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Piecemeal EIR Sinks Kern County Mining Project

The parts of a Kern county mining project are decidedly not greater than – or a substitute for – the whole, as far as the California Environmental Quality Act is concerned. 

A county reviewing a mining reclamation plan is required to review the entire proposed mining project and not just the reclamation element, pursuant to the CEQA, the Fifth District Court of Appeal has ruled. The court ruled that Kern County should not have segmented the reclamation plan from the mining project that would trigger the need for reclamation in the first place.

"[W]hen the county focused on the reclamation plan alone, it committed the fallacy of division whereby a larger, whole project was improperly divided into component parts for piecemeal consideration. That was error," Justice Stephen Kane wrote for the unanimous three-judge appellate panel. The fact that the mining would occur on federal land and had been approved by a federal agency did not matter, the court determined. It ordered the county to prepare an environmental impact report for the entire project.

In 2005, Carlton Global Resources submitted an application to Kern County to surface mine 250,000 cubic yards of calcite marble per year for 30 years from a 40-acre foothill property owned by the Bureau of Land Management (BLM). Carlton also sought approval for a reclamation plan to restore the land after the completion of the mining, as required by the state Surface Mining and Reclamation Act (SMARA). The BLM conducted environmental review of the project under the National Environmental Policy Act (NEPA), and the county conducted environmental review of only the reclamation plan under the California Environmental Quality Act (CEQA). After determining all impacts of the reclamation activities could be offset to a less than significant level, the county adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan.

Neighboring property owners sued the county, arguing the county should have been the "lead agency" for the entire project – not only the reclamation plan – and that the failure to consider the whole mining project along with the reclamation plan violated CEQA. Kern County Superior Court Judge Kenneth Twisselman ruled for the county. The Fifth Appellate District agreed with the neighbors and reversed the trial court's decision.

Kern County's zoning ordinance specifically indicated that surface mining operations required both a surface mining permit and a reclamation plan to be approved by the Planning Commission. The mining application clearly contemplated both a surface mining permit as well as a reclamation plan. Nonetheless, based on a Memorandum of Understanding (MOU) among the State of California, the U.S. Forest Service and the BLM, and the fact that the BLM approved the project after NEPA review, county planners and attorneys directed that the county's environmental review and approval contemplate only the reclamation plan. They reasoned that the BLM was the actual permitting agency for the mining operations. The appellate court disagreed with this approach, in part because the MOU did not preclude environmental review under CEQA.

The Court of Appeal first held that the county was the lead agency under both SMARA and CEQA and, thus, was required to conduct environmental review of the entire project. The Court reasoned that a section in SMARA (Public Resources Code § 2770 (a)) and the county's own ordinance deemed the county to be the lead agency. Specifically, a federal agency cannot be a CEQA lead agency because it is not a state public agency.

Given that it was clear the county was the lead agency for the mining project, Justice Kane wrote, "It was improper for the county to sever the mining operations from the scope of its review under SMARA."

The court also addressed the scope of a project as defined by CEQA and emphasized that the term "project" refers to "the whole of an action" and "the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project' does not mean each separate governmental agency."

The court distinguished the two mining cases cited by the county – El Dorado County Taxpayers for Quality Growth v. County of El Dorado, (2004) 122 Cal.App.4th 1591 (see CP&DR Legal Digest, December 2004), and City of Ukiah v. County of Mendocino, (1987) 196 Cal.App.3d 47. Those cases involved existing, vested rights to mine and, thus, a review of only newly proposed reclamation plans by the local agencies was proper.

Next, the court held that the MOU did not authorize the county to avoid environmental review of the mining project. The MOU merely acknowledged that cities and counties have a legal obligation to conduct environmental review of mining projects and reclamation plans under SMARA, and that federal agencies also need to consider environmental effects of mining projects, the court determined.

The court noted that the MOU required the local and federal agencies to cooperate with one another on mining projects, and allowed local lead agencies under CEQA to adopt documents prepared under NEPA, assuming those documents met the requirements of SMARA and CEQA. However, the court found that the county "failed to avail itself of the cooperation provisions of the MOU," and that the county did not assist with the NEPA document or consider the NEPA document in any way, as was required by the MOU.

In conclusion, the court set aside the county's approvals and ordered it to prepare an environmental impact report that addresses potentially significant effects on air quality, traffic, water resources and biology.

The Case:

Nelson v. County of Kern, No. F059293, 2010 DJDAR 17585. Filed November 19, 2010.

The Lawyers:

For Nelson: John L.B. Smith, Christopher L. Campbell and Amanda M. Neal, Baker, Manock & Jensen, (559) 432-5400.

For the county: Theresa Goldner and Charles F. Collins, county counsel's office, (661) 868-3850.

For Carlton Global Resources: Scott A. Morris, William T. Chisum and Hanspeter Walter, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500.

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