15 P.3d 1283 (2001)
Tae KIM, limited guardian for the Estate of Peter Kim; Ki Young Kim; and Won Sook Kim, Appellants,
v.
BUDGET RENT A CAR SYSTEMS, INC., a Delaware corporation, Respondent,
Demicus Young, Defendant.
No. 67352-7.
Supreme Court of Washington, En Banc.
Argued March 1, 2000.
Decided January 25, 2001.
As Amended January 31, 2001.
*1284 Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, Christopher Cyrus Pence, Richard Andrew Bergh, Seattle, for Appellants.
Phillips & Webster, K.C. Webster, Ralph Glenn Phillips, Woodinville, for Respondent.
MADSEN, J.
In this case we are asked to decide whether plaintiff Peter Kim may maintain a negligence action against Budget Rent A Car for injuries sustained by plaintiff after one of Budget's vehicles, with the keys left in its ignition, was stolen by a third party and used to commit a vehicular assault against plaintiff. The trial court dismissed this case on summary judgment. We accepted direct review, and affirm, holding that Budget did not owe a duty of care to plaintiff and that Budget's negligence was not the proximate cause of plaintiff's injuries.

FACTS
On the night of September 6, 1991, Demicus Young, an accomplished thief, went to Pacific Highway South in the city of Sea Tac for the purpose of stealing a vehicle. Young trespassed onto Budget's Seattle Region Administrative Facility parking lot, which is located off Sea Tac airport property. No vehicles are rented from Budget's administrative facility and it has no fences, barriers, lights, security personnel, or cameras. On Budget's administrative parking lot Young found an unlocked Dodge minivan with the keys in its ignition and stole the vehicle. There is no evidence in the record that prior to Young's theft a vehicle had ever been stolen from Budget's administrative facility.
Young drove home and went to sleep. Then, the next day, he consumed alcohol and smoked marijuana. He then attempted to drive the minivan, and while pulling out of his driveway struck a telephone pole. Concerned observers contacted the police to report Young's suspicious behavior. When Young saw the police, he attempted to speed away, believing the police were pursuing him. He then ran a stop sign and caused the accident severely injuring plaintiff.
Plaintiff filed suit against Young and Budget. The trial court granted Budget's motion for summary judgment. Plaintiff petitioned this court for direct review, which we granted.

*1285 ANALYSIS

I
"It is an elementary principle that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured...." Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3 (1942); see also Folsom v. Burger King, 135 Wash.2d 658, 671, 958 P.2d 301 (1998). The existence of duty is a question of law. Folsom, 135 Wash.2d at 671, 958 P.2d 301 (citing Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984)). Plaintiff asks us to hold that Budget owed a duty of care to plaintiff to prevent Young from stealing its vehicle and committing a vehicular assault. Under the facts of this case, we are unwilling to do so.
Plaintiff contends that "Washington courts recognize that defendants have a duty to protect against the criminal acts of third persons where the defendant's action or omission involves an unreasonable risk of harm to the plaintiff via the conduct of the tort-feasor." Pl.Br. at 35. This is an overly broad statement of our prior cases.
"`The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties.'" Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 199, 943 P.2d 286 (1997) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 223, 802 P.2d 1360 (1991)). This is an expression of the policy that "one is normally allowed to proceed on the basis that others will obey the law." Hutchins, 116 Wash.2d at 236, 802 P.2d 1360. In a case factually similar to the case at bar, Justice Traynor noted
[i]n one sense the problem presented involves the duty of the owner of an automobile so to manage it as not to create an unreasonable risk of harm to others. It bears emphasis, however, that when [the defendant] left the car it was in a position where it could harm no one, an[d] no harm occurred until it had been taken by a thief. Thus a duty to prevent such harm would involve more than just the duty to control the car, it would involve a duty to prevent action of a third person. Ordinarily, however, in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.
Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 27 (1954).
Plaintiff asks us to depart from this general rule, relying in part on the Restatement (Second) of Torts § 302B (1965), which states:
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
This section does not support imposition of a duty in this case. As comment e to the section explains, a duty to guard against third party conduct may exist where there is a special relationship to the one suffering the harm, or "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account." Restatement (Second) of Torts § 302B cmt. e (1965). This does not mean that any risk of harm gives rise to a duty. Instead, an unusual risk of harm, a "high degree of risk of harm," is required. Id. There is nothing in the facts of this case indicating that a high degree of risk of harm to plaintiff was created by Budget's conduct of leaving the keys in the ignition of an automobile in an area where Budget had never had a prior vehicle theft.
Our case law does not support imposition of a duty either. Generally, our cases, involving a duty to protect a party from the criminal conduct of another, have fallen into one of two categories. We have found a duty where there is a "special relationship" with the victim. See, e.g., Nivens, 133 Wash.2d 192, 943 P.2d 286 (business to business invitee); Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P.2d 420 (1997) (party entrusted with the care of a dependant); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) (innkeeper to guest). And second, we *1286 have imposed a duty where there is a "special relationship" with the criminal. See, e.g., Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400 (1999) (stateprobationer); Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983) (psychotherapistpatient); Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 934, 653 P.2d 280 (1982) (customerstore owner).
For instance, in Hutchins we held that a landowner was not liable for a trespasser's perpetration of a criminal act against a noninvitee on the owner's land. Hutchins, 116 Wash.2d at 226, 802 P.2d 1360. In Nivens, we held that a business may under some circumstances be liable for a third party's criminal acts against an invitee. Our holding in Nivens was predicated explicitly on the fact that "a special relationship exists between a business and an invitee because the invitee enters the business premises for the economic benefit of the business." Nivens, 133 Wash.2d at 202, 943 P.2d 286. Similarly, in Passovoy v. Nordstrom, Inc., 52 Wash. App. 166, 758 P.2d 524 (1988), the Court of Appeals held that Nordstrom could be liable for injuries sustained by its patrons caused by an actively pursued and fleeing shoplifter. The consistent theme in these cases is that no duty exists absent a special relationship with either the criminal or victim. Id. at 172-73, 758 P.2d 524. Neither circumstance is present here.[1]
Even if we were to adopt a very broad reading of our duty cases and hold that a defendant has an obligation to guard against all foreseeable third party criminal conduct, we would not find a duty on these facts. Budget could not foresee a theft from its administrative facility any more than any other private business owner would foresee a theft from its parking lot. If Young had stolen the minivan from Budget's "rental lot," an argument could be made that the theft was potentially foreseeable, as Budget, as well as other car rental companies, often experience thefts from their rental facilities. But this is not the case here. There is nothing in the record indicating that Budget had ever had a car stolen from its administrative facility and we believe "`[i]t would be unjust to require one to anticipate that a crime will be committed unless there has been a warning or unless a previous criminal act occurred in the same premises.'" Prosser and Keeton on The Law of Torts § 33, at 201 n. 78 (W. Page Keeton ed., 5th ed.1984) (quoting Brogan Cadillac-Oldsmobile Corp. v. Cent. Jersey Bank & Trust Co., 183 N.J.Super. 333, 443 A.2d 1108, 1110 (1981), aff'd, 190 N.J.Super. 500, 464 A.2d 1141 (1983)).
Plaintiff also relies on the rule found in comment e, section G to Restatement § 302B. Pl.Br. at 36. That section states that a duty of care is created "[w]here property of which the actor has possession or control affords a peculiar temptation or opportunity for intentional interference...." Restatement § 302B cmt. e, § G. Although we have never utilized this comment to impose a tort duty, we noted in Hutchins,
cases where this exception to the general rule (of no liability for the criminal acts of third parties) is applied involve some condition of the property which, by its nature, is quite out of the ordinary, i.e., presenting a special or peculiar temptation or opportunity, and involve a high degree of risk of harm.
Hutchins, 116 Wash.2d at 232, 802 P.2d 1360 (first emphasis added).
There is nothing "quite out of the ordinary" about Budget's administrative facility parking lot or the Dodge minivan that was stolen. Plaintiff implies that arguably, Budget knew or should have known its vehicle lots were an especial temptation and, if proved, Budget could have a duty of care to safeguard against theft. Even were this true, it fails to address the question presented in this case, which solely involves Budget's administrative facility parking lot, not a rental vehicle lot or any other Budget vehicle lot. Vehicles were not rented from Budget's administrative facility and, as noted, there is no *1287 indication there had ever been a prior theft from this location. In essence, Budget's administrative lot is no different from the parking lots of thousands of other Washington businesses.
Nevertheless, plaintiff urges that unique circumstances here justify permitting this case to proceed. The principal out-of-state case relied upon by plaintiff, Cruz, lists several "special circumstances" under which a court might permit a "key in ignition" case to go forward. Cruz v. Middlekauff Lincoln Mercury, Inc., 909 P.2d 1252, 1255 (Utah 1996). This list includes:
(1) significant criminal activity in the area in which the vehicle was left ...; (2) prior thefts of the defendant's vehicles ...; (3) irresponsible or reckless nature of people frequenting the area ...; (4) lack of surveillance of the vehicle ...; (5) vehicle left for extended period of time ...; and (6) type and size of vehicle uniquely attractive or capable of inflicting serious damages[.]
Id. at 1256 (citations omitted).
We have significant reservations as to the merit of the "Cruz factors" in general, as well as to their factual application to this case.
As to the first of the Cruz factors, plaintiff refers to the high crime rate in the Sea-Tac area. What plaintiff fails to note is that this court has rejected utilization of high crime rates as a basis for imposing a tort duty. As we noted in Hutchins,
there is a basis to conclude that the high incidence of crime in an urban area does not favor imposition of the duty urged by plaintiffs, but instead cuts the other way. That is, if the premises are located in an area where criminal assaults often occur, imposition of a duty could result in the departure of businesses from urban core areas-an undesirable result.
Hutchins, 116 Wash.2d at 236, 802 P.2d 1360.
As to the second "factor," there is nothing in the record indicating Budget had ever had a prior theft from its administrative facility. We believe the fact that Budget had prior thefts from its "rental lots" as irrelevant.
As to the third factor, there is little indication as to the irresponsible nature of the persons frequenting the area in which Budget's administrative facility is located. Even if there were, we believe imposition of liability for this reason would conflict with our statement in Hutchins dealing with high crime areas.
The fourth Cruz factor is met in this case. There was a lack of surveillance of its Dodge minivan on the part of Budget. However, we find it untenable that this fact alone may serve as the basis for imposition of a tort duty. If that were the case, every private individual leaving a car with a key in the ignition would be liable any time the vehicle is left unattended. That is a result foreclosed by Sailor and Pratt and one that we are unwilling to accept. Sailor v. Ohlde, 71 Wash.2d 646, 430 P.2d 591 (1967); Pratt v. Thomas, 80 Wash.2d 117, 491 P.2d 1285 (1971).
As to the fifth factor, we view leaving a vehicle overnight, in and of itself, as not being a significant enough period of time to establish liability.
Finally, with regard to the sixth factor, we do not believe that a Dodge minivan is the type of vehicle that is uniquely attractive or capable of inflicting serious damage, any more than any other type of passenger vehicle.
Plaintiff's final contention is that RCW 46.61.600 is evidence of the Legislature's intent to create a tort obligation on the part of vehicle owners to not leave keys in the ignition of their automobile. See Hansen v. Friend, 118 Wash.2d 476, 482, 824 P.2d 483 (1992) (holding that "RCW 66.44.270(1) imposes a duty of care on social hosts not to serve liquor to minors."). Plaintiff also argues that RCW 46.61.600 should be submitted to the jury as evidence of the proper standard of conduct for vehicle owners. However, if RCW 46.61.600 does not govern Budget's actions in this case, it is clearly not evidence of the proper standard of conduct for Budget, nor is it evidence of the Legislature's intent to create a duty on the part of Budget. Therefore, we must address the question of whether the statute applies to vehicles left on private property. We conclude it does not.
RCW 46.61.600(1) provides:

*1288 No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake thereon and, when standing upon any perceptible grade, turning the front wheels to the curb or side of the highway.
The scope of this provision is limited by RCW 46.61.005(1), which states:
The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except ... [w]here a different place is specifically referred to in a given section.
(Emphasis added). The term "highways" is defined by RCW 46.04.197 to include only those areas that are "publicly maintained ."
Plaintiff argues RCW 46.61.005 is inapplicable in this case because RCW 46.61.600(1) is not a provision "relating to the operation of vehicles," but rather to vehicles that are being parked. Therefore, argues plaintiff, RCW 46.61.600(1) applies to vehicles parked on either public or private property. We find this argument untenable. The act of parking and securing a vehicle, as the last step in its operation, is clearly "relating to the operation of vehicles" for purposes of RCW 46.61.600(1).
Therefore, because Budget's administrative facility is not a "publicly maintained highway" we hold that Budget had no statutorily imposed duty to remove the keys from its vehicles. Other jurisdictions are overwhelmingly in accord. See, e.g., Schaff v. R.W. Claxton, Inc., 144 F.2d 532 (1944); Harper v. Epstein, 16 Ill.App.3d 771, 306 N.E.2d 690 (1974); George v. Breising, 206 Kan. 221, 477 P.2d 983 (1970); Berluchaux v. Employers Mut. Of Wausau, 182 So.2d 98 (La.Ct.App.1966); Curtis v. Jacobson, 142 Me. 351, 54 A.2d 520 (1947); Kalberg v. Anderson Bros. Motor Co., 251 Minn. 458, 88 N.W.2d 197 (1958); Elliott v. Mallory Elec. Corp., 93 Nev. 580, 571 P.2d 397 (1977); Stone v. Bethea, 251 S.C. 157, 161 S.E.2d 171 (1968); Martel v. Chattanooga Parking Stations, Inc., 224 Tenn. 232, 453 S.W.2d 767 (1970).
Also, we do not believe RCW 46.61.600 was enacted for the purpose of protecting the class of persons to which plaintiff is a member. As Justice Rosellini wrote in reference to RCW 46.61.600,
[i]t appears to me that the statute is designed for the protection of the owner and for the protection of others in the path of the vehicle if it should be put in motion by reason of having been insecurely parked.
Pratt, 80 Wash.2d at 120, 491 P.2d 1285 (Rosellini, J., concurring). RCW 46.61.600 was enacted to prevent runaway vehicles on public streets. Other jurisdictions have found similarly. DeCastro v. Boylan, 367 So.2d 83 (La.Ct.App.1979); Rollins v. Petersen, 813 P.2d 1156 (Utah 1991). We do not believe the statute was enacted to protect members of the public from the type of accident that occurred in this case.
Accordingly, we hold that Budget did not owe a duty of care to plaintiff.

II
Even assuming a duty was owed here, we cannot find that Budget's actions were the proximate cause of plaintiff's injuries. On two prior occasions we have held that the owner of an unsecured vehicle that is stolen and later involved in an accident is not liable for a third party's damages caused by the accident. Sailor, 71 Wash.2d 646, 430 P.2d 591; Pratt, 80 Wash.2d 117, 491 P.2d 1285. Budget contends that these decisions are controlling authority under the facts of this case. We agree.
In Sailor, the defendant left the key to his pickup truck, which was parked at a warehouse, in the ignition. Sailor, 71 Wn.2d at 646. A nine-year-old boy stole the truck and crashed into a service station, causing significant damage. Id. We held that the truck owner was not liable for the damage to the service station caused by the thief's negligent driving. Id. at 647-48.
In Pratt, the defendant left a station wagon, without the ignition locked, in a high school parking lot. Three high school students stole the vehicle. The students drove the vehicle for "some distance ... [and drove to] the home of another boy...." Pratt, 80 Wash.2d at 118, 491 P.2d 1285. "After [the *1289 students] had driven the stolen vehicle for a while, the state patrol saw it and pursued. A high speed chase followed. The accident occurred and the [plaintiffs] were injured." Id. at 118, 491 P.2d 1285. The trial court dismissed the plaintiffs' complaint and they appealed.
Without resolving the question of duty, we held, as a matter of law, that the defendant's negligence was not the proximate cause of plaintiff's injuries:
Here it is plain the accident which caused [plaintiff's] injuries was not a part of the natural and continuous sequence of events which flowed from [defendant's] act in leaving their station wagon in the parking lot. It was the result of new and independent forces. Among the new forces were the stealing of the vehicle, the pursuit by the state patrol, the attempt by the thieves to run from the officers and, finally, the accident.
When, as here, the facts do not admit of reasonable differences of opinion, proximate cause is a question of law to be decided by the court.
Id. at 119, 491 P.2d 1285. Just as in Pratt, proximate cause is lacking in this case.
The first prong of proximate cause is cause in fact. Schooley v. Pinch's Deli Market, Inc., 134 Wash.2d 468, 478, 951 P.2d 749 (1998). "Cause in fact concerns `but for' causation, events the act produced in a direct unbroken sequence which would not have resulted had the act not occurred." Hertog v. City of Seattle, 138 Wash.2d 265, 282-83, 979 P.2d 400 (1999). The question of cause in fact is normally left to the jury, however, if "reasonable minds could not differ, th[is] factual question[] may be determined as a matter of law." Id. at 275, 979 P.2d 400.
Plaintiff contends that Pratt is distinguishable from the case at bar. We disagree. Just as in Pratt, the accident here was not produced "by the natural and continuous sequence of events" initiated by the defendant's failure to secure a vehicle. In Pratt, a vehicle was stolen from a parking lot. Here, the vehicle was stolen from a parking lot on the premises of Budget's private administrative facility. In Pratt, the thieves made at least one temporary stop after stealing the vehicle. Here, Young went home, went to sleep, and then became intoxicated and smoked marijuana after stealing Budget's minivan. In both cases a police chase and subsequent accident ensued. These similarities bring this case squarely within the ambit of Pratt's holding.
Legal cause is also lacking in this case. Legal cause is the second prong of proximate causation and "[is] a question of law" for the court. McCoy v. Am. Suzuki Motor Corp., 136 Wash.2d 350, 359, 961 P.2d 952 (1998).
Legal causation is a much more fluid concept [than cause in fact]. It is grounded "in policy determinations as to how far the consequences of a defendant's acts should extend." The focus in legal causation analysis is on "whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability." This inquiry depends upon `"mixed considerations of logic, common sense, justice, policy, and precedent.'"
Tyner v. Dep't of Soc. & Health Servs., 141 Wash.2d 68, 82, 1 P.3d 1148 (2000) (quoting Schooley, 134 Wash.2d at 478-79, 951 P.2d 749).
Plaintiff relies on McCoy for the proposition that legal cause is established in this case. In McCoy the plaintiff was a rescuer who had come to the aid of an individual who sustained injuries on a freeway, allegedly caused by Suzuki's faulty manufacturing of a motor vehicle. McCoy, 136 Wash.2d at 353, 961 P.2d 952. After aiding the accident victim, and while still at the scene of the accident, the plaintiff was struck by a passing vehicle. Id. This court held that legal cause was not a bar to an action by the plaintiff against Suzuki for injuries caused by the passerby motorist. Id. at 360, 961 P.2d 952.
Plaintiff contends that the harm suffered in this case is no more remote than the harm suffered by the plaintiff in McCoy. We disagree. In McCoy the plaintiff was a rescuer present at the scene of an accident and was injured in a foreseeable manner when a third party swerved over to the shoulder of the freeway and struck him. Thus, McCoy involved *1290 application of the rescuer doctrine. As stated by Judge Cardozo, the rescuer doctrine embodies the principle that "danger invites rescue." Wagner v. Int'l Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (1921). Therefore, because "it is foreseeable a rescuer will come to the aid of the person imperiled by the tortfeasor's actions," McCoy, 136 Wash.2d at 355, 961 P.2d 952, a rescuer's injuries, which are caused in a foreseeable manner, are rarely too attenuated to hold the original tortfeasor liable. A case involving the rescuer doctrine with its significantly different analytical underpinnings does not provide a proper basis for comparison in this case involving the criminal acts of third parties.
At a minimum, the remoteness in time between the criminal act and the injury is dispositive to the question of legal cause in this case. See Devellis v. Lucci, 697 N.Y.S.2d 337, 339, 266 A.D.2d 180 (App.Div. 1999) ("passage of 24 days between the theft of the vehicle and the injury-producing event vitiated any proximate cause between the purported negligence and the accident as a matter of law"). Even if it were negligent for Budget to leave the keys inside of its minivan, "the responsibility for such negligence must terminate at some time in the future...." Gmerek v. Rachlin, 390 So.2d 1230, 1231 (Fla.App.1980). One who fails to remove the keys from their vehicle should not be "answerable in perpetuity for the criminal and tortious conduct of others...." Devellis, 697 N.Y.S.2d at 339. Young went home, went to sleep, and became intoxicated before criminally causing the accident injuring plaintiff the day after the theft.
Finally, we note that of the few cases that have allowed third party tort liability in "key in ignition" cases, most have not involved the type of attenuated facts present here. See, e.g., McClenahan v. Cooley, 806 S.W.2d 767 (Tenn.1991) (vehicle stolen at 11:00 a.m., accident at 11:33 a.m.); Cruz, 909 P.2d 1252 (vehicle stolen in early evening, accident at 8:00 p.m.); Kozicki v. Dragon, 255 Neb. 248, 583 N.W.2d 336 (1998) (vehicle stolen at 5:45 a.m., accident later that morning).
We hold that proximate cause is lacking, as a matter of law, and accordingly Budget is not liable for plaintiff's injuries.

CONCLUSION
Under the facts of this case Budget did not owe a duty of care to plaintiff. Further, Budget's negligent behavior (even if proved) was not the proximate cause of plaintiff's injuries as a matter of law. Accordingly, the superior court's grant of summary judgment in favor of Budget is affirmed.
ALEXANDER, C.J., SMITH, JOHNSON, SANDERS, BRIDGE, JJ., GUY, TALMADGE, and BAKER, J. Pro Tems.
NOTES
[1]  Plaintiff relies on Bernethy v. Walt Failor's Inc., 97 Wash.2d 929, 934, 653 P.2d 280 (1982), in which we held that a gun shop owner may be liable to a third party for supplying a firearm to an intoxicated patron. The basis for our holding in Bernethy was negligent entrustment, a doctrine which, appropriately, has not been argued by plaintiff to be applicable in this case.


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                              No. 01-20409
                          Conference Calendar

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

RAMOUNE LANIER JOHNSON,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-00-CR-733-1
                      --------------------
                        February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*
     Ramoune Lanier Johnson has appealed his conviction of having
possessed a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1).   We affirm.
     Johnson contends that the evidence was insufficient to
support his conviction.    Specifically, he argues that § 922(g)(1)
cannot constitutionally be construed to proscribe interstate
possession of a firearm when the only interstate nexus is the
fact that it traveled across a state line at some time in the

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 01-20409
                                  -2-

past.    He concedes, however, that this court has rejected his
contention in several cases.
     In fact, “[t]his court has repeatedly emphasized that the
constitutionality of § 922(g)(1) is not open to question,” based
on “the mere fact that the ammunition [or firearm] traveled
through interstate commerce in the past.”     United States v. De
Leon, 170 F.3d 494, 499 (5th Cir. 1999).     The court iterated its
previous ruling that United States v. Lopez, 514 U.S. 549 (1995),
does not constitutionally invalidate § 922(g)(1).     Id.; see
United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
Accordingly, Johnson’s argument based on Lopez lacks merit.
     Johnson also relies on Jones v. United States, 529 U.S. 848
(2000), as showing that Scarborough v. United States, 431 U.S.
563 (1977), and Rawls are no longer good law.     This argument also
lacks merit.     See United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001), pet. for cert. filed, No. 01-7524 (Dec. 20,
2001).    Therefore Johnson’s conviction of violating § 922(g)(1)
must be affirmed.
     AFFIRMED.


473 F.2d 906
Allenv.State Board of Education of N. C.
72-1722
UNITED STATES COURT OF APPEALS Fourth Circuit
1/10/73
M.D.N.C., 55 F.R.D. 350
AFFIRMED


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                            BERGER, BURTON, and ALDYKIEWICZ
                                 Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                                  Major ERIK J. BURRIS
                               United States Army, Appellant

                                         ARMY 20150047

                                Headquarters, Fort Bragg
                     Tara A. Osborn, Military Judge (arraignment)
                         John T. Rothwell, Military Judge (trial)
             Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman,
Esq. (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Virginia H. Tinsley, JA; Captain Natanyah Ganz (supplemental brief on
behalf of appellee following remand).

                                         7 December 2018

                            ---------------------------------------------------
                             MEMORANDUM OPINION ON REMAND
                            ---------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       Our court previously conducted an appellate review of this case pursuant to
Article 66, Uniform Code of Military Justice [UCMJ], affirming appellant’s
conviction and sentence. United States v. Burris, 2017 CCA LEXIS 315 (Army Ct.
Crim. App. 8 May 2017). 1 The Court of Appeals for the Armed Forces (CAAF)

1
 An officer panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of willfully disobeying a superior commissioned
officer, two specifications of rape, one specification of sodomy, and four
specifications of assault consummated by a battery, in violation of Articles 90, 120,
125, and 128, UCMJ, 10 U.S.C. §§ 890, 920, 925, and 928 (2012). The panel
sentenced appellant to a dismissal, confinement for twenty years, and forfeiture of

                                                                                (continued . . .)
BURRIS—ARMY 20150047

subsequently granted review on the issue of whether the failure to object to improper
character evidence and improper argument constitutes waiver or forfeiture. The
CAAF held that a mere failure to object is forfeiture, not waiver as this court had
held. United States v. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summ. disp.). The
CAAF set aside this court’s decision and returned the record to The Judge Advocate
General for remand to this court. The CAAF order observed that “the Government
has argued for the first time in this Court that Appellant affirmatively waived his
challenges to the admission of character evidence and argument. We leave this
argument for the lower court to address on remand.”

       Accordingly, our review of this case is limited to two issues. 2 First, whether
appellant affirmatively waived objection to the admission of evidence and argument
that appellant refers to himself as “The Beast.” Second, if there is no affirmative
waiver, whether admission of “The Beast” was plain error, and whether trial counsel
improperly argued evidence that appellant refers to himself as “The Beast.”

                                  BACKGROUND

        At trial, evidence was introduced by both parties that appellant’s self-given
moniker is “The Beast.” Trial counsel was the first to mention “The Beast” in her
opening statement when she described the expected testimony of WB regarding the
first time she was raped by appellant:

             It was a night that pregnant [WB] first met The Beast. Let
             me say that again: The Beast. That is the name the
             accused gives his own alter ego. That is the name the
             accused gives the alter ego that sexually assaults [WB]
             time and time again.

      But, it was the defense counsel who first elicited witness testimony of “The
Beast” during cross-examination of appellant’s supervisor, the Staff Judge Advocate
(SJA) of the 82d Airborne Division. Defense asked the SJA about details appellant
shared with him about his case. Defense counsel asked, “[Appellant] told you about

(. . . continued)
 all pay and allowances. The convening authority approved the sentence as
adjudged, but waived automatic forfeitures for six months.

2
 On remand, appellant asserts the scope of this court’s review is not limited by the
CAAF’s remand. We decline appellant’s invitation to revisit this court’s prior
reasoning on matters outside the scope of the CAAF’s remand. See United States v.
Kelly, ARMY 20150725, 2018 CCA LEXIS 554 (Army Ct. Crim App. 30 Nov.
2018).

                                           2
BURRIS—ARMY 20150047

something called The Beast, correct?” The SJA answered, “That might not have
been until January; but, yes, he did.”

        The next reference to “The Beast” was when government introduced into
evidence appellant’s videotaped Criminal Investigation Command (CID) interview
during which he told a special agent about his nickname, “The Beast.” When the
trial counsel offered it into evidence, the defense counsel stated, “No objection,
Your Honor.” The government then published the video to the panel.

      The victim, WB, testified after appellant’s CID interview was admitted into
evidence. During her testimony, WB testified about the first time appellant raped
her. The next morning, WB asked appellant, “Why did you do that? You hurt me.”
WB testified that appellant replied, “Oh, you must have been talking about The
Beast. You met The Beast last night.” WB testified that appellant further explained,
“Oh, that’s a name I nicknamed – the girls in college that that happened to and they
nicknamed – calls it The Beast.”

      Both the trial counsel and defense counsel referenced “The Beast” in closing
argument. Trial counsel treated the reference as appellant’s admission to the
charged offenses. Meanwhile, defense counsel argued “The Beast” was WB’s
exaggeration and embellishment of the charged offenses.

       Appellant made no objection at trial to any of “The Beast” references.

       On appeal, appellant alleges the references to him as “The Beast” were
impermissible character evidence and improper argument. During this court’s initial
Article 66, UCMJ, review of this case, appellee argued “The Beast” was not
evidence of a character trait under Mil. R. Evid 404(a)(1), or in the alternative, it
was not plain error. This court agreed with appellee that “The Beast” is not a
character trait. This court did not conduct a plain error analysis, but instead relied
upon the plain language of Mil. R. Evid. 103(a) 3 and Rule for Courts-Martial
[R.C.M.] 919(c) 4 and held appellant procedurally waived the asserted error by not
objecting to the evidence or argument. After we issued our opinion in this case, the
CAAF issued the opinion of United States v. Davis, holding that an appellant’s
failure to object is reviewed for plain error. 76 M.J. 224, 229 (C.A.A.F. 2017).

3
 Military Rule of Evidence 103(a) states, “[a] party may claim error in a ruling to
admit or exclude evidence only if the error materially prejudices a substantial right
of the party and: if . . . a party on the record: timely objects or moves to strike . . . .”
4
 Rule for Courts-Martial 919(c) states, “[f]ailure to object to improper argument
before the military judge begins to instruct members on findings shall constitute
waiver of the objection.”

                                             3
BURRIS—ARMY 20150047

                                     ANALYSIS

                                      A. Waiver

        Our superior court describes the difference between waiver and forfeiture as,
“[a] forfeiture is basically an oversight; a waiver is a deliberate decision not to
present a ground for relief that might be available in the law.” United States v.
Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (citation omitted). “While we review
forfeited issues for plain error, we cannot review waived issues at all because a valid
waiver leaves no error for us to correct on appeal.” Id. (citations omitted). 5 In
determining whether a particular circumstance constitutes waiver or forfeiture, we
consider whether the failure to raise the objection at the trial level constituted an
intentional relinquishment of a known right.” Id. (citations omitted).

       This is not a case where appellant merely failed to object to evidence. Not
only did appellant never object to evidence or argument referencing “The Beast”, the
record makes clear that appellant intentionally relinquished his right to object. See
Campos, 67 M.J. at 332-33 (holding the doctrine of waiver will apply, despite no
objection from defense, if it is otherwise clear from the record that it was an
intentional relinquishment of a known right).

       Appellant’s intentional relinquishment of his right to object to “The Beast” is
apparent throughout all stages of the trial. First, appellant was fully aware of the
content of his CID interview prior to trial. Appellant knew that he revealed to CID
his nickname, “The Beast.” Yet, appellant did not file a pre-trial motion to suppress
the statement. 6 After hearing trial counsel reference “The Beast” in opening
statement, appellant still did not object.

       Indeed, it was appellant who first elicited testimony of “The Beast” into
evidence during cross-examination of the SJA. Further, when the government
offered appellant’s CID video interview into evidence, appellant stated he had “no
objection” to its admission. Notably, appellant stated “no objection” before the
military judge even asked if there was an objection to the video. United States v.

5
  However, this Court may elect to notice forfeited and waived error. See Article
66(c); United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001). Our review of
the record does not convince us that this would be appropriate in this case.
6
  Pursuant to Mil. R. Evid. 304(f)(1), “Motions to suppress or objection under this
rule, or Mil. R. Evid. 302 or 305, to any statement or derivative evidence that has
been disclosed must be made by the defense prior to submission of plea. In the
absence of such motion or objection, the defense may not raise the issue at a later
time except as permitted by the military judge for good cause shown. Failure to so
move or object constitutes a waiver of the objection.”

                                           4
BURRIS—ARMY 20150047

Swift, 76 M.J. 210, 212 (C.A.A.F. 2017) (holding a statement of “no objection” to
the admission of evidence at trial, waives an appellant’s right to complain on
appeal). Later, during WB’s testimony and trial counsel’s argument, appellant still
raised no objection. Absent evidence to the contrary, we presume counsel are
competent under Strickland v. Washington, 466 U.S. 668, 690 (1984). Thus, a
defense counsel’s affirmative statement of “no objection” is a purposeful decision.

       Indeed, defense counsel wrapped the nickname into its theory of the case,
attempting to use the name to sow doubt about the victim’s credibility. In
appellant’s own closing argument, he argued WB turned a joke into exaggerated
rape.

       Accordingly, we find appellant has affirmatively waived his right to object to
the evidence and argument of “The Beast.” See United States v. Ahern, 76 M.J. 194
(C.A.A.F. 2017) (holding appellant waived objection to his statements where he was
aware of their content, had numerous opportunities to object at trial, and stated “no
objection” when government moved for their admission).

                           B. Forfeiture and Plain Error

        Alternatively, even assuming appellant did not affirmatively waive objection
to “The Beast,” we find the admission of this evidence and argument was not plain
error. “Where an appellant has not preserved an objection to evidence by making a
timely objection, that error will be forfeited in the absence of plain error.” United
States v. Brooks, 64 M.J. 325, 328 (2007). To demonstrate relief is warranted under
the plain error doctrine, an appellant must show that: (1) there was error; (2) the
error was plain or obvious; and (3) the error was materially prejudicial to his
substantial rights. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing
Brooks, 64 M.J. at 328). “[F]ailure to establish any one of the prongs is fatal to a
plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2016).

                                  1. Was there error?

      As an initial matter, we find appellant has not demonstrated that evidence of
“The Beast” is error because it is not evidence of a character trait under Mil. R.
Evid. 401(a). As we concluded previously, “[i]t is appellant’s self-imposed
nickname, and it is not ‘necessarily suggestive of a criminal disposition.” Burris,
2017 CCA LEXIS 315, at *6 (quoting United States v. Farmer, 583 F.3d 131, 145
(2d Cir. 2009)).

        Second, use of “The Beast” was admissible evidence to demonstrate
appellant’s consciousness of guilt. See United States v. Staton, 69 M.J. 228, 230-31
(C.A.A.F. 2010) (recognizing “consciousness of guilt” as an exception to Mil. R.
Evid. 404(b)). When, post-rape, appellant explained his behavior to WB as
becoming “The Beast,” appellant conveyed, to some greater or lesser extent, that he

                                          5
BURRIS—ARMY 20150047

knew his conduct was wrong, even if trying to deflect moral culpability for his
actions. As such, appellant displayed consciousness of guilt. Alternatively, the
defense used “The Beast” to show that WB had taken a joke out of context as part of
her confabulation of a rape crime. Both were proper uses of the evidence.

                          2. Was the error plain and obvious?

       Even assuming error, it was not plain and obvious. When examining this
prong, we ask whether the error was so obvious “in the context of the entire trial”
that “the military judge should be ‘faulted for taking no action’ even without an
objection.” United States v. Gomez, 76 M.J. 76, 81 (C.A.A.F. 2017) (citing United
States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009) (quoting United States v.
Maynard, 66 M.J. 242, 245 (C.A.A.F. 2008))); see also United States v. Frady, 456
U.S. 152, 163 (1982) (noting that error is clear if “the trial judge and prosecutor
[would be] derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.”).

       It would have been improper for the government to introduce evidence and
argue that appellant was an animal, and raped WB in conformity with his animal-like
nature. The government came closest to this line when the trial counsel argued:

             [W]hen ‘The Beast’ as he described it himself, as he
             names it - - what does a beast do? Does a beast listen?
             Does a beast talk? Does a beast want your opinion, your
             insight on what’s happening? No. A beast takes. A beast
             doesn’t reason, and doesn’t care. It was a perfect name
             because that’s exactly what [WB] described to you from
             this stand in this courtroom when she talked about the
             times [appellant] would force his finger into her, force his
             penis into her when she was crying and saying no.

       However, even this argument can be understood two ways. The government
was allowed to argue that appellant’s self-description was an accurate account of his
actions. That he knowingly acted in an uncaring and sadistic manner when he raped
WB. They could not argue that appellant is feral. To the extent that the
government’s argument can be understood two different ways, we review the record
in the light most favorable to the prevailing party. Or, put differently, any error was
not clear and obvious.

       Any potential error in this case was so slight that both the military judge and
appellant failed to recognize it. See United States v. Short, 77 M.J. 148, 151
(C.A.A.F. 2018) (noting alleged improper argument was not plain and obvious where
neither the military judge nor appellant recognized it). The military judge did sua
sponte raise a possible concern for improper argument when trial counsel made a
statement that could have been interpreted as commenting on appellant’s failure to

                                           6
BURRIS—ARMY 20150047

testify. However, the military judge never raised a sua sponte concern for any
references to “The Beast” at any stage of trial.

               3. Was there material prejudice to a substantial right?

       Lastly, even assuming a plain and obvious error, we conclude that evidence
and argument referencing “The Beast” did not materially prejudice a substantial
right of appellant. A finding or sentence of a court-martial “may not be held
incorrect on the ground of an error of law unless the error materially prejudices the
substantial rights of the accused.” UCMJ art. 59(a). The third prong is satisfied if
appellant shows “a reasonable probability that, but for the error [claimed], the
outcome of the proceeding would have been different.” United States v. Robinson,
77 M.J. 294, 299 (C.A.A.F. 2018) (citation and quotation omitted).

        The panel’s mixed findings demonstrate that the members weighed the
evidence at trial and independently assessed appellant’s guilt. See United States v.
Sewell, 76 M.J. 14, 19 (C.A.A.F. 2017). The panel acquitted appellant of ten of the
eighteen specifications. Seven of the acquitted specifications related to incidents
involving WB alleging offenses of assault consummated by a battery, sexual assault,
sodomy, and communicating a threat. Notably, appellant was acquitted of the two
specifications alleging he forcibly penetrated WB’s anus with his finger, which trial
counsel argued appellant committed consistent with his nickname. The panel
members also excepted and substituted language in several of the specifications.
References to “The Beast” were not so prejudicial that the panel convicted appellant
of all charges and specifications. To the extent we can make inferences from a
panel’s findings, the panel’s precise mixed findings and findings by exceptions and
substitutions indicate the panel engaged in a careful deliberative process based on
the evidence presented. We are “confident that the members convicted appellant on
the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 161
(C.A.A.F. 2014).

                                   CONCLUSION

       Upon reconsideration of the matters remanded to this court, the findings of
guilty and the sentence are AFFIRMED anew.

      Chief Judge BERGER and Judge ALDYKIEWICZ concur.

                                          FOR
                                          FOR THE
                                              THE COURT:
                                                  COURT:

                                          MALCOLM
                                          MALCOLM H.    H. SQUIRES,
                                                           SQUIRES, JR.
                                                                     JR.
                                          Clerk
                                          Clerk of
                                                 of Court
                                                    Court

                                          7


940 F.2d 653
1991 O.S.H.D. (CCH) P 29,462
Unpublished DispositionNOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.SOUTHERN OHIO COAL COMPANY, Petitioner,v.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, ElizabethH. Dole, Secretary of Labor, Respondents.
No. 90-1827.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1991.Decided Aug. 14, 1991.

On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission.
Henry Cajet, Jackson & Kelly, Washington, D.C.  (Argued), for petitioner;  Laura E. Beverage, Jackson & Kelly, Charleston, W.Va., David M. Cohen, Southern Ohio Coal Company, Lancaster, Ohio, on brief.
Eva Lee Clark, Office of the Solicitor, United States Department of Labor, Arlington, Va.  (Argued), for respondents;  Robert P. Davis, Solicitor of Labor, Edward P. Clair, Associate Solicitor, Dennis D. Clark, Counsel, Appellate Litigation, Office of the Solicitor, United States Department of Labor, Arlington, Virginia;  L. Joseph Ferrara, Washington, D.C., on brief.
FMSHRC
AFFIRMED.
Before MURNAGHAN and NIEMEYER, Circuit Judges, and W. EARL BRITT, United States District Judge for the Eastern District of North Carolina, sitting by designation.
OPINION
PER CURIAM:

1
On 31 January 1989 an inspector of the Mine Safety and Health Administration ("MSHA") found Southern Ohio Coal Company ("SOCCO") to be in violation of regulations of the Department of Labor and issued an order of withdrawal pursuant to section 104(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. Secs. 801 et seq.  (1988) ("the Act").  SOCCO contested the validity of that order before an administrative law judge ("ALJ") who modified and affirmed the order.  The decision of the ALJ was affirmed by the Federal Mine Safety And Health Review Commission ("the Commission").  SOCCO continued the review process, as is its right, before this court.  See 30 U.S.C. Sec. 816(a)(1).  Finding no error, we affirm.

2
* As is evident from its title, the Act was enacted to protect the safety and health of miners.  30 U.S.C. Sec. 801(a).  Responsibility for enforcement of the Act rests with MSHA of the Department of Labor.  See 30 U.S.C. Sec. 813(a).  MSHA inspectors visit the mines regularly to assure compliance with the Act and regulations promulgated thereunder.  30 U.S.C. Sec. 813(a).  They have extensive enforcement powers to issue citations and mine closure orders and may impose both civil and criminal penalties.  30 U.S.C. Secs. 814, 820.

3
An operator may contest a citation, order, or a proposed civil penalty assessment before the Commission.  30 U.S.C. Sec. 815(d).  The initial proceeding is conducted before an ALJ.  30 U.S.C. Sec. 823(d).  Appeals from decisions of the ALJ lie to the full five-member Commission and from the Commission to the court of appeals.  30 U.S.C. Secs. 823(d), 816(a).

II

4
Coal in the mines of SOCCO is removed by the longwall method by which a large shearing machine removes slices of coal from the face of a wall, known as the longwall face.  The longwall face is the working end of a large block or panel of coal which, typically, is several hundred feet wide and several thousand feet long.  Tunnels, also called "entries," are located along the longwall face (or width) and along each side (or length) of the block or panel.  The entry on one end of the longwall face is referred to as the "headgate" entry and the one on the other end is referred to as the "tailgate" entry.

5
Along the length of the panel at the headgate side are two or more entries, in addition to the main headgate entry to the longwall face.  One of these entries contains the conveyor belt which transports the extracted coal out of the mine.  At least one of the entries serves as a passageway for fresh air to be pumped into the area and as an escape route in the event of an emergency.  One or more entries along the other side, the tailgate side, allow the return air to exit the mine.  Thus, fresh air is pumped into the mine through the intake entry on the headgate side, flows along the face entry to supply miners with fresh air, and moves out the tailgate entry carrying stale air and dangerous gasses such as methane.1   The tailgate entry also serves as an escape route in the event of an emergency.

6
The shearing machine makes passes back and forth along the longwall face removing about 30 inches of coal on each pass.  Hydraulic shields are used to support the roof above the longwall face entry, moving forward as the coal is removed.  As the shields move forward the previously supported roof (behind the shields) collapses and becomes a part of the gob, or mined out area.  It was the accumulation of loose coal in the intersection of the longwall face and tailgate entries that gave rise to the violations at issue.  The intersection of the longwall face and tailgate entries is at the end of the hydraulic shields and loose coal that accumulates there must be removed manually.

7
The accumulation was first observed by inspectors on 30 January 1989 in a pile measuring some 70-feet long, 7- to 8-feet wide, and 4 feet high.  At least an 18-foot length of this pile was directly adjacent to the longwall face at the tailgate end, and blocked and impeded travel between the tailgate and longwall face entries.  The next day the inspectors returned to the mine and found the accumulation of coal still there, although a small amount of rock dust had been applied to it.  A sample taken proved to be 79.2% combustible.  SOCCO was cited for violating the mandatory safety standard contained in 30 C.F.R. Sec. 75.400 which requires, in relevant part, that "loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings...."  "Active workings" is defined in 30 C.F.R. Sec. 75.2(g)(4) as "any place in a coal mine where miners are normally required to work or travel."

III

8
The findings of fact of the Commission, if supported by substantial evidence, are conclusive.  30 U.S.C. Sec. 816(a)(1).  Questions of law are for this court although the Secretary of Labor's interpretation of the Act and mandatory safety standards, if reasonable, is entitled to deference.  Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).

IV

9
SOCCO's central contention is that substantial evidence does not support the finding that persons are normally required to work or travel in the 18-foot area where coal had accumulated and, therefore, it is not an area of "active workings."    As previously noted, the 18-foot area is located directly adjacent to the longwall face at the intersection of the longwall face and the tailgate entry.  Mining was taking place, and miners were required to be, at the longwall face, directly adjacent to the cited accumulations.

10
For several reasons, the 18-foot area is an area where persons normally work and travel.  First, 30 U.S.C. Sec. 75.215 requires that a mine's roof control plan must specify methods that are to be used to maintain a safe travelway out of the longwall mining section through the tailgate side of the longwall.  In its roof control plan, SOCCO designated this area as a travelway and required that it be maintained.  A mine safety inspector testified that in the event of an emergency at the longwall face, this travelway would be used.

11
Second, 30 C.F.R. Sec. 75.302 requires persons to work and travel in the area to monitor and maintain ventilation controls.  There was testimony that SOCCO maintained ventilation controls at the tailgate end of the longwall face.  Its clean-up plan required that ventilation curtains be kept tight.  In this regard the Commission found:

12
[Inspector] Mitchell testified without dispute that a ventilation curtain was maintained outby the end of the accumulation and that as the face advanced the curtain was moved further outby.  He stated, "someone has to go back there to move that."  ...  It is not an unreasonable inference that miners would therefore normally travel through the intersection to reach the curtain.

13
Third, as previously noted, the tailgate entry is a return air entry and 30 C.F.R. Sec. 75.305 requires that the entry be inspected weekly for safety.  There was testimony that a weekly inspection was conducted.  And, as the Commission found, "[t]o enter the tailgate entry from the longwall face, a person must pass through the intersection of the face and the tailgate entry, specifically through the area immediately adjacent to the outby end of the accumulation."

14
There was substantial evidence to support the finding by the Commission that the area was one where miners normally work or travel and, thus, an "active working" within the meaning of the Act.

15
SOCCO argues that "[a] hazardous area in which the mining process contemplates continuous, systematic, planned roof falls where persons do not normally work or travel cannot be considered 'active workings' subject to compliance with 30 C.F.R. Sec. 75.400...."  Of course, our holding that miners do normally work and travel in the area destroys a necessary underpinning of this argument.  Even so, SOCCO seems to argue that there is more danger to miners from roof failure, if they are required to enter the area to clean it up, than from the fire or explosion hazard that the regulation is designed to prevent.  This contention is meritless.

16
Congress has specifically identified ignition and explosion sources as being primary causes of deaths and injuries to coal miners.  Secretary of Labor v. Old Ben Coal Co., 1 FMSHRC 1954, 19561957 (1979).  30 C.F.R. Sec. 75.400 addresses the hazard created when combustible materials are permitted to accumulate and is a codification of the statutory standard mandated by Congress in section 304(a) of the Coal Mine Health and Safety Act of 1969, 30 U.S.C. Secs. 801 et seq.  (1976) (amended 1977), which is identical to section 304(a) of the present Act.  Id.  Through this standard, Congress hoped to achieve its goal of eliminating ignition and fuel sources for explosions and fires.  Id.

17
SOCCO's interest in the safety of its miners who have to remove coal from the area is commendable.  However, whether those miners face greater danger from roof cave-in than from fire, explosion and blocking of escape routes is a decision entrusted by the Congress to the Secretary so long as the decision is in accordance with law and supported by substantial evidence.  The decision here meets both criteria and will not be disturbed.

18
AFFIRMED.

1
 Methane is liberated when coal is cut