By Katherine J. Hart

In Renee D. Nelson v. County of Kern (November 19, 2010, No. F059293), a mining company submitted an application to the County of Kern (“County”) to surface mine 250,000 cubic yards per year of calcite marble from a 40-acre foothill property on federal land over a period of 30 years, and for a reclamation plan to restore the land after the completion of the mining. The Bureau of Land Management conducted environmental review of the project under National Environmental Policy Act (“NEPA”), and the County conducted environmental review of only the reclamation plan under California Environmental Quality Act (“CEQA”). The County adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan. Petitioners sued the County arguing the County should have been the lead agency for the entire project – not just the reclamation plan – and that the failure to consider the entire mining project along with the reclamation plan violated CEQA. The Fifth Appellate District agreed with Petitioners and reversed the trial court’s decision.

The County’s zoning ordinance specifically indicated that surface mining operations within the County required both a surface mining permit and a reclamation plan to be approved by the Planning Commission. The mining application was complete as of October 17, 2005 and clearly contemplated both a surface mining permit as well as a reclamation plan. Nonetheless, based on a Memorandum of Understanding between the State of California, the Forest Service and the BLM, and the fact that the BLM approved the project pursuant to a Finding of No Significant Impact or FONSI, the County staff and counsel directed that the County’s environmental review and approval contemplate only the reclamation plan because the BLM was the actual permitting agency for the mining operations. The appellate court disagreed because the County was the lead agency for the project under CEQA and because the MOU did not apply to preclude environmental review under CEQA.

The Court of Appeal first held that the County was the lead agency under Surface Mining and Reclamation Act (“SMARA”) and CEQA and thus, was required to conduct environmental review of the entire project, not just the reclamation plan. In so holding, the Court reasoned that the California Public Resources Code section 2770 (a) and the County’s own ordinance deemed the County to be the lead agency. Specifically, a federal agency cannot be a CEQA lead agency because it is not a state public agency. Given the fact that it was clear the County was the lead agency for the mining project, “it was improper for the County to sever the mining operations from the scope of its review under SMARA.” The Court also reviewed the scope of a project as defined by CEQA and emphasized that the term project refers to “the whole of an action” and “the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental agency.” The Court of Appeal also distinguished the two mining cases cited by the County – El Dorado County Taxpayers for Quality Growth v. County of El Dorado (2004) 122 Cal.App.4th 1591, and City of Ukiah v. County of Mendocino (1987) 196 Cal.App.3d 47 – which involved vested rights to mine and thus, only a review of the reclamation plans by the counties.

Next, the Court held that the MOU did not authorize the County to avoid environmental review of the mining project. The Court reasoned that the MOU merely acknowledged that cities and counties have a legal obligation to conduct environmental review of mining projects and reclamation plans under SMARA, and that federal agencies also need to consider environmental effects of mining projects. The Court noted that the MOU required the local and federal agencies to cooperate with another on mining projects, and allowed local lead agencies under CEQA to adopt documents prepared under NEPA, assuming those documents meet the requirements of SMARA and CEQA, but that the County in this case “failed to avail itself of the cooperation provisions of the MOU” and that nothing in the record reflected that County assisted in the NEPA document or considered the NEPA document in any way, as was required by the MOU.

In conclusion, the Court of Appeal set aside the adoption of the mitigated negative declaration and conditional use permit, and ordered the County to prepare an environmental impact report or EIR based on CEQA’s fair argument test and the fact that there was substantial evidence in the record to support a fair argument that the project may have a significant effect on air quality, traffic, water resources, and biology.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.