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HomeMy WebLinkAboutCA Dept of Conservation - Mine Reclamation complaint 2.3.09 4950 Cohasset Road #10/ P.O. Box 5362 Chico, California 95973 Phone: 530.566.0306 Fax: 530.566.0325 a OROy��CR ?©D9 CAClj'QRAI 1,4 February 3, 2009 VIA COURIER Mr..Dennis O'Bryant Director, Office of Mine Reclamation Department of Conservation State of California 801 K Street, MS 09-06 Sacramento, California 95814 Dear Mr. O'Bryant: Re: California Department of Conservation, Office of Mine Reclamation et al ats North Continent Land&Timber, Inc. and New Era Mining Corp. Enclosed please find a copy of a complaint which has been filed against Bret Koehler, Compliance Unit Supervisor of the Office of Mine Reclamation (the "Complaint"), by James F. Noland,Vice-President,North Continent Land&Timber, Inc. ("NCLT") and New Era Mining Corp. ("NEMC"). As you will note, the Complaint has been filed with the Board of Professional Engineers and Land Surveyors for the State of California(the"California Board of Professional Engineers"). NCLT and NEW are currently engaged in litigation with the Office of Mine Reclamation{"OMR") and several other defendants (the"OMR Suit"). The essence of the Complaint is that on December 20, 2008, while employed by the OMR and in support of its position in the OMR Suit, Mr. Koehler swore a declaration which was subsequently filed in the Superior Court of the State of California(the"Declaration"). The Declaration contained material misrepresentations with respect to Mr. Koehler's professional qualifications and the professional qualifications of certain of his colleagues at the OMR. In item 1 of the Declaration, Mr. Koehler identifies himself as "a Senior Engineering Geologist (Supervisor)" with the OMR. Mr. Koehler states in item 6 of the Declaration that on"August 22, 2008, I, along with two other professional engineers ,� F Va aaas from the OMR inspected the New Era Mine."The records of the California Board of Professional Engineers indicate that, contrary to Mr. Koehler's statement"under penalty of perjury" in the Declaration, neither Mr. Koehler nor either of his colleagues from the OMR was a"professional engineer" as that term is defined in section 6701 of the Professional Engineers Act(California Business and Professions Code) ("CBPC") on the occasion of their visit to the New Era Mine. Section 6704(x) of the CBPC clearly states that"in order to safeguard life, health,property and public welfare.—only persons licensed under this chapter shall be entitled to take and use the titles `consulting engineer,' `professional engineer,' or `registered engineer,' or any combination of those titles or abbreviations thereof." A search of the California Department of Consumer Affairs, Board for Geologists and Geophysicists confirmed the fact that neither Mr. Koehler nor either of his OMR associates as referred to in the Declaration are Certified Engineering Geologists in the State of California. They are all licensed geologists and, as such, "shall only express professional opinions which have a basis in fact, are within the licensee's own experience or knowledge, and are generally accepted geologic or geophysical principles" (CCR s. 3065(c)(5)). Mr. Koehler has invited the Superior Court of California to rely upon conclusory statements in the Declaration with respect to matters that are beyond his training and expertise as a geologist. His misrepresentations to the California Superior Court with respect to his licensing status and his qualifications are perjurious and have damaged both NCLT and NEMC. We are asking the California Board of Professional Engineers to review the Complaint and, if satisfied with respect to the evidence tendered and any that may be subsequently discovered, take all appropriate remedial and punitive measures with respect to Bret Koehler. By addressing a copy of the Complaint to you,Mr. O'Bryant, we recognize your fiduciary obligation to the public in providing assistance to lead agencies and miners in the efficient administration of the SMARA regulations. To that end, we suggest that the basic legal concepts of equity and comity as well the overriding issue of public welfare would require that the OMR review and amend the basis upon which OMR employees are allowed to present their professional qualifications to the public. North Continent Land&Timber, Inc. By: /James F. Noland, Vice-President Cc: The Honorable Arnold Schwarzenegger Governor, State of California State Capitol Sacramento, CA 95814 Congressman Wally Herger 242 Cannon House Office Building Washington, D.C. 20515 Senator Sam Aanestad State Capitol, Room 3063 Sacramento, CA 94248-0001 Assembly Member Dan Logue State Capitol, Room 2002 Sacramento, CA 94249-0003 Jan Zabriskie, Deputy Attorney General, State of California 1300 I Street, Suite 125 Sacramento, CA ' 94244-2550 Bridgett Luther Director, Department of Conservation State of California 801 K Street, MS 24-01 Sacramento, CA 95814 Stephen M. Testa Executive Officer, State Mining & Geology Board 801 K Street, Suite 2015 Sacramento, CA 95814 Supervisor Bill Connelly Chairman, Butte County Board of Supervisors Administration Center 25County Center Drive, Oroville, CA 95965 Tim Snellings Director, Butte County, Department of Development Services 7 County Center Drive Sacramento, CA 95965 Ronald Logan 4095 Dry Creels Road Oroville, CA 95965 Enclosures: I. Copy of NCLT Complaint to the California Board for Professional Engineers and Land Surveyors, and 2. Copy of.Amended Complaint filed on 212108 with the California Superior Court in the matter of California Department of Conservation, Office of Mine Reclamation et al ats NCLT and NEMC. S'L'ATS OF CALIFORNIA-STATE AND CONL _,IER SERVICES AGENCY ARNOLD SgE ARZEKHGGM Governor serol BOARD FOR PROFESSIONAL ENGINEERS AND LANDawandm SURVEYORS Consumer 2535 Capitol Oaks Drive,Suite 300,Sacramento,CA 95833-2944 Affairs Telephone: (916)263-2222 CALNET: 8-435-2222 Facsimile: (916)263-2246 www.dca.ca.govlpels COMPLAINT FORM 1. SUBJECT (Engineer or Land Surveyor) 2. COMPLAINANT(Person filing complaint) Bret Koehler James F. Noland Mame of individual and licenselregistriden number,if known Your name 801 K Street, 09-06 North Continent Land &Timber, Inc. Street Address Business name,if any Sacramento, CA 95814 4950 Cohasset Rd. Suite 10 City,State,zip Code Street Address 916-323-9198 916-322-4862 Chico, CA 95973 Daytime'Telephone FAX Number City,State,zip Code 530-566-0306 530-566-0325 Pager Number Cellular Phone Number Daytime Telephone FAX Number 813-629-0368 813-629-0368 Home or evening telephone Evening Telephone Cellular Phone Number bret.koehler@conservation.ca.gov franknoland@aol.com E-mail address or website(if known) &mal address 3. SUBJECT PROPERTY ADDRESS (if different from answer # 2) and/or description of property location. Include city and/or county. New Era Mine, 4095 D Creek Rd., Oroville, CA 95965 Butte County PLEASE COMPLETE QUESTIONS 4 AND S AND DECLARATION ONNEXT SHEET ««««««<3ee6on for qfflce use only—Please do not write below this line»»»»>> Case No. Class Code Source Code Date Opened Violation§§ Ack Card Sent: License No./Exp.Date Date: Initials: ' Organization Record: Yes r-1No ❑ Previous Cases: 4. DESCRIBE YOUR COMPLAINT: Be specific. What happened? Who else is involved, including City or County agencies (names, addresses, phone numbers)? Give dates and details. Include copies of ALL DOCUMENTS,Including plans,maps, letters, contracts, etc. If there is no written contract, explain the details of the agreement, including dates. Attach extra pages as required—be as complete as possible. See "How to File a Complaint"for more details. See attached. 5. 'WHAT DO YOU WANT THE BOARD TO ACCOMPLISH IN RESOLVING YOUR COMPLAINT? See attached. S. DECLARATION I declare, under penalty of perjury,that the information contained in this complaint, including any attached pages, is true and correct to a best of my knowledge and belief. Signature r Date Please let us know how you obtained this form. This information will help us evaluate the effectiveness of the different methods we use to inform consumers of the services provided by the Board for Professional Engineers and Land Surveyors. Thank you. OnAne. 4, Bret Koehler is a "Senior Engineering Geologist" with the California Department of Conservation, Office of Mine Reclamation. Mr. Koehler's title, Senior Engineering Geologist, is a California State Personnel Board title that does not qualify himself or his staff to be Professional Engineers or Certified Engineering Geologists. Our company, North Continent Land &Timber, Inc., is currently involved in litigation with the California Department of Conservation, Office of Mine Reclamation and several other defendants. This legal case has many elements of law that are being argued and that should involve the 'declarations and statements of Certified and Professional Engineers in order for the court to make a proper ruling. On December 24th, 2008, Mr. Koehler submitted a sworn statement to the Superior Court of the State of California, County of Sacramento, Sacramento Division ("Exhibit A") in which he states in Item 6 that "I , along with two other professional engineers from OMR, inspected the New Era Mine". Mr. Koehler has made numerous conclusory statements regarding our operations and proprietary technologies that he is not qualified, certified or licensed to make. Mr. Koehler is now the focus of multiple complaints and actions resulting from his perjurous statement to the Court.This statement has greatly damaged our company and we feel that the Board should take action against Mr. Koehler for overstating his professional qualifications to the California Superior Court and the continued misuse of his qualifications, certifications and liscensing. Mr. Koehler is not certified or qualified as either a Professional Engineer or Certified Engineering Geologist with any California Licensing Board. 5. We would like the Board to cause Mr. Koehler to: 1. Cease and desist violating the law. 2. Cease and desist providing testimony or services as a Professional Engineer. 3. Pay administrative fines and penalties. 4. Revocation of all professional licenses held by Mr. Koehler within the State of California.. (EXHIBITA) 1 13,6MUM G BROWN:TR. 3.�7 RECEIVED t. Attorney General of California 2 DENISE FEMCH HOFFMA N ����:.a o " Supervising Deputy Attorney General 3 JAN ZABRISKIE W A1' T OF � 'TIC E Deputy Attorney General � N TO OF C 4 State Bar No. 117044 1300 I Street,Suite.125- 5 P.O.Box 944255 Sacramento, CA 94244•-2550 6 Telephone: (916Y322-5181 Fax: (916)327-2319 7 E-mail.: raxLZabrislde@daj.ca.gov . Attorneys for.Defendant Department of .8 1 Conservation's Office of fineAeclamation 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO . 11 .. SACRAMENTO DIVISION. 12 13 14 North Continent Land&Timber,Inc., a 34-2408-M24823 Nevada Corporation and new Era Minimg, 15 Inc.,a Nevada Corporation, DECLARATION OF BRET KOEHLER IN OPPOSMON TO PLA N TIFli`S' 16 PlaintiA MOTION FOR PRELBUNARY INJUNCTION 1T v: Date: January 16,2009 18Time: 2:00 pm. California Department of'Conservation Dept: 53 19 Office of Mine Reclamation,'Pete Sehwede, Judge The Honorable Loren E. John Whittlesey,Lucy Cook,Richard McMaster 20 Meyers,Harriet Spiegel,Carol.Perking„ Trial Date Not Set Driy geek Coalition,Barbara Vland s, Action Filed: October l7,2068 21 Butte Environmental Council,$ydrofocus, Inc, 22 Defendant. 23 24 I, Bret Koehler,declare: 25 1 1. 1 aim a Senior Engineering Geologist(Supervisor)with the California Department of 26 • Conservation's Office ofMine Reclamation(OMR). I am the manager of OMR's 27 28 �P`�at"atin•...f.�Zrni7C:w�+�Pr ('�_?1V14 !1(1[17A0f�1 • .1 CoMpliance Unit.I have personal knowledge of the following matters and if called to tmfi6 2 2R4 WQ14094H)r competently thereto, 3 2. I have inspect8d•twcuty--five to.thixty surface mines for OMR and toured app O imately 4 twenty-five additional surfare mmes m my professional career. I received my Master of 5 Science degree in Geology from the University of Nevada in 1489,and I harms been a 6 CalifoEnis.Professional CieoiagistAicense number 7042,since 20Q0. Pr6m 1982 through 7 19951 worked in.precious and base acetal encploration,pemcipa, yin the Great Basin 6f ' ,Ne daU a'lsoa in the westekn Cordillera of&&Umted:r3tates from ee l-Alaska:to 9 northern Mexico. My. career in California•siate government began,in 1999. with Jh6 tQ Department of Conservation`s California Division of Mines and Geology's mineral .11 classification progm. I worked in OMR from 2001 through 2006,where 1 performed mine 12 inspection and compliance wank in several major aggregate districts.. I rel=eaio fife -13 ' -Callfbrum Geological Survey to work in its Earthquake Engineering Program for two rews 14 prior tQ being hued as the Senior Eug ueer`ing Geolqgist(Supervisor)fpr OMR's Compliant 15 Unit. 16 3. OMR and the State Wining and Geology Board are both within the Dgxmbnent of 17 Consm attion and axe jointly responsible for the proper adi ddishation of the State Mining at 18 Reclamation Act,(sMARA),Public Resources Code section.2710 et secs. OWS' aetivifies 19 are focused on ensuring that surf murines in the State of California.are properly reclaimed r 20 as to preyeat and mmunme the adverse dfocts of mining on the envimm=4 public health 21 and safety:- 22 4. Local govemments generally act as the lead agencies in the implementation of SMARA, 23 OMR oversees their activities. Under this dual system,mining operators submitseelamatio 24 plans to the local city or county government,which then forwards the plan t>a-OMR four' 25 review. OUR makes reoommendations where appropriate. If the local agcy objects•to 26OMR's recommendations,it must provide a written explanation ofits objections. 27, 7 5. There are several units within the DePP&ftWbF0dftemtioies OMR. The Reclamation 28 Unit reviews the oxine reclamation nlan-,SZThmt11•tA by mi,a nnPratj%vw •;o;t. �;+,M. --A 1conducts workshops. The Reporting Unit's duties include the maintenance of a aline • 2 database,the filing of annual reports and the establishment of fees.The Compliance Unit 3 conducts field investigations and handles enforcement.The Abandoned Mine Lands Unit is 4 primarily engaged in cataloging the state's abandoned and historic mines. 5 6. On August 22,2008,L along with two other professional.engineers from OMR,inspected .6 the New Era Mine.The inspection was prompted by citizens' complaints that the mine was 7 not being operated in compliance with approved reclamation plans and permit ccinditions. 8 . 7. Before eondu ng this inspection,the Comppbancae Umt-ard�ofl=OMR employees 9 revie�red the fide,cansolted v ith Butte County's Department of Development Sevices,which 10• is the lead agency under SMARA for regulating the New Era Mine,began wo*mg with the 11 County to ensure SMARA compliance,and attended Butte County proceedings concerning 12 the New Era Mine. These activities and governmental records concerning the New Era Mine 13 showed the following. 14 a. Butte County ori*ally approved the nine operation subject to specified conditions, 15 in 1982. Between 1982 and 2006,OMR received no annual reports or outer 16 information that would indicate that the mine was being operated. In 2007,North .17 Continent Land Onnd Timber,Inc.,submitted a reclriest to OMR for a mine 18 identification number for the New Era Mute, 19 b. In December 2007,Butte-County issued a Notice of Violation and a Surface Mining 20 Inspection Report for the New Era Mine. The Report listed 13 violations and impose 21 ' 7 corrective measures. On April 21,2008,the Butte County Planning Com:missi4n 22 issued an order requiring,among other things,that the owners and operators of New 23 • Era Mine.submit a revised ming permit application,a revised reclamation plan, and _ 24 a new financial assurance. The qp'm oars appealed this order. 'On Au st 5,290$,AL 25, Butte County Board of Supervisors granted the appeal and rescinded the requirement 26 for submission of a revised pmt,revised reclamation plan and new financial 27 assurance. 28 3 1 8. On August 22,2008,the New Era Mme was readily visible down through the trees qn the 2 east side of Dry Creek as we drove down Dry Creek Road toward the mine entm ee. The 3 road runs above and parallel,to the mine on the opposite side of Dry Creek. 'Various portions 4 of the mine,including the processing planta equipment excavations,and settling ponds,came 5 in and out of view down below over the course of the drive.The mine is located in'a nzal 6 residential area of large lots and is also visible from the elevated adjacent properties. 7 9. The New Era.Mine is.a conventional open-pit,placer mine, It was apparent from the site 8 conditions and-my observations that alluvium was being removed from a surfacepit with but 9 dozens and excavators. The facilities,equipment,and observed operations indicated that the 10 removed material was then separated and washed with typical mining equipment that inelixde I 1 a trammel,screens,sluices,vibratory screens and Diestm Table. The gold and gold bearing 12 black suds were separated out of the alluvium with water and by the force of gravity pump 13 and hoses indicated that the water for washing the geld was pumped out of settling ponds. 14 The settling ponds were replenished by ie-circulating'the wash water. Springs and seepage . 15. appeared to provide an additional source of water for these ponds. Based on my experience, 16 all of these processes and technologies am commonly monly known and used in placer mining, 17 10. ' The mining activity at the mine is also desrxi'bed in the Plan of Operations that was 18 prepared for North Continent Land and Timber,Inc.,by its Arkansas licensed engineers, KA 19 Gales Company. An excerpt of that platy,containing a history and proposed operation,is •20 attached hereto as Exhibit A. As set forth therein,the proposal is for a"wet opeaxion2,1ks 21 described in the plan,this means the operators intended to use water as the medium for 22 extracting the gold from the rest of the allivimn- 23 -11. Otu inspection revealed numerous violations and potential violations that were documents 24 . photographically, 25 12. On October 3,2008, OMR issued its 2008 SMARA Mine Inspection Report for the Nevi 26 Era Mine. A true and correct copy is attached hereto as exInibit B. The Report identified -27 SMARA violations and concerns that included(l)mining beyond the permit botu Waries,(2) 28 over-excavation of the approved atea by approximately four-fold,(3)potentially unstable •1 slopes of soil material, (4)the absence of topsoil stockpiles, (5) settling ponds iu excess of th 2 number authorized,(5) a settling pond located outside of the permitted area;and(6) 3 insufficient financial assurances for the cost of reclamation. 4 13. The report contains five drawings and 12 numbered photographs that provided visual 5 context and-confirmation of the violations and concerns that needed to be addressed by the 6 mine operators. The drawirrtgs appear as figures 1 through 5 on pages 8 through 12 of the 7 report. The figures are self-identified as dom mentsprepared by the previous rains operator, 8 Ron Logan,in 1981.The records indices these items have been public records sinEe at least 9 1.982 and there is no evidence that any request or claim was fiver made that the infoi nlation 19 was trade secret or confidential. I 1 14. Photo number 1,on page 13 of&a report,can be downloaded from the website for Google 12 Earth,as indicated in the•lower ri&-land comer of the photograph.This is the only aerial 13 photograph in the report and it appears to have been taken.before Writiffs b . _ p egan their 14 extended excavation of the mine. 15 15. Photos numbers 2 through 11 were taken on tiXe ground during the course of the inspection 16 on August 22,2008. Nothing in these photographs indicates the existence of any unique or 17 secret process for mining or extracting gold 1.8 16. Photo number 2, QU page 14,shows the tap of a well using that is the subject of the. 19 violation identified under item 2.8 an page R. 20 17, Photos 3,4,5,and 12 show that plaintiffs areopexating beyond the peraussi'ble boundaries of the permit and onto the property of a different laird owner, as described under item 2.1 on 22 page 3. 23 18. Photos numbers 6 and 7,on page 16,show a different angle of overview and provide 24 additional visual context for the other photographs. 25 19. Photos numbers Sand 9,on page 17,show the steepness of the bench slopes that prompted 26 OMB's request fora slope stability analysis,as described in item 2.5 on page 4. 27 28 1 -20. Photos numbers.10 and 11,on page 18, show the"boneyard,"an area comprising discarded 2 and other materials.The"boneyard"represents an additional cost of reclamation that must be 3 taken intd account in calculating the financial assurances required of the mine owners. 4 21. OMR's records indicate that photo number 12, on the cover and page 13 of the report, was 5 provided to OMR by'a private citizen. It is my understanding that the picture was taken from 6- the hilltop of a neighboring property owner. Attached hereto as exhibit C is a true and correct 7 copy of an October 28,2008,letter from the OMR files indicating that the picture was taken, 8• with the permission of the property owner William H.Abildgaard,Jr.,M.D. The photo 9 provides a panoramic overview and orientation of the mined property. Nothing in this 10 phdtograph indicates the existence of any unique or secret process for mining or extracting .11 gold. 12 22. OMR has comunicated with Butte County regarding continuing violations at the New Ern 13 Mine.'On October 24,2008,OMR sent the County a"15-Day SMARA Enfore-anent 14 Notice,"pursuant to Public Resources Code section 2774.1. The letter informed the County 15 that OMR would take action to cause the operator 6f New Era Mine to correct the indentified 16 violations,unless Butte County did so. A true and correct copy of OMR's notice is,attached 17 hereto as Exhibit D. A true and correct copy of Butte County's November 4,2008,response 19 is attached hereto as Exlnbit E. A copy of OMR's December 12,2008,response identifying . 19 the ongoing violations and need for corrective action is attached hereto as Exhibit F. OMR's 20 investigation of New Era Mune continues and additional enforcement action is pending. A 21 draft Notice of Violation is under review. 22 1 declare u4.der penalty of perjury under the laws of the State of California that the forgoing is 23 true and correct. Executed is Sacramento, California,on Decembers 2008 24 25 26 27 sA2008305840 28 - • 6 . r)a I.+.-.e:..,+.,F,R..or'V--Ui-- !4A Irmo AM,3Aon�% •1 MICS L V.BRADY(SBN 146374) WILL(SBN 224929) 2 SCHARFF,BRADY&VENDING 400 Capitol A4aII,Suite 2640 3 Sacramento, CA 95814 Telephone: (916)445-3400 4 Facsimile: (916)446-7159 5 Attorneys for Plaintiffs 6 NEW NORTH CONTINENT LAND S&TI11+EER,INC.and MWING,INC. 7 $ SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 I 1 NORTH CONTINENT INC.,a Nevada Co LAND `�'TIMBER; Case Na. 34-2008-00024823-CU-Mc- 12 12 MING,INC.,a Nevem Co d NEW ERS, Corporation 13 Plaintiffs, FIRST AMENDED COMPLAINT 14 v. 15 CALIFORNIA DEPARTMENT OF 16 RECLAMATION and DOES 1F 9gNE 17 Defendants. 18 19 Plaintiffs NORTH CONTINENT LAND&TTMBER,INC. 20 INC. (collective) Plainn6 and NEW ERA MINING, �'�" '�allege as follows: 21 T OF ACTION 22 1• California is a large state,with widely varying local conditi 23 Surface ons. As such,the Mining and Reclatian Act{"SMARIq, "),which regulates surface�g within 24 California,was purposefully devised b s� Y the Legislature as a home ral- .e"statute. SMARA vests 25 enforcement authority in counties as"lead agencies"on the assumption that the 26 able�to enforce SMARq counties are best the specific 27 county; kinds of mining Undertaken in each particular - 28 2` The Department of Co . �'adon, Office of Mine Reclamation{"OMR)is a state NORTHCONMENr AMLIsMED COMPLAiIV7 1 1 agency with limited oversight authority over the county lead agencies. Because 2 home rule statute,OMR SMAS is a has only the authority expressly granted by the statute. 3 3. Plaintiffs im this action are operators of a gold mine in Butte County. Plaintiffs 4 have been through a Iengthy, contentious and exhaustive 5 validity of Plaintiffs' entitlements to mine were thoroughlyadministrative process during which the reviewed by Butte County,the 6 applicable SMARA lead agency. 7 4• At the conclusion of this lengthy review process the Butte County Board of 8 Supervisors,the highest adjudicatory body of the lead agency,.determined that Plaintiffs'm' . 9 operation was full entitle MWg Y d,that the entitlements were valid and that the operation complied with 10 SMARA. 11 S. Defendant OMR was consulted by the lead agency throughout the review roves 12 6. process. OMR urged the lead agency to invalidate Plaintiffs'entitlements and to find that 13 Plaintiffs'mining operation was not compliant with SMARA. 14 - 7• When the lead agency disagreed,as was its legal prerogative under SMARA, 15 OMR initiated a bureaucratic vendetta agai061 Plaintiffs and Butte County. OMR engaged and 16 is engaging)in a pattern of extra-legal and ultra vires enforcement activity,directed at both 17 Plaintiffs and Butte County. is 8• ' PIaintiffs filed this action in an effort to stop Defendant OMA from further 19 abusing its authority under SMARA to the prejudice ofPlaintiffs and Butte Co". 20 9. Plaintiffs seek declaratory relief regarding OMB's authority under SMARA. 21 l0•. Plaintiffs seek damages against OMR in an amount to be proven at trial. 22 !i Plaintiffs seek the aforementioned relief based, infer alfa,on claims based on 23 violations of the Surface Ming and Reclamation Act. 24 12. Plaintiffs also seek relief based on claims of i mi () sapproprMon of protected 25 trade secrets' the California Uniform Trade Secrets Act(Civil Code§§3426 et seq.) and 26 (ii)illegal and/or improper dissemination of protected trade secrets under the California Uniform 27 Trade Secrets Act, (C1viI Code §§3426 et seq.) The Uniform Trade Secrets Act claims arise out 28 of photographs taken and published by Defendant OMR that divulge certain trade secrets and NORTH CO MNENrAMENDED COMPLArNT . 2 l proprietary technologies which are the property of the plaintiffs. These hota 2 O P 1 Pts were obtained b Y MR during an ultra vires inspection of Plaintiffs' mine after Plaintiffs requested 3 confidential treatment of said photographs. OMR also published certain of these hoto 4 its October 3,2008 Inspection Report, p Mphs in 5 P--ARTIES 6 13. Plaintiff North Continent Land&Timber,Inc.is a co 7 validl existin 'corporation organized and Y g under the laws of the State of Nevada,and is authorized to do business in 8 • California with its Principal lace of business at 4950 Cohasset Road Chico P P ,California 95973 9 ("North Continent"), - . 10 14. Plaintiff New Era Mining Inc.is'a corporation organized and validly existing 11 under the laws of the State of Nevada,and is authorized to do business in 12 California with its . principal place of business at 4950 Cohasse#Road,Chico,California 95973("New Era Mining) 13 (collectively,"Plaintiff'), ntiff 14 15. Defendant Department of Conservation,Office of Mine.Reclamatio is a 15 California state K n' agency with its PrIneiPal office at 801 Street, Sacramento,California 95814. 16. 16. Plaintiffs are ignorant of the true names of Defendants DOES I through 99,and 17 therefore sues those Defendants by such fictitious names and tinder the provisions of Section 47 18 of the Code of Civil Procedure. p 4 laintifl's are informed and believe,and thereon allege,than 19 Defendants DOES 1 through 99 are in some manner responsible for the events,eats,actzons, 1PPenings,breaches,and damages herein alleged. 21 17, Plaintiffs are informed and believe and thereon employee,assi allege that 22 named Defendants was the agent, re each of the fictitiously �predecessors in interest and/or enc succsor in 23 interest of each of the remaining Defendants and in doing the things alleged herein ' 24 with the course and scope of such agency,,em p toYment,assignment or interest. was eses � 25 VW MAND AW-1DIC ON 26 18. Venue is proper in this Court pursuant to Code of Civil Procedure Section 860 27 [actions against state agencies]. Plaintiffs are . required to comply with the Tort Claims Act 28 (Gov't Code§§gl0.996.6). Plaidtiffs have complied with the Tort Claims Act by filing a 1VoR?H c ONMENr AMUNDM COMPLAW. 3 I written claim form with the Government Claims Board that has been 2 claim form denial is attached hereto as Exhibi� denied' A copy of the 3 19. The relief sought in this complaint is within the jurisdiction of this covet. 4 FACTUAL,ALLEGATIONS 5 20. The New Era Mine is physically located northeast of Oroville, California,at the 6 end of 2.5 mile long Dry Creek Road, The parcel is approximately 18-sores in sire, 7 21. On June 12, 1982,h1ining and Recl 8 to Ronald Lagan annatian Permit 81-135("Pemut")was issued for the operation of a placer gold mine upon the premises identified as 4095 9 Dry Greek Road,Oroville,County Assessor's Parcel Number 041-80-027("New Era 1v,Ctne . 10 The Permit authorizes minis on the entire 18-acre g parcel. 11 22. The Permit was issued . pursuant to Butte County,s('County,) Surface mining 12 Ordinance(Chapter 13•of the Butte County Code),not the County's Zoning Ordirce, Under 13 SMARA each County is required to adopt-a surface mining ordinance. A e 14 P rmit granted . pIZsuant to a surface mining ordinance is not a use permit and therefore not subject to any.l 15 provisions(if stay)set forth in the County's Zoning ordinance. apse 16 23. At the time the Permit was approved b the Y County the County submitted the 17 New Era Mine Reclamation Plan("Reclamation Plan,)to the California Division of Mines and 18 Geology MR'S Predecessor) for review. Although OMR does not u approve"reclamation • 19 plaits,S14[ARp does require that such plans be submitted to OMR for review to assess a 20 as regards SMARA's requirements. The Rec 21 Division of Mines and Geology. lamation Plan was found to be ad adequacy adequate by the 22 .1 24. The Reclamation Plan authorizes the disturbance of up to 250,000 cubic yards 23 year. Y per 24 25. Prior to the County's approval of the Permit a California Environmental Qerality 25' Act(``CEQA')review was conducted. 26 County and a Notice of DA Mitigated Negative Declaration was adopted by the etermination sent to the State Clearinghouse. 27 26- As authorized by the Permit and Reclamation Plan,Ron Logan mined the 28 Property continuously from 1982 to 2007. At certain times Mr.Logan conducted the mining NORTH CaNMENT AMENDED COMPLAIN' 4 1 Operation personalty. At other times various mini 2 under lease. ng companies operated the New Era Mine 3 27. On or about March 9, 2007, Plaintiff North Continent executed a minin lease 4 with the New Era Mine Ownersg Ron and Betty Logan{`Lease"). Pursuant to the terms of the S Lease North Continent became the operator of the New Era Mine under the Permit. 6 28. On December S 2007 Butte Coun ' ty Department of Development Services 7 ("DDS')staff conducted an inspection of the New Era Mine, At the time 8 inspected the New Era .,the County had not Mine since 1982. The County's failure to inspect was in violation of 9 SMARA,which requires annual inspections of all surface mining operations within the 14 jurisdiction. The County's failure to ins County?s I was also in violation of the express terms of the I 1 Permit,which requires at least annual inspections. 12 29. During the October 2007 to Jan � - uary 2008 time period,DDS staff stated that the 13 County could not find a record of the Permit or Reclamation Plan in the 14 consequence, County files, Asa the County believed that the New Era Mine did riot have a permit,reclamationlan 15 and financial assurance$as required b S p y MARA. . 16 30• Accordingly,on December 20,2007,the Conn 17 North Continent requesting that North Continent demons �issued a Notice of Violation to trate that New Era Mine had a va1;d 18 permit,reclamation pian and financial assurances. 19 31. On January 15, 2008,North Continent President F.L.Ogle met with OMR 24 representatives to discuss the New Era Mine situation. DDS personnel were also at the meeting. At the meeti 21 ng OMR indicated that the review of documents and a determination regarding 22 validityof the New Era g ng the l'fino's Permit was the responsibility of the County. 23 32. On January 26,2008,Mr.Ogle contacted OMR by phone. Again, OMR advised 24 Mr.Ogle to work with the Count},regarding the New Era Permit. 25 33. In the period between December 20 2007 and January 31,2008,North Continent 26 provided the County with a copy of the Permit,Reclamation Plan and ftnaneW assurances. 27 28 on or about February+4,2008,PlaintiffNor#h Continent assigned the i.ease to PiaintiffNew Fra,retaining the right to operate the New Era M'me. g NORTH CONTW ENT AMr MEA COMPLAINT 5 1 North Continent also provided the County with numerous other documents showing the New Era 2 Mine had been in continuous operation between 1982.and 2007. 3 34. On February 5,2008,the County issued an Order to Comply based on the 4 December 20,2007,Notice of Violation. S 35. Because the February S,2008,Order to Comply conflicted with requirements 6 placed on.New Era Mine operation by the Regional'Water Quality Control Hoard,North 7 Continent requested a modification of the compliance schedule. As a consequence,the County 8. issued a Revised Order to Comply on February 11,2008. 9 36. The Revised Order to Comply alleged different violations from those set forth in 10 the December 20,2008,Notice of Violation. 11 37, Mr.Ogle,North Continent President,called Douglas Craig of OMR on 12 February 19,2008,to discuss the Revised Order to Comply. Mr.Craig advised Mr.. r. Ogle to take 13 the matter up with Butte County,the lead agency. 14- 38. The Butte County Planning Commission reviewed the issue of the New Era 1Mine's entitlements ata public hearing on March 13,2008. The hearing was continued to 166 April 10,2008, 17 39. On March 20,2008,Dry Creek Road resident John Whittlesey contacted Kevin 18 Doherty,a Geologist with OMR,to inquire about OMR's position regarding the Butte County 19 Planning Commission's March 13,2008,hearing on the New Era Mine. Mr.Whittlesey was told 20 that Butte County was handling SMARA enforcement regarding New Era Mine., 21 40. The Planning Commission again took up the New Era Mine matter at the 22 continued hearing on April 10,2008. The hearing was further continued until April 21,2008. 23 41. Mr.Michael Luksic,a Geologist with OMR,attended both hearings. He did not 24 offer any comment to the Commission. 25 42. At the end of the Planning Commission review the Planning Commission adopted 26 Resolution 08-24 requiring that Plaintiffs to obtain a revised mining permit which would also 27 require amendment of the existing reclamation plan. 28 43. On April 23,2008,Plaintiffs appealed the Planning Commission's-resolution to NORTH CCWnNW AMEM IRM COMPLAINT 6 I the Butte County Board of Supervisors C Board"}. 2 44. On April 25, 2008,the County submitted all documents related to the Placating 3 Camcnission's review,as well as a copy of the Commission's resolution,to OMR. 4 45, On May 27,2008,OMR offered to send a senior OMR representative to act as a 5 "SMARA expert"and provide comment to the Board. This expert was Mr.James pompy, 6 Reclamation Program Director for OMR. 7 46, On or about June 6,2008,a local environmental group Dry Creek Coalition filed 8 with DDS for public recordation the"Preliminary Evaluation of Hydrologic Effects ofthe New 9 Era Mine,Dry Creek Canyoa,Butte County,California"prepared by environmental consulting 10 form Hydrofocus of Davis,California. This report contained analysis of samples of water and 11 soil obtained from the New Era Mine site without North Continent's authorisation. In addition, 12 Ivlr. Steven Deveral,the preparer of the Hydrofocus Report,is not a licensed California hydro- 13 geologist 14 47. On June 10,2008,the Board held a public hearing to consider North Continent's 15 appeal of the Planning Commission's resolution. Mr.James Pompy,Reclamation Program 16 Director for OMR,appeared at the hearing, Comments from several of the Supervisors after 17 Mr. Pompy's presentation indicate that they found Mr.Pompy'$comments unpersuasive. In any 18 event,the Board hearing was continued in closed session until June 24,2008. 19 48. On June 14,2008,Michael Luksic of OMR sent an eman to the Dry Creek Road 20 residents Lucy Cooke,John Whittlesey and Rich Meyers. Cooke, Whittlesey and Meyers had 21 been,'and continue to be,the most vocal opponents of New Fra Mine. They are also the primary 22 members of the Dry Creek Coalition. Mr.Luksic wrote:"Thank you for all your good work and 23. perseverance. I'll be coming up to check on the fines,because my brother has houses upthere 24 too. Play some ping gong and pickup that file from Lucy Cooke. I know that most of those 25 submittals[from North Continent to the County during the administrative review process]were 26 redundant[sic]to baffle and distract us." 27 49. On June 24, 2008,the Board of Supervisors reconvened the hearing on the New 28 Era Mae and by a 3-2 vote adopted a"motion of intent"to adopt a resolution overturning the NORTH CON INEW AMENDED COMPLAM 7 : 1 Planning Commission's resolution and associated Order to Comply. In other words,the Board 2 of Supervisors upheld Plaintiffs' mining entitlements and determined that the New Era Mine was 3 in compliance with SMARA. 4 50. Until the Board's dune 24,2008 reversal of the Planning Commission's 5 resolution, OMR had been content to influence and manipulate the efforts and enforcement 6 activities of the County from behind the scenes. After the Board's decision OMR sought to 7 undermine the Board's decision thus abusing its authority winder SMARA. Further, OMR 8 enlisted New Era Mine opponents in those efforts. 9 51• • OMR even went so far as to attempt to extort$267,000 in financial assurances 10 from Plaintiffs. In a conversation with Plaintif i" legal counsel on June 25,2408, OMR's legal 11 counsel stated that Plaintiffs should post the financial assurances'even before the Board's final 12 decision as"a show of good faith"while,as OMR internal emails subsequently showed,OMR 13 was at that very moment preparing additional notices of violation to Plaintiffs and the County. 14 OMR's strategy was to wait until Plaintiffs posted the financial assurances before issuing a 15 notice of violation to Plaintiffs. 16 52. In the case of the County,however,OMR did not have any reason to wait A '17 mere two days-after the Board's overturning of the Planning Commission's resolution,on. 18 June 26,2008,OMR sent a SMARA 15-Day Notice to Butte County based on"the[Butte 19 County]Board of Supervisors' lack of appropriate action on the New Era Mine Orders to 20 Comply." 21 53. The June 26,2008 15-day Notice's contentions were all in direct contradiction to 22 the Board's findings and determinations adopted two days earlier on June 24,2008. OMR 23 asserted that time New Era Mine had been operated only`sporadically"and that"substantial 24 credible evidence was provided during the Butte County Board of Supervisors'hearing that cast 25 doubt as to whether or not New Era Mine was in production after 19902 OMR stated that the 26 New Era Mine had been"idle„as defined by SMARA,thus requiring that the New Era Mine 27 operator submit an Interim Management Plan and interim financial assurances. .OMR requested 28 that the County require the operator's submission of these items within 15 days. NORTH coNriNEw AMENDED COwLAIN T 8 1 54. Ten days later,on July 17,2008, OMR issued a second 15-Day Notice to the 2 County. This second 15-Day Notice repeated the,lune 26,2008, 15-Day Notice's allegations 3 verbatim. The only difference was the date by which the County was directed to respond was 4 extended to August 1,2008. .5 55. On July 28,2008,Michael Luksic of OMR placed a call to Barbara Vlamis, 6 Executive Director of the environmental group Butte Environmental Council('BEC'). 7 Mr.Luksic informed Ms.Vlamis of the status of the New Era Mine matter administrative review 8 process as well as informing her of the pending August 5,2008,decision of the Butte County 9 Board of Supervisors. Having exhausted its own limited legal authority,OMR invited BEC to 10 publicly oppose the New Era Mine and,further,file a'CFQA suit against Butte County(and 11 Plaintiffs as real parties in interest). This action is truly ominous in that it demonstrates that 12 OMR believes it is not bound by the rule of law and,in the event OMR cannot stop amine 13 operator it does not like,OMR will find somebody else--such as an environmental group--#o 14 oppose the mine operator. 15 56. 1►'h'.LuksWs efforts to enlist Ms.Vlamis and BEC were successful. BEC 16 submitted an opposition letter to the Board of Supervisors,and BEC attorney Keith Wagner 17 addressed the Board during the August 5,2008,Board nearing on New Era•Mine. In addition, 18 DEC subsequently filed a CEQA action against the County and Plaintiffs in Butte County 19 Superior Court.2 20 57. On August 5,2008,the Butte County Board of Supervisors officially adopted 21 Resolution 08-104("Resolution 08-104')determining that:(1)the New Era 1Vfining Permit 22 (Permit No. 81-135)is a valid entitlement; (2)the New Era Reclamation Plan is a valid 23 entitlement;(3)the current New Era Mine operation is is compliance with the scope of the 24 Permit and Reclamation Plan;and(4)the current operation is consistent with the adopted CEQA 25 Mitigated Negative Declaration and filed Notice of Determination. 26 58. Resolution 08-104 determined that the New Era Wore operators have provided 27 "affidavits,attestations,photographs and invoices [that]do provide evidence that the New Era 28 This action is pending. NORTH CONTINENT AMENDED COMpLAW 9 I Mine has not been idle as defined by SMARA section 2727.1." 2 S9. Resolution 08-104 also determined that `the New Era Mine has never been 3 abandoned as that teM is defined by SMARA section 2770(h)(6).27 4 60• Resolution 08-144 instructed North Continent to: (1)sign a Statement of S Responsibility acknowledging Nom Continent is operator for New Era Mine and res ons' 6 ensuring reclaa�aafion of the site is comP p feted off. P able for 7 assurance mechanism InininS;(2)establish a valid financial in accordance with SMARA section 2773.1(a)( )1 in the amount of 8 $267,411.3 6; (3)pay$50,000 to the Butte County Department of Development Services for costs 9 incurred by the Department in the disposition of the New Era Mine matter 10 Indemnity Agreement Inde � ,(4)execute an Ping the County should it be sued as a result of the Board's 1I decision. . I2 61, On August 6, 2008,the . County issued an Acknowledgment of Compliance that 13 North Continent had complied with all of the requirements of the Board's Resolution. . 14 62. On August 6,2008,Bret Koehler,Geologist with . OMR,spoke by telephone with' 15 Keith W8aer,attorney for the environmentalggroups Dry Creek Coalition and BEC. 16 Mr•Wagner asked what OMR intended to do in light of the Board of Supervisors o,e rt+nwng the 17 Planning as resolution and finding New Bra Mine in compliance with SMARA 18 W.Koehler told Mr. Wagner that OMR was waiting for the New Era Mine to 19 financial assurance of a ro -xumatpost the required pp ely$267,000 before issuing another Notice of Violation to 20 North Continent, 21 b3• On or about A _ ugust 19,2008,Michael Luksic of OMR contacted New Era Mine 22 Vice-President Frank Noland to request access to the New Era Mine can August 22 2008 f 23 inspection so as to investigate ate citizen faints concerning� or an com u p � 24 WNoland `tea g mpliance with SMARA. When questioned whether OMR had jurisdiction to perform such an*pe.ction given that 25 Butte County,not OMR, was the S - MARA lead agency for New Era hfMe,'Mr,Luksic stated that 26 OMR has authority to inspect any mine in California at gray time pursuant to Public Resource 27 code section 2208. s . 28 64. Public Resources Code section 2208 does not authorize such an inspection. NORTH CON7'IPlElVT A74tEAIp�p�Mp���.�, 10 1 65. Plaintiffs do not contend that OMR never has the authority to inspect for SMARA, 2 compliance. It does have such authority,but only in the event it has first taken the necessary steps to take over lead agency status from the locallead agency. Plaintiffmain contenton is 4 that OMR does not have plenary power to inspect for SMARA compliance at the same time as 5 the Focal lead agency. Were this not so a mine operator would be subject to competing lead 6 agency requirements-as has occurred in the instant case. 'There can be only one lead agency at a 7 time under SMARA 8 66. Eventually even OMR conceded as a point of law that section 2208 was not 9 applicable to inspections to assess SMARA violations. At that point,OMIT.invented additional 10 authority in the form of misinterpretation of SMARA inspection provisions,such as Public 11 Resources Code section 2774.1 and 2774,which are clearly and expressly applicable only to 12 SMARA lead agencies(in this case the County). 13 67. On or about August 19,2008,Michael Luksic of OMR contacted Claris Thomas, 14 Associate Planner with Butte County,to inform W. 'Phomas of the,upcoming August 22,2008, 15 Inspection"pursuant to Section 7208'•' Mr, Thomas initially indicated that he would attend the 16 inspection but the County-changed its positions and declined to attend the OMR inspection. On 17 August 19,2008,DDS staff stated;"As 18 of Violation procesyou know,Butte Cot�nty,�ust completed$lengthy Notice s is regards to the New Era hfine that resulted in the Board of Supervisors 19 deter;nining that Mining and Reclamation Permit 81-135 to be valid entitlements and the current 20 operation to be within the scope of those entitlements." 21 68. The County's went on to say:"Pursuant to Butte County Code Section 13-112(x) 22 and Section 2774(b)of[SMARAj the[County] staff is Preparing for the annual SMARA 23 inspections this September and October of all County mines—including the New Em—and we 24 will therefore not be accompanying you on your inspection this Friday." "Please let us know if 25. you would Re to accompany County staff when we conduct our SMARA inspection of the New 26 Era M=or any other County mine in the next couple of months.,, 27 69. At the same time,OMR continued to work behind the scenes to undermine the 28 County's authority under SMARA. On August 20-21,2008,Nfrchael Luksia of OMR sent an NoRTH C MnIpd NT AMENDED COMPLAINT tt I email to'Philip Woodward of the RWQCB stating that"the main deficiency is that we want a 2 new reclamation plan,that is compatible with the scale they are currently operating:' Mr.Luksic 3 also stated"the issue of[the Mine].being abandoned inthe'90s is not closed." Mr.Luksic made 4 these statements despite the fact that the Board of Supervisors' Resolution clearly found that the 5 New Era Mine had never been abandoned and that the current operation was within the scale set 6 forth in the Permit and Reclamation Plan. Mr.Luksic did not copy the County on lis August 20- 7 21 emails to Mr. Woodward. 8 70. Prior to August 20,2008,Mr.Woodward had conducted numerous mine 9 inspections at New Era Mine pursuant to his authority as a representative of the RWQCB. 10 Mr. Woodward had worked directly with North Continent and the County. OMR's notifications 11 of the upcoming August 22,2008-inspection was an effort by OMR to pressure Mr. Woodward 12 into coordinating his efforts with OMR instead of the County as lead agency. Such coordination 13 is contrary to Mr.Woodward's regulatory mandate and would only have created more regulatory 14 confusion for the RWQCB,County and North Continent. 15 71. On August 22,2008, OMR employees Michael Luksic,Brett Koehler and Kevin 16 Doherty conducted a site inspection at New Era Mine. 17 72. At that August 22,2008 inspection,Plaintiffs' legal counsel provided the OMR 18 employees with a letter informing OMR that New Era Mine utilizes proprietary and patented .19 technologies that are Protected.Properly pursuant to provisions of the California Uniform Trade 20 Secrets Act C UTSA")and/or SMARA and other laws. 21 73. On August 22,2008,OMR was firther informed by Plaintiffs'legal counsel,both 22 by letter.and orally,that unauthorized dissemination of information related to the Protected 23 Property is a violation of the UTSA and/or SMARA,and other laws. ' 24 74. Defendant OMR's August 22,2008,inspection of the New Era Mute site was 25 ultra vires as the inspection was for purposes for which OMR is not authorized by SMARA to 26 conduct inspections of surface mining operations. 27 75. On October 3,2008,OMR issued a Mine Inspection.Report("OMR Report") 28 including numerous photographs of the New Era Mine facilities and depicting Protected NORTH CONFWENr AMENDED CompLAINT 12 •1 Property. In the publicly-available OMR Report,OMR disclosed and disseminated photographs 2 depicting Plaintiff North Continent's confidential information and Trade Secrets. 3 76. On or about October 3,2008,OMR disseminated the confidential information and 4 Trade Secrets by providing copies of the OMR Report to the Dry Creek Coalition,among others. 5 77. On or about October 3,2008,the Dry Creek Coalition posted the OMR Report on 6 the Dry Creek Coalition's websites,including h :l/www.saveourcreek.coml and 7 httpJ/saveourcreek.weebly.com/. 8 78. As evidenced by a California Public Records Act Request response received from 9 OMR,OMR has in its possession approximately 400 photographs taken by OMR personnel 10 during the August 22,2008 inspection of New Era Mine. Many of these photographs divulge 11 North Continent's confidential information and Trade Secrets. These photographs have been 12 identified and cataloged by North Continent and will be provided,in camera/under seal,to the 13 Court as necessary. 14 79. On October 15,2008,North Continent sent a letter to Stephen Testa,Executive 15 Director of the State Mining and Geology Board,explaining in detail how the allegations set out 16 in OMR's October 3,2008,inspection report were unfounded or had been resolved. The letter 17 also explained how Section 2208 did not authorize OMR to conduct the August 22,2008 18 inspection. 19 S0. On October 17,2008,North Continent filed the initial Complaint in this action. 20 81. On October 24,2008,OMR issued a third 15-Day Notice to Butte County. This 21 15-Day Notice alleged six violations of SMARA at New Era h1iine,based on O1VSR's August 22, 22 2008 Inspection and October 3,2008 Inspection Report, 23 82. On October 29,2008,the County conducted is annual SMARA lead agency 24 inspection of the New Era Mine. Although the County mine inspector paid particular attention to 25 the alleged violations noted by.OMR,he could not find any-violations of SMARA at New Era 26 Mine. 27 83. On November 4,2008,the County sent a letter to OMR explaining that the 28 alleged violations identified in the October 24,2008, 15Day Notice had been resolved. NOR'ni CONi&w4rAMENDED compLAw 13 .1 84. On December 12,2008,OMR sent a letter to the County in response to the 2 County's November 4, 2008,letter to OMR communicating that the SMARA Violations at New 3 Era Mine had been resolved. OMB's response letter stated that OMR`disagreed"with the 4 County's determinations. OMR's response letter also questioned the credentials of the County's 5 SMARA inspector. The County's SMARA inspector,Philo Hunt,is a registered professional engineer. None of the OMR personnel who conducted the August 22,2008,inspection is a 7 registered engineer or a certified engineering geologist. 8 FIRST CAUSE OF ACnON 9 Declaratory Relief,•Against Defendant off of Maze Reciamatian; Ultra Vires 10 Inspection Not Authorized by SMARA 11 85. Plaintiffs repeat and reallege the allegations set forth in paragraphs l through 84 12 above, as if set forth fully herein. 13 86. An actual controversy has arisen or now exists between Plaintiffs North Continent 14 and New Era Mining and Defendant OMR concerning whether OMR has the authority under 15 SMARA to inspect surface mining operations in jurisdictions where OMR is not SMARA lead 16 agency for purposes of investigating or ascertaining violations of SMARA,as OMR did in the 17 August 22,2008,inspection at New Era Mine. 1$ $7. PIainttffs contend that OMR is without authority to issue reports alleging 19 violations of SMARA, absent designation as lead agency,and that this authority rests solely with 20 the County as SMARA lead agency until such time as that authority has been legally transferred. 21 88. OMR states that it had authority to conduct the August 22,2008,Inspection 22 pursuant to Public Resources Code section 2208. . 23 89. Public Resources Code section 2208 states. The director[of the Department of 24 Conservation]or a qualified assistant may at any time enter or examine any and all mines, 25 quarries,wells,mills,reduction works,refining works, and other mineral properties,or working 26 Plants in this state in order to gather data to comply with the provisions of this chapter.- {Pub. 27 Res.Code §2208.) 28 90. Section 2208 is a general authorization of the California Division.of Mines and NORTH CONTINENT AMENDED COMPLAINT 14 I Geology. In January 2002 the Division of Mimes and Geology was renamed the California 2 Geological Survey,which is an entirely separate governmeatal agency from the State Mining and 3 Geology Board and/or OMR 4 91. Section 2208 is not contained within SMARA. 5 92. The chapter referred to in Section 2208 is Chapter 2. (AMARA is Chapter 9). 6 Thus, Section 2208's language referring to ,gather[ing, data to comply with the provisions of 7 this chapter"refers to Chapter 2. 8 93. The enumerated data-gathering purposes set forth in Chapter 2 include: 9 (1)collection of geologic specimens for the California State Mining and Mineral Museum; 10 (2)collection of data as necessary to develop state-wide mitigation programs and emergency 1 l response measures;(3)data required to prepare reports to the Govemor;(4)data and statistics for 12 state-wide studies and identification of mineral deposits within the State; (5)the collection of 13 ores for display at any exposition or world fair;and(6)data necessary to conduct state-wide 14 hazard assessments. (Pub.Res. Code§§ 2201,2202,2203,2205,2206,2211.) 15 94. Public Resources Code section 2208 does not authorize OMR to conduct 16 inspections to inspect alleged violations.of SMARA received through citizen complaints. 17 95. The jurisdiction to conduct SMARA inspections ties solely with the SMARA lead 18 agency. (Pub.Res.Code §2200.5;Pub.Res.Code§2774.1(f).) 19 96. OMR is presumed to have knowledge and understanding of the laws it is charged 20 to administer. 21 97. To the extent that OMR's stated authority has evolved from the originally-stated 22 Section 2208 to include Public Resources Code Section 2774.1{a},Plaintiffs also dispute that this 23 provision grants OMR authority to inspect surface mining sites when OMR is not lead agency. 24 Section 2774.1(a)refers to inspections required under public Resources Code section 2774(b). 25 Section 2774(b)requires that the lead agency must inspect a surfacemining operation at least 26 annually. (Emphasis added) The purpose and scope of annual Iead agency inspections required 27' by Section 2774(b)are further clarified by regulation. 14 CCR§3502 requires a surface mining 28 inspection to determine compliance with SMARA by"the lead agency or the(State Mining and NORTH coNTiNEIai•AivfENOgD compLAW L5 I Geology)Board if the Board is lead agency." (14 CCR§ 3502(a),emphasis added.) Further,the 2 regulation requires that the surface mining operator be given ten days notice of any inspection 3 and be provided an inspection report within 30 days after the date of inspection. OMWs 4 August 22, 2008 inspection did not comply with either of these requirements. Thus,even if 5 Section 2774.1(a)did authorize OMR inspections of mine sites even where SMGB is not lead 6 agency,OMR violated North Continent's due process by failing to provide adequate notice or a 7 timely inspection report. 8 98. The August 22,2008 Inspection and the October 3,2008,inspection report were 9 conducted and prepared by Bret'Koehler,Michael Luksic and Kevin Doherty of OMR In the 10 report Koehler, Luksic and Doherty allege violations based on mine-engineering principles.Yet 11 neither Koehler,.Luksie nor Doherty is a"registered professional engineer"or"certified 12 engineering geologist." Koehler is a"registered geologist,"Luksic is a"registered geologist" 13 and Doherty is a"professional geologist:, 14 99. In a declaration filed with the Court by Mr.Koehler earlier in this Litigation 15 Mr.Koehler stated that his qualifications include being a licensed"senior engineering geologist" 16 He also stated he was a""professional engineer," In fact,W. Koehler holds no such 17 credential(s). 18 100. OMR has caused surface mining inspections wherein engineering-based 19 allegations of non-compliance with SMARA have been alleged but the inspections were 20 conducted by personnel who do not have professional engineering certifications. 21 101. OMR engaged in activities(the August 22,'2008 inspection and.subsequent 22 report)to the detriment of North Continent and sought legal justification of such activities 23 subsequent to engaging in such activities where no legal authority exists. 24 ECOND CAUSE OF ACTION 25 Declaratory Relkf..SMARA Enforcement Autlior4 26 102. Plaintiffs repeat and reallege'the allegations set forth in paragraphs 1 through 101 27 above as if set forth fully herein. 28 103. An actual controversy has arisen or now exists between Plaintiffs and Defendant NORTH CONTINENT AMENDED COMPLAINT lb •1 OMR regarding the extent of enforcement jurisdiction available to OMR in prosecuting .2 violations of SMARA,when OMR is not SMARA lead agency. 3 104. SMARA is a"home rule"statute,vestingrim Primary enforcement authority in the 4 lead agency. Here the lead agency is Butte County. There are only two situations im which 5 OMR may supplant the Dome rule authority of the County:(1)the SMGB takes over lead agency 6 authority entirely on the basis of one or more of six.specific criteria and pursuant to substantial 7 legal process; and (2)in cases where SMGB is not lead agency and either(a)the lead agency has 8 been notified in writing of a violation for at least 15 days and has not taken appropriate 4 enforcement action or(b)the Director of the Department of Conservation determines a violation 10 exists which amounts to an imminent and substantial endangerment to the public health or safety, I1 or to the environment. (Pub.Res. Code§2774.4;Pub.Res. Code §2774,1(f).) 12 105. As of the date of the filing of this amended complaint,SMGB has not taken over. 13 lead agency status from Butte.County. 14 105. Butte County is the lead agency for SMARA purposes and Plaintiffs' compliance 15 with SMARA,as evidenced by determinations made by Butte County,constitutes full 16 compliance with SMARA. 17 107. Plaintiffs further contend that the County has exercised and exhausted"all 18 appropriate enforcement action'under SMARA as regards New Era Mitre. The County 19 conducted multiple inspections,held multiple public hearings and prepared detailed written 20 findings. 21 108. The County's legal process ultimately resulted in a&ding by the SMARA lead 22 agency adjudicatory body that North Continent was in complete compliance with SMARA does 23 not permit OMR to notify the lead'agency claiming the lead agency has failed to take action. 24 109. Plaintiffs contend that as a matter of law,the issuance and validity of a mining 25 permit and reclamation plan is exclusively within the authority of SMARA lead agency and 26 cannot be superseded by OMR or the State Mining and Geology Board("SMGB')absent SMGB 27 becoming lead agency pursuant to the procedure set forth in SMARA section 2774. 28 110. Butte County is SMARA lead agency and has primary authority over SMARA NORPHCotd77NFEm At►�NDEDCaMPl.A[iVf 17 1 enforcement for New Era Mine. OMR is not lead agency and does not approve permits or 2 reclamation plans,3 3 111. Even in instances where SMGB has assumed the role of SMARA lead agency for 4 enforcement purposes pursuant to SMARA section 2774 the lead agency's prior determinations . 5 regarding permits and reclamation plans cannot be superseded or reversed by SMGB. 6 112. Moreover,the New Era Mine's entitlements have been thoroughly reviewed by 7 the SMARA lead agency adjudicatory body, 8 113. The Butte County Board of Supervisors held public hearings and,following a 3-2 vote in favor of Plaintiffs a . f �adopted P lengthy Resolution and findings on August 5,2008, 10 rejecting the same violations alleged by Defendant OMR in the June 26,200$,OMR 15-6ay 11 Notice and affirming the validity of Plaintiffs'mining entitlements and compliance with 12 SMARA. 13 114. The Board also determined that the New Era Mine has been in continuous 14 15 operation since 1982 and is an active mine under SMARA definitions. 115. Plaintiffs have posted a financial assurance.mechanism in the amount of the 16 17 financial assurance cost estimate generated by the County and approved by OMR The financial 18 assurance mechanism(irrevocable letter of credit)has been approved by the County. 19 116. '- Furthermore,in fact Plaintiffs are engaged in concurrent revegetation and 20 reclamation;at New Era Mine,which can be demonstrated by reports prepared by Plaintiffs' 21 mining engineers and environmental consultants, 22 117. As respects New Era Mine,Butte County has not been operating in a vacuum. At 23 all times relevant OMR was involved in the enforcement activity relating to New Era Mine. . - . 24 118. OMR was copied on formal correspondence concerning the New Era Mine and 25 was kept informed by of matters concerning New Era Mire by both the County and North Continent. 26 27 119. OMR representatives including Michael Luksic,Bret Koehler,Greg Tenerio, 28 a Dennis O'Bryant,Director of OMR,,expressly stated in a public Records Act request response received by Plaintiffs that OMR does not approve reclamation pians or permits. NORTH CON TTNEn AMENDED COMPLAINT 18 I James Pompy,Douglas Craig,Cy Oggins,Kevin Doherty and Dennis O'Bryant were in direct 2 contact with County personnel throughout the administrative review process. 3 120. OMR representatives participated in Butte County's pre-enforcement and 4 enforcement activities concerning the New Era Mine, 5 121. OMR maintained a supporting role to the County with regard to New Era Mine 6 prior to the Board of Supervisors adopting Resolution 08-104, It was only after the Board 7 adopted its Resolution,incorporating findings at odds with the personal agendas of certain 8 personnel at OMR,that OMR Megan to undertake enforcement actions iii contradiction to the 9 enforcement actions undertaken by the County. 10, 122. As a result of(1)OMR's complete knowledge of alk matters pertaining to the 11 New Era Nfine,including,but not limited to,the County's and.North Continent's exhaustion of 12 . all SMARA,lead agency due process requirements,(2)OMR's failure to act after issuance of the 13. June 26,2008 15Day Notice within the timeframe for compliance set forth therein,(3)OMR's 14 failure to act after issuance of the July. 17,2008, l5-Day Notice within the timeh me.for 15 compliance set forth therein, and(4)the Board of Supervisors' SMARA lead agency final 16 resolution affirming the New Era Mine's compliance with SMARA,both Butte County and 17 North Continent have been,and are,reasonably entitled to rely on the validity of the County's 18 SMARA Lead agency determination that New Era Mine is in complete compliance with the 19 requirements of SMARA. 20 123. North Continent has relied on the validity of the SMARA lead agency's 21 determination that New Era Mine is in complete compliance with SMARA by expending 22 substantial sums of money and other resources in operating New Fra Mine and related 23 businesses. 24 124. OMR has'engaged,and,based on OMR's December 12,2008, letter to the 25 County,has intent to further engage in the following activities:(1)conducting inspections of the 25 New Era Mine independent of the SMARA lead agency,(2)preparing SMARA lead agency 27 inspection reports(MRRC-2)despite not being SMARA lead agency;{3)taking enforcement 28 actions and reporting activities that duplicate and/or contradict the activities of the County which NORTH CON 04MT AMENDED COMPLAINT 19 I is SMARA lead agency;(4)declining to take any action pursuant to Public Resources Code 2 section 2774.4 to relieve SMARA lead agency(Butte County)of its lead agency status; 3 (5)disregarding the legal process'to which North Continent has already been subjected by the 4 lead agency; and(6)disregarding the SMARA lead agency's deternunation that the New Era 5 Mine is in current compliance with SMARA. THIRD CAT LSE OF ACTION 7Yw14tion of the Californla Uniform Trade Secrets Act(Civil Code§3426 et seg.) 8 125. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 124 9 above,as if set forth fully herein. 10 125. Plaintiffs are each engaged in the business of•. (i)designing, constructing, 11 repairing,operating,buying,and selling machinery and other equipment;(ii)designing, 12 constructing,repairing, operating,buying,and selling placer mines;(iii,)designing,constructing, 13 repairing,operating,buying,and selling mills and other plants for the processing of mineral ores; 14 (iv)earthmoving and environmental remediation; and(v)real estate,natural resource,and 15 mineral manageumrent. 16 127. Plaintiffs have invented,developed,and/or acquired various implements,designs, 17 methods, and processes in the Plaintiffs' business that are proprietary and of substantial value to 18 Plaintiffs,as well as unearthed certain mineral ore bodies on the New Era Mine site that when 19 photographed or observed aerially and studied reveal information about the value of the New Era 20 Mine that is proprietary and of substantial value to plaintiffs("Trade Secrets'). 21 128, Plaintiffs have taken all available and reasonably foreseeable precautions to 22 protect the confidentiality of its Trade Secrets and to prevent the unauthorized or public 23 disclosure of the Trade Secrets,including,but not limited to,seeking patent protection, 24 restricting access to the New Era Mine site,notifying persons who visit the New Era Mine site of .25 the confidential nature'of the Trade Secrets,and prohibiting unauthorized persons from 26 photographing or otherwise recording the Trade Secrets. Plaintiffs have marked all 27 documentation relating to the Trade Secrets as confidential when Sled by Plaintiffs with 28 regulatory authorities. Plaintiffs have further requested confidential treatment of all Trade NORTH coN WEN'i'AMENDED COMPLAINT 20 I Secrets in information provided by Plaintiffs to all regulatory authorities. Plaintiffs have patents 2 and pending patent applications regarding the Trade Secrets. 3 129. Defendant's actions have violated the California Uniform Trade Secrets Act 4 (Civil Code§3426 et seq.)through knowingly and illegally obtaining and subsequently S disclosing and disseminating confidential information and Trade Secrets related to the New Era 6 Mine and associated businesses. 7 130. Due to Defendant's illegal and/or improper activities,North Continent has 8 sustained economic damages according to proof at trial. 9 131. North Continent requests that this Court award damages iii favor of North 10 Continent and against Defendants according to proof at trial. 11 FOURTH CAUSE OF ACTION 12 Back-dated Production,Reports:Satisfaction and Accord 13 132. -Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 131 14 above,as if set forth fully herein. 15 133. The New Era Mine Permit and Reclamation plan were approved in 1982. Neither 16 the County nor OMR conducted an,annual inspection of the New Era Mine between 1982 and 17 2005. 18 134. SW2 A also requires that the mine operator provide annual production reports to 19 OMR However,this requirement became effective only in 1991. 20 135. Mr. Logan had not submitted production reports from 19912006. Mr.Logan was 21 unaware that SMARA bad been amended in 1991 to require an operator's filing of such reports. 22 In large part Mr.Logan was unaware of the change in the law because New Era Nfine had not 23 been subject to annual inspections by the SMARA lead agency(Butte County)and therefore the 24 lead agency had not.nformed Mr.Logan of the change. 25 136• OMR permits SMARA annual reports to be submitted only on a form,MRRC, 26' that is created by OMR for each specific reporting year. 27 137. OMR policy is to mail the appropriate NRRC to each mine operator far 28 completion and filing for each speck reporting year. Plaintiffs have found no evidence in the NORTH CONTMENr AMENDED COMPLAWr 21 1 records maintained by the New Era Mine,the records of the predecessor operator,the records of 2 the lead agency or the records of OMR that New Era Mine was the subject of any letter from 3 OMR addressing a failure to file annual production reports. 4 138. Compliance with the annual reporting requirement is good,but there are many S operators who,for whatever reason,do not respond to OMB's request for a completed MRRC 6 form. In 2006,the State Mining and Geology Board reported the receipt of 1,304 MMC annual 7 reports. OMR forwarded 131 letters to mine operators for failure-to file annual reports. 8 (Conformed Minutes, SMBG,November 8,2007). 9 139. On May 19,2008,OMR sent a Notice of Violation MOV")to North Continent 10 and New Era Mine property owner Ron Logan. The NOV requested that North Continent and/or 11 Mr.Logan submit past annual production reports as had been required by SMARA since 1991. 12 140. Before OMB's issuance of the May 19,2008,NOV,OMR and North Continent 13 had discussed the matter in informal communications.'North Continent had made OMR aware 14 #hat North Continent had become involved with the New Era Mine only in 2007 and that 15 Mr.Logan had not kept production reports for the period prior to 2007. Therefore,neither North 16 Continent nor Mr.Logan could provide precise production figures for 1991-2006. 17 141. Accordingly,in the NOV,OMR stated;"[a]s a matter of administrative 18 convenience and to facilitate future compliahce with SMARA;the OMR will accept annual 19 reports and fees from 1994 to the present." The NOV went on to state that OMR estimated that . 20 annual production at the New Era Mine had been 10-50 ounces of gold and,utilizing this 21 estimate,OMR was assessing fees and interest in the amount of$8,769.13. 22 142. Under SMARA,production fees are based on a specific range of production. The 23 fees are the same for any volume within a set range. In the NOV the production range OMR 24 used-in arriving at the estimated fees was 10-50 ounces. The production fees would be the same 25 whether actual annual production was 10 ounces or 50 ounces. 26 143. Unddr SMARA,gold and silver fees are calculated per actual ounce produced 27 annually,not within a range. .28 144. The NOV also provided a resolution mechanism for the fees on gold and silver NORTH CONTW ENT AMENDED COMPLAINT 22 'I production in that gold and silver production would be based on an estimate within the 10-50 2 ounce range. To simplify the calculations,North Continent estimated annual production at the. 3 upper end of the range provided by OMR, 50,ounces,and remitted gold and silver fees to OMR 4 based on that production. The gold and silver fees totaled$9,519.33. . 5 145. The NOV was clearly meant to be an offer in compromise. In fact,the NOV 6 ordered North Continent to use the estimates provided by OMR so as to come into compliance 7 with SMARA. 8 146. At the request of OMR,North Continent compiled and submitted annual reports 9 for the years 1994-2006 based on the best available information available to North Continent and 10 provided that to OMR Thus,North Continent fully complied with the OMR NOV and accepted 11' the offer in compromise thereby fully performing the terms of the contract. . 12 147. OMR accepted North Continents production reports and fees paid by North 13 Continent for 1994-2006. The matter was resolved. 14 148. - Nevertheless, OMR reneged on the deal once Butte County Board of Supervisors 15 determined that the New Era Mine was completely compliant with SMA.RA. 16 149. In a July 7,2008,letter OMR stated;"(w]hile it may be difficult to reconstruct the 17 history of production for mining operations,it is nonetheless necessary that a more accurate 18 production history be documented." OMR is aware that such additional documentation does not 19 exist. This is why the Post-dated reports provided by North Continent were originally demanded 20 by OMR 21 150. In addition to being a regulatory order,punishable by fines and penalties had 22 North Continent not complied,OMR's NOV was an accord which North Continent's 23 performance of the requested action satisfiel. (See,Civ.Code§ 1521.) 24 151. Moreover,the elements of an accord are-the same as the elements of a contract 25 and therefore the resolution mechanism suggested by OMR was a voluntary settlement contract 26 between North Continent and OMR Because North Continent fully performed,OMR cannot 27 28 I Added to the financial assurances posted pursuant to the Butte County Board of Supervisors'Resolution,North Continent has provided OMR with over$300,000. NoRrtT CONTINENT AMENDED COMPLAINT 23 I now repudiate the contract 2 • 152. Finally, OMR's attempts to make farther requests relating to the production 3 reports and fees covered by the settlement contract without such conditions being preconditions 4 to the requests with which North Continent has complied constitutes a preemptive breach of the 5 settlement contract. 6 153. Since North Continent relied to its detriment in entering into the settlement 7 contract with OMR,OMR should be compelled by this Court to comply with the terms of the 8 contract. 9 154. To the extent that OMR fails to comply with the terms of the contract,North 10 Continent contends that OMR is in breach. 11 FIFTH CAUK OF ACTION 12 Estoppel 13 155. . Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 154 14 above,as if set forth fully herein. 15 156. OMR has been aware of the enforcement activity respecting New Era Mine since 16 at least December 2067. 17 157. From December 2007 to August 2008,OMA continually told Noxth Continent 18 that the County was SMARA Iead agency for New Era Mine and that North Continent must 19 comply with enforcement directives from the County. 20 158. Asa result of OMR's directive to work with the County on SMARA compliance 21 requirements,North Continent engaged the administrative procedures and remedies available 22 under the County's review procedures. 23 159. At the conclusion of this SMARA lead agency administrative review process the' 24 Board of Supervisors found that the New Era Mine was completely compliant with SMARA. 25 160. . North Continent has relied,to its detriment,on the validity of the SMARA lead 26 agency's determination that New Era Nine is in complete compliance with SMARA by 27 expending substantial suns of money and other resources in operating New Era Mine and related 28 businesses. NoaTN CD"NMfr AHRMED COMPLAINT 1 161. As a result of OMR's knowledge and involvement throughout the review process, 2 OMR's failure to take action tinder any of the several 15-4y notices,and North Continent's 3 detrimental reliance on the County's determinations of compliance with SMARA, OMR should 4 be estopped from pursuing any enforcement action on the basis of the alleged violations set forth 5 in the October 3,2008 Inspection Report or the 15-day notices. 6 SIXTH CAUSE OF ACTION 7 OAM VIAlations of the Business and Professions Code 8 162. Plaintiffs repeat and realtege the allegations set forth in paragraphs 1 through 161 g above,as if set forth fully herein. 10 163• The July 17,2008,OMR 15-Day Notice to the County(the second Notice)was 11 signed by"Bret M.Koehler,P.G.7042,Senior Engineering Geologist,Compliance Unit 12 Supervisor." 13 164. The licensure requirements for a"Certified Eingineering Geologist"is 14 substantially and materially different than that of a"Professional Geologist"requiring that"An 15 applicant for certification in a specialty in geology shall meet all of the requirements of Section 16 7841 and, in addition,his seven years of professional geological work shall include one of the 17 following: (a)A minimum of three years performed under the supervision,. . .of a registered 18 civil engineer if the applicant is seeking certification as an engineering geologist. . . ." (Bus.and 19 Prot Code§7842.) 20 165. A California geologist licensee is prohibited from"misrepresent[ing] or 21 PerM41'191 the misrepresentation of his or her professional qualifications,affiliations;or 22 purposes,or those of the institutions,organizations or other businesses with which they are 23' associated." (CCR§3065(c)(1).) 24 166, A Internet search of California Department of Consumer Affairs,Board for Geologists and Geophysicists website;reveals that Bret M.Koehler is a"Professional 26 Geologist,"not a"Certified Engineering Geologist." 27 167. Bret 11+i.Koehler,OMR staff,misrepresented his status as an engineering 28 geologist to the Butte County Department of Development Services in the July 17,2008,OMR 15-Day Notice to the County,among other times. NoRTH coNTaiim Awxmm coMPLAW 1 168. Bret M. Koehler,OMR staff,misrepresented his status as an engineering 2 geologist to the Court in a sworn declaration he filed in this litigation on December 24,200's. 3 169. Also in that declaration W.Koehler represented that he, Michael Luksic and 4 Kevin Doherty were professional engineers stating:"1,along with two other professional 5 engineers from OMR inspected the New Era Mine." Neither Koehler,nor Michael Luksic nor 6 Kevin Doherty(the two other OMR representatives who conducted OWs August 22,2008 7 inspection)is a certified or registered professional engineer. Therefore,Mr.Koehler committed 8 perjury before this Court. . 9 170, A California geologist licensee"shall only express professional opinions which 10 have a basis in fact,are within the scope of the licensee's own experience or knowledge,and are 11 generally accepted geologic or geophysical principles." (CCR§ 3065(cX5).) 12 171. Bret M. Koehler,OMR staff,is not and,at all times relevant to the period 13 addressed in this Complaint,has not been legally qualified to make certain of the-allegations 14 made by OMR against Plaintiffs that involve the'expertise of a Certified Engineering Geologist, 15 such as the grading of land at the New Era Mine site. 16 172. On information and belief; Plaintiffs contend that the perjurious and 17 misrepresentative testimony of Bret M.Koehler respecting operations at New Era Mine was 18 accepted by the Court in its previous rulings in this litigation 19 173. Violations of licensure requirements and prohibitions,such as the"Unauthorized 20 use of Certified Geologist title"are prosecuted by the California Department of Consumer 21 Affairs,Board for Geologists and Geophysicists,.and may result in citations and fines up to 22 $5,000 per violation and license probation;suspension or revocation. 23 174. - Bret M. Koehler,OMR staIX violated the California Professional Code in his . 24 dealings with the Court,Butte County and Plaintiffs in connection with the New Era Mune. 25 175. On July 3,2008,Defendant OMR issued a letter regarding Defendants submission 26 ' of SMARA annual reports and fees for the years 1994 thru 2006,which was signed by"Mike 27 Luksic,PO 7310,Engineering GeoIogis%Compliance Section"and copied"Chris Thomas,Butte 28 County,""Alicia Johnson,OMI,,"and"Greg Tenorio,DOC Senior Staff Counsel." NORTH CONMENr air EMED coMei.ntrrr 26 1 176. On July 7, 2008,Defendant OMR issued a letter regarding Defendants submission 2 of SMARA annual reports and fees for the years 1994 thru 2006, which was signed by"Mike 3 Luksic,PG 7310,Engineering Geologist,Compliance Section"and copied"Chris lbornas,Butte 4 County,""Alicia Johnson,OMR.,"and"Greg Tenorio,DOC Senior Staff Counsel." 5 177. A search of the California Department of Consumer Affairs'Board for Geologists 6 and Geophysicists records reveals that Michael Martin Luksic is a"Professional Geologist,"not 7 a"Certified Engineering Geologist." 8 178. Michael Luksic, OMR staff,is not and,at all times relevant to the period 9 addressed in this Complaint,has not been legally qualified to make certain of the allegations 10 made by OMR against Plaintiffs that involve the expertise of a Certified Engineering Geologist, 11 such as the grading of land at the New Era Mine site, 12 179. Michael Luksic,OMR staff violated the California Professional Code in his 13 representation to Butte County and Plaintiffs in connection with the New Era Mine. 14 180. The violations of the California Professional Code by OMR staff,acting under 15 color of law on behalf of Defendant OMR,were to the detriment of Plaintiffs by misrepresenting 16 to.this Court,Butte County,and the public at large the credibility of(i)the ultra vires actions of 17 OMR, (ii)the results of OMR's actions,and(iii)'tl=enforcement/remedial activities OMR 18 directed toward the New Era Mine. 19 RHAYER FOR RELIEF 20 WHEREFORE, Plaintiffs pray for judgment against Defendants and each of them as 21 follows: 22 1. For a judicial determination that OMR is without legal authority to inspect the 23 New Era Mine site for the purpose of investigating complaints and/or issuing violations pursuant 24 to Public Resources Code section 2208 and that reports alleging violations pursuant to such 25- inspections are null as a matter of law. 26 2. For a judicial declaration that OMR is not the SMARM lead agency for Butte 27 County and/or New Era Mine. Further,as a result of not being Butte County SMARA lead 28 agency,OMR must conduct its enforcement actions in consistency with the lead agency's NORTH CON'rMEW AWMED COMPLAINT 27 I determinations unless or until OMR/SMGB becomes SMARA lead agency for Butte County 2 pursuant to SMARA Section 2774.4, 3 ' 3. For a judicial declaration that if OMWSMGB seeks to become SMARA lead 4 agency for Butte County pursuant to SMARA Section 2774.4 it must become SMARA lead 5 agency for all surface mining operations within the County and that SMARA Section 2774.4 6 does not authorize OMRISMGB to become SMARA lead agency for any single surface raining 7 operation within the County. 8 4. For Judgment against any and all Defendants,jointly and severally,for damages 9 according to proof at trial; 10 5. For attorney's fees and for costs of suit incurred herein;and 11 6. ' For such other and further,relief as the Court deems just and proper. 12 Respectfully submitted, i3 Dated: February 2,2049 SCHARFF,BRADY&VINDING 14 r By: e. klJ 15 MICHAEL V.BRADY BLAIR W. WILL 16 Attorneys for Plaintiffs NORTH CONTINENT LAND&TIMBER, 17 INC.and NEW ERA MINING,INC. 18 19 20 21 22 23 . 24 25 26 27 , 28 NORTH CONTM M AMENDED COMPLAINT 28 EX MBIT A P 14 l t o y'? "?t3`r`''�'; {';: ,.' f�'•. ; : ? ::, ' STATE OF CALIFORNIA rs. ,:,n • r ,. s:+.,+,^, t ,r r ARNOLD SCMARZENEGGER,Governor ROSARIQ 14WRIN GOVERNMENT CLAIMS PROGRAM Secretary 400 R Street,a Hoar#Sacramento,Califomla 95511 state and Consumer Services Agency MalMng Address:P.O.Box 3035 t Sacramento,Catft rnla 95512 Chafrp=sw Tall Free Tetephone Number 1-500.955.0045•Fax Number:(915)491.6443 JOHN CHIANG Inlaw:Wsy,%CSh&"Sa State Controller Board Member MICHAF..LA.RANIOS Blair Will San 9emardtno County OIsbidAflomey Board Member Scharff, Brady&Vinding JULIENAl19MAN 400 Capitol Mall, Ste. 2640 Executive Offiner Sacramento,CA 95814 January 30, 2009 RE: Claim G578595 for North Continent Ladd&Timber,Inc. Dear Blair Will, The Victim Compensation and Government Claims Board rejected your claim at its hearing on January 21, 2009. If you have questions about this matter, please mention letter reference 118 and claim number 6578595 when you call or write your claim technician or analyst at(840)955-0045. Sincerely, a !ne B.Tnetti, rogram Manager Government Claims Program Victim Compensation and Government Claims Board cc: A-51 Conservation,Attn: Ken Lehn Warning "Subject to certain exceptions, you have only six months from the date this notice was personally delivered or deposited in the mail t6flle a court action on this claim." See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney,you should do so immediately". It is not necessary or proper to include the Victims Compensation and Government Claims Board (Board) in your court action unless the Board was identified as.a defendant in your,original claim. Please consult Government Code section 955.4 regarding proper service of the summons . Ur 118 Board Claim Rejection 1 Matter: North Continent Land& Timber,Inc., et al. v. California Dept. of Conservation,et al. Superior Court of California, Co=of Sacramento Case No.34-2008-00024823 2 3 PROOF OF SERVICE" 4 I,Laurie C.Briggs declare: S I am a citizen of the United States,employed,over the age of eighteen years,and not a 6 party to nor interested in the within entitled cause. I am an employee of Scharff,Brady&. 7 Vinding,located at 400 Capitol Mall,Suite 2640,Sacramento,California 95814. g On February 2,2009,I served the attached,and all exhibits thereto: 9 FIRST AMENDED COMPLAINT 10 X BY U.S.MAU,,[C.C.P. §1013(a)]by enclosing one copy thereof in a sealed envelope,with postage thereon fully prepaid. I am readily familiar with this 11 fur's practice for the collection and processing of correspondence for mailing with the United States Postal Service,and that said correspondence is deposited 12 with the United States Postal Service on the same day in the ordinary course of business. Said correspondence was addressed as set forth below. 13 BY U.S.MAIL CERTIFIED [C.C.P.§1013(a))by enclosing one copy thereof 14 in a sealed envelope,with postage thereon fully prepaid,and depositing with the United States Postal Service for mailing via certified marl.,return receipt 15 requested,upon the person(s)or the office of the person(s)at the address listed below. 16 BY PERSONAL SERVICE [C.C.P.§10111 by personally delivering one copy '17 thereof to the person and at the address set forth below. 18 by causing personal delivery of one copy thereof upon the person or the office of the person at the address listed below. 19 BY OVERNIGHT DELIVERY[C.C.P §101.3(d)] by placing a true copy 20 thereof enclosed is a sealed envelope withdelivery fees provided for delivery via United Parcel Service(Priority Overnight)upon the person or the office of the 21 person at the address listed below.. 22 BY FACSIMILE [C.C.P.§1013(e)]by sending a true copy via facsimile transmission (by use of facsimile macbine telephone number 916-446-7159)of 23 the above described document(s)to the interested parties,at the facsimile numbers listed below. The facsimile machine I used complied with California 24 Rules of Court,Rule 2004,and no error was reported by the machine. 25 BY ELECTRONIC SERVICE[C.C.P. §1010.61 by electronically mailing a true and correct copy through Schuf# Brady&Vinding's electronic mail system 26 to the e-mail address(es)set forth below,or as stated on the attached service list per agreement in accordance with C.C.P§1010.6. 27 28 PROOF OF SFAVICE I PARTIES SERVED: 2 Edmund G.Brown Jr. Attorneys Lor De endanf Attorney General of California California Department of Conservation 3 Denise Ferkich Hoff nan Office of Mine Reclamation Supervising Attorney General 4 Jan Zabriskie Mark J.Urban 5 Deputy Attorneys General 13001 Street,State 125 6 P.0.Box 944255 Sacramento,CA 94244-2550 7 Fax; 916-327-2319 8 9 I declare,under penalty of perjury under the laws of the State of Califomia,that the 10 foregoing is true and correct. Executed at Sacramento,California,on February 2,2009. 11 • 12 I�surie C.Briggs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 z- PROOF OF SERVICE