Gold mine goes to court

Butte County Supervisor Jane Dolan hoped somebody would sue her board following its June 24, 2008, decision—with her and Supervisor Maureen Kirk dissenting—to allow the New Era Mine to continue operating without a new permit or environmental review.

“If someone doesn’t file a lawsuit over this, I’ll give up my faith that people care about this county,” she told reporters following the meeting.

Well, neighbors of the mine, banded together as the Dry Creek Coalition and joined by the Butte Environmental Council, did sue the county, charging the Board of Supervisors violated the California Environmental Quality Act by permitting a use without full review that was dramatically larger than the original permitted use.

Arguments in the suit were heard Monday (Aug. 31) in the Chico courthouse before Superior Court Judge Steven Benson.

As the CN&R has reported previously, the gold mine has existed in Dry Creek Canyon, east of Butte College, since 1982. Until recently it was a small-scale operation run by owner Ron Logan, who lived with his family on the 18-acre site. Then, sometime around 2006, an outside entity, North Continent Land and Timber, got involved, started sinking money into the operation—as much as $15 million, Logan has said—and transformed it into a significant operation, including a large processing facility, that has dug up a full 12 acres of creekside hill.

Downstream residents of the canyon, concerned about impacts on local springs (the source of their domestic water supply), increased truck traffic on their winding gravel road, and visibly muddied creek water, contacted Butte County. County staffers took a look, saw problems and shut down the mine. In addition, the Regional Water Quality Control Board (RWQCB) issued a cleanup-and-abatement order.

That was in late 2007. Since then the mine has cleaned up its act enough to be able to resume operation.

But county staff believed the operation was sufficiently different from Logan’s original mine to require a new permit, a new reclamation plan and a much larger financial assurance. The county Planning Commission, County Counsel Bruce Alpert, and the state Office of Mine Reclamation agreed with them.

But Supervisors Bill Connelly, Kim Yamaguchi and Curt Josiassen decided that Logan’s original hand-drawn reclamation plan was still valid, as was his permit. The trio did acknowledge that his original reclamation assurance, $3,000, was too low and increased it to $267,000.

In court Monday, the coalition’s attorney, Keith Wagner, of Sacramento, carefully explained the history of the project. In 1982, he said, the Planning Commission had decided that environmental review of the mine was not needed precisely because in the first of three phases it was limited to removing 20 cubic yards of soil a day from two acres of the site over a period of six months. If Logan later wanted to move to the second and third phases, he would need further approval and an environmental-impact report.

Logan never sought to expand.

The mine was meant to be small, Wagner said, precisely so Logan could avoid the cost of environmental review and a large reclamation bond.

He presented two aerial photos of the site, one taken in 2006 showing no visible mining activity, the other taken in 2007 showing a denuded 12-acre hillside into which a series of large pits had been gouged.

In addition, he said, in order to avoid paying wastewater discharge fees and fines, Logan told the RWQCB in 1992 that he hadn’t operated the mine for the past two years. Under terms of the Surface Mining and Recovery Act (SMARA), Wagner said, he’d effectively abandoned the mine, making its original permit invalid and thus requiring a new permit to reopen it.

For 25 years, the county didn’t monitor the mine—hardly knew it existed—and Logan filed no annual reports, as required.

“And the bond was never paid?” Judge Benson asked.

Yes, the $267,000 ultimately was paid, based on North Continent’s submitted plan for a five-pit, 12-acre mining site, Wagner responded—not on what was allowed under the 1982 permit.

The county was represented by Alan B. Lilly, of the Sacramento firm Bartkiewicz, Kronick & Shanahan.

His initial argument was that it would be inappropriate for the court to overrule the decision of an elected body arrived at after a public hearing and full discussion. The standard of review is limited in such cases, he said.

As for the scope of Logan’s permit, Lilly noted that his original reclamation plan, approved by the county, indicated he intended to remove 50,000 to 250,000 cubic yards of material annually, much more than he could have removed if limited to just 20 cubic yards a day.

It was on that basis, he said, that the supervisors decided that the 20-yards figure applied not to soil and rocks, but to the gold-containing black-sand “concentrate” produced after the native materials had been processed. It takes 500 to 700 yards of earth to produce 20 cubic yards of concentrate, he said.

Lilly also argued that the permit’s limitations did not apply to the geographical size of the mine, but rather to its “output” of 20 cubic yards of concentrate.

As to whether the mine was abandoned, Lilly noted that SMARA considers “exploratory and preparatory work” a form of operation, adding that Logan was consistently involved in such work. “The mining act doesn’t mean only heavy surface removal,” he said.

And, in deft twist of logic, he said that, because Logan wasn’t actually removing dirt and obtaining gold some years, the mine never actually was abandoned, since it wasn’t productive in the first place.

Because the supervisors decided that 2008 operations were within the scope of the 1982 permit, Lilly concluded, “CEQA was not triggered. There was no new permit, which means there was no new project in 2008.”

In his response, Wagner said the court’s involvement in the case was completely appropriate. “The county can’t pick through the evidence and choose what it wants to support its wishes,” he argued.

And if Logan’s diagrams aren’t applicable, the county’s reclamation plan is invalid. “You can’t have a reclamation plan without knowing where it’s being reclaimed,” he said. And without a reclamation plan, you can’t mine.

The 1982 permit came with conditions—that increased activity come back for approval and environmental review. The 2008 approval flies in the face of that condition, Wagner stated.

“Did someone apply for a five-pit, 12-acre mine in 1982?” he asked. “No, because that would have required an EIR.”

The county can’t make a CEQA finding based on “output,” he said. Output doesn’t tell how much ground has been torn up, only how much concentrate has been produced.

As to the abandonment issue, “How do you have 24 years of preparatory activity?” he asked rhetorically.

Benson thanked the attorneys and asked them to have decision statements to him by Sept. 25. His decision in the case should come within 90 days of that.