HomeMy WebLinkAbout81-135 (4)NORTH CONTINENT LAND &. TIAMER,-INC.
January 16, 2008
VIA FIRST CLASS MAIL
Tim Snellings, Director
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 95965
RE: Minim and Reclamation Permit No. 81-135 (New Era Mine)
Dear Mr. Snellings:
We. are writing you to address certain issues that .have been raised by Pete
Calarco; Assistant :Director of Butte County Department of Development . Services
("DDS"), and other members of. the DDS staff concerning _ Mining and Reclamation
Permit .No. 81-135 (the "Permit"). -(Exhibit A) 'Specifically,- we are writing you to
address. -the issues set out by Mr. Calarco in;tthe Notice of-Violation;sent on December 20,
2007 to Ronald Logan, the Permit holder, and Messrs, Lee Ogle and Frank Noland 'on
behalf of North Continent Land & Timber, Inc. (the "Notice").
Alleged .Violations
DDS has made the following allegations in the Notice, which we address in turn.
- 1. "[T]he mining activity at the above referenced location is a violation of
County Code and the state Surface Mining and Reclamation Act for not having a valid
permit, reclamation plan and financial assurance mechanism."
We do not agree that a violation has occurred. April 9, 1982, Stephen A. Streeter,
Senior Planner. of the Butte County. Planning Commission ("BCPC"); signing on behalf
of B.A. Kircher, .Director of Planning, BCPC, sent a. letter to Mr. Logan dated April 9,
1982 concerning the April 8, 1982 meeting of the BCPC. Enclosed with that April 9,
1982 letter was a copy of the "Staff Findings" of the BCPC's April 8, 1982 meeting (the
"Findings"). The Findings stated: "Conditions # 1-5 are to be accomplished before the
mining permit is issued pursuant to Section 24-44 of the Zoning Ordinance." xhibit $
On May 21, 1982, B.A. Kircher, Director of Planning, BCPC, sent a letter to Mr. Logan
stating: "At the regular meeting of the BCPC held May 20, 1982, your -application for a
mining permit and reclamation plan to allow a placer gold mine on [parcel AP 41-08-27]
was approved ... [and] will be issued after .June 10." xhibit C On. July 7, 1982, Ms. ,
Kircher sent by certified mail a letter to Mr. Logan stating- "Enclosed is you[r] validated
.Mining -and Reclamation Permit toallow a placer mine on [parcel AP 41-08-27]."
4950 Cohasset Road - Suite 10 - Chico, California - 95973
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NORTH CONTINENT LAND & TFABER, INC.
xhibit D All conditions prerequisite to issuance of the Permit were satisfied prior to
July 7, 1982, and the Permit was validly issued as of the date thereon, July 9, 1982.
Additional details supporting the validity of the Permit are included herein.
2. "On December 5, 2007, in response to complaints received, the Planning
and Code Enforcement Divisions of the Department of Development Services conducted
an inspection of the above property (referred to by owner/operator as the New Era
Mine). "
We do not agree that the December 5, 2007 inspection (the "Inspection") of the
New Era Mine was conducted in response to complaints received. Instead, the Inspection
was conducted in accordance with Chris Thomas' e-mail request of November 20, 2007
that -"the required annual SMARA inspection be conducted as soon as possible." (Exhibit
E) This request reflected the annual inspection requirement under the law, which is
further reflected in the DDS on-line database for Mining Project #: "MAI07-0004"; Type:
"MINING ANNUAL INSPEC". xhibit F We had not been notified, and had no
knowledge, of any other reason for the SMARA inspection.
3. "Butte County Code and the Surface Mining . and Reclamation Act
i . '(SAIARA) require, at a minimum, three items be approved prior to commencing a mining
operation: a permit, a reclamation plan and a financial assurance mechanism. None of
these items exist for the current operation. "
We do not agree that these items do not exist for the current operation. As noted
above, the Permit was approved on May 20, 1982xhibit C and validly in existence as
of July 9, 1982.xhibit D In addition, we have attached hereto County of Butte
Official Receipt No. 6070 issued. by David Hironimus, Associate Planner, of the Office of
Planning to R.R. Logan on May 22, 1981 in the sum of $279.00 for receipt of the
application for the Permit. TNhLbit G
As noted above, the reclamation plan was approved on May 20, 1982 (the
"Reclamation Plan"). TxhLbit D The Permit stated: "in accordance with the approved
Reclamation Plan on file [with the BCPC]." (Exhibit A) In addition, we have attached
hereto County of Butte Official Receipt No. 40816 issued by Stella Spoor of the
Department of Public Works to Ronald Logan on May 22, 1981 in the sum of $25.00 for
receipt of "Reclamation Plan (New. Era Mine)" and referencing "Rev. Code 211411 ".
xhibit G The Reclamation Plan was also reviewed by Division of Mines and Geology,
Department of Conservation, State of California ("DMG"), which is reflected in the letter
by Ken A. Cole, Reclamation Specialist/Engineering Geologist, DMG, and approved by
James F. Davis, State Geologist, DMG, to Stephen A. Streeter, Senior Planner, Butte
County Planning Department, on March 23, 1982, stating that the DMG Reclamation
Program staff "reviewed the Mining Permit and Reclamation Plan, AP 41-08-27, for
4950 Cohmset Road • Suite 10 . Chico, Califomia • 95973 301
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NORTH CONTINENT LAND & TEMER, INC.
Ronald R. Logan (New Era Mine)," which "supplement[s] comments in our letter to you
of August 7, 1981." TLcWbit
Regarding each of these items, Bettye Blair, Director of Planning, BCPC, sent a
letter to Mr. Logan dated March 11, 1982, (Exhibit Mo, Notice of Public Hearings,
stating:
ITEM ON WHICH NEGATIVE DECLARATION
REGARDING ENVIRONMENTAL IMPACT HAS BEEN
RECOMMENDED
1. Ronald R. Logan — Mining permit and reclamation plan for
a Placer Gold Mine on property zoned "A-2" (General)
located on the west side. of Dry Creek Road, approximately
3 miles N of Messilla Valley Rd., identified as AP 41-08-
27, S of Paradise.
The above mentioned applications, petitions, maps, and negative
reports. -are on file and available for public viewing at the office of
the Butte County Planning Department, 7 County Center Drive,
} ; Oroville; California.
Accordingly,. we understand that each item identified in this letter is on file with, or. has
otherwise been made available to, DDS, and we hereby request that DDS make these
items reasonably available to us for viewing..
At the time the Permit was issued, the California Code permitted a lead agency to
place a lien on the property upon which a permitted mine is situated as the form of
financial assurance required in connection with a reclamation plan and permit.' The
Permit stated that guarantee of performance of reclamation could be obtained .by
placement of a "lien on the property or a portion thereof." xhibif A In accordance
with this authority and as set forth in the affidavits of Mr. Logan and Betty Logan
attached hereto, Bettye Kircher, Director of Planning, BCPC, and Mr. and Mrs. Logan
mutually agreed in connection with Mr. Logan's signing of the validated Permit.on June
12, 1982 that the BCPC would file a lien against the premises upon which the Permit
pertained in satisfaction of the financial assurance requirement under the Permit.
I "Under the act, every lead agency must adopt ordinances in compliance with State policy to
establish procedures for the review and approval of reclamation plans and issuance of permits to conduct
surface mining operations .... [S]uch ordinances can include provisions for liens, surety bonds, or other
security to ensure reclamation according to the reclamation plan." Chapter 9: State Surface Mining Laws,
Natural Resources Conservation Laws: A Report on 17 States and Their Selected Counties and Townships,
Resource Economics and Social Sciences Division, Natural Resources Conservation Service, U.S.
Department of Agriculture, July 1999, p.311 (citing CALIF. CODE ANN., P. Res. § 2774(a)).
4950 Cohasset Road - Suite 10 - Chico, California - 95973
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302
NORTH CONTINENT LAND & TIMBER, INC.
(Exhibits J & K) Approximately one month thereafter, on July 9, 1982, the financial
assurance and all other conditions of the Permit were satisfied and Ms. Kircher executed
the validated Permit. xhibit A
4. "The current operation exceeds the scope of UP 81-135 and, more
importantly, UP 81-135 is no longer considered a valid permit. "
-We do not agree that the scope of the Permit has been exceeded. This is a
conclusory statement, and the Notice did. not cite. any specific acts that have allegedly
exceeded the scope of the Permit. Therefoe, the Permit is valid as to scope.
5. It is our determination that the UP 81-135 has lapsed
We do not agree that the Permit has lapsed for the reasons set forth below.
6. "Under the Butte County [C]ode in effect at the time of the approval of UP
81-135; specifically section 24-48.1, uses granted under ause permit were required to be
established within one year of approval. "
We do not have. a basis to determine the accuracy of this statement, as there is no.
current source of Section 24=48.1 of the BC Code. We understand that Chapter ' 13 of the
`- • ` BC Code was in existence at the, time the Permit was issued. The Permit itself cites
Chapter 13 of the BC 'Code as the authority under which it was issued. Therefore, to the
extent thaf there was or is any inconsistency between Chapter 24 and Chapter 13 of the'
BC Code, Chapter 13 controls. Section 13-108 of the BC Code states:
Upon approval of the mining permit, the operator shall commence
surface mining operations within five (5) years from the date of
issuance of the permit.. Should operations not commence within
said five (5) years the permit shall expire and become void, unless
extended by the planning commission prior to expiration.
•
Operations commenced and the use for which the Permit was issued wasestablished for
the New Era Mine prior to issuance of the Permit and was current throughout the
permitting process. The BCPC Staff Findings on April 8, 1982 stated:
Site History: Previously mined as part of the New Era Mine
operation; currently being mined under a valid permit from the
California Department of Fish and Game) and that[Conditions # 1-5
are to be accomplished before the mining permit is issued pursuant
to Section 24-44 of the Zoning Ordinance].
4950 Cohasset Road • Suite
.I -'Chico, California • 95973 303
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NORTH CONTINENT LAND & TIMMER, INC.
(Exhibit B) Several photographs depicting operation of the mine in 1982 under the
Permit are attached as (Exhibit Q. Additional photographs depicting operation of the
mine prior and subsequent to 1982 are available upon request, as well as' affidavits of
individuals present when the photographs were taken. Therefore, no lapse of the Permit
occurred within five (5) years of issuance of the Permit under Section 13-108 of the BC
Code or within twelve (12) months of issuance of the Permit as allegedly required by
Section 24-48.1.
7. "There is no evidence on file at Butte County Development Services that
verifies that the use was established within a period of one year. "
We do not have a basis to determine the accuracy of this statement; as such files
are not within our control. Nevertheless, we have cited numerous documents in this letter
of which BCPC and DDS were the originating source and we believe that - such
documents should have been retained in the files of�the respective parties.Accordingly,
we hereby request that DDS make these items reasonably available -to us for viewing.
8. "The use permitted by UP 81-135 was not maintained as required by
Butte County Code at the time the permit was.approved.This: cludes, -but. isnot limited
to, Section 24-48.2 and the list of conditions of the use permit. Section :24-48:2 of the
County Code in effect at the time states: 'A use permit.shall be deemed revoked if the use-
for
sefor which the permit is granted has ceased or has been suspended for a period of twelve
(12) consecutive months.
We do not agree that the use for which the Permit was granted was not maintained
as required by BC Code. As set forth above, the use forwhich the Permit was granted
was maintained for twelve (12) months from validation of the Permit.(Exhibit A
Moreover, BC Code. Section 24-48.2 has been repealed, is not valid law, and is not.
enforceable. In addition, as noted above, BC Code Chapter 13 is the Chapter of the Butte
County Code that is controlling on this issue and it does not contain any such provision.
We do not agree that the use for which.the Permit was granted was not maintained
as required by the conditions of the Permit. As noted above, conditions 1-5 of the Permit
were satisfied prior to the date the Permit was validated as a condition of such validation.
(Exhibit D) To the best of our knowledge, all other conditions of the Permit were
satisfied thereafter, and neither DDS nor any other agency of Butte County cited any
deficiency concerning any condition of the Permit prior to the Notice. .
According to guidance issued by the State Mining and Geology Board:
Surface mining operations are defined as: "...all, or any part of, the
process involved in the mining of minerals on mined lands by
ii• removing overburden and mining directly from the mineral
4950 Cohasset Road - Suite 10 - Chico, California • 95973 304
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NORTH CONTINENT LAND & THABER, INC.
deposits, open -pit mining of minerals naturally exposed, mining by
the auger method, dredging and quarrying, or surface - work
incident to an underground mine." Surface mining operations
include, but are not limited to, in-place distillation or retorting or
leaching; the production and disposal of mining waste, prospecting
and exploratory activities, borrow pitting,. streambed skimming,
and segregation and stockpiling of mined materials (and recovery
of same). Surface mining operations are "active" if engaged in any
of these activities on a continuous or intermittent basis, so long as
interruptions in mining activities do not exceed one year.
Reference: SMARA Section 2735 and California Code of
Regulations Section 3501.2
Mr. Logan has maintained. operations consistent with the definition of an "active" mine
under the California . Code sincethe Permit was validated on July 9, 1982. We have
volumes of photographs, press clippings, reports of State agencies, and other
documentation, in addition to the affidavits and reports that were prepared at the request
of Chris Thomas and previously provided to DDS, which demonstrate continuous mining
operations :under :the Permit., Eowever; `DDS <did not -cite any specific information in the
. Notice :that would allegedly indicate that the . mining operations were not active at any
time since 'July 9, 1982. Therefore, we hereby' request that DDS make any such
{ - • information reasonably available to us for viewing.
9. "No MRRC-2 Surface Mining Operations Annual Reports; required by
Public Resources Code Section 2207, have. been received by Butte -County or the
Department of Conservation "
We do not agree. All annual surface mining operation reports that have been
requested by DDS have been provided. promptly to and in full cooperation with DDS, .
including the reports referenced above. Such compliance was acknowledged by Chris
Thomas in his e-mail to Mr. Noland on November 20, 2007.(Exhibit E
10. "The SMARA annual inspection reports (1982 - 2007, utilizing the current
on-line 2007 ARRC -2 form) and various affidavits provided by your representatives do
not conclusively demonstrate continuous operation of the mine. "
We do not agree. The annual surface mining operation reports and affidavits
submitted to DDS with respect to the Permit indicate on their face that there has been
continuous operation of the mine sine July 9, 1982. The Notice did not provide, and we
are not aware of, any information or documentation that disputes the continuous
` Excerpt from Principles for Addressing Idle Mining Operations Under the Surface Mining &
r •. Reclamation Act, State Mining and Geology Board.
4950 Cohasset Road • Suite 10 . Chico, California . 95973
305
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NORTH CONTINENT LAND & TIMBER, INC.
operation of the mine. If DDS is in possession of any such information or
documentation, we respectfully request that it be provided to us promptly. In addition, it
is our understanding that SMARA did not require the submission of annual reports until
1991. While we have provided DDS with annual surface mining operation reports prior
to 1991.upon the request of DDS, we hereby request that DDS direct us to the law that
authorizes 'such requirement and provides guidelines -for the submission of reports
thereunder.
We are not aware of any' authority placing ' the burden of conclusively
demonstrating continuous operation of 'the mine by the Permit holder. Surface mining
operations. are "active" under SMARA if the Permit holder is engaged in any of several
activities, including, ,but not limited to, removing overburden and mining directly from
mineral deposits, open -pit mining of minerals naturally exposed, surface work incident to
an underground mine, in-place distillation, production and disposal of mining waste,
prospecting and exploratory activities, and segregation' and stockpiling of mined
materials' -
and recovery of same, on a continuous or intermittent basis, so long as
interruptions in mining activities do not exceed one year. . As DDS is aware, Mr. Logan
lives on the permitted premises and he andhisagents have engaged in the
aforementioned active:mining activities on a regular, if not daily basis, since July 9, 1982:
Any argument to the contrary is factually incorrect.
( • Conclusion and Request
The Director of Planning Iof the BCPC went to great lengths in personally
assisting Mr. Logan in the application of the Permit, and the validation of the Permit was
the culmination of over a year's labor by the BCPC and Mr. Logan. Once receiving the
validated Permit, Mr. Logan and his agents were open and obvious in the operation of the
mine and sought to comply with all conditions of the Permit and applicable laws. Mr..
Logan has no knowledge of ever being cited with any deficiency concerning the Permit,
and we are confident that any noticed deficiency would be timely cured.
In light of the foregoing information, we request that DDS: (i) rescind the Notice;
(ii) confirm that the Permit was validly issued by the BCPC on July 9, 1982; (iii) confirm
that the use for the Permit was established within any applicable time period from its
valid issuance; and (iv) confirm. that mining operations under the Permit have been
"active" under SMARA code and regulations since July 9, 1982 or provide us with any
information DDS has in its possession that may indicate otherwise.
4950 Cohmet Road • Suite 10 • Chico, California • 95973 .3-06
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NORTH CONTINENT LAND & TIMBER, INC.
We thank you for your time and consideration and look forward to working with
you and your staff in the future.
Very truly yours,
F.L. Ogle,
As authorized agent for Ronald Logan,
As authorized agent for North Continent Land & .
Timber; Inc.
Cc:' Frank Noland
Ronald Logan
Betty Logan .
Phil Woodward, Central Valley Regional Water Quality Contro1Board
Jenny Marr, 'Department of Fish and Game
". Paul Marshall' Department of Conservation, Office of Mine Reclamation
Doug'Crai&-Department of Conservation,. Office of Mine Reclamation .
Exhibit's (A) thru (M) attached
4950 Cohasset Road . Suite 10 • Chico, California . 95973
307
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Attachment UU
M