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Nelson v. County of Kern

November 19, 2010

RENEE D. NELSON ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF KERN, DEFENDANT AND RESPONDENT;
CARLTON GLOBAL RESOURCES, REAL PARTY IN INTEREST AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. (Super. Ct. No. CV262312)

The opinion of the court was delivered by: Kane, J.

CERTIFIED FOR PUBLICATION

OPINION

In this action under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA),*fn1 Renee Nelson and Clean Water and Air Matters (petitioners), challenged the adequacy of the environmental analysis performed by respondent County of Kern (County) concerning a proposed surface mining operation on 40 acres of foothill property in the County. Carlton Global Resources (Carlton), the real party in interest, submitted a proposal that included mining of calcite marble from the site for a 30-year period and a reclamation plan to restore the land thereafter.*fn2 The reclamation plan was required by the provisions of the Surface Mining and Reclamation Act of 1975 (§§ 2710 et seq.; SMARA).*fn3 County limited its environmental review to the reclamation plan only and did not consider or analyze the potential impacts of Carlton's proposed mining operations. County took that approach because the mining would take place on federally owned land and, as such, the Bureau of Land Management (BLM) was considered to be the sole permitting agency for purposes of mining operations and responsible to perform its own environmental review pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.; NEPA). County also believed that its approach was consistent with a Memorandum of Understanding (MOU) between BLM and the State of California. After BLM completed its environmental assessment under NEPA and approved Carlton's plan for surface mining operations, County separately considered the reclamation plan.*fn4 County adopted a negative declaration and approved the reclamation plan.

Petitioners filed a petition for writ of mandate seeking to set aside County's determinations and approvals on the ground that the failure to review the entire project--including the mining operations--violated CEQA and constituted an abuse of discretion. The trial court disagreed with petitioners' analysis, concluded that County did not err in limiting its consideration to the reclamation plan, and entered a judgment denying the petition. Petitioners appealed. We conclude petitioners are correct in their fundamental claim on appeal: County's role as lead agency under CEQA, in conjunction with its responsibilities under SMARA, required it to evaluate the environmental effects of the whole surface mining project even though that project was on federally owned land.

FACTS AND PROCEDURAL HISTORY

The remote Jawbone Canyon area in the Southern Sierra Nevada foothills contains significant mineral deposits of what BLM describes as "an uncommon variety" of calcite marble. The purity and other characteristics of the calcite marble found in this location make it a valuable resource for production of high-quality or special-use calcium carbonate and calcite that have a number of beneficial commercial and industrial applications. Approximately 8.3 acres of the Jawbone Canyon area were previously surface mined and that site was (and is) commonly known as the Monarch Calcite Quarry. As a result of the prior mining operations, several exposed, open faced side-hill cuts remain at the site of the former mine.

In the present case, Carlton proposed to restart surface mining of calcite marble at the Monarch Calcite Quarry and thereafter to expand such mining to the surrounding land. The planned surface mining and reclamation activities would, if approved, take place on a total of 40 acres of federally owned land that included the original 8.3-acre site of the Monarch Calcite Quarry. The 40-acre parcel was (and is) entirely within County boundaries.

Concurrent Applications to County and BLM

Although this dispute concerns Carlton's mining and reclamation plans, and in particular the sufficiency of County's environmental review thereof, the initial applications to both County and BLM were made by Carlton's predecessors in interest, including Alpha Minerals & Chemicals LLC (Alpha Minerals) and Tri-Western Resources, LLC (Tri-Western). Therefore, as we summarize the background facts at this point in our discussion, we track the steps taken in the approval process by reference to these predecessor entities of Carlton.*fn5

On February 28, 2005, Alpha Minerals filed an "APPLICATION FOR SURFACE MINING PERMIT AND/OR RECLAMATION PLAN" with County's planning department. The project described therein included a plan to surface mine calcite marble at the site of the former Monarch Calcite Quarry for a period of 30 years and a reclamation plan related thereto. This document appears to be an early or preliminary version of the subsequently proposed mining and reclamation plan and encompassed only the 8.3-acre site of the original Monarch Calcite Quarry.

Subsequently, on March 14, 2005, Tri-Western filed a proposed mine plan of operations with BLM, which was revised on April 6, 2005 and August 22, 2005. The proposed plan and revisions thereto were submitted to BLM in order to obtain a lease or permit from BLM for conducting mining operations on federal land. The second revision thereto, entitled "REVISED MINE PLAN OF OPERATIONS AND RECLAMATION PLAN FOR U.S. BUREAU OF LAND MANAGEMENT AND KERN COUNTY, CA ..." was filed in response to comments received from BLM and County and clearly specified that the mining plan covered a total of 40 acres on BLM land. It also referred to the filing of a SMARA plan with County. The proposed plan (as revised) was presented by Tri-Western "on the Kern County SMARA form" in order to represent both "a Plan of Operations ... for the BLM and a Reclamation Plan for Kern County, California under [SMARA]."

The same mining and reclamation plans were proposed or submitted to County. Tri-Western submitted an "APPLICATION FOR SURFACE MINING PERMIT AND/OR RECLAMATION PLAN" to County's planning commission, which application included both the mining plan and the reclamation plan. The application was dated "August 2005," but apparently the completed application was not filed with County until October 17, 2005. The application's description of the planned mining and reclamation activities duplicated what was set forth in the documents presented to BLM. That is, the project would entail surface mining of calcite marble on the 40-acre parcel of federal land over a 30-year period, followed by implementation and/or completion of the reclamation plan. Mine production would be approximately 250,000 cubic yards of calcite marble annually. Daily mine operations would involve initial crushing and screening of calcite ore on-site, then loading the material into 25-ton trucks for transport to an undisclosed off-site location for further processing, with average daily truck trips estimated at 40 per day.

The above submittal to County included a document executed by Tri-Western on June 15, 2005, entitled "STATEMENT OF RESPONSIBILITY," in which Tri-Western confirmed in writing that it would perform all provisions and conditions imposed by County pursuant to "the Ordinance Code of Kern County (Chapter 19.100)." The referenced County ordinance explicitly addresses "SURFACE MINING OPERATIONS" and was adopted by County for the express purpose of regulating surface mining within County in a manner consistent with the requirements of laws such as SMARA. (Kern County Zoning Ord., § 19.100.010.) Among other things, the ordinance provides: "[N]o surface mining operations may be undertaken anywhere in unincorporated Kern County unless a surface mining permit and a reclamation plan has been submitted to and approved by the Planning Commission in accordance with the procedures set out in Sections 19.102.130 through 19.102.180 of this title." (Kern County Zoning Ord., § 19.100.020.)

Additionally, Tri-Western's documentation filed with County included an "ENVIRONMENTAL INFORMATION FORM" to assist County in its CEQA review process. The form was signed on June 15, 2005, and was filed with County's planning commission on October 17, 2005. In said Environmental Information Form, Tri-Western described the "project for which this form is filed" as a "Surface Mine (Quarry)." (Italics added.)

To summarize the above-referenced submittals by Tri-Western (as Carlton's predecessor) regarding surface mining and/or reclamation plans, it appears that applications were made to both County and BLM for governmental approvals, the applications were submitted within the same general time period in 2005 and the applications were, at least for a brief time, pending concurrently.*fn6

BLM Completes NEPA Assessment and Approves Mining Application

BLM acted first. As the proposed mining was to occur on federal land, BLM, as the responsible federal agency, proceeded to conduct an environmental review thereof in compliance with NEPA standards. BLM completed its "Environmental Assessment" of the planned mining operations and, based on that assessment, adopted a finding under NEPA that said mining operations would have no significant effect on the environment (referred to as a "Finding of No Significant Impact" or a FONSI). Accordingly, the proposed mining operations were approved by BLM from a federal law standpoint. BLM's approval and its written statement of findings (FONSI) were transmitted to Tri-Western by letter dated November 18, 2005.

County Limits Its Review to the Reclamation Plan

Sometime after BLM's adoption of the FONSI and resulting approval of mining operations, County proceeded to separately consider whether to approve the reclamation plan. In February of 2006, an "INITIAL STUDY REVIEW" (the Initial Study) of potential environmental impacts (including an "ENVIRONMENTAL CHECKLIST FORM" and attachments) was completed by County's planning commission. The "[p]roject" under review in the Initial Study was described therein as follows: "A Conditional Use Permit to allow a mining reclamation only plan in accordance with the Surface Mining and Reclamation Act (SMARA) ...." (Italics added.) The Initial Study further emphasized the limited scope of the matter being reviewed: "The applicant is seeking the approval of ... a reclamation plan only on federally administered property in accordance with [SMARA]. Kern County is limited to the reclamation of the mined site, and [BLM] is responsible for the mining activity. The applicant has received approval from the BLM to mine the 40-acre project site for calcite marble over a period of 30 years." (Italics added.)

A staff report by County's planning department similarly explained that County's environmental review and approval was limited to the reclamation plan only: "The applicant is seeking approval of a conditional use permit to approve a reclamation plan. Because this property is located on federally owned land, the BLM is the actual permitting agency for mining operations. Under a Memorandum of Understanding entered into between the State of California and [BLM], the reclamation plan falls under the approval authority of the County. The purpose of the reclamation plan is to ensure that the site is reclaimed after mining operations have been concluded." (Italics added.)

The MOU referred to by County staff is an agreement between the State of California, the United States Forest Service (the Forest Service) and BLM, entered with the objective of establishing procedures or guidelines to coordinate environmental review, facilitate compliance with state and federal environmental laws and avoid unnecessary duplication in situations where surface mining activities are proposed on federal land. We shall consider the MOU in greater detail at a later point in our discussion. At this juncture, we simply note that County's planning department staff believed the MOU supported their conclusion that County was required to review the reclamation plan only.

County's planning department staff analyzed the environmental effects of the reclamation plan only and identified certain mitigation measures that were necessary to keep the environmental impacts of the reclamation plan at a level that was less than significant. A staff report set forth the opinion that "the proposed reclamation plan, as conditioned, is adequate to ensure that the site will be successfully reclaimed in a manner that complies with local and State requirements." The planning department recommended in the staff report that a mitigated negative declaration be adopted and that the reclamation plan be approved.

On April 27, 2006, County's planning commission held a public hearing relating to the proposed reclamation plan. The hearing culminated in the commission's adoption of resolution No. 84-06, approving Carlton's (Tri-Western's) conditional use permit for the reclamation plan and certifying the mitigated negative declaration in conjunction with the reclamation plan.

An adjacent property owner, Leroy Cass, appealed the commission's decision to County's board of supervisors (the Board), arguing that a complete study of environmental impacts of mining operations should have been conducted by County. The appeal was initially scheduled for June 27, 2006, but the Board continued the hearing several times to allow further consideration of various issues and comments, including the issues raised by petitioners' counsel. Prior to each scheduled hearing, staff reports prepared by County's planning department reiterated the department's firm position that the matter before the Board for its review was "a mining reclamation only plan," not a plan for mining operations. (Italics added.)

Petitioners disagreed, arguing in letters and oral argument to the Board that it was improper under CEQA for County to segregate the reclamation plan from the proposed mining operations because County, as the lead agency, was required to consider the whole of the surface mining project and not merely one part of it in isolation. Petitioners also pointed out that while County may adopt functionally equivalent documents prepared by the federal agency under NEPA (if such documents also meet CEQA standards), County never did so and did not rely on the environmental documents prepared by BLM, and in any event those documents were allegedly insufficient to satisfy CEQA.*fn7 Finally, petitioners argued to the Board that County's failure to consider the impact of the entire mining operation (not just the reclamation plan) on issues such as air quality, roads and water, among other things, was prejudicial because there was evidence that the entire project would result in significant adverse effects on the environment, and thus preparation of an environmental impact report (EIR) was necessary under CEQA.

At the public hearing on October 9, 2007, after considering the recommendations of the planning department and the arguments presented by petitioners and others, the Board denied the appeal, approved the conditional use permit for the reclamation plan and adopted the mitigated negative declaration concerning the reclamation plan. At that point, as far as Carlton ...


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