Where there's smoke, there's fire

|The Volokh Conspiracy |

Federal law allows mines to be fined when there's a "mine fire." Does this require a flaming fire, or do merely smoking or smoldering fires qualify? Last Friday, the D.C. Circuit concluded that the secretary of labor could reasonably interpret "fire" as including smoking or smoldering fires—the question under the Chevron doctrine being whether that's a reasonable administrative agency interpretation, rather than whether it's the one that courts would have chosen themselves. (Yes, I know that this is not "where there's smoke, there's fire" usually refers to, but I couldn't resist.) An excerpt (some paragraph breaks added), which I think offers an interesting illustration of statutory interpretation and the application of Chevron:

The American Coal Company was cited and fined for a from the Mine Safety and Health Administration observed patches of smoldering, smoking coal without visible flames. The Federal Mine Safety and Health Act of 1977 allows the issuance of safety orders and the imposition of citations and fines when a mine operator permits an "accident" to occur in its facility, including a "mine fire."

American Coal argues that the citation and fine should be vacated because a "fire," for purposes of the Mine Act, exists only when there are visible flames. The company also contends that even if a fire could exist without visible flames, there was insufficient proof here to show a fire of any kind.

We disagree on both points and deny American Coal's petition for review. The statutory term "fire" is ambiguous, the Secretary of Labor reasonably determined that the term does not require the presence of flames, and substantial evidence supports the conclusion that the smoldering patches on American Coal's stockpile satisfied the Secretary's interpretation of a "fire." …

American Coal insists that there was widespread agreement at the time the Mine Act was passed in 1977 that a fire existed only when there were visible flames. To support this proposition, American Coal cites several general-usage dictionary definitions and a number of fire insurance cases ranging from 1905 to 1969, which arguably identify fire exclusively with the presence of flames. See, e.g., W. Woolen Mill v. N. Assurance Co. of London, 139 F. 637, 639 (8th Cir. 1905) ("No definition of fire can be found that does not include the idea of visible heat or light, and this is also the popular meaning given to the word.").

The Secretary responds principally in two ways. First, he cites a number of cases of similar vintage that explicitly distinguish between "smoldering fires" and "flaming fires," to show that contemporary usage employed the term "fire" in different ways. See, e.g., Triple A Machine Shop, Inc. v. Waterman Steamship Co., 221 F.2d 916, 917 (9th Cir. 1955) ("[A] fire so started in the [ship's hold] would smoulder many hours before it burst into flame."); Ravenscroft v. United States, 88 F.2d 418, 419 (2d Cir. 1937) (noting "the danger of admitting air to a smoldering fire in cotton"); Petition of United States, 105 F.Supp. 353, 359 (S.D.N.Y.1952) ("[Opening the hatch] created a strong circulation of air, which fanned the smoldering fire into flame." (Internal quotation marks omitted.))

Second, the Secretary points to a number of technical references focusing on mining and fire prevention that distinguish smoldering fire from flaming fire. See, e.g., National Fire Protection Association, Fire Protection Handbook 2-18 (Gordon P. McKinnon & Keith Tower eds., 14th ed. 1976) ("The observer can be sure there is fire where flame can be seen. Flame is rarely separated from the burning materials by any appreciable distance. However, in certain types of smoldering fires without evidence of flame, heat, smoke, and gas can develop."); Dictionary Of Mining, Mineral, And Related Terms 246, 436 (1st ed. 1968) (defining "fire" as "[f]uel in a state of combustion" and defining "combustion" as "[t]he action or operation of burning" that can be but is not necessarily "accompanied by the generation of light and heat").

We agree with the Secretary. The parties have both presented contemporary readings of the term "fire" that support their position. For that reason, Chevron step one is relatively straightforward here. "Confronting diverse readings of the statutory text, we are obliged to defer to the Secretary's miner-protective construction of the Mine Act so long as it is reasonable." Cannelton Indus., 867 F.2d at 1437. The parties have both provided competing uses of the term in contemporary judicial decisions, showing that lawyers and judges of the time sometimes understood "fire" to require visible flames and sometimes understood that a "fire" could exist even when there was only smoldering combustion.

And American Coal cannot successfully distinguish the contemporary cases cited by the Secretary that clearly differentiate between smoldering fires and flaming fires. True, each of those cases involved a smoldering fire that was succeeded by a flaming fire, and the damage that provoked the dispute in each circumstance was caused by the later flaming stage. But that merely underscores that in each case the court considered the fire to have begun once smoldering commenced, even though flames had not yet broken out. This alone is reason enough to conclude that "fire" is ambiguous: Congress may have meant to include only flaming fires in the illustrative list of accidents in the Mine Act, but it may also have intended that list to include smoldering fires as well.

We also note that the term "fire" is identified in the statute merely as one item in an inclusive list designed to illustrate, not comprehensively enumerate, the various forms of "accident" that can justify issuing a safety order under section 103(k). See 30 U.S.C. § 802(k) (stating that an "accident," for purposes of the Mine Act, "includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person" (emphasis added)); see also Burgess v. United States, 553 U.S. 124, 131 n.3 (2008) ("[T]he word 'includes' is usually a term of enlargement, and not of limitation." (Internal quotation marks and citation omitted.))

In other words, Congress enacted the Mine Act to create a comprehensive scheme empowering the Secretary and his mine inspectors to respond rapidly and flexibly to risks to miner safety. And as we have already pointed out, the Mine Act is a remedial health-and-safety statute, meaning that its terms are to be read broadly to offer maximum protection for miner safety. It would be senseless, in this context, to read a single term in the statute's inclusive, illustrative list of possible accidents in the narrowest possible way, based on a cherry-picked selection of contemporary decisional law, so as to preclude the Secretary from adopting a reasonable construction that increased the safety of miners. On this basis, we are satisfied that there are competing, plausible interpretations of the term "fire," and so find it ambiguous.

It is true, as American Coal points out, that the general-usage dictionaries from the period when Congress passed the Mine Act, define fire only as flaming combustion. But these general-usage dictionaries do not change our view that the term "fire" is ambiguous in the Act. General-usage dictionaries cannot invariably control our consideration of statutory language, especially when the "dictionary definition of … isolated words[ ] does not account for the governing statutory context." Bloate v. United States, 559 U.S. 196, 205 n.9 (2010). After all, "'[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.'"

Though our assessment of the ambiguity of statutory text sometimes begins and ends with the definitions provided in contemporary general-usage dictionaries, on other occasions it is useful and important to consult more technical sources where, as here, the statute focuses on a specific technical context. The Mine Act is designed to secure and enhance the safety of miners in and around mines. The characteristics of fire that matter for the purposes of this statute are those relevant in the context of mining and industrial safety. And the general-usage dictionaries American Coal cites cannot and do not account for these particular characteristics.

The Secretary, on the other hand, has provided technical resources, also from the period when Congress passed the Act, that define fire in the specific context of mining and industrial safety. For example, the Fire Protection Handbook that the Secretary has produced unmistakably supports the Secretary's position by identifying the distinct risks associated with "smoldering fires." And the Dictionary of Mining, Mineral, and Related Terms identifies "the generation of light and heat" merely as an "example" of the attributes of fire, not as a necessary precondition for fire to exist. In other words, paying attention to the context of the Mine Act, the exchange of contrasting definitions from various dictionary sources provides further basis to conclude that the term "fire" is ambiguous.