COEUR D'ALENE TRIBAL FARM

OSHRC Docket Nos. 78-6081; 78-6082

Occupational Safety and Health Review Commission

November 25, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Associate Regional Solicitor, USDOL

Robert D. Dellwo, for the employer

OPINION:

ORDER

BY THE COMMISSION:

A decision of Administrative Law Judge Erwin L. Stuller is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Stuller affirmed citations alleging that the Respondent, Coeur D'Alene Tribal Farm ("the Tribal Farm"), an enterprise established by the Coeur D'Alene Indian Tribe ("the Tribe"), n1 violated the Act.   In doing so, the judge rejected Respondent's argument that the Act did not apply to an enterprise of an Indian tribal government. n2 Commissioner Cottine granted Respondent's petition for review of the judge's decision. n3

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n1 The citations were issued in the name of the Trial Farm, and the Commission docketed the case under that name.   However, the Secretary's complaint named the Tribe as the Respondent and the subsequent documents filed in the case, as well as the judge's decision, name the Tribe as the Respondent.   The record indicates that the Tribal Farm is a distinct organization from the Tribe itself, and that the alleged violations resulted from activities of the Tribal Farm.   Therefore, we regard the Secretary's naming of the Tribe as the Respondent in the complaint as an inadvertence rather than an attempt to amend the Respondent named in the citation.   Accordingly, the Tribal Farm remains the proper Respondent.

n2 The judge's ruling was made on the parties' cross-motions for summary judgment.   The parties submitted to the judge a Statement of Facts in which they stipulated to various facts concerning the history, organization, and status of both the Tribe and the Tribal farm.   The parties also stipulated that the factual conditions existed as alleged and described in the citations.

n3 In addition to the issues raised in Respondent's petition for review, Commissioner Cottine directed review of the following question: "Whether the Act is applicable to a business enterprise of an Indian tribal government that employs non-Indian employees."

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The Commission has recently decided issues similar to those presented in this case.   In Navajo Forest Products Industries, 80 OSAHRC    , 8 BNA OSHC 2094, 1980 CCH OSHD P24,822 (No. 76-5013, 1980), the Commission held that the Act could not be applied in a manner inconsistent with the treaty rights of an Indian tribe.   We concluded that Navajo Forest Products Industries, an enterprise of the Navajo tribal government, was not subject to the Act because of treaty rights reserved to the Navajo Tribe.

Although this case is similar in certain respects to Navajo Forest Products Industries, factual distinctions exist between the two cases.   The parties must be afforded the opportunity to argue the significance of those distinctions.   Moreover, the parties may wish to reopen the record and present additional evidence in light of our decision in Navajo Forest Products Industries.

Accordingly, the judge's decision is set aside and the case is remanded to the administrative law judge.   The judge shall afford the parties an opportunity to present additional evidence and argument, and shall reconsider [*3]   his decision in light of the evidence and argument presented and our decision in Navajo Forest Products Industries. SO ORDERED.