The director of the state Department of Conservation has standing to sue a local agency over mining and reclamation plans approved by the local agency, the state Supreme Court has ruled unanimously. The ruling was a clear victory for state enforcement of the Surface Mining and Reclamation Act (SMARA), which regulates all surface mines in California.

The Supreme Court overturned a divided appellate court panel, which had ruled that only the State Mining and Geology Board — and not the department’s director — had standing to sue, meaning the director did not have the authority to seek judicial review of an alleged impropriety.

“[T]he Legislature has not crafted SMARA to deprive the director of standing to seek mandate as a remedy when a local lead agency approves allegedly inadequate reclamation plans or financial assurances,” Justice Kathryn Werdegar wrote for the court. “Rather, correctly understood, the director’s standing to prosecute this petition for a writ of mandate derives from his ‘beneficial interest’ — under SMARA and, generally, as a state officer charged with serving the public interest — in the adequacy of approved reclamation plans and financial assurances.”

“To deny the director standing here would free surface mine operators who manage to obtain local lead agency approval of inadequate reclamation plans or financial assurances to do less than SMARA requires” Werdegar wrote.

Adopted in 1975, SMARA (Public Resources Code § 2710 et seq.) requires surface mining operators to receive approval for reclamation plans that specify how mined land will be treated so the land is usable in the future, and to provide financial assurances that reclamation will be completed.

Ten years ago, the conservation director and the Mining and Geology Board sought to enforce SMARA regulations on Loring Brunius, who was operating Weber Creek Quarry and Diamond Quarry in El Dorado County without approved reclamation plans or financial assurances. Brunius successfully fought the state’s attempt to close the mines when he filed plans with the county. The conservation director commented that the plans and financial assurances were inadequate, but the county approved them in 1997, along with a mitigated negative declaration.

The director sued the county, alleging that the reclamation plans violated SMARA; that the financial assurances were inadequate; that the county’s mitigated negative declaration was inadequate under the California Environmental Quality Act (CEQA); that the county had erroneously concluded Brunius had a pre-SMARA vested right to operated Weber Creek Quarry without a permit; and that the county unlawfully let operations expand at Diamond Quarry.

The trial court ruled that the director did not have standing to challenge the vested rights or the SMARA matters, and dismissed the CEQA claims. In a 2-1 decision, the Third District Court of Appeal ruled that the director did not have standing to pursue any of the claims — a decision hailed by mining trade associations that had intervened in the litigation.
The state Supreme Court then accepted the case, but only to decide the procedural question of whether the director of Department of Conservation had standing to seek relief in court.

According to state’s high court, both the Third District majority and the dissenting justice incorrectly analyzed the issue of the director’s standing to sue. The high court reviewed at length the director’s role in the regulatory scheme. The director may review and comment on “every reclamation plan submitted to a lead agency for approval.” Those comments are advisory, but “the general interest his review serves, patently, is SMARA compliance,” Werdegar wrote.

Once a city or county approves a reclamation plan, the director has authority to ensure state law and the reclamation plan are implemented. Under certain circumstances, the director may even seek forfeiture of the financial assurances and undertake mine reclamation.

Thus, state law gives the director “a substantial interest in reclamation plans and financial assurances being both legally consistent with SMARA and practically adequate to accomplish SMARA’s goals and state reclamation policy,” the court ruled.

The court did not divide the distinction between the director and the Mining and Geology Board that the Third District found. And, the court pointed out, in this case there was no evidence the board disapproved of the lawsuits. In fact, the board was so dissatisfied with El Dorado County that it assumed lead agency functions from the county. However, even then, the board could not retroactively alter the reclamation plans in question because the county had already approved them. So there was no conflict between the director’s lawsuit and the board’s assumed role as lead agency.

The high court also upheld the director’s standing in regards to the vested rights and CEQA claims. “If a local lead agency’s erroneous recognition of a vested right to mine were immune from judicial review, the department could find itself without leverage to enforce the Legislature’s intention that the operator conduct and pay for reclamation,” Werdegar wrote.

And, the court held, the director “was entitled to adequate CEQA information.”

The court sent the eight-year-old case back to El Dorado County Superior Court for further proceedings.

The Case:
People ex rel. Department of Conservation v. El Dorado County, No. S116870, 05 C.D.O.S. 6967, 2005 DJDAR 9534. Filed August 8, 2005.
The Lawyers:
For the Department of Conservation: Richard Thalhammer, deputy attorney general, (916) 445-9555.
For El Dorado County: Mark Harrison, The Diepenbrock Law Firm, (916) 446-4469.
For Loring Brunius: David Becker, Becker & Runkle, (530) 676-6464.