Mad River Union
HUMBOLDT – Juggling the input of legal staff and an attorney representing mining companies, the Board of Supervisors has completed its review of the mineral resources section of the General Plan Update.
Though the conditions of in-stream gravel mining are regulated by state agencies and controlled by laws like the Surface Mining and Reclamation Act, the wording of update policies is of intense concern to mining companies.
That’s why the Mercer-Fraser Company and Eureka Readi-Mix hired attorney Mark Harrison to represent them when supervisors took up gravel mining at a Sept. 22 update hearing.
The concept of “vested rights” – which define the maximum level of gravel mining associated with specific properties – provoked debate on several policies.
Before reviewing them, supervisors heard a presentation by Randy Klein of the County of Humboldt Extraction Review Team (CHERT), which does field reviews of mining proposals and advises agencies on them.
Klein’s presentation chronicled CHERT’s history from its origin in the early 1990s, when regulation of mining provoked what was known as the “Gravel Wars.” The fledging CHERT was sued for not allowing mining up to vested rights levels but the county provided legal defense and “made (the lawsuit) go away,” Klein said.
He had doubts about following Harrison’s recommendation to state that mining levels will be “subject to” vested rights conditions. “The vested rights add up to a lot more gravel than what we actually mine each year,” Klein said. Asked to explain further, Klein added, “If we mine up to the vested rights amount, in most cases we’re probably mining too much.”
Supervisor Ryan Sundberg noted that vested rights will continue to exist and are relevant regardless of whether they are mentioned or not in the update. Vested rights contribute to property value but whether they are allowable is up to the environmental agencies that review mining plans, he continued.
Debate over the term began even before supervisors reviewed policies. In considering an opening statement to the section, Deputy County Counsel Davina Smith warned supervisors against inserting the “subject to vested rights” language.
“The question is, what is the purpose of this language?” she asked. “And I think the only purpose can be to basically try to shunt aside CHERT in favor of those vested, permitted rights.”
Supervisors decided to not to use the phrase “subject to vested rights” and instead state that regulatory agencies establish annual mining levels “up to the limits contained in pre-existing vested or permitted rights.”
A similar debate occurred when supervisors reviewed a policy reflecting the opening statement. Harrison argued that not using the term “subject to pre-existing vested rights” in the policy, which calls for basing mining levels on “mean annual recruitment,” would negate a property owner’s ability to negotiate with regulators.
“This policy would say the miner gets nothing and that is not consistent with someone who has the entitlements to get rock,” he said.
Smith disagreed. “I don’t think anyone is saying the miners would get nothing,” she said, adding that the intent of Harrison’s language is not merely to reflect the existence of vested rights.
She said the CHERT program’s mitigation prevents over-mining and Harrison’s language provides “the ability for any miner – whether it’s a vested right or a permit – to say to CHERT, ‘No, sorry, you’re saying I can only take this much but I can take up to 200,000 (cubic) yards and that’s what I’m taking.’”
Smith added, “That is our concern, we don’t want that to happen.”
Supervisors solved the issue to everyone’s satisfaction by using the phrase “considering vested rights” rather than “subject to vested rights.”
Other polices in the section were approved in a series of mostly unanimous straw votes.
One of the notable exceptions was a goal statement which stated that mining should be done in ways that “support threatened or endangered species recovery, protect riparian conditions and preserve existing river bed elevations.”
Harrison said those provisions are too specific and asking miners to preserve river elevations is unreasonable. His recommendation to have the statement end at the word “species” was supported in a 4 to 1 straw vote, with Supervisor Mark Lovelace dissenting.
Supervisors continued their review of the update on Oct. 6 when they took up its Open Space Action Plan and waste management and scenic resources sections.