel

pit on April 12, 1978, again seeking to conduct a war-

rantless inspection of the facility. Ibid. Upon being

refused admission, Mr. McDaniel issued a citation and

departed. Id. at 20a.

The Secretary of Labor thereafter initiated the

present action in the United States District Court for

the Eastern District of Tennessee. The relief requested

by the Secretary included a preliminary and perma-

nent injunction, prohibiting the N olichuckey Sand

Company, and its agents and employees, from refusing

to permit warrantless inspections of Nolichuckey’s

business premises. Nolichuckey responded by filing a

motion to dismiss on the ground that Section 103(a)

of the Act, 30 U.S.C. § 813(a), insofar as it authorizes

the warrantless inspection of sand and gravel pits, ‘‘is

in derogation of the Warrant Clause of the Fourth

Amendment and is therefore unconstitutional and

void.”” Motion To Dismiss, p. 1 (September 1, 1978).

On September 14, 1978, the district court entered

an order deferring consideration of Nolichuckey’s

motion to dismiss and of the Secretary’s motion for a

preliminary injunction until the time of trial, which

the court advanced to September 21, 1978. App. B.,

infra, p. lla. The only witness at the trial was Mr.

M. V. Turner, an employee of the Mine Safety and

Health Administration and Mr. McDaniel’s supervisor.

App. A, infra, p. la. Mr. Turner, who was called by

Nolichuckey as an adverse witness, confirmed that

‘‘[t]he sole purpose of the * * * attempted inspection”’

of Nolichuckey’s ‘‘business premises was to check rou-

tinely for possible violations of the Federal Mine

Safety and Health Act of 1977’’ and that ‘‘Mr. Mc-

Daniel had no knowledge of any specific violation

thereof.’’ App. B, p. 10a. Mr. Turner also testified

that any violations of the Act by Nolichuckey could

not have been concealed easily. Tr. of September 21,

1978, p. 7. Finally, counsel for the government con-

ceded that if there were ‘‘close’’ regulation of the

sand and gravel industry, that regulation would have

to be found in the 1977 Act. Jd. at 16.

On December 14, 1978, the district court issued a

memorandum opinion and order granting the Secre-

tary’s request for a permanent injunction. App. B.,

pp. 9a-16a. After noting that the question before it

was ‘‘not wholly free from doubt’’ (id. at 15a), the

court concluded that the warrantless inspections au-

thorized by Section 103(a) of the Federal Mine Safety

and Health Act of 1977 fell within the exception to

the warrant requirement described in United States

v. Biswell, 406 U.S. 311 (1972), and Colonnade Cater-

ing Corp. v. United States, 397 U.S. 72 (1970). The

district court distinguished this Court’s decision in

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), on the

ground that this case, unlike Barlow’s, involves ‘‘a

statute relating to a single industry (mining), which

industry has had a history of close federal supervision

and regulation.’”? App. B, p. 15a. The court also im-

plied, despite the testimony of Mr. Turner, that a

warrant requirement would interfere with enforcement

of the Act.’ Id. at 15a-16a.

In affirming the judgment of the district court, the

court of appeals recognized that ‘‘[t]he sand and

gravel industry does not have the long history of regu-

lation referred to in Colonnade or the extensive licens-

ing scheme which was present in both Colonnade and

Biswell.”” App. A, p. 5a. But, according to the court

of appeals, the determinative factor in assessing the

validity of statutory exceptions to the warrant re-

quirement is the “reasonableness” of Congress’ deter-

mination to dispense with a warrant. Jd. at 3a. The

court held that warrantless inspections of sand and

gravel facilities should be permitted under this stan-

dard because (1) of ‘‘the enforcement needs in the

mining industry’’; (2) the Federal Mine Safety and

Health Act, as previously construed by the court of

appeals,’ permits warrantless inspections of only the

*On November 15, 1978, Nolichuckey filed a motion for a pre-

liminary injunction to halt further administrative proceedings in

connection with the citation issued by Mr. McDaniel on April 12,

1978. See discussion at page 4 supra, The court dismissed this mo-

tion as moot on December 14, 1978, when it ruled in the Secre-

tary’s favor in the present action. Administrative proceedings on

the citation, involving a possible fine of $655.00 for Nolichuckey’s

refusal to permit a warrantless inspection of its facility, are still

pending.

*United States v. Consolidation Coal Co., 560 F.2d 214 (6th

Cir. 1977), vacated and remanded, 436 U.S. 942, judgment rein-

stated, 579 F.2d 1011 (1978), cert. denied, 439 U.S. 1069 (1979).

‘active workings’’ of mines; (3) the Act permits a

representative of the operator of a facility to be pres-

ent during routine inspections; and (4) an operator’s

refusal to permit a warrantless inspection does not

lead to the summary imposition of sanctions. Id. at Ta.

Finally, the court acknowledged that several district

courts have held the warrantless inspection provision

of the Act to be unconstitutional but concluded that

the Third Circuit’s decision in Marshall v. Stoudt’s

Ferry Preparation Co., 602 F.2d 589 (1979), cert.

dented, 48 U.S.L.W. 3431 (January 8, 1980), which

had approved warrantless inspections under the Act,

was a ‘‘better reasoned’’ decision. Jbid.

REASONS FOR GRANTING THE WRIT

This case raises an important constitutional issue

as to which guidance by this Court is urgently needed.

The decision in this case seriously undermines this

Court’s decision in Marshall v. Barlow’s, Inc., supra,

and cuts deeply into the protection against warrantless

searches afforded by the Fourth Amendment. If this

decision is permitted to stand, the ‘‘narrow exception”

to the Warrant Clause recognized in United States v.

Biswell, supra, and Colonnade Catering Corp. v. United

States, supra, is likely to engulf the general rule con-

firmed in Barlow’s prohibiting the warrantless inspec-

tion of commercial premises. Although the court of

appeals attempted to distinguish the situation pre-

sented here from the situation confronting this Court

in Barlow’s, the grounds of distinction relied upon by

the court cannot withstand analysis.

Review by this Court also is warranted because the

decision here conflicts with the holdings of three dis-

trict courts that have considered the constitutionality

of the warrantless inspection provision of the Federal

Mine Safety and Health Act of 1977 as applied to sand

and gravel facilities. Several other courts have con-

cluded, as has the Sixth Circuit in this case, that

warrantless inspections of such facilities are constitu-

tional. Unless this Court intervenes to resolve this

conflict, there is a likelihood of continuing litigation

with respect to the issue presented here and disagree-

ment as to the constitutional implications of warrant-

less searches of facilities like those operated by peti-

tioner.

The Decision in This Case Undermines the Decision in Barlow’s

and Threatens a Significant Erosion of the Fourth Amendment

The decision in this case cannot be reconciled with

the view of the Fourth Amendment endorsed by this

Court in Marshall v. Barlow’s, Inc., supra. As this

Court noted in Barlow’s, ‘‘[t]he general warrant was

a recurring point of contention in the Colonies’’ during

the pre-revolutionary period, being regarded as par-

ticularly offensive ‘‘by the merchants and businessmen

whose premises and products were inspected for com-

pliance with the several parliamentary revenue meas-

ures that most irritated the colonists.’’ 436 U.S. at 311

(footnotes omitted). Against this background, this

Court confirmed in Barlow’s that warrantless searches

of commercial premises are presumptively invalid, and

will not be permitted unless the government can point

to some ‘‘recognized exception’’ to the warrant require-

ment. Id. at 313.

In the case of routine agency inspections, this Court

has recognized an exception to the warrant require-

ment in only two instances. In Colunnade Catering

Corp. v. United States, supra, this Court ruled that

liquor establishments, subject to government licensing

and having a history of pervasive regulation predating

adoption of the Fourth Amendment, could be inspected

without a warrant. Shortly thereafter, this Court held

in United States v. Biswell, supra, that firearms dealers,

also subject to licensing requirements and to pervasive

regulation, may not insist upon a warrant before sub-

mitting to inspections pursuant to the Gun Control

Act of 1968, 18 U.S.C. § 921 et seg. (1976).

The exceptions to the warrant requirement recog-

nized in Colonnade and Biswell rest upon an implied

consent theory. As this Court explained in Barlow’s

(436 U.S. at 313):

‘Certain industries have such a history of govern-

ment oversight that no reasonable expectation of

privacy * * * could exist for a proprietor over

the stock of such an enterprise. Liquor (Colon-

nade) and firearms (Biswell) are industries of

this type * * *,

* * * The element that distinguishes these enter-

prises from ordinary businesses is a long tradition

of close government supervision, of which any

person who chooses to enter such a business must

already be aware. * * *”’

Permitting the decision in this case to stand would

seriously undermine the decision in Barlow’s and

produce substantial uncertainty concerning the stan-

dard to be applied in judging the constitutionality of

warrantless searches. The sand and gravel industry

* The holding in Frank v. Maryland, 359 U.S. 360 (1957), which

permitted warrantless inspections pursuant to municipal fire, hous-

ing and health codes, was overruled in Camara v. Municipal Court,

387 U.S. 523 (1967).

a Se ee ee ee ee ee ee ee oe

was not subject to significant federal regulation until

early 1978, when the Federal Mine Safety and Health

Act became effective.‘ ‘Lhe family-owned Nolichuckey

Sand Company had, at that time, been in operation

for almost 29 years. To hold that the owners of such

a facility have impliedly consented to warrantless in-

spections, or have no reasonable expectation of privacy

with respect to their business premises, is to raise a

palpable fiction to the level of constitutional doctrine

and to ignore the rationale of the decision in Barlow’s.

The court of appeals expressly acknowledged in this

ease that ‘‘[t]he sand and gravel industry does not

have the long history of regulation referred to in

Colonnade or the extensive licensing scheme which

was present in both Colonnade and Biswell.’’* App.

*The Federal Metal and Nonmetallic Mine Safety Act of 1966,

80 Stat. 772, permitted limited federal regulation of health and

safety conditions in the sand and gravel industry. But the health

and safety standards authorized by that legislation were, for the

most part, advisory rather than mandatory. Mandatory standards

could be issued only with respect to conditions that ‘‘could reason-

ably be expected to cause death or serious physical harm.’’ 80

Stat. 774. The court of appeals recognized in this case that such

limited government oversight does not constitute pervasive regu-

lation of the type described in Barlow’s. App. A, p. 5a.

*The court of appeals thus disagreed with the district court’s

conclusion that warrantless inspections should be permitted here

because this case, unlike Barlow’s, involves ‘‘a statute relating to

a single industry (mining), which industry has had a long history

of close federal supervision and regulation.’’ App. B, p. 15a. But

while disavowing this conclusion, the court of appeals arrived at

the same result by finding that Congress had acted ‘‘reasonably’’

in bringing ‘‘all mineral extraction businesses and operations un-

der a single regulatory act.’’ App. A, p. 5a. Even conceding the

“‘reasonableness’’ of that action by Congress, it does not follow

that warrantless inspections of sand and gravel facilities—which

had not previously been subject to significant federal regulation—

should now be permitted. 2

A, p. 5a. But rather than ending its inquiry at that

point, the court went on to assess the ‘‘reasonableness”’

of Congress’ decision in the Federal Mine Safety and

Health Act to dispense with a warrant requirement.

As the decision in this case makes all too clear, the

use of a ‘‘reasonableness’’ standard—loosed from the

mooring provided by Barlow’s—virtually ensures that

any warrantless inspection scheme that Congress may

enact will be upheld. Indeed, permitting use of that

standard would rob Barlow’s of much of its preceden-

tial significance

The court of appeals’ suggestion that warrantless

searches of sand and gravel facilities are ‘‘reasonable”’

in light of ‘‘the enforcement needs in the mining indus-

try’? (App. A, p. 7a) does not distinguish this case

from Barlow’s. The Secretary argued in that case that

warrantless inspections were ‘‘essential to the proper

enforcement of OSHA because they afford[ed] the

opportunity to inspect without prior notice and hence

to preserve the advantages of surprise.’’ 436 U.S. at

316. That purported justification was found to be

insufficient in Barlow’s, in part because of the proce-

dures available to the Secretary to obtain, in appro-

priate circumstances, ex parte warrants. Those proce-

dures are available to the Secretary here as. well.

Moreover, the court of appeals’ reference to “‘enforce-

ment needs’’ ignores the undisputed evidence before

the district court of the difficulty of concealing viola-

tions of the Federal Mine Safety and Health Act. Tr.

of September 21, 1978, p. 7.

The court of appeals’ further suggestion that refusal

to permit warrantless inspections does not lead, under

the Act, to the ‘‘summary”’ imposition of sanctions

(App. A, p. 7a) similarly fails to distinguish this case

from Barlow’s. The Occupational Safety and Health

Act did not provide for any immediate sanction for

refusal to permit warrantless inspections; indeed, the

regulations issued by the Secretary under that statute

expressly contemplated that an injunction would be

sought in the event of a refusal to permit an OSHA

inspection. See 29 C.F.R. § 1903.4 (1977). Moreover,

the court of appeals’ suggestion overlooks the citation

issued by the Secretary’s representative in this case to

penalize Nolichuckey for having refused to permit ‘a

warrantless inspection. See note 1 supra, And, once

the Secretary has obtained a permanent injunction

against a particular operator, refusal by the operator

to permit warrantless inspections places the operator

in contempt of court, and may lead to the imposition

of sanctions.

The court of appeals also is in error in suggesting

that this case can be distinguished from Barlow’s

because the Federal Mine Safety and Health Act

permits the operator of the facility to be present dur-

ing routine inspections. App. A, p. 7. Permitting the

operator of the sand and gravel facility to accompany

the Secretary’s representatives during warrantless

inspections does not diminish the privacy interests

involved or make those interests less compelling. More-

over, contrary to the apparent understanding of the

court of appeals, the Occupational Safety and Health

Act also permitted the owner of a facility to be present

during any inspections conducted pursuant to that

statute. 29 U.S.C. § 657(e).

In sum, the principal vice of the present decision—

apart from the threat that it poses to Fourth Amend-

ment rights ‘—is that it seriously undermines the deci-

sion in Barlow’s, Both Barlow’s and this case involve

industries that have been subject to federal regulation

for only the last few years, so that it hardly can be

said that the owners of the affected facilities have no

reasonable expectation of privacy or that they have

‘‘in effect consent[ed]’’ to warrantless inspections of

their business premises. 436 U.S. at 313. The statutes

involved in both cases confer broad inspection powers,

leaving to inspectors in the field substantial discretion

concerning the timing, frequency and extent of indi-

vidual inspections. Both statutes are concerned with

the health and safety of workers. Yet, the Sixth Circuit

has held one inspection provision to be constitutional,

while this Court has held that the other violates the

Fourth Amendment.

In view of the conflict between the Sixth Circuit’s

decision in this case, and this Court’s decision in

Barlow’s, review by this Court is warranted. A deci-

sion by this Court would provide much-needed direc-

* An indication of the extent of this threat is provided by the

injunction issued in this case. That injunction forever, without ex-

ception, and on pain of contempt prohibits Nolichuckey and its

agents and employees from refusing to permit warrantless inspec-

tions under the Federal Mine Safety and Health Act—no- matter

how frequent or arbitrary those inspections may become. The in-

junction is not ‘‘based on a ‘plan containing specific neutral cri-

teria.’ ’’ Torres v. Puerto Rico, 99 S. Ct. 2425, 2431 (1979), quot-

ing from Marshall v. Barlow’s, Inc., supra. Neither does it contain

any of those ‘‘safeguards * * * generally relied upon to assure

that the individual’s reasonable expectation of privacy is not

‘subject to the discretion of the officer in the field.’ ’’ Delaware v.

Prouse, 99 S. Ct. 1391, 1396-97 (1979), quoting from Camara v.

Municipal Court, supra. The injunction is, in short, ‘‘reminiscent

of the general warrant or writ of assistance of the 18th century

against which the Fourth Amendment was intended to protect.’’

Lo-Ji Sales, Inc. v. New York, 99 S. Ct. 2319, 2324 (1979).

tion to Congress,’ administrative agencies * and affected

businesses of the scope of Congress’ power to authorize

warrantless searches of commercial premises.

’ Congress responded to this Court’s decisions in Camara v. Mu-

nicipal Court, 387 U.S. 523 (1967), and See v. City of Seattle, 3&7

U.S. 541 (1967)—which held, inter alia, that warrantless searches

of commercial premises are presumptively invalid—by including a

warrant requirement in the Comprehensive Drug Abuse Prevention

and Control Act of 1970, 21 U.S.C. § 801 et seq. (1976), despite its

stated preference for a warrantless inspection scheme. See, ¢.g.,

H. R. Rep. No. 91-1444, 91st Cong., 2d Sess. 55 (1970). But when

Congress was considering the Federal Mine Safety and Health Act

of 1977, this Court’s most recent pronouncements on the constitu-

tionality of warrantless administrative inspections were contained

in Colonnade and Biswell, which apparently prompted Congress

to conclude that expansive exemptions from the warrant require-

ment would be sustained. See S. Rep. No. 95-181, 95th Cong., 1st

Sess. 27 (1977). Two months after the effective date of the Federal

Mine Safety and Health Act, this Court announced its decision in

Barlow’s, invalidating warrantless inspections of commercial prem-

ises pursuant to Section 8(a) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 657(a) (1976).

In view of the decision in Barlow’s, and of the subsequent in-

ability of the lower courts to agree on the standard appropriately

used in judging the constitutionality of warrantless administra-

tive inspections (see discussion at pages 15-17, infra), Congress

can be expected to have substantial difficulty in attempting to

divine those circumstances in which it may authorize warrantless

inspections.

* Following Barlow’s, a number of federal agencies operating

under statutes permitting warrantless inspections have announced

that they will seek a warrant whenever entry is refused. For ex-

ample, the Environmental Protection Agency has ordered that

inspections under the Clean Air Act, Noise Control Act, Clean

Water Act, Toxic Substances Control Act and Federal Insecticide,

Fungicide, and Rodenticide Act not be attempted without a war-

rant whenever consent for the search cannot be obtained. See ‘‘ En-

vironmental Protection Agency Memorandum on the Impact of

the Marshall v. Barlow’s, Inc., Decision,’’ 2 Chem. Reg. Rep. 756

(August 4, 1978).

Review by This Court Also Is Needed To Resolve a Conflict

Among the Lower Courts on the Issue Presented in This Case

District courts in three recent cases, Valley Transit

Miz, Inc. v. Marshall, No. 79-391-B, consolidated with

Nos. 79-393, 79-422 and 79-454 (D. N.M., decided June

15, 1979), appeal pending, No. 79-2034 (10th Cir.),

Marshall v. Douglas Dewey and Waukesha Lime &

Stone Co., No. 79-C-114 (E.D. Wise., decided March 29

and May 30, 1979), and Marshall v. Halquist Stone

Company, Inc., No. 78-C-463 (E.D. Wisc., decided Sep-

tember 15, 1978), have concluded that the warrantless

inspection provision of the Federal Mine Safety and

Health Act of 1977 is unconstitutional as applied to

sand and gravel facilities.’ Several other courts, in-

cluding the Third Circuit, have agreed with the court

of appeals in this case, rejecting challenges to the war-

rantless inspection provision of the Act.”

The conflict among the lower courts on the issue

presented in this case stems from a fundamental dis-

agreement concerning the standard appropriately used

in judging the constitutionality of warrantless inspec-

tions of commercial premises. In Valley Transit, Doug-

las Dewey and Halquist Stone, the courts emphasized

that warrantless inspections are permissible in only

‘‘relatively unique cireumstances’’—those character-

° The opinions in these cases, which have not been reported, are

reproduced in Appendices D, E and F.

*° Marshall v. Stoudt’s Ferry Preparation Co., supra; Marshall

v. Cedar Lake Sand and Gravel Co., 1 M.S.H.C. 225 (E.D. Wisce.,

decided November 9, 1979) ; Marshall v. The Texoline Co., No. CA

4-78-49 (N.D. Tex., decided March 23, 1979), appeal pending, No.

79-2372 (5th Cir.) ; Marshall v. Wait, No. S-78-11 (E.D. Cal., de-

cided May 1, 1978), appeal pending, No. 78-2345 (9th Cir.).

ized by a long history of pervasive government regula-

tion. Warrantless inspections of sand and gravel facili-

ties were disapproved under this standard since, as

already noted, there was no significant federal regu-

lation of the sand and gravel industry until 1978,

when the Federal Mine Safety and Health Act was

enacted. By contrast, the courts that have approved

warrantless inspections of sand and gravel facilities

have employed, as did the court of appeals in this case,

an expansive ‘‘reasonableness’’ standard, which focuses

on factors that may have influenced Congress in dis-

pensing with a warrant requirement.

Review by this Court is urgently needed to resolve

this conflict. Unlike the Stoudt’s Ferry case, in which

this Court recently denied certiorari, the question of

the standard appropriately applied in assessing the

constitutionality of warrantless searches of commercial

premises is squarely presented here.“ Resolution of

* One of the threshold issues in Stoudt’s Ferry was whether

the operations involved in that case were covered by the Federal

Mine Safety and Health Act of 1977. Stoudt’s Ferry contended

that its operations were not subject to the Act because it was not

engaged in the extraction of minerals from natural deposits. The

government disputed that contention, and argued additionally that

the Stoudt’s Ferry plant was a coal preparation facility and

thus was part of an industry—coal mining—that had a long his-

tory of pervasive government regulation. See, e.g., United States

v. Consolidation Coal Co., supra; Marshall v. Sink, No. 77-2614

(4th Cir., decided January 24, 1980) (holding that warrantless

searches of coal mines, which have a long history of pervasive gov-

ernment regulation, are constitutional). By contrast, there is no

dispute in this case concerning the application of the Federal Mine

Safety and Health Act to Nolichuckey’s sand and gravel opera-

tions and the government has not, and could not, contend that

Nolichuckey operates a coal mine or coal preparation facility.

this question does not depend upon a complicated

factual inquiry, so that further litigation in the lower

courts would serve no useful purpose.” At the same

time, further litigation with respect to the question

presented here undoubtedly will occur in the lower

courts unless this Court intervenes, leading to dis-

parate and irreconcilable results—and making appli-

cation of the warrant requirement of the Fourth

Amendment turn on an accident of geography.

** In opposing certiorari in Stoudt’s Ferry, the government sug-

gested that this Court should ignore the conflict among the lower

courts because the decisions disapproving the warrantless inspec-

tion of sand and gravel facilities were in response to motions by

the Secretary for a preliminary injunction and ‘‘were thus only

provisional.’’ Brief in Opposition, p. 9. In fact, the government’s

consistent strategy has been to submit the constitutional issue pre-

sented in these cases on a stipulated record, so as to permit the

court to rule decisively on that issue at the preliminary injunction

stage of the litigation. As a consequence, the conflict among the

lower courts on the important constitutional issue presented here

is ‘‘provisional’’ in only the most narrow and technical sense.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

HERBERT P, SILVERS

C. BERKELEY BELL

SILVERS, BELL, Rocrers, LAUGHLIN,

NUNNALLY & RANDALL

P.O. Box 679

100 South Main Street

Greeneville, Tennessee 37743

JOHN T. SAPIENZA

JOHN P. Rupp

Donna M. Murasky

CovINGTon & BuRLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-1111

Ray MarsuHat, Secretary or Lasor,

Unirep States Department or Lasor,

Plaintiff-A ppellee,

Noticnuckey Sanp Company, Inc.,

Defendant-A ppellant.

Appeal from the United States District Court for the

Eastern District of Tennessee

Decided and Filed October 5, 1979

Before: Epwarps, Chief Judge, CeLesrezze and Livety,

Circuit Judges.

Livety, Circuit Judge. The question for decision in this

case: May an inspector of the Mine Safety & Health Admin-

istration enter the premises of a sand and gravel operation

to make a routine inspection without a search warrant?

The district court held that no warrant was required and

enjoined the defendant from refusing to permit inspection

of its premises by authorized representatives of the plain-

tiff.

The case was submitted to the district court on a stipula-

tion and the testimony of a single witness—the supervisor

of the inspector who was refused entry by the defendant.

This witness was called by the defendant. The plaintiff

offered no evidence, relying on the terms of a statute, the

Federal Mine Safety and Health Amendments Act of 1977?

* Pub. L. 95-164, 91 Stat. 1290, to be codified as 30 U.S.C. § 801

et seq.

(the Act or the 1977 Amendments Act) and its legislative

history.

There is no description or picture of the sand and gravel

operation of the defendant in the record. It appears, how-

ever, that it is a typical rock quarry or gravel pit where

work is done on the surface of the land, with no under-

ground tunnels or shafts. Nevertheless, the parties stipu-

lated that the operation of the defendant is subject to the

Act, which refers to ‘‘coal or other mine.’’ Included in the

definition of *‘coal or other mine’’ is ‘‘an area of land from

which minerals are extracted in non-liquid form... .’’ 30

U.S.C.A. § 802(h)(1)(A) (1979 pocket part). The issue,

then, is whether the provisions of the Act which permit

warrantless routine inspections of such ‘‘mines’’ offend the

Fourth Amendment to the Constitution.

Since the decision of the Supreme Court in See v. Seattle,

387 U.S. 541 (1967), it has been settled that the Fourth

Amendment warrant requirement does apply generally to

code-enforcement inspections of commercial structures.

However, the Supreme Court has subsequently identified

two exceptions to the general requirement of a warrant. In

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970), the Court held that an establishment licensed to sell

liquor could be searched by an inspector without a warrant.

Noting the long history of government regulation of the

liquor industry, the Court held. that Congress has broad

authority to determine standards of reasonableness for

searches and seizures related to enforcement of such regu-

lations. The Court later held that a treasury agent may

make a warrantless search of premises of a licensed gun

dealer. United States v. Biswell, 406 U.S. 311 (1972). While

regulation of firearms does not have the long history appli-

cable to the liquor industry, the Court found that close scru-

tiny of interstate traffic of firearms ‘‘is undeniably of cen-

tral importance to federal efforts to prevent violent crime

and to assist the States in regulating the firearms traffic

within their borders.”’ 406 U.S. at 315.

The two exceptions identified by the Court relate to par-

ticular industries—those with a long history of close regu-

lation and those which are currently regulated in order to

discharge an overriding responsibility of government. In

the case of both exceptions the key element appears to have

been the reasonableness of the congressional determination

that warrantless searches or inspections should be per-

mitted. ‘‘It is also apparent that if the law is to be properly

enforced and inspection made effective, inspections without

warrant must be deemed reasonable official conduct under

the Fourth Amendment.’’ Biswell, supra, 406 U.S. at 316.

This would appear to be the proper test, since the Fourth

Amendment prohibits only those searches which are un-

reasonable.

The Supreme Court made it clear in Marshall v. Bart-

low’s, Inc., [sic] 436 U.S. 307 (1978), that the warrant re-

quirement applies except where Congress has responded to

‘‘relatively unique circumstances’’ in providing otherwise.

436 U.S. at 313. One who embarks upon an enterprise in an

industry which has a history of close regulation, super-

vision and inspection has no reasonable expectation of

privacy which would preclude warrantless inspections.

‘‘The businessman in a regulated industry in effect consents

to the restrictions placed upon him.’’ 7d., quoting from

Almeida-Sanchez v. United States, 413 U.S. 266, 271 (1973).

The appellant argues that its business does not fall within

an exception to the warrant requirement because the sand

and gravel industry has no long history of government

regulation, no license is required and it has never been

‘*pervasively’’ regulated. Thus, the appellant contends, it

was unreasonable for Congress to provide for warrantless

inspections of its operations.

The sand and gravel industry first came under federal

regulation with passage of the Federal Metal and Non-

metallic Mine Safety Act? (the Metal Act or the 1966 Act)

? Pub. L. 89-577, 80 Stat. 772, 30 U.S.C. § 721 et seq. (1976).

in 1966. The 1966 Act was repealed and a number of its

provisions were included in the 1977 amendments to the

Federal Coal Mine Health and Safety Act of 1969. One of

the amendments changed the definition of the word ‘‘mine”’

to include other mines as well as coal mines. The effect of

the 1977 amendments was to bring other mineral extrac-

tion industries under the regulatory framework originally

made applicable only to coal mining. At least with respect

to health and safety measures all mining is now pervasively

regulated. This is clear from the face of the 1977 Amend-

ments Act and from its legislative history. See also, 30

C.F.R., Chapter 1.

The 1977 Amendments Act repeats the congressional

findings and declaration of purpose found in the 1969 Coal

Mine Act, adding ‘‘or other’’ where that Act referred only

to coal mining:

Congress declares that—

(a) the first priority and concern of all in the coal

or other mining industry must be the health and safety

of its most precious resource—the miner ;

(b) deaths and serious injuries from unsafe and un-

healthful conditions and practices in the coal or other

mines cause grief and suffering to the miners and to

their families;

means and measures for improving the working condi-

tions and practices in the Nation’s coal or other mines

in order to prevent death and serious physical harm,

and in order to prevent occupational diseases originat-

ing in such mines;

(d) the existence of unsafe and unhealthful condi-

tions and practices in the Nation’s coal or other mines

is a serious impediment to the future growth of the

coal or other mining industry and cannot be tolerated ;

(e) the operators of such mines with the assistance

of the miners have the primary responsibility to pre-

vent the existence of such conditions and practices in

such mines; [and]

(f) the disruption of production and the loss of in-

come to operators and miners as a result of coal or

other mine accidents or occupationally caused diseases

unduly impedes and burdens commerce.

30 U.S.C.A. § 801 (1979 pocket part).

These findings echo the historical statement of long rec-

ognition by Congress of ‘‘the hazards involved in mining

coal and other minerals” and efforts to reduce these hazards

beginning with the establishment of the Bureau of Mines

in the Department of Interior in 1910. See S. Rep. No. 95-

181, 95th Cong. 1st Sess., reprinted in 1977 U.S. Code Cong.

and Adm. News, p. 3401. Congress concluded from its study

of statistics concerning fatal and disabling injuries in coal

and other mines that new legislation was required. Specifi-

cally, it determined that ‘‘the Metal Act does not provide

effective protection for miners from health and safety haz-

ards and enforcement sanctions under that Act are insuffi-

cient to encourage compliance by operators.’’ Id. at 3408.

The sand and gravel industry does not have the long his-

tory of regulation referred to in Colonnade or the extensive

licensing scheme which was present in both Colonnade and

Biswell. Nevertheless, as Congress found, all miners are

exposed to unusually severe health and safety hazards. We

believe it was reasonable to bring all mineral extraction

businesses and operations under a single regulatory act.

This is especially true for sand and gravel operations in

light of statistics before Congress in 1966 which ‘‘conclu-

sively show that the sand and gravel industry is the most

hazardous except for the underground coal and mineral

mining industries.’’ S. Rep. No. 1296, 89th Cong. 2d Sess.,

reprinted in 1966 U.S. Code Cong. and Adm. News, p. 2851.

Section 201 of the 1977 Amendments Act * requires fre-

quent inspections of coal or other mines, with a minimum

of four complete inspections of each underground coal mine

and two inspections of each surface coal or other mine each

year. The purposes of these inspections by representatives

of the Secretary of Labor are to determine whether an im-

minent danger exists and whether there is compliance with

mandatory health or safety standards and with any citation

or order previously issued. The statute directs that no ad-

vance notice of an inspection for these purposes shall be

provided to anyone. Though there is no reference to search

warrants in the language of the Act, the Senate Report

states, ‘‘This is intended to be an absolute right of entry

without need to obtain a warrant.” 1977 U.S. Code Cong.

and Adm. News, p. 3427.

In Barlow’s, supra, the Supreme Court invalidated a pro-

vision for warrantless inspections contained in the Occupa-

tional Safety and Health Act of 1970 (OSHA). Such inspec-

tions were not limited to a single industry or occupation;

they covered every business and industry affecting inter-

state commerce. Approval of warrantless inspections in

such an ‘‘across the board’’ manner would have eviscerated

the holding in See v. Seattle and would have turned the ex-

ception into the rule. However, we find nothing in Barlow’s

which requires a holding that only licensed businesses such

as dealers in liquor and guns may be excepted from the re-

quirement of a warrant. On the contrary, Justice White

made it clear that requiring a warrant for OSHA inspection

does not doom warrantless search provisions in other

regulatory statutes. ‘‘The reasonableness of a warrantless

search, however, will depend upon the specific enforcement

needs and privacy guarantees of each statute.” 436 U.S. at

321. The enforcement provisions of the Metal Act,‘ carried

over to and included in the 1977 Amendments Act,’ were

330 U.S.C.A. § 813 (1979 pocket part).

+30 U.S.C. § 733(a) (1976).

5 30 U.S.C.A. § 818 (1979 pocket part).

cited as an example of procedures for judicial resolution of

a dispute when entry is refused. Jd., at 321-22 n.18.

We conclude that the enforcement needs in the mining in-

dustry make a provision for warrantless inspections reason-

able. The Act also contains privacy guarantees which are

sufficient. As construed by this Court, Section 201(a) and

(b)* of the Act permits warrantless inspections only of the

‘factive workings’’ of coal mines. A warrant is required

for the inspection of offices and other areas where the opera-

tor has a general expectation of privacy. See United States

v. Consolidation Coal Co., 560 F.2d 214, 217 (6th Cir.

1977), vacated and remanded, 436 U.S. 942 (1978), judg-

ment reinstated, 579 F.2d 1011 (1978). The same limitation

would apply to sand and gravel ‘‘mines.’’ Further, the

statute provides for participation in all inspections by a

representative of the operator.’ Finally, refusal of an opera-

tor to permit an inspection does not lead to summary impo-

sition of sanctions. The Act provides for institution of a

civil action by the Secretary of Labor seeking an injunction

or other appropriate order.*

In concluding that a warrant is not required for periodic

inspection of the ‘‘active workings” of sand and gravel

‘‘mines,’’ we have considered several district court deci-

sions which have reached the opposite conclusion. E.g., Mar-

shall v. Douglas, etc. Lime & Stone Co., —— F.Supp. ——

(E.D. Wis., No. 79-C-114, 1979); Valley Transit Mia, Inc.

v. Marshall, —— F.Supp. —— (D. N.M. No. 79-391-B,

1979), Marshall v. Halquist Stone Co.. —— F.Supp. ——

(E.D. Wis., No. 78-C-463, 1978). We believe the decision

of the Third Circuit in Marshall v. Stoudt’s Ferry Prepara-

tion Co., F.2d —— (No. 78-2364, decided July 1979), is

better reasoned.

The judgment of the district court is affirmed.

* 30 U.S.C.A. § 813(a) and (b) (1979 pocket part).

730 U.S.C.A. § 813(f£) (1979 pocket part).

® 30 U.S.C.A. § 818 (1979 pocket part).

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

No. CIV-2-78-108

Ray MarsHat., etc., Plaintiff,

NouticHuckEy Sanp Company, Inc., Defendant.

MEMORANDUM OPINION

Mr. Charles E. McDaniel, an authorized representative of

the plaintiff and employed as a federal mine safety and

health inspector with the Mine Safety and Health Admin-

istration, went to the defendant’s sand and gravel pit,’

located within this district, on April 11, 1978 for the pur-

pose of making a periodic safety and health inspection of

such premises. pursuant to the provisions of 30 U.S.C.

§ 813 (a).? Mr. McDaniel spoke with Messrs. Hazen and

1The parties stipulated that the defendant’s sand and gravel

pit is subject to the provisions of the Federal Mine Safety and

Health Act of 1977, infra. Thus, for present purposes this busi-

ness is deemed to be a ‘‘mine’’ within the meaning of that Act.

2<¢*# * * Authorized representatives of the Secretary [of Labor]

* * * shall make frequent inspections and investigations in coal

or other mines each year for the purpose of (1) obtaining, utiliz-

ing, and disseminating information relating to health and safety

conditions, the causes of accidents, and the causes of diseases and

physical impairments originating in such mines, (2) gathering in-

formation with respect to mandatory health or safety standards,

(3) determining whether an imminent danger exists, and (4) de-

termining whether there is compliance with the mandatory health

or safety standards or with any citation, order, or decision issued

under this subchapter or other requirements of this chapter. * * *

For the purpose of making any inspection or investigation under

this chapter, * * * the Secretary [of Labor], with respect to ful-

10a

Thomas Bewley, the president and vice president, respec-

tively, of the defendant corporation. The latter Mr. Bewley

refused to permit Mr. McDaniel to make such inspection.

Mr. McDaniel left the premises, returned the following

day, and was not permitted again to make his intended in-

spection. Each such refusal was based solely on the failure

of Mr. McDaniel to present a search warrant authorizing

the same. The sole purpose of the plaintiff’s attempted in-

spection of the defendant’s business premises was to check

routinely for possible violations of the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. $801, et seq. Mr. Me-

Daniel had no knowledge of any specifi. violation thereof.

The plaintiff filed this action seeking a preliminary and

permanent injunction to prohibit the defendant and its

agents and employees from refusing his authorized repre-

sentatives admittance to its mine, from refusing them per-

mission to inspect the same, and from interfering with,

hindering or delaying them in carrying out the provisions

of the aforementioned Act. The Court’s jurisdiction was in-

voked under the provisions of 30 U.S.C. § 818 (a) (1),° and

filling his responsibilities under this Act, or any authorized rep-

resentatives of the Secretary * * * shall have a right of entry to,

upon or through any coal or other mine. * * * ’’ 30 U.S.C. § 813(a).

s«<@ * * The Secretary may institute a civil action for relief,

including a permanent or temporary injunction, restraining order,

or any other appropriate order in the district court of the United

States for the district in which a coal or other mine is located or

in which the operator of such mine has his principal office, when-

ever such operator or his agent—

(A) violates or fails or refuses to comply with any order

or decision issued under this Act,

(B) interferes with, hinders, or delays the Secretary or his

authorized representative * * * in carrying out the provisions

of this chapter,

other mines,

(D) refuses to permit the inspection of the coal or other

mine, or the investigation of an accident or occupational dis-

ease Occurring in, or connected with, such mine,

lla

is not disputed. Trial of this action on the merits was ad-

vanced and consolidated with the hearing of the plaintiff’s

application for a preliminary injunction. See memorandum

opinion and order herein of September 14, 1978.

The defendant claims that the plaintiff’s representatives

have no right to enter upon its premises for inspection pur-

poses without a warrant authorizing the same. Specifically,

it is contended that the provisions of 30 U.S.C. $813 (a),

which allow for warrantless inspections of mines,* and upon

(E) refuses to furnish any information or report requested

by the Secretary * * * in furtherance of the provisions of

this chapter, or

(F) refuses to permit access to, and copying of, such records

as the Secretary or the Secretary of Health, Education, and

Welfare determines necessary in carrying out the provisions

of this chapter. * * *’’ 30 U.S. C. § 818(a) (1).

* Although this statute does not say on its face, that its pro-

visions are operative without a search warrant, the legislative his-

tory clearly shows that the Congress contemplated warrantless

inspections. The Senate Report states that 30 U.S.C. § 818(a) (1):

‘** * * authorizes the Secretary of Labor * * * to enter

upon, or through any mine for the purpose of making any

inspection or investigation under this Act. This is intended to

be an absolute right of entry without need to obtain a war-

rant. The Committee notes with approval the decision of the

three-judge Federal Court in Youghiogheny & Ohio Coal

Company v. Morton, 364 F. Supp. 45 (S. D. Ohio 1973) which

holds the parallel provision of the Coal Act permitting un-

announced warrantless inspection of coal mines constitutional.

Safety conditions in the mining industry have been perva-

sively regulated by Federal and State law. The Committee

intends to grant a broad right-of-entry to the Secretaries or

their authorized representatives to make inspections and in-

vestigations of all mines under this Act without first obtain-

ing a warrant. This intention is based upon the determina-

tion by legislation. The Committee notes that despite the

progress made in improving the working conditions of the

nation’s miners under present regulatory authority, mining

continues to be one of the nation’s most hazardous occupa-

tions. Indeed, in view of the notorious ease with which many

12a

which the plaintiff relies, are violative of the Constitution,

Fourth Amendment.’ In support of this argument, the

defendant relies primarily on the decision of the Supreme

Court in Marshall v. Barlow’s, Inc. (1978), —— U.S. ——,

98 S. Ct. 1816, 56 L. Ed. (2d) 305. It was held therein

that 29 U.S.C. § 657(a), which empowers representatives

of the Secretary of Labor to search the work area of any

employment facility within the jurisdiction of the Occupa-

tional Safety and Health Act of 1970 (OSHA), in order to

inspect for safety hazards and regulatory violations, vio-

lates the Constitution, Fourth Amendment, in so far as it

purports to authorize such inspections without a warrant.

In Barlow’s, supra, the Supreme Court recognized, how-

ever, that ‘‘* * * [c]ertain industries have such a history

of government oversight that no reasonable expectation

of privacy * * * could exist. * * *” Ibid., —— U.S. at ——,

06 L. Ed. (2d) at 312 [3]. Thus, there is a well-established

exception to the search warrant requirements of the Con-

stitution, Fourth Amendment, ‘‘* * * for ‘pervasively reg-

ulated business[es]’ * * * and for ‘closely regulated’ in-

dustries ‘long subject to close supervision and inspection.’

***? Idem., quoting from United States v. Biswell (1972),

406 U.S. 311, 316, 92 S. Ct. 1593, 32 L. Ed. (2d) 87, 92-93

and Colonnade Catering Corp. v. United States (1970), 397

safety or health hazards may be concerned if advance warn-

ing of inspections is obtained. a warrant requirement would

seriously undercut this Act’s objectives.

‘‘The Committee has specifically adopted the prohibition

or advance notice of inspections which is currently the rule

under the Coal Act, and rejects the provision of the Metal

Act which permits such advance notice. * * * ”’

3 U.S. Code Cong. & Admin. News (1977), p. 3427.

***The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches * * *, shall not

be violated, and no [w]arrants shall issue, but upon probable

cause, supported by [o]ath or affirmation, * * * ’’ Constitution,

Fourth Amendment.

13a

U.S. 72, 74, 77, 90 S. Ct. 774, 25 L. Ed. (2d) 60, 63, 65. The

rationale of the Biswell-Colonnade rule is ‘‘* * * that a

business, by its special nature and voluntary existence, may

open itself to intrusions that would not be permissible in a

purely private context. * * *’’ G. M. Leasing Corp. v.

United States (1977), 429 U.S. 338, 353, 97 S.Ct. 619, 50

L. Ed. (2d) 530, 544. Thus, in regulating these particular in-

dustries, the Congress has broad authority to fashion

standards of reasonableness for the purposes of Fourth

Amendment searches. Ibid., 429 U.S. at 353, 50 L. Ed. (2d)

at 544 [9].

The liquor and firearms businesses are illustrative; they

represent responses to relatively unique circumstances, so

that ‘‘* * * when an entrepreneur embarks upon such a

business, he has voluntarily chosen to subject himself to a

full threat of close government regulation. * * *’’ Marshall

v. Barlow’s, Inc., supra. The element that distinguishes

these enterprises from ordinary businesses is a long tradi-

tion of close government regulation, of which any person

who chooses to enter such a business must already be aware.

Idem.

The plaintiff contends that the mining industry is also

such a closely regulated industry as to fall within the

Biswell-Colonnade exception to the Fourth Amendment’s

warrant requirement. The Congress appears to have agreed

as is reflected in the legislative history of the instant

statute: ‘‘* * * Safety conditions in the mining industry

have been pervasively regulated by Federal and State law.

** *97 3 U.S. Code Cong. & Admin. News (1977), pg. 3427.

As to the coal mining industry, it has been determined in

this circuit that such industry ‘‘* * * has a history of close

federal regulation under the aegis of the Commerce Clause.

* * * United States v. Consolidated Coal Co., C. A. 6th

(1977), 560 F. (2d) 214, 220 [5], vacated and remanded

(1978), —— U.S. ' S. Ct. ——, 56 L. Ed. (2d) 783,

judgment and opinion reinstated on remand (1978), 579 F.

l4a

(2d) 1011; accord: Youghiogheny and Ohio Coal Company

v. Morton, D. C. Ohio® (1973), 364 F. Supp. 45, 49, esp.

n. 3. The present Act, Public Law 94-164 of November 9,

1977, brought the operation of all coal and other types of

mines under a single legislative canopy. It essentially com-

bined the Federal Coal Mine Safety and Health Act of

1969, 30 U.S.C. § 801, et seq., with the Federal Metal and

Nonmetallic Mine Safety Act, 30 U.S.C. § 721, et seq.

The warrantless inspection provisions of 30 U.S.C. § 813

(a) come before this Court with a strong presumption in

favor of their constitutionality. Lockport v. Citizens For

Community Action (1977), 430 U.S. 259, 272, 97 S. Ct. 1047,

51 L. Ed. (2d) 313, 325 [12]; Marshall v. Barlow’s, Inc.

(1977), 429 U.S. 1347, 1348, 97 S. Ct. 776, 50 L. Ed. (2d)

739, 740 [2] (Rehnquist, J., as circuit justice). This pre-

sumption continues until the statute’s unconstitutionality

is shown beyond a rational doubt, F.H.A. v. The Darlington

(1958), 358 U.S. 84, 90-91, 79 S. Ct. 141, 3 L. Ed. (2d) 132,

137 (headnote 6), rehearing denied (1959), 358 U.S. 937,

79 S. Ct. 310, 3 L. Ed. (2d) 311; and its provisions must

be upheld, unless it is shown clearly to be incompatible with

the Constitution, New York v. O’Neill (1959), 359 U.S. 1,

6, 79 S. Ct. 564, 3 L. Ed. 585, 589 (headnote 4). That pre-

sumption of constitutionality is especially compelling where,

as here, the validity of an act of the Congress turns on

what is a reasonable search under the Constitution, Fourth

Amendment, and “* * * ‘[o]bviously the Court should be re-

luctant to decide that a search thus authorized by Congress

was unreasonable and that the Act was therefore uncon-

stitutional.’ * * *’’ United States v. Watson (1976), 423

U.S. 411, 416, 96 S. Ct. 820, 46 L. Ed. (2d) 598, 605 [2],

quoting from United States v. Di Re (1948), 332 U.S. 581,

085, 68 S. Ct. 222, 92 L. Ed. 210.

* This was a District Court of three judges comprised by Circuit

Judge Peck and District Judges Kinneary and Rubin.

15a

Although not wholly free of doubt, in the opinion of this

Court, the provisions of 30 U.S.C. § 813 (a), supra, fall with-

in the Biswell-Colonnade exception to the warrant require-

ment of the Constitution, Fourth Amendment. Barlow’s,

supra, is readily distinguishable from the instant situation:

there, the invalidated OSHA statute encompassed virtually

every type of industry regardless of the extent of that in-

dustry’s history of regulation by the federal government;

here, we are dealing with a statute relating to a single in-

dustry (mining), which industry has had a history of close

federal supervision and regulation.’ Thus, considering the

specific enforcement needs and privacy guarantees of 30

U.S.C. § 813(a), Marshall v. Barlow’s, Inc., supra, ——

US. at , 56 L. Ed. (2d) at 317 [7], the plaintiff’s at-

tempt to ‘‘* * * search * * *” the defendant’s premises on

this occasion was reasonable. The language of Mr. Justice

White, writing for the Supreme Court, is particularly ap-

propriate in the present context:

* * * [I]f the law is to be properly enforced and in-

spection made effective, inspections without warrant

must be deemed reasonable official conduct under the

Fourth Amendment. * * * Here, if inspection is to be

effective and serve as a credible deterrent, unan-

*This distinguishing factor was recognized by the Supreme

Court in Barlow’s, supra:

‘¢# * * ‘A central difference between those cases [Colon-

nade and Biswell] and this one [Barlow’s] is that business-

men engaged in such federally licensed and regulated enter-

prises accept the burdens as well as the benefits of their

trade, whereas the petitioner here was not engaged in any

regulated or licensed business. The businessman in a regulated

industry in effect consents to the restrictions placed upon

bin.’ © O08”

Marshall v. Barlow’s Inc., supra, —— U. S. at ——, 56 L. Ed.

(2d) at 312, quoting from Almeida-Sanchez v. United States

(1973), 413 U. S. 266, 271, 93 S. Ct. 2535, 37 L. Ed. (2d) 596.

l6a

nounced, even frequent, inspections are essential. In

this context, the prerequisite of a warrant could easily

frustrate inspection; and if the necessary flexibility as

to time, scope, and frequency is to be preserved, the

protections afforded by a warrant would be negligible.

** * [WJhere, as here, regulatory inspections further

urgent federal interest, and the possibilities of abuse

and the threat to privacy are not of impressive dimen-

sions, the inspection may proceed without a warrant

where specifically authorized by statute. * * *

United States v. Biswell, supra, 406 U.S. at 316, 317, 32

L. Ed. (2d) at 92, 93.

Accordingly, the defendant Nolichuckey Sand Company,

Inc., its officers, agents and employees, hereby are EN-

JOINED permanently from:

—refusing authorized representatives of the plaintiff ad-

mittance to its mining premises,

—refusing such representatives permission to inspect

such premises, and

—hindering or delaying such representatives in conduct-

ing periodic safety and health inspections of its premises

under the provisions of 30 U.S.C. § 813 (a).® 30 U.S.C. § 818

(a) (1). Judgment to that effect will enter, Rule 58 (1),

Federal Rules of Civil Procedure, and the above injunction

will issue and be served on the defendant.

Fine:

/s/ C. G. Negsz

C. G. Neese

United States District Judge

, Such determination of this action on the merits renders moot

the motion herein of the defendant for a preliminary injunction.

17a

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

NORTHEASTERN DIVISION

[Caption Omitted in Printing]

JUDGMENT

This action came on for consideration before the Court,

Honorable C. G. Neese, United States District Judge, pre-

siding, and the issues having been duly considered and a

decision having been duly rendered.

It is Ordered and Adjudged that the defendant Noli-

chuckey Sand Company, Inc., its officers, agents and em-

ployees, hereby are ENJOINED permanently from:

—refusing authorized representatives of the plaintiff ad-

mittance to its mining premises,

—refusing such representatives permission to inspect

such premises, and

—hindering or delaying such representatives in conduct-

ing periodic safety and health inspections of its premises

under the provisions of 30 U.S.C. § 813 (a). 30 U.S.C. § 818

(a) (1).

Dated at Greeneville, Tennessee, this fourteenth day of

December, 1978.

/s/ Karu D. Sauupaw, Ir.

Clerk of Court

/s/ Dixie J. BLAKE

Deputy Clerk

19a

APPENDIX C

Stipulation

1. Charles E. McDaniel is an authorized representative

of the Secretary of Labor, employed as a Federal Mine

Safety and Health Inspector with the Mine Safety and

Health Administration assigned to the subdistrict office,

Knoxville, Tennessee. In that capacity he conducts inspec-

tions of mines pursuant to Section 103 of the Federal Mine

Safety and Health Act of 1977.

2. On April 11, 1978, Mr. McDaniel went to the Noli-

chuckey Sand Company, Inc., to perform a safety and

health inspection. He spoke with the president of the com-

pany, Hazen Bewley, about the Mine Safety and Health

Act of 1977.

3. Thomas Bewley, vice president of the defendant joined

the conversation asking questions concerning the Act and

the authority for conducting inspections under the Act.

4. Thomas Bewley refused to permit an inspection of the

property. Mr. McDaniel suggested that Mr. Bewley consult

with his attorney before refusing to permit the inspection.

Mr. Bewley called the attorney by telephone.

d. After his telephone conversation, Mr. Bewley informed

Mr. McDaniel that his attorney had advised him to refuse

to permit the performance of an inspection without a search

warrant and that the attorney would call back shortly to

discuss similar cases involving the Occupational Safety and

Health Act.

6. Mr. McDaniel left the property after giving Thomas

Bewley a copy of the Act.

7. Mr. McDaniel returned to the property on April 12,

1978, to determine whether Mr. Bewley had changed his

mind about permitting an inspection of the premises. Mr.

Bewley asked whether Mr. McDaniel had a search warrant.

20a

Mr. McDaniel did not have a search warrant. Mr. Bewley

then called his attorney.

8. Following the telephone conversation with his attor-

ney, Mr. Bewley said that his attorney had told him to

require that Mr. McDaniel obtain a search warrant if he

wished to inspect the property. No inspection was per-

mitted.

9. The defendant operates a sand and gravel pit subject

to the Act in or near Greeneville, Greene County, Tennes-

see, within the jurisdiction of this Court.

10. The initial and all subsequent refusals to allow the

inspection by Mr. McDaniel were based solely on the

absence of a search warrant.

/s/ FrepericK W. MoncrieFr

/s/ C. B. Bei

2la

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civ No. 79-391-B

Consolidated with Nos. 79-393, 79-422 & 79-454

Vauiey Transit Mrx, Inc. and Vatuey Transit Mix, Ino.

d/b/a

Atias Lanp Company, Inc., New Mexico Corporations,

Plaintiffs,

Vs.

Ray F. Marsuatu, Secretary, United States Department

of Labor,

Defendant.

Civ No. 79-393

WatiacH Concrete Propvucts, Inc.,

a New Mexico Corporation,

Plaintiff,

vs.

Ray F. MarsHa.u, Secretrry, United States Department

of Labor,

Defendant.

Civ No. 79-422

Ray Marsua.1, Secretary of Labor,

United States Department of Labor,

Plaintiff,

vs.

Watuuacuw Concrete Propucts Company,

Defendant.

22a

Civ No. 79-454

Ray Marsuat., Secretary of Labor,

United States Department of Labor,

Plaintiff,

vs.

VauLuey Transit Mrx, Inc., d/b/a

Atias Lanp Co., Inc.,

Defendant.

MEMORANDUM OPINION

This action is a consolidation of four separate lawsuits

arising out of two attempted warrantless inspections by

Federal Mine Safety and Health Administration inspectors

pursuant to the Mine Safety and Health Act (MSH).* In

both instances the company refused to allow the inspector

to inspect the sand and gravel operation. In cause 79-391-B

Valley Transit Mix, Inc. and Atlas Land Company, Inc.

(Valley) seeks to declare the warrantless search provisions

of MSH unconstitutional and enjoin the inspectors from

conducting further warrantless inspection of its sand and

gravel operation. In Cause 79-454-B, Ray Marshall, the

Secretary of Labor (Secretary) asks the Court to enjoin

Valley from refusing to admit an inspector or from inter-

fering with his inspection. Causes 79-393-B and 79-422-B

are similarly related. In 79-393-B Wallach Concrete Prod-

ucts, Inc. (Wallach) seeks an order declaring the warrant-

less inspections unconstitutional and to enjoin any further

warrantless inspections under MSH. In 79-422-B the Secre-

tary seeks to enjoin Wallach from refusing to admit his

representative or from interfering with any inspections con-

ducted under the Act. All parties seek a preliminary injunc-

tion. The matter was set down for hearing and the Court

having heard the parties and considered the memoranda on

file, together with the entire file herein concludes for the

reasons set forth below that none of the applications for

+ 30 U.S.C. § 801 e¢ seq.

23a

preliminary injunction is well taken at this time and the

applications should be denied.

The standard for determining whether a preliminary in-

junction should be issued is well defined? There are four

factors to be considered:

1. A likelihood that the movant will prevail on the

merits.

2. Irreparable injury to the movant if the relief is not

granted.

3. No harm to the public interest if the application is

granted.

4. The threatened injury to movant outweighs the in-

jury the injunction may cause the defendant.

The Court will first consider the Secretary’s application.

Generally statutes allowing warrantless administrative in-

spections are invalid. Marshall v. Barlow’s, Inc., 436 U.S.

307 (1978); Camera v. Municipal Court, 387 U.S. 523

(1967) ; See v. City of Seattle, 387 U.S. 541 (1967). There

are, however, some exceptions to this general rule. United

States v. Biswell, 406 U.S. 311 (1972) ; Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970). In Barlow’s the

Supreme Court carefully considered the exceptions and de-

termined that warrantless searches were valid only in ‘‘rel-

atively unique circumstances.’’ The Court reaffirmed the

principal that warrantless searches may be justified in busi-

nesses that are subject to close supervision or pervasive

governmental regulations. The Court stated that, ‘‘when an

entrepreneur embarks upon such a business, [one that is

pervasively regulated] he has voluntarily chosen to subject

himself to a full arsenal of governmental regulations.’’

Barlow’s, supra at 313.

* Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products,

545 F.2d 1096 (7th Cir. 1976); Associated Securities Corp. v.

SEC, 283 F.2d 773 (10th Cir. 1960).

24a

In the present actions the Secretary argues that mines

are pervasively regulated and therefore fall within the

Biswell-Colonnade exception. The companies disagree

claiming the warrantless inspections of their sand and

gravel pits are similar to tlie warrantless inspections under

OSHA which were declared unconstitutional in Barlow’s.

The Secretary has not carried his burden of showing a like-

lihood of suecess on the merits. At this time the Court is

not convinced that the sand and gravel business is subject

to the kind of pervasive regulation that would allow war-

rantless inspections. Unlike the liquor (Colonnade) and the

firearm (Biswell) industries the sand and gravel industry

does not ‘‘have a long tradition of close government super-

vision, of which any person who chooses to enter such a

business must already be aware.’’ Barlow’s, supra at 313.

The Secretary argues that Youghiogheny and Ohio Coal

Co. v. Morton, 364 F.Supp. 45 (S.D. Ohio 1973) is control-

ling. In that case the court allowed the warrantless inspec-

tion of an underground coal mine. The court ruled that the

inherently dangerous working condition warranted the per-

vasive regulations and hence the warrantless inspections.

This Court finds Youghiogheny unpersuasive for two rea-

sons. First, it was decided prior to Barlow’s and must be

reexamined in light of Barlow’s. Second, and most signifi-

cantly, it dealt with the warrantless inspection of an under-

ground coal mine and not open pit sand and gravel opera-

tions. The present record is devoid of any indication of more

inherent danger to workers in an open sand and gravel pit

than to workers in any other heavy construction operation.

Therefore, the Secretary’s application for a preliminary in-

junction will be denied.

Turning to the companies’ application, the Court, in light

of the Secretary’s policy of not attempting additional war-

rantless inspections prior to the termination of the judicial

proceeding unless there is an accident or other unusual

25a

occurrence, concludes that the companies have not shown

they will suffer any irreparable injury if their application

is not granted. Therefore, the companies’ applications will

be denied.

The matter will be set down for a hearing on the merits.

A separate order will be entered in accordance with this

Opinion.

/s/ Howarp C. Bratton

Howard C. Bratton

United States District Judge

27a

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Case No. 79-C-114

Ray MarsHat., Secretary of Labor, United States

Department of Labor, Plaintiff,

Vs.

Dovctas Dewey and Wauxesna Lime & Stone Co.,

Waukesha, Wisconsin, Defendants.

MEMORANDUM AND ORDER

This is a simple case, factually. The government, through

one Walter C. Brey, wishes to inspect defendant’s quarry

pursuant to the Federal Mine Safety and Health Act of

1977, 30 U.S.C. §§ 801-960. To illustrate the dangers of a

quarry, the government points to the death of Douglas J.

Bartell, who “was killed on September 16, 1975 when he

was buried in a mixture of gravel and limestone” at de-

fendant’s site. (Brey Affidavit).

Mr. Brey inspected defendant’s location on September

17, 1975 and issued two notices of violations of safety

standards. On April 25, 26 and 27 of 1978, Mr. Brey con-

ducted a follow-up safety and health inspection at-which

time 25 citations were issued for violations of mandatory

health and safety standards. Then, on July 10, 1978, Mr.

Brey returned to make another inspection in order to de-

termine whether defendant had corrected one problem,

namely the exposure to silica-bearing dust by an employee

bagging lime. Defendant refused to permit Mr. Brey to

conduct a search and demanded he obtain a valid search

warrant prior to inspection.

The government in this action is seeking a preliminary

injunction enjoining defendant from refusing to permit

28a

inspection of its mines. The sole issue presented by this

action is whether the Federal Mine Safety and Health Act,

as applied to quarries, permits the government through the

Secretary of Labor to conduct warrantless searches.

In order to grant a preliminary injunction, four prere-

quisites must be met: (1) plaintiff must show that he has

no adequate remedy at law and will be irreparably harmed

if the injunction does not issue; (2) that the plaintiff has

a reasonable likelihood of success on the merits; (3) that in

granting the preliminary injunction, the Court will not dis-

serve the public interest; and (4) that any threatened injury

to the plaintiff outweighs the injury the injunction may

cause the defendant. Fox Valley Harvestore, Inc. v. A. O.

Smith Harvestore Products, 545 F.2d 1096 (7th Cir. 1976).

Furthermore, plaintiff has the burden of persuasion on all

of these prerequisites. Id.

Although all four elements must be overcome before a

preliminary injunction will issue, in this case particular

emphasis must be placed upon the second element, namely

plaintiff’s likelihood of success on the merits. The key de-

cision bearing on this case is the Supreme Court’s holding

in Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) wherein

the Court held that the Occupational Health and Safety Act

(OSH.\) did not permit the government to conduct war-

rantless searches.

In ruling on the issue presented in Barlow’s, the Supreme

Court held that there are exceptions to the search warrant

requirements, e.g., those businesses subject to close super-

vision or regulation. United States v. Biswell, 406 U.S. 311,

316 (1972) and Colonnade Catering Corp. v. United States,

397 U.S. 72, 74, 77 (1970). In discussing why warrantless

searches are permitted in certain industries (e.g., liquor

and firearms) the Court stated ‘‘when an entrepreneur em-

barks upon such a business, he has voluntarily chosen to

subject himself to a full arsenal of governmental regula-

tion.’’ Marshall v. Barlow’s, Inc., 436 U.S. at 313. In further

29a

elucidating the limited class of searches in which a warrant

in not required the Court held ‘‘The element that distin-

quishes these enterprises from ordinary businesses is a long

tradition of close government supervision, of which any

person who chooses to enter such a business must already

be aware.’’ Id.

The only conclusion that can be drawn from reading the

Court’s decision in Marshall v. Barlow’s, Inc., supra, is

that warrantless searches are only permissible in extremely

narrow circumstances. In reviewing the facts of the present

case, this Court is drawn to the conclusion that the Federal

Mine Safety and Health Act of 1977, as applied to quarries,

does not permit the Secretary of Labor to conduct warrant-

less searches.

First, the Federal Coal Mine Health and Safety Act of

1969 was only amended to cover mines other than coal mines

in 1977 by Public Law 95-164. The Act as applied to other

mines did not even become effective until March 9, 1978.

Therefore, the long continuous regulation mentioned by

the Supreme Court is absent. Secondly, the Secretary does

not describe any unusual circumstances in the quarry type

of businesses to necessitate a warrantless search.

Plaintiff cites Youghiogheny and Ohio Coal Co. v. M orton,

364 F. Supp. 45 (S.D. Ohio 1973) for the proposition that

warrantless searches in mines are permissible. First, that

case dealt with underground coal mines rather than quar-

ries; second, that case was decided prior to Marshall v.

Barlow’s, Inc., supra, and thus that case must be placed in

the balance. With these distinctions in mind, the Court does

not find that a warrantless search is justified in this case,

even assuming that Youghiogheny is correct.

Therefore, since the Secretary of Labor has failed to

show a reasonable likelihood of success on the merits, his

motion for a preliminary injunction must be and hereby is

denied.

30a

Defendants have requested the Court, however, to issue a

preliminary injunction in its favor. Defendants express the

fear that the government will try further warrantless

searches and then issue citations to defendants for their

refusal. Defendants’ request must be denied at this time.

The government has represented to the Court that it will

not pursue any warrantless searches. If the government

does attempt to conduct searches and issue citations, the

Court stands ready to reconsider defendants’ request. At

this time, the irreparable harm element is absent.

Therefore, plaintiff’s petition for a preliminary injunc-

tion must be and hereby is denied. Furthermore, defend-

ants’ request for a preliminary injunction is also denied.

So Orperep this 29th day of March, 1979, at Milwaukee,

Wisconsin.

/s/ Rosert W. WaRrRkEN

Robert W. Warren

United States District Judge

3la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Case No. 79-C-114

Ray Marsuatu Secretary of Labor, United States

Department of Labor, Plaintiff,

VS.

Doveias Dewey and Waukesna Lime & Strong Co.,

Waukesha, Wisconsin, Defendants.

MEMORANDUM AND ORDER

On March 9, 1979, an oral hearing was held on plaintiff’s

motion for a preliminary injunction, and based upon oral

argument and written briefs, the Court denied plaintiff’s

motion. The Court’s opinion, which was read into the record

on March 9, 1979, was put into written form and signed on

March 29, 1979. Plaintiff has moved for reconsideration,

claiming that the Court erred when it held that quarries

were not pervasively regulated industries.

In the present case, plaintiff seeks to enjoin defendant

from refusing to permit plaintiff to conduct inspections

without warrants. Of course warrantless searches are ordi-

narily impermissible. However, the Supreme Court has

recognized that in certain limited circumstances, warrant-

less searches are permitted. Marshall v. Barlow ’s, Inc., 436

U.S. 307 (1978); United States v. Biswell, 406 U.S. 311

(1972) ; Colonnade Catering Corp. v. United States, 397

U.S. 72 (1970). In Barlow’s, the Supreme Court articulated

why warrantless searches are permissible in certain indus-

tries (e.g., liquor and firearms) by stating ‘‘when an en-

trepreneur embarks upon such a business, he has volun-

tarily chosen to subject himself to a full arsenal of gov-

ernmenta! regulation.’’ The Court further stated ‘‘the ele-

ment that distinguishes these enterprises from ordinary

businesses is a long tradition of close government super-

32a

vision, of which any person who chooses to enter such a

business must already be aware.’’ Barlow’s, Inc., 436 U.S.

at 313. The question presented in the present case is whether

the stone quarry industry is pervasively regulated.

The Court would note that the first federal statute regu-

lating stone quarries was the Federal Metal and Nonmetal-

lic Mine Safety Act, 30 U.S.C. § 721 et seq., enacted by Con-

gress in 1966. This legislation is discussed in S.Rep. No.

1296, 89th Cong., 2d Sess. 2, reprinted in [1966] U.S. Code

Cong. & Ad. News 2846. In that report, it is pointed out

that in 1961 Public Law 87-300 was passed authorizing the

Secretary of the Interior to conduct a study of state mine

safety laws and the health hazards of mines. Apparently

this report, attached as an appendix to plaintiff’s brief,

formed the basis of the 1966 legislation. The Federal Metal

and Nonmetallic Mine Safety Act, 30 U.S.C. § 721 et. seq.

was succeeded by the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et. seg. The latter act, specifically

30 U.S.C. § 813(a), permits warrantless inspections.

Regulation of stone quarries by the federal government,

therefore, commenced in 1966. Prior to the federal laws,

some of the several states regulated mines, but in a hap-

hazard and ineffective manner. The federal legislation

passed in 1966, as reflected by Senate Report 1296, was

aimed at comprehensive regulation.

In this Court’s opinion, the tradition of pervasive regu-

lation of the stone quarry industry did not commence until

1966. The survey conducted pursuant to Public Law 87-300

shows loose and at times non-existent regulation of stone

quarries prior to the federal regulation enacted in 1966.

Several federal district courts have found that the mining

industry, #.e., gravel quarries and the like, is pervasively

regulated such that warrantless inspections are permissible.

Marshall v. The Texoline Co., No. 4-78-49 (N.D. Texas, Mar.

23, 1979) ; Marshall v. Nolichuckey Sand Co., No. 2-78-108

(E.D. Tenn. Dec. 14, 1978); Marshall v. Elden Wait, No.

33a

S-78-11 (E.D. Cal. May 9, 1978) ; Andrus v. Magma Copper

Co., No. 77-765 (D. Ariz. Jan. 16, 1978). In an action

brought before Chief Judge Reynolds of this district, he

found that the plaintiff had not shown that the stone quarry

industry was pervasively regulated and thus he denied

plaintiff’s motion for a preliminary injunction. Marshall v.

Halquist Stone Co., No. 78-C-463 (E.D. Wis. Sept. 15, 1978).

The Fourth Amendment to the United States Constitu-

tion means what it says. Notwithstanding the Supreme

Court having noticed several exceptions to the warrant

requirement, in this Court’s opinion, the pervasive regula-

tion of the type found in the liquor industry, e.g., had not

existed until Congress entered the field. Such late entry

cannot meet the requirements set forth in Barlow’s, supra.

Having reviewed the materials submitted by plaintiff,

being aware of the flexible nature of the requirement that

plaintiff must make a showing of “reasonable success

on the merits,’ Mullis v. Arco Petroleum, 502 F.2d 290,

293 (7th Cir. 1974), and cognizant of ‘‘the presumption of

constitutionality to which every duly enacted state and fed-

eral law is entitled . . .,’’ Lockport v. Citizens of Community

Action, 430 U.S. 259, 272 (1977), the Court, on reconsidera-

tion, must deny plaintiff’s motion for a preliminary in-

junction. Plaintiff has not made the necessary showing un-

der Fox Valley Harvestore, Inc., v. A. O. Smith Harvestore

Products, 545 F.2d 1096 (7th Cir. 1976).

So Orperep this 30th day of May, 1979, at Milwaukee,

Wisconsin.

/s/ Rosert W. Warren

Robert W. Warren

United States District Judge

35a

APPENDIX F

UNITED STATES DISTRICT COURT

ZASTERN DISTRICT OF WISCONSIN

C.A. No. 78-C-463

Ray MarsHat., Secretary of Labor, United States

Department of Labor, Plaintiff,

Harauist Stone Company, Inc., t/a/d/b/a Halquist Stone

Company, Inc., Lannon Quarry and Mill, Defendants.

DECISION AND ORDER

The United States Secretary of Labor has moved the

court for a preliminary injunction pursuant to § 108 of the

Federal Mine Safety and Health Act of 1977. The Secre-

tary asserts that § 103(a) of the Act, granting the Secre-

tary a right of entry into coal and other mines, including

the stone quarry in this case, is constitutional. For the

reason stated briefly below, without reaching the question

of the constitutionality of the statute, this Court finds that

the record established in this hearing is insufficient to

allow the Court to grant the preliminary injunction.

On June 1, 1978, Albin Halquist, agent of the defendant

Halquist Stone Company, refused to permit an authorized

representative of the Secretary of Labor, Mr. Walter C.

Brey, to inspect the Lannon Quarry and Mill in Lannon,

Wisconsin. Mr. Halquist demanded that a search warrant

be obtained prior to inspection. In defense of his refusal to

allow the inspection, Mr. Halquist points to the recent de-

cision in Marshall v. Barlow’s, Inc., 46 U.S.L.W. 4483 (May

23, 1978).

Marshall v. Barlow’s, Inc., has called the right-of-entry

provisions in the federal statutes into question. The Court

declared the Occupational Safety and Health Act of 1970 to

36a

be unconstitutional insofar as it authorized inspection with-

out a warrant. The Court, however, allowed for an excep-

tion to the warrant requirement in pervasively regulated

industries.

The precise issue in this ease is whether a stone quarry

is a pervasively regulated industry and, thus, within the

exception to the warrant requirement. In contending that

it is, the plaintiff refers to the statement of the congres-

sional purpose in the Act, 30 U.S.C. § 801, as ‘‘evidence of

the fact’’ that Congress has made findings as to the degree

of regulation that all of the industries covered by the Act

are subject to. Such a declaration by Congress, standing

alone, is not sufficient for this Court to find that a stone

quarry is part of a ‘‘pervasively regulated’’ industry and

that the Secretary is likely to prevail on the merits of this

action.

It Is THEREFORE Orperep that the plaintiff’s motion for a

preliminary injunction is denied.

Dated at Milwaukee, Wisconsin, this 15th day of Septem-

ber, 1978.

/s/ Joun W. Reyno.tps

John W. Reynolds,

Chief Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.