El Dorado County continues to be the center of litigation over laws involving mining. In the latest case, the Third District Court of Appeal ruled that a mine operator may not sue the State Mining and Geology Board, its members and two employees for allegedly violating the miner’s civil rights.

One year ago, the Third District ruled that the environmental review of a proposed mining reclamation plan need not consider the impacts of the actual mining (El Dorado Taxpayers for Quality Growth v. County of El Dorado, 122 Cal.App4th 1591; see CP&DR Legal Digest, December 2004). Earlier this year, the state Supreme Court ruled that the director of the state Department of Conservation has standing to sue a local agency over a mining and reclamation plan approved by the local agency (People ex rel. Department of Conservation v. El Dorado County, 36 Cal.4th 971; see CP&DR Legal Digest, September 2005).

The latter case involved the county’s allegedly inadequate enforcement of Surface Mining and Reclamation Act (SMARA) regulations against Loring Brunius, who was operating Weber Creek and Diamond quarries without approved reclamation plans or required financial assurances of reclamation. The present case involved litigation filed by Brunius against the Mining and Geology Board and state agents.

In October 2003, the state sued Brunius to recover $24,005 in surface mine inspection costs. The suit was just one facet of ongoing enforcement against Brunius, whom the state also has ordered to stop mining and to pay millions of dollars for quarry reclamation. Brunius, however, filed a cross-complaint, arguing that the mining board and employees Stephen Testa and John Parrish had violated his civil rights under 42 U.S.C. § 1983 because the board and state workers treated him differently from other miners in similar situations. Brunius sought compensatory and punitive damages from the board, its individual members, Testa and Parrish.

Sacramento County Superior Court Judge Loren McMaster found that the state was not subject to liability under § 1983, and neither were the individual defendants because they were taking actions of the state. Brunius appealed, and the Third District upheld the lower court.

The primary question for the court was whether the board and its employees were acting as the state or as a local government. Local governments are subject to suit under § 1983, but the state is not. Ordinarily, local governments enforce SMARA. In El Dorado County, the mining board took over the role of enforcing SMARA because the state was dissatisfied with the county’s performance. Brunius argued that the board and its employees, therefore, were serving as county officials. The court disagreed.

Under SMARA, the court ruled, the mining board may “take back the regulatory powers previously delegated to a local lead agency when the local government is not properly administering the state policy, and in doing so, the mining board not only retains its status as a state agency but functions as one as well.” The board, Testa and Parrish “at all times were enforcing state policy, not local policy.”

As for the individual liability of Testa and Parrish, the Third District agreed with the lower court that Brunius failed to explain how their actions were those of individuals and not of the state.

The Case:
Brunius v. Parrish, No. C047380, 05 C.D.O.S. 8350. Filed September 13, 2005.
The Lawyers:
For Brunius: Freda Pechner, (530) 333-1644.
For Parrish: Ralph Venturino, deputy attorney general, (916) 322-2573.