April 26, 2010 - Thank you for allowing additional time, at least until your next meeting on May 27th, before deciding on the vested rights application from the Blue Lead Mine. I have read all of the written materials and letters that were posted on the Commission's website. I stayed through the entire meeting on April 22nd, and listened carefully to verbal comments from the lawyers and from members of the public.
This much is abundantly clear:
BURDEN OF PROOF: Blue Lead has not met its burden of proof. It is not up to the Planning Commission to show that the former owners had or lost a vested right. Rather, it is up to Blue Lead to prove that the legal right to mine existed in 1954 for each parcel (this is still an open question), what kind of mining and, further, that the right if it existed was not lost when the former owners were unable, for whatever reason, to "get it (their mining project) off the ground" to quote Blue Lead's lawyer, Mr. Chadwick.
NO ACCIDENTAL LOSS OF RIGHTS: The loss of a vested right to mine doesn't happen by "accident". There are overt actions one must take in order to preserve the right.
Non-compliance with SMARA is a good indication of disinterest or "abandonment".
SMARA: Mr. Chadwick tried to convince you that SMARA is not relevant to the discussion of vested rights. However, the SMARA regulations were enacted to bring California mines into compliance, not to create a giant loophole for subsequent miners to walk through by claiming a retroactive right, after a gap of many years, to start new and larger mining operations without County oversight.
NO CONTINUOUS OPERATION: The pictures offered by Mr. Chadwick on behalf of Blue Lead may or may not be evidence of some kind of mining (recreational? illegal?) somewhere, possibly on one of the Blue Lead sites. Or they may be evidence of mining on a completely different site. Nonetheless, these are not objective, irrefutable proof of continuous mining activity on any of the Blue Lead sites. Day dreaming about mining some day doesn't count; actions need to follow intent (this was clearly stated by both attorney's for Nevada County).
HISTORY: Historian David Comstock's testimony regarding the Brady family and Lyle White, the letters from other neighbors of the Blue Lead Mine, as well as the legal opinions submitted by Robert Joehnck and Ellison Folk for Shute, Mihaly & Weinberger, are more credible and far more compelling than Mr. Chadwick's magic show. If the Brady family and Lyle White were legally mining the property, official records of that would exist.
OFFICE OF MINE RECLAMATION: The representatives from OMR were correct in saying that Blue Lead can't have it both ways: if there was continuous legal mining at the site, even allowing for idle periods, but the required procedures including annual reporting were not followed then big fines have accrued and are payable now. If, however, the vested right was lost due to inactivity by the former owners, and Tucker White started a new, unpermitted operation in 2007, then big fines have accrued and are payable now. OMR has received many complaints from Nevada County residents about the Blue Lead Mine since 2007. If Nevada County enforcement of mining regulations is lacking, the State Office of Mine Reclamation can and will step in.
CREDIBILITY OF THE APPLICANT: Why did Mr. White wait more than two years, until after vigorous enforcement was threatened, to file for vested rights? Perhaps the threat of legal action by both Nevada County and OMR prompted Mr. White to apply for vested rights in an attempt to escape the County's permit requirements and the fines associated with his illegal mining operation.
Nevada County, the Bureau of Land Management, and the Office of Mine Reclamation all have case files on the Blue Lead Mine for SMARA-related violations and trespass. It has been reported that Tucker White has a record of mining violations in Plumas County as well.
ZONING: The site is not zoned for mining, a further indication that legal mining was not occurring at that site. Attorney Robert Joehnck points out that "future mining activity was prohibited when the zoning classification was applied to the property by the County, unless a conditional use permit was first obtained by someone wanting to pursue mining activities". There is no indication that such a permit was ever obtained.
MINERAL RIGHTS: Attorney Ellison Folk points out that the property title conveyed in the quiet title judgment in 1966 excludes mineral deposits that were known to exist prior to 1878.
INACTIVE FOR TWO YEARS = NEW OPERATION: In spite of Mr. Chadwick's attempts to mystify (the 50.1% solution), and to gloss over the long period of objective, observable inactivity prior to the White's purchase of the property, it is obvious that Blue Lead is a new mine that has been operating without permits since 2007. Mr. White should immediately cease all mining activity until appropriate permits, financial assurances, and reclamation plans are approved. He should pay the stipulated fines retroactive to at least October 2007. And he should be required to restore both private and public property in the areas of trespass and encroachment.
ON POINT: In advocating for his client, Mr. Chadwick rudely dismissed as irrelevant the recommendations of staff, the opinions of opposing attorneys, and evidence from residents with property adjacent to the Blue Lead Mine. However, the staff report and the letters from attorneys Ellison Folk and Robert Joehnck are on-point. The written and verbal observations by the neighbors of the Blue Lead Mine are evidentiary and cannot be ignored. That a vested right to mine existed in 1954 has not been proved, despite Mr. Chadwick's repeated assertions.
Ellison Folk of Shute, Mihaly & Weinberger, writes "the County should require the applicant to submit real proof of active mining at the project site in 1954, proof of the geographic area where the mining was located and to which the owner at the time had manifested an objective intent to mine, proof regarding levels of mining at the site, and proof that mining operations (not just an abstract interest in mining) had continued through to the present. Without such evidence and appropriate environmental review, the County's vested rights determination will lack any foundation in law or fact, and should not be issued."
HARD EVIDENCE: Keeping in mind that this is probably not the last vested rights application to come before the Planning Commission (and some might not be as flimsy or transparent as this one), you'll want to establish some parameters and strict guidelines regarding the evidence and supporting documentation that must be provided by each future applicant before the application can be reviewed and arguments heard by the Commission, including the scope of the vested right. You are entitled to hold applicants to a strict standard by requiring hard evidence -- much more, certainly, than was presented by Blue Lead's attorney. And you are entitled to consider the credibility of the applicant.
PUBLIC HEARING: Vested rights applications should always be opened up for a well advertised, well attended public comment period so that commissioners have all of the information required to make a sound decision.
