New Era Mine’s lawyers want off the case
As CEQA hearing nears, county forced to step in and hire outside attorney
While the operators of the controversial New Era Mine have dug up plenty of dirt at their site in Dry Creek Canyon, west of Butte College, and presumably carted away a hefty amount of gold-bearing black sand, they’ve hit a dry hole on the legal front.
The most recent news is that the attorneys for the operators have asked to withdraw, just weeks before an all-important legal hearing on the mine. The reasons for the decision by the Sacramento-based Scharff Brady & Vinding couldn’t immediately be ascertained. However, in a May 1 letter to a district court judge in Sacramento, Frank Noland, the vice president of North Continent Land & Timber, which operates the mine, acknowledges that the company has about $250,000 in outstanding legal fees.
He also states that the company had been unable to hire replacement counsel.
The result is that Butte County, whose supervisors (three of them, anyway) approved allowing the mine to continue operating without obtaining a new permit or submitting a new reclamation plan, has had to hire an outside attorney to step in.
It will not cost the county any money, County Counsel Bruce Alpert insisted. That’s because the county has an indemnity agreement with North Continent that requires the company to pay any legal fees the county incurs. “This is normally how we do these cases,” Alpert said.
It remains to be seen whether that attorney will be able to get up to speed by Aug. 24, the date set for a hearing on the lawsuit filed by a group of mine neighbors known as the Dry Creek Coalition. They have sued North Continent and the county on environmental grounds, charging that the county violated the California Environmental Quality Act when it allowed the project to go forward based on a permit and reclamation plan originally issued in 1982.
That hearing date has already been extended once, for 90 days, and Richard Meyers, the coalition’s spokesman, said he doubts the judge will extend it again. There’s additional pressure on the county’s attorney, he added, because the opposition brief to the coalition’s argument is due in court in July.
As the CN&R reported last year, the Board of Supervisors was sharply divided over whether to allow New Era Mine to go forward without obtaining a new permit. Supervisor Jane Dolan was especially adamant that the original permit and reclamation plan were inadequate. Of the five supervisors, she was the only one who was actually on the board in 1982, when the mine was originally approved.
Then the mine was a one-man operation so small that its operator, Ron Logan, was able to get a permit without having to do an environmental-impact report or put up a substantial assurance bond, Dolan said. His reclamation plan was only a page—and hand-written, to boot.
That mine was nothing like the current project, which involves massive earth moving, has up to 20 employees, and should be required to get a new permit, undergo environmental assessment, and have a professionally written reclamation plan, Dolan insisted.
Her fellow Chico-area supervisor, Maureen Kirk, strongly agreed, but the two women were outvoted by Supervisors Bill Connelly of Oroville, Kim Yamaguchi of Paradise and Curt Josiassen of Richvale. (Josiassen, who chose not to run for re-election, has since been replaced by Steve Lambert, who lives just west of Oroville.) Their argument was that the mine was being responsibly operated and that it would be wrong to ask a business owner to get a new permit after 25 years.
After the meeting, Dolan told a couple of reporters, “If someone doesn’t file a lawsuit over this, I’ll give up my faith that people care about this county.”
In fact, several lawsuits have been filed, by the Dry Creek Coalition and North Continent both. So far, at least, North Continent has come out on the losing end of things.
As mentioned, the coalition filed its environmental lawsuit. North Continent in turn filed several suits against the coalition—along with the state Department of Conservation—accusing it among other things of trespassing and violations of the California Uniform Trade Secret Acts for publishing photos of the mine and documents related to its approval process.
On Dec. 24, 2008, Sacramento Superior Court Judge Rudolf Loncke ruled that one of North Continent’s suits, a request for a temporary restraining order, lacked merit. Subsequently, on Jan. 16, 2009, he upheld a coalition lawsuit that charged North Continent’s filing was a specious “strategic lawsuit against public participation,” or SLAPP suit.
That action also made North Continent’s lawsuit seeking a preliminary injunction invalid. In court thus far, the score stands at 3-0 in favor of mine opponents.
Not only that, Meyers said, North Continent will be back in court June 9, when the judge will rule on whether it has to pay the coalition’s legal fees—about $200,000—on the SLAPP suit.
The irony doesn’t escape him. “They probably could have had a new permit and developed a reclamation plan by now,” he said. “This way they’ve cost themselves a million bucks and are still stuck with an illegal mine.”
Reached by phone, Noland said only that he had “no comment across the board.”
Chris Thomas is the county planner assigned to the New Era Mine. He says the county—which for years virtually forgot about the mine—is now inspecting it three times a year and that the operators have been “cooperative and willing” and are “running a clean operation, as far as we’re concerned.”
He noted that North Continent has put up a sizeable assurance bond—in the neighborhood of $275,000—and will be held responsible if the site is not restored when the mining is finished.
Supervisor Kirk, for her part, says the legal situation is “getting curiouser and curiouser. I’m sure glad I was in the minority on that vote.”
She agrees with Meyers that “it would have saved everybody time and money to get a new permit and do a reclamation plan. … It could have been done right.”