Yuba County should not have permitted a sand and gravel company to expand its mine without conducting a public hearing, the Third District Court of Appeal has ruled.

Yuba County had determined that Western Aggregates has a vested right to mine 3,400 acres along the Yuba River. But the county made the determination without any notification of adjacent landowners or the public, violating the Surface Mining and Reclamation Act (SMARA), the unanimous three-judge appellate panel ruled. The court said the mining company must either get a use permit from the county, or have its vested rights determined by the State Mining and Geology Board — either of which requires a public hearing.

Western Aggregates operates a sand, gravel and rock mine in the Yuba Goldfields, a 10,000-acre area east of Marysville that contains perhaps the largest deposit of aggregate in the West. In an earlier lawsuit, a Superior Court ruled that Western lacked authorization under SMARA to mine the goldfields. So the county about seven years ago invited all mine operators to apply for a vested rights determination.

Under SMARA, miners need not get a surfacing mining permit if they can prove that they had vested rights to conduct surfacing mining prior to SMARA’s effective date of January 1, 1976, and if there are no substantial changes in the mining operation. SMARA’s other basic requirements for a reclamation plan and financial assurance to implement that plan still apply.

In May 2000, the county’s community development director found that Western had vested rights to mine aggregate on 3,400 acres in the goldfields. Western currently operates on about 1,200 acres.

Neighboring landowner William Calvert and a group called Yuba Goldfields Access Coalition — which won a different lawsuit against Western over river access via a public road that Western had blocked — sued the county. The mine opponents alleged the county committed a variety of legal and procedural violations. They also argued that the county violated due process requirements of notice and hearing.

Sacramento County Superior Court Judge Raymond Cadei ruled for the county on every issue except the due process claim. Although Cadei vacated the county’s vested rights determination, he stopped short of ordering a hearing. Instead, he only directed the county, if it conducted a new vested rights proceeding, to provide reasonable notice and to give the public the opportunity to be heard.

The opponents and Western appealed the portions of the decision they lost. The Third District upheld the lower court’s determination regarding SMARA violations, but made clear that either the county or the state board — the choice is Western’s — must conduct a “public adjudicatory hearing.”

Western argued that the determination of vested rights is a ministerial process. But, as the court explained, such a determination can be complicated. Vested rights of a surface mine fall under the “diminishing asset” doctrine, which requires that part of the same area was being mined when the law became effective, and that the area into which the owner desires to move was clearly intended to be mined when the law became effective. These are complex factual issues, the court said.

“SMARA’s policy is to assure that adverse environmental effects are prevented or minimized; that mined lands are reclaimed to a usable condition; that the production and conservation of minerals are encouraged while giving consideration to recreational, ecological and aesthetic values; and that residual hazards to the public health and safety are eliminated,” Justice Rodney Davis wrote for the unanimous three-judge panel. “A public adjudicatory hearing that examines all the evidence regarding a claim of vested rights to surface mine in the diminishing asset context will promote these goals much more than will a mining owner’s one-sided presentation that takes place behind an agency’s closed doors. … A vested rights determination functions in the SMARA scheme as does a surface mining permit — it sets the tone for all that follows.”

“Calvert and other property owners adjacent to Western’s vested rights-claimed mining operation are entitled to reasonable notice and an opportunity to be heard in an evidentiary public adjudicatory hearing before that vested rights claim is determined,” the court ruled.

Recognizing the precedent-setting implications of its decision, the court made clear its decision “applies only to an entity claiming a vested right under SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine.” The court also said its decision is not retroactive and should apply only to cases “in which no final judgment of appeal has yet been rendered.”

Western has indicated it may ask the state Supreme Court to accept the case. Barring a state high court reversal, Western’s most likely course of action would be to ask the state board to make a vested rights determination. Applying for a permit from the county would require environmental review, opening a number of sensitive subjects, including the mine’s impact on protected species of fish.

The Case:
Calvert v. County of Yuba, No. C047857, 06 C.D.O.S. 11174, 2006 DJDAR 15903. Filed December 6, 2006.
The Lawyers:
For Calvert: Theodore Franklin, Weinberg, Roger & Rosenfeld, (510) 337-1001.
For Western Aggregates: Kerry Shapiro, Jeffer, Mangels, Butler & Marmaro, (415) 398-8080.
For the State Mining and Geology Board: Russell Hildreth, attorney general’s office, (916) 327-7853.