letter from harrison temblador hungerford and johnson to the humboldt county board of supervisors

8/13/2019 Letter from Harrison Temblador Hungerford and Johnson to the Humboldt County Board of Supervisors

1/4

HARRISONTEMBLADORHUNGERFORDJOHNSONfbob Y 980 9TH STREETSUITE 1400MINING SACRAMENTO CALAND USE

NATURAL RESOURCES I TEL 916 382 4377FAX 916 382 4380WWW HTHJLAWCOM

December 13, 2013VIA ELECTRONIC AND U.S. MAIL

Honorable Ryan Sundberg, ChairpersonBoard of SupervisorsCounty ofHumboldt825 5th StreetEureka, CA 95501Re: Mercer Fraser Company

P 6: : , \ ~ i V I :

_:.,\l::cc ; ;:; lPFRVISOR

DEC 16 2 13

Comments on Draft Conservation and Open Space ElementsHonorable Chair Sundberg:

On behalfof our client, Mercer Fraser Company ( Mercer Fraser ), we thank you for theopportunity to comment on the draft County General Plan Conservation and Open SpaceElements. We write to provide the Board with initial comments relative to the individualpolicies outlined in the draft Conservation and Open Space Elements. As the Board continues itsreview of the draft, we anticipate providing additional comprehensive comments for the Board'sconsideration.GENERAL COMMENTS

t the outset, we provide the follow two general comments for the Board's consideration.First, given the duration and nature of the General Plan Update process, we note that ithas been difficult to evaluate the General Plan Update as a whole. As the Board is well aware,state law mandates that a general plan must be fully integrated and that each element must beconsistent with itself and with the other elements within the general plan. (Cal. Gov. Code 65300.5.) To date, an effective evaluation of the draft General Plan Update's compliance withthis mandated consistency requirement has not been completed. Therefore, we stronglyrecommend that an internal consistency evaluation be undertaken by the County Planning

Commission, which could then be reviewed by the public, before final adoption of the GeneralPlan Update by the Board.Second, we note that the goals and policies outlined in the Updated General Plan willgenerally not apply to existing, established mining operations. It is a well-established principle

of land use law that existing permitted or legal nonconforming mining operations are vestedagainst subsequent changes in local land use law. See, e.g., Trans-oceanic Oil Corp. v. SantaBarbara (1948) 85 Cal.App.2d 776; Hansen Bros. Enterprises v. Nevada County (1996) 12Cal.4th 533; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188.)

1


2/4

With these general comments in mind, we now provide initial specific comments on thedraft Conservation and Open Space Element and, in particular, the proposed Mineral ResourceElement. As noted above, however, we anticipate providing further comments on the draftMineral Resource Element, as well as the balance of the elements in the draft Conservation andOpen Space Element.SPECIFIC COMMENTS

Following are our initial specific comments on the draft Mineral Resources Element ofthe General Plan Update.Mineral Resource Element1 Mineral resources projects provide benefits that may outweigh

environmental impacts. Draft Goal MR-G1 appears to suggest that the County could no longerissue statements of overriding consideration under the California Environmental Quality Act(CEQA). n particular, Goal MR-G1 calls for mining sites permitted and operated to preventsignificant environmental impacts (emphasis added). n reality, not all environmentalimpacts from mineral resources projects, and many other types of projects, can be fullymitigated. Recognizing this fact, CEQA authorizes lead agencies to issue statements ofoverriding consideration acknowledging that some projects, such as local mineral resourcesprojects, offer economic and regional environmental benefits that outweigh any significantunavoidable impacts. (See CEQA Guidelines, 15093.) t is important that the County maintainits ability to issue statements of overriding considerations for mineral resources projects wherenot all environmental impacts can be prevented. We respectfully request that the County reviseGoal MR-G1 as follows:

MR Gl. Long-Term Supply o Mineral Resources. A geographically distributedinventory ofmining sites protected from incompatible land uses permitted andoperated to prevent or minimize to the extent feasible significant environmentalimpacts and to satisfy long-term demand for mineral resources and constructionmaterials.2. In-stream sand and gravel extraction is already subject to state and federal

environmental regulation. Draft Goal MR-G2 suggests that the County should establishthreatened and endangered species protection that is different from or, potentially, in excess ofexisting state and federal law. Mining operations in the County are already subject to an array ofenvironmental resource regulations including both the state and federal endangered species acts.Creating an additional or potentially inconsistent regulatory mandate at the County level willresult in additional unnecessary burden on the industry and, as a practical matter, has thepotential to result in less species protection due to confusing and inconsistent policies.Therefore, we respectfully request that the County revise Goal MR-02 to expressly comply withexisting state and federal environmental regulations as follows:

MR-G2. In-stream Sand and Gravel Extraction. Continued supplies of n-streamsand and gravel using extraction methods and rates that are consistent with stateand federal endangered species regulations. suuuort threatened or endaneered

2


3/4

species recovery, protect riparian corridors, and preserve existing river bedelevations.3. Annual in-stream gravel extraction rates are protected by vested rights.Draft Policy MR-P5 stated that annual gravel extraction prescriptions shall be based onscientific estimate of Mean Annual Recruitment[.] This policy is in contravention of the

express permit terms of existing in-stream mining operations and, as noted above, cannot beimposed on these existing operations without violating their established vested rights. (See, e.g.,Trans-oceanic Oil Corp. v Santa Barbara (1948) 85 Cal.App.2d 776; Hansen Bros. Enterprisesv Nevada County (1996) 12 Cal.4th 533; Evangelatos v Superior Court (1988) 44 Cal.3d 1188.)Therefore, we respectfully request that the County delete Policy MR-P5 or modify it toacknowledge the rights of existing vested operations.

4. Project conditions should reflect that mineral resources projects providebenefits that may outweigh environmental impacts. Draft Policy MR-P11 requires thatmineral resource project be condition to reduce environmental impact to a less than significantlevel. This policy, if implemented, would eliminate the Board's authority under CEQA to issuestatements of overriding consideration acknowledging that some projects, such as local mineralresources projects, offer economic and regional environmental benefits that outweigh anysignificant unavoidable impacts. (See CEQA Guidelines, 15093.) We respectfully request thatthe County revise Policy MR-P11 as follows:

MR Pll. Permit Conditions to Reduce Impacts. Permit conditions for mineralextraction operations shall address allowable dust and noise levels, hours ofoperation, fencing, traffic, access, setbacks, and other performance standardsnecessary to minimize reduce significant environmental impacts to Jess thansignificant and reduce conflicts with adjacent dCl C/:epment land uses to the extentfeasible. Split Vote: 4-35. The County does not require a Development Consultant to review new

mineral resources projects. Draft Implementation Measure MR-IM3 permits the County tohire a consulting firm of the County's choosing to advise the County on proposed mineralresources projects, and to be paid for by project developers. This is a holdover policy from theexisting General Plan, which the County has not implemented, and which is no longer needed.Modern mineral resources projects are fully analyzed by surface mining experts as applicantsdesign proposed projects and reclamation plans. Proposed projects are then fully reviewed byexperts again during the County' s environmental review process, which project applicants mustfund. t is unclear what role a separate mining consultant would serve in the project reviewprocess, other than result in substantial additional costs to project applicants. We respectfullyrequest that the County delete draft Implementation Measure MR-IM3. If the provision remains,we request that Implementation Measure MR-IM3 be revised to allow project applicants tojointly select a consultant with the County.

6. The County cannot impose a road impact fee on mining operations. DraftImplementation Measure MR-IM6 provides that the shall research and establish haul roadcharges on mining operations. The California Vehicle Code, however, already regulates heavytruck traffic by imposing fees that are deposited in the State's Motor Vehicle Account and StateHighway Fund, and used for, among other things, the construction, improvement, maintenance,

3


4/4

and operation of public streets and highways (Cal. Vehicle Code 9400.1(e), 42205;Cal. Const. Art. XIX 1(a), 2(b).) The courts have held that local road impact mitigation feesare preempted by the California Vehicle Code and invalid. (See County San Dist v County oKern (2005) 127 Cal.App.4th 1544, 1618-1623.) It is our understanding that this issue wasraised in hearings before the County Planning Commission, but has not been address. Therefore,we respectfully reiterate our request that the County delete Policy MR-IM6.

ON LUSION

Thank you again for the opportunity to comment on the draft County General PlanConservation and Open Space Elements. We trust that the Board will find the above commentshelpful in its review of the draft Mineral Resources Element at its upcoming hearings.Additionally, as noted above, we look forward to providing the Board with additionalcomprehensive comments on the balance of the draft Conservation and Open Space Element.

Very truly yours,

DPT/mvacc: Justin Zabel, Mercer Fraser CompanyThe Honorable Rex Bohn, Vice-Chairman

The Honorable Virginia BassThe Honorable Estelle FennellThe Honorable Mark Lovelace

L :>::::

Kevin Hamblin, Director, Department of Community Development Services

. 4

letter from harrison temblador hungerford and johnson to the humboldt county board of supervisors

Documents