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Home My WebLink About81-135 (3)r r T TELEPHONE FACSIMILE Scharff, Brady & V indirng 19,6)485 5892 (916) 4855912 400 Capitol Mall. State 1100 DIRECT SACRAMEENTO. CALIFORNIA 95814 (916)558-6129 tywNiQsd6rfLus April 23;`2008 C. Brian Haddix Clerk of the Board Board of Supervisors County of Butte 25 County Center Drive Oroville, CA 95965 NOTICE OF1APPEAL RE: Mining Permit No. 81-135 and Reclamation Plan New Era Mine Dear Mr, Haddix: This letter constitutes North Continent Land and Timber, IncB' o a) reContinent") ' formal notice of appeal to the Butte County Board of Supervms findings and determinations of the Butte County )?lamming Commission ("Commission") as stated in Commission Resolution No. 08-24. North-Continent is the operator of the New Era Mine, located 4095 Ws et Dry tion oathe. Oroville, California and, as such, has the right to appeal the which states: "[a]ny operator Board pursuant to Butte County Code Section 13-116(b)(6) public works department or; P aggrieved by an act or determination by the planning division, herein shall have the right to appeal planning commission in the exercise of the authority granted to the board of supervisors" The primary bases for North Continent's filing of this appeal are as follows: it 81-13.5 illitig 1. Tile Couuuission erroueousty detsmatied that Mqq require tlgatmining at tileNew Era Permit") and (tie associated Recta ngaiiogq Plait Mine be conducted as a phased operation. The approved Mining Permit grants a right to operate a placer gold mine all relates Demo to I& acres of Assessor's Parcel No. 41-09-27. The phasing described in the.Mmm g volumetric production thresholds, not time'-based or mining area thresholds. Phase I alloys up e exPans'O to 20 cubic yards of material to be removed offsite on d ily would basis beOconsidnlY if eh a change of the Era Mine has never mining operation beyond 20 cubic yards was proposed e New implicating Phase Q (and subsequent Commission mmiss>tardi l review). doe sNorth Continent propose to.• • operated in excess of to-- the T 20 y expand operations beyond 20 cubic yards in the future. North Continentfully acknowledges that . 36 Scharff, Brady & Vinding April 23, 2008 Page 2 a proposal to increase production beyond 20 cubicya n°ss on reviesedw anterial ed offsite d approval on a daily basis would require additional Planning I. Tl=e Commission erroneously determine dt! fa sCo Condition ite Material, of lite ite Mining P rinit =ij==e refers 10 a gross total vol=t=ne of disturbed of processed gold -bearing ore to be sl=ipped offsite New Eta Mine Reclamation Pian states that mining operation will be ]l be 1 rrutd to 20,cubic yards 0 cubic The Ne yards per year. The Mining Permit states that mining operations ation Plan refers to total per day. These limitations are not inconsistent, processed asthe materialnto be moved offsite. If the disturbance and the Mining Permit refe � operator , Mining Permit 20 cubic yard limitation week for 465 yea ss to to the entre I9 -acre. parcel, would need to operate 5 days per a from 1982 until North Furthermore, Mr_ Ron Logan, the property owner who mined the prop rtY eration would never have been,nor Continent took over as operator in as lima ied that bie it was o total dsturbance of 20 cubic yards per day. could it be, economically viable if itby North Finally, substantial evidence in the g this weal, dehich imonnstrates that ll be provided tthe 0.cubc yard limitation • Continent prior to the Board hearing PP refers to processed material removed from the site. I7te Commission erroneor=sly found that the current levelf operationpat�lo v Era 3. per day total disturbance aminine r is Mine exceeds 20' cwbic yards p f. p roval No.' 21 of the Mining Permit: therefore in violation of Con=dition o A p ers 'rhe substantial weight of the -evidence in the record demonstrates been operated in texc ss of thon No. 21 e 20 to processed material moved offsite. New Era Mine has neverPe cubic yards of processed material removed from the site per day limitation, nor does it have any resent intention o do so. Thus, North Continent cannot be in violation of Condition No_ 21 of P the Mining Permit. 4_ 77te Co====mission erroneously found the scope he cuirent g Pe�=nd on at New ra Mince has substantially deviated fro=m d=e approved ion d=e was required under file Plan and that, as a result, amendment of Reclamation mid ButtetCounty Code Chapter 13. Surface Mining and Reclamation Act ("SMARA The Commission's finding confuses the nature of a mining permit and a reclamation pian. , . The question of substantial deviation is applicable no substantial deviation would exist eer ven SMARA, not the Mining Permit Accordingly, if the operation were to exceed a limitation in the Mining P rrmi year,andRthe New EraMine states an operational limit of 50,000-250,000l ' there is nno s b tial deviation from the . has never exceeded that limit. Conseq Reclamation Plan. Moreover, SMARA's definition of "substantial deviation" establishes 37 Scharff,.Brady & Vinding April 23, 2008 Page 3 two threshold analyses_ First; the change to mining operations must be one that affects completion of the approved reclamation plan. There has been no change or expansion in the current operation at New Era Mine that would affect completion of reclamation as set . forth in the current Reclamation' Plan. Second, the SMARA definition only applies if there has been a change implicating the end use stated in the reclamation plan. The current Reclamation Plan's end use is open space achieved through contouring and tion- This has not changed- The end use remains replanting to native grasses and vegeta the same. Therefore, based on the SMARA definition, no substantial deviation has occurred. The Commission's finding of substantial deviation is, erroneous as a matter of law. Butte County Code Chapter 13 states that procedures goveming,appeals to the Board shall be in accordance with the procedures set forth in SMARA (Public Resources Code) Section 2774.2. Three points of SMARA administrative procedure, are relevant to this appeal. First, the filing of this appeal stays the effective date of the Commission's Resolution and Order. (Pub. Res. Code § 2774.1(c)). Second, the Board may not • schedule its review of the Commission's Resolution and Order sooner than 30 days after the effective date of the Commission's Resolution and Order. (Pub. Res_ Code 2774.1(b)). Finally, the Board's review of the Commission's Resolution and Order is de novo and the Board shall consider any and all relevant evidence. (Pub. Res. Code § 2774.2(b)). Pursuant to the third point of procedure, North Continent will submit detailed and comprehensive documentation and evidentiary information within 30 days of the date of this notice of appeal- This notice of appeal, and/or its contents, is not intended to, and does not, limit in any way North Continent's right to provide evidence to the Board or to y issue relevant'to the Commission's determinations, findings, raise, in this appeal, an1 Resolution or Order. Regards, f✓. bN Blair Will, Esq. MI • U 0 x U H C: •