12/22/13
A Board of Supervisors appeal hearing on a Bayside quarry’s reclamation plan included cross-allegations of hypocrisy and misrepresentation but was ultimately punted due to the lack of a liability waiver agreement.
The reclamation plan for the two-acre Halvorsen Quarry in Bayside continues to elude definitive approval and was tripped up again in the 11th hour of the Dec. 10 supervisors hearing.
After extensive argumentation on a myriad of legal issues, supervisors were told that a boilerplate agreement releasing the county from legal liability following approval of the quarry plan has not been secured.
The reclamation plan extends to 2025 and outlines how the quarry area will be restored if mining operations cease. It was approved by the county’s Planning Commission earlier this year and that decision was appealed by Darren Mireau, the North Coast manager for CalTrout, and Humboldt Baykeeper.
During the hearing, there was lengthy debate over whether the plan is subject to the appeal’s demands for water quality monitoring of Rocky Gulch Creek and other habitat-related concerns.
Dave Schneider, whose son operates the quarry, said the appeal issues are not applicable to reclamation and told supervisors the plan is being challenged because appellant Mireau owns a subdivision nearby and is bothered by its operations.
“They subdivided the property, filled in a couple acres of wetlands, built some homes in the buffer zone and now they’re concerned about this quarry,” said Schneider. “I mean, holy smokes, a bald eagle is building its nest up in the tree and it doesn’t bother the bald eagle who’s come in subsequent to this – I wish these people had not built their nests there too.”
Schneider added that the state’s Surface Mining and Reclamation Act sets requirements for post-mining restoration and the appeal’s arguments are not relevant to them. But Mireau, whose appeal is joined by Humboldt Baykeeper, said California environmental and water quality laws are also applicable.
Mireau noted that county staff has recommended some revised conditions of approval in response to the appeal. He also said that an industrial use permit and a stormwater pollution prevention plan are mandatory but absent.
Those permits apply to commercial use and the quarry owners claim to be using mined aggregate for personal use on private roads. Jen Kalt of Humboldt Baykeeper said there is evidence that the quarry is supplying the commercial market and a debate about it ensued.
After the hearing drifted into peripheral issues, a majority of supervisors seemed ready to deny the appeal without the staff’s revisions. They were about to vote when Supervisor Mark Lovelace interjected.
Lovelace asked for evidence to support the board majority’s rejection of the staff-recommended revisions. County legal staff offered some explanations which Lovelace questioned, but it was all rendered moot with a revelation that appeared to take supervisors by surprise.
County Counsel Davina Smith told supervisors that planning staff had “just informed” her that Schneider had not signed and returned a requested indemnification agreement. She said the hearing could be continued and denial of the appeal could return at a future meeting as a consent agenda item once the agreement is in place.
But the pact’s emergence is in doubt. “I don’t think we intend on signing it,” Schneider said. “I don’t think it’s customary, you don’t have 109 indemnification agreements for these reclamation plans, do you?”
“For discretionary items, it is recommended,” said Smith.
“We pay these folks to make a decision, we want them to make a decision and we want them to stand behind it,” Schneider said.
Smith said supervisors could approve the plan without the liability waiver but if there is a subsequent lawsuit, the county would have to pay for the defense or revisit the appeal denial.
Asked if he wanted to withdraw his motion to deny the appeal, Supervisor Rex Bohn said he had no choice but to do so “since the rules of the game keep changing.”
Supervisors voted to continue the hearing to early January and to have staff return with information supporting outright denial of the appeal. Lovelace voted against the continuance, saying he does not agree with directing staff to support the denial.
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