NEVADA CITY, Calif. May 26, 2010 - On Thursday May 27 at 2:30 p.m. Nevada County Planning Commissioners will hear, for the third time, arguments by Blue Lead Mine LLC to have a vested right to mine granted.
During the first hearing, commissioners chose to disregard staff's recommendation and voted on a motion of intent to grant vested rights to Blue Lead LLC.
Under a "vested right to mine" there is no need to apply for a mining permit to the county and no California Environmental Quality Act (CEQA) document for the mining operation itself is required. Another exemption involves grading permits for roads, landing pads, staging areas, etc. Culverts and diversion ponds are also exempt from any oversight with a vested right to mine.
The second hearing drew a large contingent of local residents, historians and even representatives of the State's Office of Mine Reclamation (OMR). In unison, they questioned the validity of the "evidence" submitted by the applicant and their lawyer.
In the end, commissioners instructed staff and the applicant to exchange legal briefs before Thursday's meeting. On May 14th, both the county and Blue Lead LLC's lawyer submitted legal memos. Attachments and responses can be downloaded from the county's website here.
New Strategy?
Blue Lead's legal memo repeatedly (14 times) mentions "opponents of the project," even though Braiden Chadwick, Blue Lead's attorney, stated at the end of the second hearing that he was advocating on behalf of his client and county staff has to remain objective.
Veering away from dismissing statements by staff and the public, this time Blue Lead's lawyer focuses on "evidence," claiming the various owners never abandoned mining, or at the very least the "intent to mine."
However, at the previous hearing, OMR explained -- "Just because a mine existed at some point in somebody's mind does not mean it meets statutory requirements."
A timeline, based on Blue Lead's submitted documents, shows wide gaps in activity. Each document also underwent an extensive analysis by planning staff.
Entitled to Their Own Facts?
In an additional memo, after reading the county's report, Chadwick states that the Planning Commission already "found that vested right was established in 1954." Apparently, the motion of intent by the Planning Commission, which was never affirmed, has been transformed into a decision. To bolster his case, Chadwick states that county staff admitted that Lyle White was conducting "mining" activity on the property in 1954, the date Nevada County enacted its first zoning ordinance.
One 'minor' problem: Lyle White was never the owner of the property, nor has Blue Lead submitted any evidence he ever conducted "mining operations" on behalf of the owners. He was widely known as a historian and author.
If White wasn't the owner, or employed by the owner, logic dictates his activities were not permitted. However Chadwick says that since White was a well-respected historian, he couldn't possibly be painted as a trespasser.
Stating "it is more likely than not that Lyle White had the prior Property owners' permission to conduct his mining operations on the Property," an absence of citation for trespass appears to be good enough for Chadwick to morph White's presence on the property into hard proof of mining activity.
The Decision Before the Planning Commission
Determining if a mine has been in operation on the property since 1954 and never abandoned will be up to the Planning Commission. Should the commission decide to deny the vested right, it simply means Blue Lead LLC has to go through the normal process of applying for a use permit.
If the commission grants the vested right, the decision will likely be appealed by neighbors who already had their property damaged by an illegal road bulldozed through their property.
In any case, a reclamation plan has to be filed with the county. The plan submitted by Blue Lead LLC in 2009 is still incomplete, with no additional information provided on over 50 points raised by county staff.
OMR unequivocally stated they have no record of Blue Lead being a mine in Nevada County. If vested rights are granted, fines up to $5,000 per day could be due for the past 19 years. This amounts to a total of $34,675,000.
The outcome of the final episode in this trilogy is anybody's guess. Possible sequels will play out in front of the BOS, if Thursday's decision by the Planning Commission is appealed.
Some Background on Blue Lead LLC
The Blue Lead operation was originally owned by Golden Girl Mining Company, but the Whites spun off Blue Lead Mine LLC in September 2008. County staff describes the parcels as follows: "The 76.9-acre subject property is located at 18272 Red Dog Road, Nevada City, on three parcels identified as Assessor's Parcel Numbers 38-390-12, -20, and -21. The site is located at the lower end of Red Dog Road approximately 8 miles east of Grass Valley Valley/Nevada City, on the east side of Greenhorn Creek where Red Dog Road meets You Bet Road. The site is located near the historic communities of "You Bet," and "Red Dog," in the Red Dog Mining District in western Nevada County." A portion of the site was mined from the 1850's to early 1900's by hydraulic mining.
The three parcels were acquired by the Whites in March 2007 and as early as October 2007, inquiries were made to the county by third parties about mining equipment being hauled over Red Dog Road and the installation of gates and signs on the property.
In January 2008, the applicant picked up a Use Permit application at the county.
April 2008: Site visits by agencies. BLM issued a Cease and Desist Notice on April 17, 2008. According to county staff's report: "The notice indicates that the applicant committed a knowing and willful trespass against the United States when he bladed access roads to his Blue Lead Mine across BLM-administered public lands without first getting authorization from BLM. His trespass actions also included building settling ponds on public land (in part), storing equipment, occupancy of camper trailers and the removal/burial of cadastral survey monuments. Tucker White has subsequently complied with the terms of the Notice, including the payment of $18,006 in damages. However, BLM has noted that White appears to continue accessing his property using the road he widened/bladed on the adjacent BLM property, without an access easement." According to BLM, no right-of-way has been given to White as of today.
June 2008: the Regional Water Quality Control Board issued a Notice of Violation of the Clean Water Act to Tucker White. The staff reports states: "On August 12, 2008, DFG sent Tucker White a report of the subject property that included photographs, plot maps, DFG tree impact analysis, and a water pollution laboratory report. The report was also copied to DFG enforcement staff and requested an analysis of the actions for possible enforcement and a chain of custody record. On August 23, 2009, DFG filed a formal complaint with the Nevada County District Attorney’s Office to review the evidence in this case, specifically with regard to violations of Fish and Game Code Section 1602(a)(1), Change Stream or Lake without Notification to DFG, and 5650(a)(6), Water Pollution from Sediment."
August 2008: Applicant turns in incomplete application to the county; additional work observed.
September 2008: Northern Sierra Air Quality Management District (NSAQMD)submits the following comments to planning staff: "Based on the information provided in the project description (received by the District August 27, 2008) and the Environmental Assessment (received by the District September 8, 2008), the project will require an Authority to Construct/Permit to Operate from the District prior to construction (making the District a Responsible Agency under CEQA)... Per District Rule 226, a Dust Control Plan must be submitted to and approved by the District prior to surface disturbance for any project involving the disturbance of more than one acre. It is the District’s understanding that some construction activity has already occurred on the site, without the required Dust Control Plan. Thus, the District requests that the applicant submit a Dust Control Plan for approval as soon as possible. Failure to submit a Dust Control Plan in a timely manner will result in a Notice of Violation and monetary penalty."
October 2008: Formal complaint, Code case opens
April 2009: County receives another complaint
May 2009: Applicant attempts to get exploration permit on adjoining BLM land without notifying the county
August 2009: County issues Notice of Violation of SMARA
August 2009: County issues Order to Comply with SMARA and sets hearing date
September 2009: Staff visits site, observes new violations
September 2009: Applicant submits revised Reclamation Plan & vested mining rights info. The plan is still incomplete.
April 19, 2010: Northern Sierra Air Quality Management District has not received an application for Authority to Construct/Permit to Operate by Blue Lead Mine LLC.
May 26, 2010: One day before the hearing, property taxes on all three parcels are unpaid: APN 38-390-12, APN 38-390-20 and APN 38-390-21 for a total of $8,839.88 with $4,807.76 being delinquent.
