consented to a search by entering the industry in the first instance. 436 U.S. at 313-314, 98 S. Ct. 1816. However, the Court proceeded to consider the effect of a warrant requirement on the enforcement of OSHA and the "unbridled discretion" that OSHA's warrantless search requirement ceded to administrative officials. We conclude that Barlow's mandates that lower courts examine several factors in determining the reasonableness of a warrantless search under a particular statutory scheme, and balance those factors carefully in reaching its conclusion. See generally The Constitutionality of Warrantless OSHA Inspections, 22 Vill.L.Rev. 1214 (1977).
In considering the factors set forth in Biswell and Barlow's as applied to the problem at hand, we emphasize first the lengthy history of pervasive regulation in the coal mine industry, particularly in the area of safety. The coal mine industry has been regulated since the early part of this century; inspections have been authorized since 1940. In Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45 (S.D.Ohio 1973) (three-judge court), the court, after a detailed discussion of the history of regulation in the coal mine industry, concluded that coal mining was a closely regulated industry within the Colonnade-Biswell exception. We agree. Although the history of regulation may not be so long as in the alcohol or firearm industries, we believe that the history of regulation in the coal mine industry is sufficiently extensive so that anyone entering the field would be aware of the extent of the regulation and would have little justifiable expectation of privacy with respect to safety regulation.
Second, we note that the regulatory scheme here covers a single industry, in contrast to the wide-ranging scheme contained in OSHA covering all industries which affect commerce. Marshall v. Barlow's, supra, 436 U.S. at 314, 98 S. Ct. 1816. The significance of this narrow focus lies in the increased possibility that a businessman engaged in the industry will be aware of the nature and scope of the regulation. This additional notice tends to lessen any justifiable expectation of privacy.
Third, urgent federal interests are served by inspections under the Coal Mine Act. The primary interest relates to the safety of miners; however, a significant economic interest is implicated as well. As our country becomes more dependent upon coal as an energy source, it becomes more vital to keep coal mines safe and operational.
We believe the possibility that a warrantless search will be abused is less under the provisions of the Coal Mine Act than under the statutory scheme invalidated in Barlow's. Under OSHA, broad authorization to inspect was given with practically no limits set upon the scope of the search. See Marshall v. Barlow's, Inc., supra at n. 21. By contrast, the Coal Mine Act states with specificity the purpose and frequency of inspections. 30 U.S.C. § 813(a). Section 201(a) of the Coal Mine Act requires that the Secretary conduct inspections of underground coal mines at least four times per year for the purposes of determining whether an imminent danger exists and determining if there is compliance with mandatory health and safety standards or previously issued citations. Id. In the case before us, the actual purpose of the inspection was to ascertain if prior violations of the Act had been abated. This is a purpose clearly authorized by the statute.
Finally, we believe that a warrant requirement would hamper inspection efforts authorized by the Coal Mine Act. This was clearly the conclusion of Congress. The Senate Report, citing to the Youghiogheny case with approval stated that the "right of entry" provided for in Section 201(a) was intended to be an absolute right, without the need to obtain a warrant. S.Rep.No.95-181, Reprinted at 1977 U.S. Code Cong. & Admin. News p. 3427. The Report adds, "Indeed, in view of the notorious ease with which many safety or health hazards may be concealed if advance warning of inspection is obtained, a warrant requirement would seriously undercut the Act's objectives." Id.
Of course, the fact that a warrant requirement may hamper a regulatory scheme, by itself, is not a reason for abolishing the warrant requirement. However, in this case, in view of the limits on inspections set by the Coal Mine Act and the lowered expectation of privacy of a party entering the coal mine industry, there are few countervailing reasons for requiring a warrant. See United States v. Biswell, supra at 316.
Defendants argue that the Colonnade-Biswell exception extends only to federally-licensed businesses. However, the language used by Barlow's is "closely regulated industry," not federally licensed industry. Therefore, we do not believe federal licensure is a prerequisite to application of the Colonnade-Biswell exception.
After considering all of the foregoing factors, we conclude that warrantless inspections conducted under Section 201(a) of the Coal Mine Act do not run afoul of the rationale of Marshall v. Barlow's, or the restraints of the Fourth Amendment.
We therefore grant plaintiff's motion for summary judgment and enjoin the defendants from denying authorized agents of the Secretary of Labor access to their coal mine.