The opinion
Filed 5/31/17 Unmodified opinion attached
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOE HARDESTY et al., C079617
Plaintiffs and Appellants, (Super. Ct. No. 34-2010-
80000594-CU-WM-GDS)
v.
MODIFICATION OF
STATE MINING AND GEOLOGY BOARD, OPINION
Defendant and Respondent. [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 17, 2017, be modified as
follows:
1. On page 4 in footnote 3, at the end of the footnote a second paragraph is to
be inserted that reads: “Because it was part of Hardesty’s evidentiary submission, the
Board could credit the facts stated in the unpublished Tankersley opinion, although the
case is not citable by a California court. (See Cal. Rules of Court, rule 8.1115.) We
1
reference it only insofar as it was part of the evidence before the Board; we do not treat it
as a legal precedent.” Footnote 3 shall now read:
Under Board regulations, “All information submitted pursuant to this section shall
be accompanied by a declaration or affidavit attesting to the true and accurate nature of
the materials provided.” (Regs., § 3952.) Hardesty’s lengthy 2010 RFD supplement
does not appear to have been accompanied by a declaration. However, the parties treat
the supplement with the same dignity as the material contained in the RFD. We will do
the same.
Because it was part of Hardesty’s evidentiary submission, the Board could credit
the facts stated in the unpublished Tankersley opinion, although the case is not citable by
a California court. (See Cal. Rules of Court, rule 8.1115.) We reference it only insofar
as it was part of the evidence before the Board; we do not treat it as a legal precedent.
This modification does not change the judgment.
BY THE COURT:
/s/
Nicholson, Acting P. J.
/s/
Duarte, J.
2
Filed 4/17/17; pub. order 5/16/17 (see end of opn) Unmodified opinion
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOE HARDESTY et al., C079617
Plaintiffs and Appellants, (Super. Ct. No. 34-2010-
80000594-CU-WM-GDS)
v.
STATE MINING AND GEOLOGY BOARD,
Defendant and Respondent.
In this suit under the Surface Mining and Reclamation Act of 1975 (SMARA)
(Pub. Resources Code § 2710 et. seq.),1 plaintiffs Joe and Yvette Hardesty (collectively,
Hardesty), attack findings by the State Mining and Geology Board (Board). The Board’s
disputed findings conclude there are no vested rights to surface mine at the Big Cut Mine
in El Dorado County (County, not a party herein). The findings in effect deny Hardesty a
“grandfather” exemption from the need to obtain a County mining permit. (See § 2776,
1 Further undesignated statutory references are to the Public Resources Code.
1
subd. (a).) The trial court denied Hardesty’s mandamus petition, and Hardesty timely
appealed from the ensuing judgment.
On appeal, Hardesty raises both substantive and procedural claims.
Substantively, in three somewhat interconnected claims, Hardesty contends the
Board and the trial court misunderstood the legal force of his 19th century federal mining
patents. He asserts they establish a vested right to surface mine after the passage of
SMARA without the need to prove he was surface mining on SMARA’s operative date of
January 1, 1976. He argues that the Board and trial court misapplied the law of
nonconforming uses in finding Hardesty had no vested right and separately misapplied
the law in finding that his predecessors abandoned any right to mine. These contentions
turn on legal disputes about the SMARA grandfather clause and the force of federal
mining patents.
As we will explain, the facts, viewed in favor of the Board’s and trial court’s
decision, undermine Hardesty’s claims. A federal mining patent--a deed perfected after
working a mining claim--has no effect on the application of state regulation of mining.
This point was made emphatically in a recent California Supreme Court case, People v.
Rinehart (2016) 1 Cal.5th 652 (Rinehart), about which we solicited supplemental
briefing. Simply put, the fact that mines were worked on the property years ago does not
necessarily mean any surface or other mining existed when SMARA took effect, such
that any right to surface mine was grandfathered.
Procedurally, Hardesty alleges the Board’s findings do not “bridge the gap”
between the raw evidence and the administrative findings. Hardesty also challenges the
fairness of the administrative process itself, alleging that purported ex parte
communications by the Board’s executive director, Stephen Testa, tainted the
proceedings. However, we agree with the trial court’s conclusions that, on this record,
neither of these procedural claims proves persuasive.
Accordingly, we shall affirm the judgment denying the mandamus petition.
2
BACKGROUND
Preliminary Observations
We first note that Hardesty’s briefing consistently draws evidentiary inferences in
the light most favorable to himself, contrary to the appropriate standard of review, which
requires us to draw inferences in favor of the judgment. (See Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 824 [“Even when . . . the trial court is required to review an
administrative decision under the independent judgment standard of review, the standard
of review on appeal . . . is the substantial evidence test”].) “The reviewing court, like the
trial court, may not reweigh the evidence, and is ‘bound to consider the facts in the light
most favorable to the Board, giving it every reasonable inference and resolving all
conflicts in its favor.’ ” (Jaramillo v. State Bd. for Geologists & Geophysicists (2006)
136 Cal.App.4th 880, 889.) Hardesty also presumes that any evidence that was not
directly contradicted--including expert evidence--must be accepted as true, contrary to
applicable standards. (See Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [“Provided the
trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness,
even though the witness is uncontradicted”]; Foreman & Clark Corp. v. Fallon (1971) 3
Cal.3d 875, 890 [rule applies to expert witnesses] (Foreman & Clark).)
Hardesty’s contentions are unnecessarily muddled by his persistent refusal to
acknowledge the facts supporting the Board’s and the trial court’s conclusions.
“[Hardesty] has not waived the legal issues [he] raises. But in addressing [his] issues we
will not be drawn onto inaccurate factual ground.” (Western Aggregates, Inc. v. County
of Yuba (2002) 101 Cal.App.4th 278, 291 (Western Aggregates).) Because Hardesty does
not portray the evidence fairly, any intended factual disputes are forfeited.2 (See
2 Hardesty’s trial court papers reflected the same flaw, which the Board pointed out to
the trial court.
3
Foreman & Clark, supra, 3 Cal.3d at p. 881; Western Aggregates, supra, 101
Cal.App.4th at pp. 290-291.)
In 2009, Hardesty filed a Request for Determination (RFD) of his vested rights--
later augmented by a 2010 supplement--outlining his legal and factual positions. The
RFD includes a declaration of counsel that purports to affirm the truth of the facts
contained in hundreds of pages of attachments. The attachments include an unpublished
decision of this court in a tangentially related case, Tankersley v. State Mining & Geology
Bd. (Jan. 31, 2006, C049372) 2006 Cal.App.Unpub. Lexis 835 (nonpub. opn.)
(Tankersley), and extracts of private and apparently unsworn interviews of witnesses by
Hardesty’s counsel.3 Hardesty also presented extracts of depositions taken in separate
litigation between a non-party herein and his predecessors (Legacy Land Co. v. Donovan,
El Dorado Super. Ct. No. PC20020116 (Legacy Land)), with no indication that the
opposing side in that case had the same motivation to cross-examine as would an
opponent of Hardesty’s RFD. Some of these weaknesses in Hardesty’s evidentiary
submissions were pointed out at the Board hearing.
At the hearing itself, Hardesty bore the burden of proof. (Cal. Code Regs., tit. 14,
§ 3950.)4 A Board regulation provides that “[r]elevant evidence in a proceeding for
determination of a claim of vested rights shall be written or oral evidentiary statements or
material demonstrating or delimiting the existence, nature and scope of the claimed
vested right[s].” (Regs., § 3963, italics added.) The Board evidently interprets this
3 Under Board regulations, “All information submitted pursuant to this section shall be
accompanied by a declaration or affidavit attesting to the true and accurate nature of the
materials provided.” (Regs., § 3952.) Hardesty’s lengthy 2010 RFD supplement does
not appear to have been accompanied by a declaration. However, the parties treat the
supplement with the same dignity as the material contained in the RFD. We will do the
same.
4 Further references to “Regs.” are to title 14 of the California Code of Regulations.
4
regulation to mean that “[t]estimony and comments presented at hearings need not
conform to the technical rules of evidence provided that the testimony and comments are
reasonably relevant to the issues before the [Board].” But the fact the Board may accept
as true “material” which would not qualify as evidence in a court of law does not mean it
was compelled to accept as true all material contained in Hardesty’s documents. Instead,
the flaws we have noted above, and others, gave the Board ample, rational grounds to
reject much of Hardesty’s evidence. (See Hicks v. Reis, supra, 21 Cal.2d at pp. 659-660.)
Further, the Board also considered contrary evidence, principally contained in detailed
written proposed findings drafted by Testa. These findings were based on Testa’s
investigation, as well as statements by members of the public at the hearing--statements
not mentioned in Hardesty’s briefs. Thus to the (great) extent that Hardesty’s briefing is
based on the implicit view that the Board and trial court were somehow compelled to
accept his evidentiary submissions as true, the foundation of his briefing is undermined.
On the other hand, facts asserted by Hardesty in the trial court or on appeal may be
deemed as admissions, and we may also accept as true facts agreed by the parties in their
briefing on appeal. (See Fremont Comp. Ins. Co. v. Sierra Pine (2004) 121 Cal.App.4th
389, 394; County of El Dorado v. Misura (1995) 33 Cal.App.4th 73, 77.)
We make these observations at the outset, to explain our upcoming rejection of
Hardesty’s many factual assertions that are supported only by references to material that
the Board and trial court were free to find was either inaccurate or simply unpersuasive as
to the particular subject addressed.
The Basic Facts and Findings
Hardesty owns about 150 acres near Placerville, now known as the Big Cut Mine,
but once known--if perhaps only in part--as the Landecker mine. For purposes of appeal,
we accept that his property was formed from 19th century federal mining patents.
The land was mined for gold until the 1940’s. During World War II, gold mining
was restricted by the federal government to shift mining resources to minerals necessary
5
for military purposes. (See United States v. Central Eureka Mining Co. (1958) 357 U.S.
155, 157-161, 166-169 [2 L.Ed.2d 1228, 1230-1232].) A property history contained in
Hardesty’s RFD supplement concedes “There are no records presently available . . . to
show what kind of mining business [Stanley Triplett, the owner from 1921 to 1988]
conducted on the property after the war.” The trial court found that through the 1970’s,
the property “was essentially ‘dormant.’ At most, there was sporadic, limited mining
involving only a very small portion of the property during this period, and there is
virtually no evidence that those mining activities ‘continued’ to exist at the time SMARA
was enacted [effective January 1, 1976].” However, Hardesty’s RFD sought to establish
a vested right to mine the property for gold, sand, and gravel (as well as diamonds and
platinum).
Although the wartime mining order was lifted in 1945, Hardesty contends that the
purported loss of mining equipment during the war “and low gold prices, made it largely
infeasible to resume mining”--a point we address in more detail, post, in our Discussion.
The record contains a document showing the ounce price for gold was about $36 in 1970,
rose to about $160 by 1975, shot up in 1980, and then fell significantly.
Clinton and Kathleen Donovan (Donovan) bought the land in 1988 from Stanley
Triplett, who we accept had owned it since 1921. Donovan contracted to sell to Legacy
Land, but the deal did not go through--leading to litigation--and he sold the property to
Hardesty in 2006.5
The part of Hardesty’s RFD outlining the history of the property consolidates the
broad Triplett period of ownership, 1921-1988, but fails to describe what, if anything was
happening on the property on or immediately before January 1, 1976.
5 The Board agrees Triplett took control of the property in 1921 and accepts Hardesty’s
present ownership for purposes of this case.
6
The trial court found that in the 1990’s, unpermitted surface (open-pit) aggregate
and gold mining began, different in nature from the “hydraulic, drift, and tunnel” mining
that historically had been conducted on the land. The RFD alleged the new proposed
open-pit mining was safer and better for the environment. Donovan had allowed
Barney’s Sand and Gravel (Barney’s) to mine on the property beginning about 1992,
Legacy Land bought out Barney’s around 1994, and also attempted to buy the property
itself from Donovan, but, as indicated, that deal was not consummated and instead led to
litigation.
Our Tankersley decision involved what was described as the Donovan Ranch
Property, but which the RFD treats as the same property at issue herein. According to
Tankersley, “In 1998, [the County], the SMARA lead agency at the time, declared the
mining site closed and reclaimed. [¶] By 2002, the Board had assumed authority over
surface mining operations at the Property. On November 12, 2002, the State Office of
Mining and Reclamation (OMR) and the County inspected the Property and determined
that 20 to 25 acres had been disturbed by surface mining operations. The Board notified
the Donovans of the results of the inspection and instructed them to cease all mining
operations until they obtain a reclamation plan, financial assurances, and any necessary
County permit.” (Italics added.) During those proceedings, the Hardestys and Churches
declared that they accepted full financial responsibility for reclamation of the land;
Tankersley also claimed to be a partner in the mining operations, and all those parties (the
Hardestys, the Churches, and Tankersley) were appellants.
As an alternative to the finding of no vested right, based on the lack of mining as
of the date SMARA took effect, which we discuss in more detail, post, the Board and the
trial court found that any right to mine had been abandoned. On a required state
reporting form in 1998, Donovan checked a box to indicate the mine was “Closed with no
intent to resume.” This document stated reclamation was in progress. On the 1999
reporting form, Donovan checked a box to indicate the mine was “Closed-reclamation
7
certified complete by Lead Agency.” But in prior years, Donovan had checked a box
stating the mine was “Active.” This change in reporting shows Donovan knew the
difference between an “Active” mine, a “Closed” mine, and a mine that was both closed
and for which reclamation had been completed.6
A letter submitted by the County to Testa in 2010 explained that Donovan “always
asserted that he was not mining, but was only searching for gold as a hobby and used the
gravel for on-site road work” and Donovan had not provided any records showing
“continuous mining having occurred since the 1940s to the present time.”
The trial court upheld the Board’s finding that any right to mine had been
abandoned, finding “a clear manifestation of intent to discontinue mine operations during
the period from the 1940s until the early 1990s, and again when Mr. Donovan
intentionally ‘closed’ the mine to facilitate a sale of the property.”
There is no evidence that Triplett regularly mined the property after World War II,
only vague and disconnected items showing sporadic activity. For example, some 1960’s
batteries and various dated tunnel markers were found, but there was no direct evidence
why they were there or who put them there. In May 1971, Triplett wrote to a potential
buyer, describing the property as not in a saleable condition, and describing some of its
6 Each form was signed under the following statement: “I certify that the information
submitted herein is complete and accurate (failure to submit complete and accurate
requisite information may result in an administrative penalty as provided for in Public
Resources Code Section 2774.1).” The yearly report is required by section 2207, which
has always required a mine owner or operator to specify “[t]he mining operation’s status
as active, idle, reclaimed, or in the process of being reclaimed.” (§ 2207, subd. (a)(6); see
Stats. 1990, ch. 1097, § 2, p. 4575.) Under the law in effect at the time of Donovan’s
reports, “ ‘Idle’ means to curtail for a period of one year or more surface mining
operations by more than 90 percent of the operation’s previous maximum annual mineral
production, with the intent to resume those surface mining operations at a future date.”
(Former § 2727.1, italics added, see Stats. 1990, ch. 1097, § 3, p. 4578.) Therefore, had
Donovan retained an intention to resume operations at a later date, he could have so
declared on the annual forms, which contained a box to indicate the mine was idle, rather
than closed.
8
history. This included his belief in the possible location thereon of part of the “deep blue
lead” that had proven rich in other places. Although he stated whether “the deep channel
can be worked profitably or not, is speculation,” he believed it had possibilities, and his
intent would be to find a rich investor so that “if expectations failed, losses could be
written off.” Nothing in the letter hints at any active mining, and as the Board contends,
it at best expresses Triplett’s hope that mining--but not necessarily surface mining--
would resume. Triplett’s nephew, a geological engineer named Jim Brune, declared
Triplett spoke with him about his belief in the deep blue lead, as well as where on the
property Triplett “speculated the vein ran” and Triplett’s purported intent to mine the
property. Aerial photographs beginning in 1952 show some roads that were later
expanded, but there was no hard evidence of what they were used for before 1976, and by
Hardesty’s own interpretation, they covered but a fraction of the property.
Significantly, at the Board hearing, Hardesty’s counsel conceded the mine was
dormant until at least the late 1980’s, although counsel attributed this to market forces.
Hardesty submitted other evidence, but the Board and the trial court could rationally
reject it. There was no hard evidence, such as production records, employment records,
equipment records, and so forth, showing any significant mining after World War II.
SMARA and Hardesty’s Legal Attacks
As indicated, the key date for SMARA purposes is January 1, 1976, when the law
became operative. SMARA requires that all surface mining operations have an approved
reclamation plan and approved financial assurances to implement the plan. (§ 2770,
subd. (a).) At the time of the hearing, the Board served as the lead agency for SMARA
purposes in the County, although the County retained permitting authority. (See
§ 2774.4, subd. (a).) Persons with existing surface mining operations were required to
submit reclamation plans by March 31, 1988. (§ 2770, subd. (b).) Absent an approved
9
reclamation plan and proper financial assurances (with exceptions not applicable herein)
surface mining is prohibited. (§ 2770, subd. (d).)7
SMARA was enacted with the knowledge that many miners had extant private
property rights, and the Legislature wanted to avoid paying compensation therefor. (See
§ 2713; Surface Mining Operations—Vested Rights—Permit, Reclamation Requirements,
59 Ops.Cal.Atty.Gen. 641, 644-645 (1976) (Surface Mining).) Accordingly, SMARA
included the following grandfather provision, to avoid any property “takings” claims:
“No person who has obtained a vested right to conduct surface mining
operations prior to January 1, 1976, shall be required to secure a permit pursuant
to the provisions of this chapter as long as such vested right continues; provided,
however, that no substantial changes may be made in any such operation except in
accordance with the provisions of this chapter. A person shall be deemed to have
such vested rights if, prior to January 1, 1976, he has, in good faith and in reliance
upon a permit or other authorization, if such permit or other authorization was
required, diligently commenced surface mining operations and incurred substantial
liabilities for work and materials necessary therefor. . . .
“A person who has obtained a vested right to conduct surface mining
operations prior to January 1, 1976, shall submit to the lead agency and receive,
within a reasonable period of time, approval of a reclamation plan for operations
to be conducted after January 1, 1976, unless a reclamation plan was approved by
the lead agency prior to January 1, 1976 . . . .
“Nothing in this chapter shall be construed as requiring the filing of a
reclamation plan for, or the reclamation of, mined lands on which surface mining
operations were conducted prior to January 1, 1976.” (Former § 2776, Stats.
1975, ch. 1131, § 11, italics added.)8
7 Section 2770 and some other sections were recently amended. (See Stats. 2016, ch. 7,
§ 5.) We cite to the provisions in effect during the trial court litigation, as do the parties.
8 Some of this language incorporates the general definition of “vesting” as used in
building development cases. (See Avco Community Developers, Inc. v. South Coast
Regional Com. (1976) 17 Cal.3d 785, 791 [“if a property owner has performed
substantial work and incurred substantial liabilities in good faith reliance upon a permit
issued by the government, he acquires a vested right to complete construction in
10
The first paragraph of section 2776 forms the core of Hardesty’s legal attacks on
the Board’s decision, because he is of the view that he established a vested right to mine
through his 19th century mining patents and uncontested pre-World War II mining
activity, in addition to his contested claims--impliedly rejected by the Board and trial
court--of post-World War II mining activity. However, the italicized portion of the
statute speaks of vested rights to surface mining, not any mining. “Surface mining
involves stripping off the top of an area to reach minerals, in contrast to boring down
through tunnels or shafts to extract them.” (Rinehart, supra, 1 Cal.5th at p. 671, fn. 10.)
Hardesty’s mandamus petition alleged his predecessors-in-interest acquired vested
rights to mine via federal mining patents, and he alleged “completion of a valid mining
‘location’ vests equitable title in the locator, authorizes the locator to hold and mine the
claim indefinitely, and creates a transferrable property interest.” (Italics added.) His
position is that this “vesting” under federal law equates to a “vested” right under
SMARA, regardless of whether mining was still being conducted when SMARA took
effect, or of the nature or scope of such mining.
After a public hearing, the Board adopted proposed findings prepared by Testa,
and found the evidence did not support Hardesty’s claim. On June 10, 2010, after receipt
of objections from Hardesty’s counsel as to several findings, the Board formally denied
Hardesty’s claim.
On July 9, 2010, Hardesty filed a mandamus petition to set aside the Board’s
action, and on January 6, 2015, filed the instant amended petition.
accordance with the terms of the permit”], italics added.) It is also consistent with
language from the then-recently adopted California Coastal Zone Conservation Act.
(Former § 27404; see Ballot Pamp., Gen. Elec. (Nov. 7, 1972), text of Prop. 20, p. 32
[generally, a permit holder who “diligently commenced construction and performed
substantial work . . . and incurred substantial liabilities” before act adopted was not
required to obtain a regional coastal commission permit, if no substantial changes were
made to the development]; see Urban Renewal Agency v. California Coastal Zone
Conservation Com. (1975) 15 Cal.3d 577, 582-584.)
11
The trial court denied the petition after a hearing on March 27, 2015, and Hardesty
timely appealed from the ensuing judgment.
The Board’s Findings in Detail
As stated, the Board adopted proposed findings prepared by Testa, some of which
reference documents submitted within Hardesty’s RFD. These findings included the
following. The property is located in an area within the County now zoned so as to
generally prohibit surface mining within 10,000 feet of any residence absent a finding
that the project would not have any adverse impact on the environment and would not
discourage residential use. No evidence of post-World War II mining “other than
recreational, was presented.” No production records (such as drill logs, evidence of
amount of material extracted, or “historic or current sales records”) were produced by
Hardesty. “A 1966 date appears written on a tunnel wall; however, there is no evidence
correlating the existence of that mark with any mining activity.” “Access roads are
evident in various aerial photographs; however, there is no adequate evidence to
demonstrate that such roads were haul roads used for mining purposes.” Unpermitted
surface mining by Barney’s beginning around 1991 was halted by the County and the
Board, and “[r]eclamation was completed to the County’s satisfaction in 1998.” Further
unpermitted mining occurred in 2002-2003, until halted by the County. The County
never made a finding of vested rights. No reclamation plan had been submitted by the
SMARA deadline of March 31, 1988. Donovan “did not demonstrate an objective
manifestation of intent to mine all” the property and “No documents or evidence were
presented to support the overall scale of historic production conducted by” Donovan.9
9 There is a claim that at some point Donovan gave Legacy Land a box of documents
detailing mining activities on the property, in aid of negotiating a sale of the property, but
that those documents were lost to him, evidently after Legacy Land declared bankruptcy.
This claim did not have to be believed.
12
The Board made several “Conclusions of Law,” in part as follows: Hardesty had
the burden of proof by a preponderance of the evidence to show vested rights to surface
mine. For planned expansion, Hardesty had to produce evidence of clear intent to expand
“ ‘measured by objective manifestations, and not subjective intent at the time of passage
of the law, or laws, affecting [his] right to continue surface mining operations without a
permit.’ ” (Partly quoting Regs., § 3963, italics omitted.) “No evidence demonstrating
authorization to mine was granted from the mid-1940s to January 1, 1976, or to the
present date as well.”10 “The cessation of mining activities subsequent to World War II,
lasting through the 1990s and, even then, commencing for a brief period without
authorization from [the] County and without submission and approval of reclamation
plans and financial assurances as required by SMARA, coupled with a succession of land
owners who did not conduct commercial mining operations during that period, precludes
reliance on the pre-World War II historic gold mining operations as a basis for
establishing a current vested right to mine” the property. “The historical record regarding
gold mining prior to World War II, and the subsequent conduct of owners of the subject
property demonstrates clear and knowing intent . . . to waive, abandon, or otherwise
forego any vested right that may have pertained to those pre-World War II mining
efforts.”
10 This finding may be overbroad, as it is not clear any entity required “authorization”
for surface mining before a County ordinance was adopted in 1979, as Hardesty insists.
But this does not change the lack of proof his predecessors “commenced surface mining
operations” (§ 2776, italics added) before SMARA took effect in 1976. Contrary to
Hardesty’s reading, the Attorney General did not opine that the lack of need of further
approvals precludes a finding of substantial changes in the nature of the mining, but
opined that each case turned on its particular facts--i.e., whether changes were
substantial--and that needing further approvals would “certainly constitute” a substantial
change. (Surface Mining, supra, 59 Ops.Cal.Atty.Gen. at pp. 643, 655-656.)
13
A formal resolution recites the Board accepted Testa’s findings “and determined
that a preponderance of evidence did not exist that demonstrated Big Cut Mine has vested
rights” and the “Board denies the claim of vested right of Big Cut Mine’s proposed
surface mining operation located in the County.”
The Trial Court’s Ruling in Detail
The trial court found the Board’s decision adequately linked the evidence with the
findings. The trial court agreed with Hardesty that the party asserting abandonment had
the burden of proof, but rejected Hardesty’s claim that the Board shifted the burden of
proof on this issue to Hardesty, as nothing in the Board’s findings addressed the point one
way or another, and “it is presumed that the Board acted properly.” The trial court
granted a motion to augment the record with declarations from Testa, Will Arcand, and
Richard Thalhammer, described, post, and found no improper ex parte communications
occurred.
The trial court also rejected Hardesty’s view that the federal patents vest in him a
right to mine the property regardless of what was happening on the effective date of
SMARA, finding a lawful nonconforming use must be extant on such date.
Separately, the trial court found that even if Hardesty’s legal view were correct,
“the evidence shows there were substantial changes in the use of the property” in that
“there is virtually no evidence of mining activities during the period from the 1940s
through the 1980s” and even if there were, “aerial photos suggest any mining was limited
to at most about six-tenths of an acre. For the vested right to include the remainder of the
. . . property, [Hardesty] would have to produce objective evidence demonstrating that the
owners clearly intended, on the effective date of [SMARA], to expand mining in to the
remainder of the property. There is no such evidence in the record.” Further, the nature
of the mining had shifted from hydraulic, drift, and tunnel mining, to open-pit (that is,
surface) mining, reflecting a substantial change in use.
14
Finally, the trial court found any vested right that may have existed had been
abandoned: “There is a clear manifestation of intent to discontinue mine operations
during the period from the 1940s to until the early 1990s, and again when Mr. Donovan
intentionally ‘closed’ the mine to facilitate a sale of the property.”
Accordingly, the trial court denied Hardesty’s administrative mandamus petition.
DISCUSSION
I
Vested Rights Claims
Hardesty contends that the existence of federal mining patents confers vested
mining rights forever, and that the Board and trial court erred by adding additional
requirements, namely, continued mining operations, to find a vested right under SMARA.
He further contends the trial court misapplied the “nonconforming use” zoning doctrine
and thereby reached an erroneous conclusion. He adds that the Board and trial court
misapplied the doctrine of abandonment. Because these three contentions of legal error
overlap, we address them together.
Hardesty principally relies on the first paragraph of section 2776, arguing that he
has a vested right to mine the property at issue. In his view, his federal mining patents,
which would have been issued only upon proof of actual mining operations--though not
necessarily surface mining operations--not only conveyed title to the property, they
conveyed a vested right to mine. He contends that because those patents predate 1976, he
is covered by section 2776’s grandfather provision.
As we will explain, we agree the patents conferred on Hardesty vested rights as a
property owner, but that is not the same as a vested right to mine the property absent
compliance with state environmental laws. The Board and the trial court correctly
concluded Hardesty had to show active surface mining was occurring on the effective
date of SMARA, or at the very least show objective evidence that the then-owner
contemplated resumption of such activities. Under the facts, viewed in the appropriate
15
light, Hardesty did not carry his burden to show that any mining was occurring or any
intent to mine existed on the relevant date. Further, the Board and trial court correctly
applied the “nonconforming use” and abandonment doctrines to the facts herein.
A. Legal Effect of a Federal Mining Patent
Early federal policy had been to reserve federal lands, but this shifted after the
Civil War due to the need to pay off the ensuing national debt, and the West--then almost
entirely owned by the federal government--was opened to mineral exploration. (See
Western Aggregates, supra, 101 Cal.App.4th at pp. 293-294.) Since that time, after
locating a claim and performing certain work and other requirements, the “holder of a
perfected mining claim may secure a patent to the land by complying with the
requirements of the Mining Act and regulations promulgated thereunder . . . and, upon
issuance of the patent, legal title to the land passes to the patentholder.” (California
Coastal Comm’n v. Granite Rock (1987) 480 U.S. 572, 575-576 [94 L.Ed.2d 577, 588]
(Granite Rock); see Pathfinder Mines Corporation v. Hodel (9th Cir. 1987) 811 F.2d
1288, 1291.)11
But “ ‘the State is free to enforce its criminal and civil laws’ on federal land so
long as those laws do not conflict with federal law. [Citation.] The Property Clause itself
does not automatically conflict with all state regulation of federal land. Rather, . . .
‘[a]bsent consent or cession a State undoubtedly retains jurisdiction over federal lands
within its territory, but Congress equally surely retains the power to enact legislation
respecting those lands pursuant to the Property Clause. And when Congress so acts, the
federal legislation necessarily overrides conflicting state laws under the Supremacy
Clause.’ ” (Granite Rock, supra, 480 U.S. at pp. 580-581 [94 L.Ed.2d at p. 591], italics
11 We accept for purposes of this appeal that Hardesty’s predecessors performed the
work then required by the federal government. (See Rogers v. DeCambra (1901) 132
Cal. 502, 505-506 [federal land officials presumed to have followed proper procedures].)
16
added; see State Regulation of Mining in Death Valley National Monument, 60
Ops.Cal.Atty.Gen. 162, 163 (1977) [“California can regulate all mining within the Death
Valley National Monument . . . regardless of land ownership status, pursuant to
[SMARA], subject to preemption in particular instances of conflict with federal law”].)
It is well settled that environmental concerns about mining and its after-effects are
legitimate matters for state regulation. (See Death Valley, supra, 60 Ops.Cal.Atty.Gen.
162; State ex rel. Andrus v. Click (1976) 97 Idaho 791, 798-799 [554 P.2d 969, 976-977]
(Andrus).)
Indeed, in a case involving a different open-pit mine also operated by Hardesty,
we rejected his view that a “vested right” to mine under SMARA obviates the need to
comply with state environmental laws: “Hardesty has cited no authority standing for the
proposition that the holder of a vested mining right is exempt from complying with
California’s air pollution laws.” (Hardesty v. Sacramento Metropolitan Air Quality
Management Dist. (2011) 202 Cal.App.4th 404, 427.)
The United States Supreme Court has acknowledged that some state laws,
although purportedly passed to regulate mining, could have the effect of halting all
productive use of federally patented mining areas. “The line between environmental
regulation and land use planning will not always be bright; for example, one may
hypothesize a state environmental regulation so severe that a particular land use would
become commercially impracticable.” (Granite Rock, supra, 480 U.S. at p. 587 [94
L.Ed.2d at p. 595].) But the high court went on to hold that this result was generally
permissible, and only precluded where a direct conflict between a state and a federal law
was presented. (Id. at pp. 587-588 [94 L.Ed.2d at pp. 595-596].)
In a recent case involving a state prohibition (a moratorium) on dredge mining, our
Supreme Court rejected the view that state laws that impact or even halt mining
necessarily conflict with federal mining laws. Instead, the general purpose of federal
mining laws is to delineate “the real property interests of miners vis-à-vis each other and
17
the federal government.” (Rinehart, supra, 1 Cal.5th at p. 663.) “[T]he one area where
the law does intend to displace state law is with respect to laws governing title. In other
areas, state and local law are granted free rein.” (Ibid.) “The mining laws were neither a
guarantee that mining would prove feasible nor a grant of immunity against local
regulation, but simply an assurance that the ultimate original landowner, the United
States, would not interfere by asserting its own property rights.” (Id. at p. 666.) “[I]f
Congress intended to do more, we can reasonably infer it would have said so. It did not;
indeed, quite to the contrary, it specifically noted the continuing obligation of miners
with possessory interests, such as Rinehart, to obey state law. [Citations.] Collectively,
the text and legislative history reveal no intent to displace state law.” (Id. at p. 667.)
Most of the cases relied on by Hardesty which address vested mining rights
involve disputes between competing private claimants, not between miners and
government entities seeking to regulate them, and most predate Granite Rock. (See, e.g.,
Watterson v. Cruse (1918) 179 Cal. 379 [competing claim locators sought injunction];
Ames v. Empire Star Mines Co., Ltd. (1941) 17 Cal.2d 213 [injunction and accounting];
Favot v. Kingsbury (1929) 98 Cal.App. 284, 287-289 [suit to restrain issuance of state
patent to competing claimants]; Brown v. Luddy (1932) 121 Cal.App. 494, 503-504 [quiet
title]; Montgomery v. Gerlinger (1956) 146 Cal.App.2d 650 [quiet title].)
In his reply brief, Hardesty “does not dispute that a state may impose permit
requirements that qualify as ‘environmental regulation.’ ” He then cites cases holding
that regulations were found preempted by federal mining law. His evident view is that if
he cannot comply with a state law regarding vesting of nonconforming use (i.e.,
SMARA), that state law necessarily impairs his right to mine contrary to federal law.
But, as just explained, Rinehart rejects this view of the law.
For example, Hardesty relies heavily on South Dakota Mining Ass’n., Inc. v.
Lawrence County (8th Cir. 1998) 155 F.3d 1005, where a local ordinance prohibited new
permits for surface mining, and companies that had mined for many years sued to enjoin
18
the ordinance. (Id. at p. 1007.) Lawrence County held the ordinance was preempted
because “The ordinance’s de facto ban on mining on federal land acts as a clear obstacle
to the accomplishment of the Congressional purposes and objectives embodied in the
Mining Act.” (Id. at p. 1011.) However, our Supreme Court summarized Lawrence
County and rejected its analysis as follows:
“We do not disagree that Congress adopted a real property regime in the
Mining Law of 1872 with the larger purpose in mind of encouraging ongoing
mineral exploration across the West. Where we part company is with the
conclusion that such general, overarching goals would be frustrated by state and
local determinations that the use of particular methods, in particular areas of the
country, would disserve other compelling interests. Congress could have made
express that it viewed mining as the highest and best use of federal land wherever
minerals were found, or could have delegated to federal agencies exclusive
authority to issue permits and make accommodations between mining and other
purposes. It did neither, instead committing miners to continued compliance with
state and local laws (30 U.S.C. § 26) and endorsing limits on destructive mining
techniques imposed under such laws [citation]. These actions cannot be
reconciled with the view that Congress intended preemption of such state and local
determinations.” (Rinehart, supra, 1 Cal.5th at p. 672.)
Thus, Rinehart rejected the view that state laws that make mining more difficult or
even impracticable necessarily conflict with Congressional intent, and we are bound to do
the same. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Hardesty also relies on Brubaker v. Bd. of County Commrs., El Paso County
(Colo. 1982) 652 P.2d 1050, where holders of unpatented mining claims unsuccessfully
sought local permits for test drilling approved by the federal government to see if they
had located “valuable mineral deposits under federal mining law.” (Id. at p. 1052.)
Brubaker held the local entity sought “to prohibit the very activities contemplated and
authorized by federal law” and therefore presented an obstacle to federal policy. (Id. at
pp. 1056-1057.) However, as explained by our Supreme Court, Brubaker was decided
before Granite Rock, and therefore is not persuasive. (Rinehart, supra, 1 Cal.5th at p.
671.) Further, other cases have recognized the legitimacy of applying environmental
19
laws, even if they increase the costs of mining. (See Andrus, supra, 97 Idaho at p. 797
[554 P.2d at p. 975] [“Neither the requirement of obtaining a permit or of restoring the
land render it impossible to exercise [mining] rights specifically granted by the federal
legislation, although they may make it more difficult”].)
SMARA itself does not preclude Hardesty from mining. SMARA was enacted
with respect for extant mining operations and merely requires assurances that surface
mining operations develop adequate reclamation plans, a neutral state environmental rule.
It also allowed then-active surface mines to bypass the need to obtain a local permit. The
fact that application of SMARA’s requirements to a particular operation might make it
more expensive to mine, perhaps to the point where mining is infeasible, is not precluded
under Rinehart. (See also Andrus, supra, 97 Idaho at p. 797 [554 P.2d at p. 975].)
To the extent Hardesty contends he has a vested right to surface mine under
section 2776, he simply failed to carry his burden to prove any substantial surface mining
on the property had been conducted by that date. As the trial court found, substantial
evidence shows that prior mining had been hydraulic, tunnel, and drift mining, not
surface mining, which began in the 1990’s, and which represented a substantial change,
contrary to former section 2776’s requirement “that no substantial changes may be made
in any such operation except” according to SMARA’s terms. The evidence before the
Board supports this finding.
Accordingly, federal mining patents, alone, do not satisfy section 2776.12
12 Because Hardesty has not yet applied for a permit, it would be premature to hold that
the permit process directly conflicts with some specific federal law. (See Granite Rock,
supra, 480 U.S. at pp. 588-589 [94 L.Ed.2d at pp. 596-597] [party sought injunctive and
declaratory relief, did not know what permit requirements would actually be imposed,
and therefore was limited to arguing that no permit could be required under any
circumstances].) References in the record and briefs to a 1979 County permit ordinance
are unnecessary to address, because this appeal does not turn on it, nor were the Board’s
or trial court’s findings hinged on noncompliance therewith, although an extraneous
20
B. Proof of a Nonconforming Use
To show he had a vested right to engage in mining on the property, Hardesty’s
briefing emphasizes evidence of mining on the property before 1976. However, Hardesty
failed to prove any mining was occurring on or even reasonably before the date SMARA
took effect. SMARA was designed to allow existing, operating surface mines to continue
operating after its effective date without the need to obtain local permits. SMARA’s
grandfather provision does not extend to truly dormant mines.
Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533
(Hansen Brothers)--consistent with a long line of zoning cases--holds that a use must be
present at the time a new law takes effect, to be considered a nonconforming use. (Id. at
pp. 540-568; see Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal. 4th 310, 323, fn. 8 [“the traditional protection for
nonconforming uses established at the time zoning restrictions become effective”], italics
added; McCaslin v. City of Monterey Park (1958) 163 Cal.App.2d 339, 346 [“A
nonconforming use is a lawful use existing on the effective date of the zoning restriction
and continuing since that time in nonconformance to the ordinance”], italics added.)
Neither a dormant nor an abandoned use is a nonconforming use. (Hansen Brothers, at p.
552 [“Nonuse is not a nonconforming use”].) As stated by our Supreme Court, “ ‘The
ultimate purpose of zoning is . . . to reduce all nonconforming uses within the zone to
conformity as speedily as is consistent with proper safeguards for the interests of those
affected.’ [Citation.] We have recognized that, given this purpose, courts should follow
a strict policy against extension or expansion of those uses. [Citation.] That policy
necessarily applies to attempts to continue nonconforming uses which have ceased
operation.” (Hansen Brothers, at p. 568, italics added.)
portion of the trial court’s ruling references it and Testa’s report mentioned it to explain
that two separate periods of post-SMARA surface mining (by Barney’s and by Donovan)
were “unpermitted.”
21
It was Hardesty’s burden to prove he was conducting a nonconforming use at the
time the law changed. (See Hansen Brothers, supra, 12 Cal.4th at p. 564; Calvert v.
County of Yuba (2006) 145 Cal.App.4th 613, 629 (Calvert); Melton v. City of San Pablo
(1967) 252 Cal.App.2d 794, 804 [“The burden of proof is on the party asserting a right to
a nonconforming use to establish the lawful and continuing existence of the use at the
time of the enactment of the ordinance”], second italics added.) Here, the relevant date is
January 1, 1976, when SMARA took effect. The evidence, construed in the light most
favorable to the Board’s and the trial court’s decisions, shows that no mining had been
occurring for decades. Because, as explained, ante, Hardesty has forfeited any
evidentiary contentions by portraying the evidence in the light most favorable to himself,
we are not obliged to respond point-by-point to his many misstatements of the facts on
this issue.
In Stokes v. Board of Permit Appeals (1997) 52 Cal.App.4th 1348, Stokes bought
a vacant property in 1993 that had been used as a bathhouse, but not for at least seven
years. In 1985, new zoning rules took effect. (Id. at p. 1351.) Local laws allowed legal,
nonconforming uses to continue unless, inter alia, they had been discontinued or
abandoned, and deemed a three-year period of disuse to reflect an intent to abandon. (Id.
at pp. 1351-1352.) Stokes obtained permits and began work, but was stopped on the
ground the long vacancy meant he had to obtain a conditional use permit. (Id. at p.
1352.) A local board upheld the stop order in part because the bathhouse had been closed
for at least three years. (Id. at pp. 1352-1353.) Acknowledging that mere discontinuance
of use does not necessarily reflect an intent to abandon, though it is a factor that may help
show abandonment, Stokes explained that “Stokes’s predecessors had completely vacated
the building for seven years and the building had not been used for any purpose at the
time [Stokes] took possession. There are no facts to which Stokes can point as evidence
the prior owners intended to and in fact did continue to operate the property as a
bathhouse or for a related use.” (Id. at pp. 1355-1356.)
22
Here, the evidence shows Donovan bought a mine already in a state of disuse,
much as Stokes bought a long-closed bathhouse. (See also Walnut Properties, Inc. v.
City Council (1980) 100 Cal.App.3d 1018, 1024 [party bought a closed movie theater,
“In other words, the property was not being put to a lawful use which use continued up to
and after the time the use became unlawful or nonconforming”].) Donovan then certified
to the government that the mine was closed in order to sell it. In the Legacy Land
depositions, Donovan testified his intent in trying to sell the property “was to let them
buy the property and [then] move on”; his wife in turn testified “everything was going to
be closed so we could move and have our life together.” This vitiates the claim he did
not know what he was doing, or that he retained some subjective intention to mine, or
have his successors mine the property, as Hardesty contends.
Further, the record shows a proposed significant change in use since pre-1976
times. “The continuance of a nonconforming use ‘is a continuance of the same use and
not some other kind of use.’ ” (County of San Diego v. McClurken (1951) 37 Cal.2d 683,
688; see Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 651 [“enlargement of
plaintiffs’ trailer court to accommodate 30 more trailers is clearly a different use”];
County of Orange v. Goldring (1953) 121 Cal.App.2d 442, 446-447].) Surface mining is
a changed use on Hardesty’s property, when contrasted with the pre-SMARA use. Nor
can Hardesty persuasively rely on post-1976 unpermitted surface mining--twice halted by
the government--to show that surface mining was an extant use before 1976.
C. Abandonment
As an alternate basis for decision, the Board and the trial court found any right to
mine was abandoned.
Preliminarily, we agree with Hardesty that extractive industries like mining often
exist at the mercy of market forces. If the price dips, an operator may scale back or cease
active operations, while retaining the intention to resume operations when prices recover.
As an illustration of this, Hansen Brothers described a sister-state case where “the failure
23
to operate a concrete mixing facility for six months during a business slowdown, while
the operator filled orders from another plant, was not a cessation of operation. There . . .
the plant, equipment, inventory, and utilities were maintained throughout the period and
the plant could be made operational within two hours.” (Hansen Brothers, supra, 12
Cal.4th at p. 569, italics added.) The question in such cases is whether there is an intent
to abandon or permanently cease operations, or instead a business judgment that a
temporary--even if prolonged--hiatus should be made. Otherwise, as Hardesty suggests,
an operator might be forced to continue operations at a loss--perhaps for decades--in
order to await market recovery at some unknowable future point.
But this does not mean that every operator who closes a mine because of economic
reasons retains an intention to reopen the mine one day, although we accept Hardesty’s
theoretical point that fluctuating mineral prices may induce an operator to close a mine
temporarily while retaining the intention to reopen, to ride out the market. (See Hansen
Brothers, supra, 12 Cal.4th at pp. 545-546, 569) [demand for mined aggregates fluctuates
with the market; temporary closure during a business slowdown does not of itself
constitute abandonment]; accord, Pardee Construction Co. v. California Coastal Com.
(1979) 95 Cal.App.3d 471, 475, 481-482 [after building most planned units, developer
allowed permits to lapse during a recession, but intended to complete remaining units
when “sales warranted their construction”; held, no abandonment of vested right]; cf.
Miscovich v. Trych (Alaska 1994) 875 P.2d 1293, 1296 [“Because government control
held gold prices at $35 per ounce . . . mining was not economically feasible”].) But that
does not mean all gold mines were closed because of low prices, with the intent to reopen
when profitable. In other words, the fact national gold prices were low until shortly
before SMARA took effect (January 1, 1976) does not compel a finding that future
mining was intended by Hardesty’s predecessors.
As stated by Hansen Brothers, in the zoning context, “ ‘[A]bandonment of a
nonconforming use ordinarily depends upon a concurrence of two factors: (1) An
24
intention to abandon; and (2) an overt act, or failure to act, which carries the implication
the owner does not claim or retain any interest in the right to the nonconforming use
[citation]. Mere cessation of use does not of itself amount to abandonment although the
duration of nonuse may be a factor in determining whether the nonconforming use has
been abandoned [citation].’ ” (Hansen Brothers, supra, 12 Cal.4th at p. 569, italics
added.) Apart from adding his view that precedent states abandonment must be shown
by clear and convincing evidence by the party relying on abandonment, Hardesty does
not dispute the Hansen Brothers test as to abandonment.
Hardesty relies on cases such as Gerhard v. Stephens (1968) 68 Cal.2d 864, which
held “abandonment hinges upon the intent of the owner to forego all future conforming
uses of his property and the trier of fact must find the conduct demonstrating the intent
‘so decisive and conclusive as to indicate a clear intent to abandon.’ ” (Id. at p. 889.)
Assuming that equates to “clear and convincing” evidence, we find it difficult to conceive
of clearer evidence of an intent to abandon than a certified statement by the owner to the
government that the mine has been closed with no intent to reopen it, and the Board and
the trial court could rationally find Donovan’s statement meant what it said. Indeed, at
the hearing one Board member gave his opinion that “the statements signed by the
operator that the site is abandoned and reclamation is complete really [are] dispositive at
this point and that bell cannot be un-rung by creative discussion later.” Although the
statement of one Board member does not necessarily reflect the views of the entire
Board, here it would be rational for the whole Board to adopt that view.13
13 A leading treatise states that “[a]n abandonment may be effected by an instrument of
relinquishment filed in the land office.” (2 Lindley on Mines (3d ed. 1914)
Abandonment and Forfeiture, § 644, p. 1601.) Here, Donovan filed with the government
an instrument stating with exquisite clarity his intent to discontinue mining, consistent
with the treatise.
25
As for Hardesty’s view that the Board misapplied both the standard of proof and
burden of proof, the Board found “clear and knowing intent” by Hardesty’s predecessors
to abandon. In our view, that was an adequate finding under a “clear and convincing”
standard, particularly because, like the trial court did, we must presume the Board applied
the correct law. (Evid. Code, § 664 [presumption that official duty has been performed];
see Milligan v. Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002,
1008.) Further, the clear tenor of the factual findings, given the evidence, renders
irrelevant any error about who bore the burden of proof.
Here, the evidence of abandonment was overwhelming. Although possibly
Triplett had dreams of someone finding the elusive deep blue lead, he did not actually
mine for many, many years. Further, a person’s subjective “hope” is not enough to
preserve rights; a desire to mine when a land-use law takes effect is “measured by
objective manifestations and not by subjective intent.” (Calvert, supra, 145 Cal.App.4th
at p. 623.) Critically, Donovan certified to the government that all mining had ceased,
with no intent to resume, which was uniquely persuasive evidence of abandonment.
Indeed, it is difficult to conceive of clearer evidence that the mine was permanently
closed than Donavan’s certification, which is direct evidence of Donovan’s intent to
classify the mine as closed with no intent to reopen. Hardesty contends Donovan was
illiterate, and that Donovan had been directed how to fill out the forms by a County
employee and therefore the forms do not accurately reflect his true intentions, which
purportedly were that the property should always be mined. These points were discussed
at the Board hearing, and the Board and the trial court were free to weigh the evidence
and find the documents Donovan filed meant what they said.
Moreover, two public commentators gave significant statements relevant to
abandonment, not rebutted at the hearing and not mentioned in Hardesty’s briefs. First,
Mary Harris-Nugent, whose family has owned the Harris Ranch bordering the Big Cut
Mine property since “the mid-1800’s” and who had personally lived on the family ranch
26
for 52 years, stated “to my knowledge, there has been no operational surface mining of
any kind . . . during my lifetime. [¶] The property has remained dormant and abandoned
until Mr. Donovan purchased it. He built his home and a road to his ranch and that is
about all the activity we [have] seen as the closest neighbors to him.” Second, a neighbor
of hers, Gail Taxera, has lived on Harris Road, a mile from the proposed mine, for over
50 years and had “never heard or seen signs of active mining with the exception of the
activities during the time the Donovans occupied the property.” (Recall that the
Donovans did not buy the property until 1988, well after SMARA took effect.) The
Board could rationally accept these public statements, corroborated by other information
before the Board. They dovetail with Donovan’s own documentation showing he ceased
mining with no intention to resume.14 Thus, viewed through the appropriate lens,
overwhelming evidence supports the Board’s and the trial court’s findings of
abandonment.
Even if the Board erred in assignment of the burden of proof, the trial court did
not, and Hardesty has failed to show the outcome at the Board would have differed.
II
Adequacy of Administrative Findings
In a multi-part claim, Hardesty contends the Board’s findings fail “to bridge the
analytic gap between the raw evidence” and the Board’s decision so as to prevent this
court from evaluating the “analytic route the administrative agency traveled from
evidence to action.” (Topanga Assn. for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 515.) In particular, he claims the decision rests on abandonment
14 Hardesty suggests Donovan’s declarations applied to only a very small part of the
entire property. Even if true, that point would not account for decades of nonuse and lack
of hard evidence of mining on the rest of the property.
27
and argues the Board and trial court did not apply legally appropriate rules to find
abandonment, nor do the facts support such a finding.
To the extent Hardesty separately attacks the trial court’s decision in this section
of his briefing, his points are forfeited, as he has failed to state the facts fairly, as
explained in our Preliminary Observations, ante. We will address only his claim that the
Board’s findings were insufficient as a matter of law.
Two of the Board’s findings were as follows:
“The cessation of mining activities subsequent to World War II, lasting
through the 1990s and, even then, commencing for a brief period without
authorization from El Dorado County and without submission and approval of
reclamation plans and financial assurances as required by SMARA, coupled with a
succession of land owners who did not conduct commercial mining operations
during that period, precludes reliance on the pre-World War II historic gold
mining operations as a basis for establishing a current vested right to mine on
Claimant’s property.” (Italics added.)
“The historical record regarding gold mining prior to World War II, and the
subsequent conduct of owners of the subject property demonstrates clear and
knowing intent by the claimant’s predecessors to waive, abandon, or otherwise
forego any vested right that may have pertained to those pre-World War II mining
efforts.” (Italics added.)
These findings show the Board credited evidence presented to it--disputed by
Hardesty but nonetheless substantial, as recounted above--that Hardesty’s predecessors
(1) stopped active mining operations long before 1976, and (2) abandoned the mine.
Administrative findings suffice when they both “inform the parties of the bases on
which to seek review” and “permit the courts to determine whether the [administrative]
decision is based on lawful principles.” (McMillan v. American General Finance Corp.
(1976) 60 Cal.App.3d 175, 185; see Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 516 [“The findings
do not need to be extensive or detailed. ‘ “[W]here reference to the administrative record
informs the parties and reviewing courts of the theory upon which an agency has arrived
28
at its ultimate finding and decision it has long been recognized that the decision should be
upheld if the agency ‘in truth found those facts which as a matter of law are essential to
sustain its . . . [decision]’ ” ’ ”].)
The Board’s findings here are sufficiently clear to permit judicial review, and
further evidentiary detail was not necessary. This is not a case where there were many
possible analytical routes to a decision: Either Hardesty and his predecessors mined (or
intended to mine) the property actively before the relevant date or they did not, and
Donovan either abandoned any right to mine by declaring the mine closed with no intent
to reopen or he did not. The Board was presented with two starkly contrasting versions
of history and emphatically rejected Hardesty’s version. Contrary to Hardesty’s implicit
view, the Board was not required to discuss and dissect the raw evidence item-by-item.
“Here, the analytic route is clear.” (Singh v. Davi (2012) 211 Cal.App.4th 141, 152.)
Accordingly, we agree with the trial court that the Board’s findings were adequate.
IV
Procedural Due Process
Hardesty contends the Board violated procedural due process because “after
Hardesty requested a determination of vested rights, the Board’s Executive Officer met
with the County to discuss matters at issue, and reviewed the County’s file. The
County file was not submitted as part of the record, and no County witness appeared in
person at the hearing.” In his view, the contact between Testa and the County tainted the
Board’s hearing process. We disagree.
Hardesty relies on the rule that “one adversary should not be permitted to bend the
ear of the ultimate decision maker or the decision maker’s advisers in private.”
(Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.
(2006) 40 Cal.4th 1, 5 (Beverage Control).) But the flaw in Hardesty’s claim is that
Testa provided written reports to the Board that were in the public record and available to
Hardesty, and there is no evidence that he provided any other information to the Board or
29
its members. Although Testa discussed the facts with County officials, no information
from those discussions was shared with the Board except as reflected by Testa’s reports.
There is no evidence Testa gave the Board information not available to Hardesty.
The trial court granted a motion to augment the administrative record with
declarations, a ruling not challenged on appeal. Testa declared he had no
communications with the Board, or any member or advisor thereof about Hardesty’s
matter, except at public hearings, but spoke with Arcand and Thalhammer. Arcand, a
senior engineering geologist with the Board, had no communications with the Board, or
any member or advisor thereof about Hardesty’s matter, but did speak with Testa.
Thalhammer, a former deputy attorney general, had acted as the Board’s legal advisor,
had no communications with the Board, or any member or advisor thereof regarding
Hardesty’s matter, except at public hearings, but he did speak with Testa. This evidence
supports the trial court’s finding there were no ex parte communications with the Board.
Everything Testa told the Board was a matter of public record and known to Hardesty.
Hardesty’s complaint that Testa’s discussions with County officials were improper
ex parte communications is unsupported by authority holding a person who writes a
publicly available report must include summaries of every source of information,
therefore the point “is deemed to be without foundation and requires no discussion by the
reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
Further, as the trial court put it, not only was there “internal separation” between
Testa and the Board, “Testa did not act as an advisor to the Board, but as an advocate for
the agency. Thus, it was not inappropriate for [him] to communicate with the County or
to prepare a ‘staff recommended’ decision prior to the hearing. It was up to the members
of the Board to decide whether to accept that recommendation.”15
15 Hardesty suggests the Board was limited to considering “submitted evidence . . . not
to develop or investigate the facts.” But the Board may consider “additional evidence”
30
In the lead case relied on by Hardesty, Beverage Control, supra, 40 Cal.4th 1, our
Supreme Court invalidated a procedure whereby an agency prosecutor at the ALJ hearing
then provided ex parte information to the full board. But Beverage Control also held that
“nothing in the [Administrative Procedures Act] precludes the ultimate decision maker
from considering posthearing briefs submitted by, and served on, each side. The
Department if it so chooses may continue to use the report of hearing procedure, so long
as it provides licensees a copy of the report and the opportunity to respond.” (Id. at p.
17, italics added; see City of Pleasanton v. Board of Administration (2012) 211
Cal.App.4th 522, 531-532.) Beverage Control did not hold that a public entity “is
precluded from soliciting or receiving a written analysis and recommendation from the
agency’s prosecuting attorney delivered to it as part of a public agenda packet along with
the adversary’s opposing analysis and recommendation.” (Pleasanton, at p. 533.)
Hardesty contends anything Testa learned from the County should have been
disclosed to him, but as the trial court correctly found, assuming any communications
from the County that were not included in Testa’s report took place, they would be
irrelevant because they could not have affected the Board’s decision. This is not a
situation where the Board received ex parte information but denies it was considered.
(Cf. Beverage Control, supra, 40 Cal.4th at p. 16 [“the agency engaging in ex parte
discussions cannot raise as a shield that the advice was not considered”].) Further, before
the hearing Hardesty had access to a letter from the County formally opposing his RFD,
which describes the County’s factual and legal objections. Thus, Hardesty had access to
the County’s views and an opportunity to respond, even if he did not know precisely what
(see Regs., §§ 3956, 3961, subd. (b)) and it is both commonplace and unobjectionable for
a public entity to consider a staff report made public before a hearing. (See, e.g., Today’s
Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 225-
230; Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 14-15.)
31
the County may have told Testa apart from what Testa included in his report to the
Board.
Thus, we agree with the trial court that there was no procedural unfairness.
DISPOSITION
The judgment is affirmed. Hardesty shall pay the Board’s costs of this appeal.
(See Cal. Rules of Court, rule 8.278(a).)
/s/
Duarte, J.
We concur:
/s/
Nicholson, Acting P. J.
/s/
Butz, J.
32
Filed 5/16/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOE HARDESTY ET AL., C079617
Plaintiffs and Appellants, (Super. Ct. No. 34-2010-
80000594-CU-WM-GDS)
v.
ORDER DENYING
STATE MINING AND GEOLOGY BOARD, PETITION FOR
REHEARING &
Defendant and Respondent. CERTIFYING OPINION
FOR PARTIAL
PUBLICATION
[NO CHANGE IN
JUDGMENT]
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II and III of the Discussion.
1
THE COURT:
Plaintiffs Joe Hardesty et al., have filed a petition for rehearing with this court.
Nonparty Steven L. Mayer of Arnold & Porter Kaye Scholer LLP has filed a request for
publication with this court. It is hereby ordered:
1. Petitioners’ petition for rehearing is denied.
2. The opinion in the above-entitled matter filed April 17, 2017, was not
certified for publication in the Official Reports. For good cause it now appears part I of
the opinion should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Nicholson, Acting P. J.
/s/
Butz, J.
/s/
Duarte, J.
2
EDITORIAL LISTING
APPEAL from a judgment of the Superior Court of Sacramento County, Timothy
Frawley, Judge. Affirmed.
Diepenbrock Elkin Gleason LLP and Jennifer L. Dauer for Plaintiffs and
Appellants.
Kamala D. Harris, Attorney General, David Chaney, Chief Assistant Attorney
General, John Saurenman, Senior Assistant Attorney General, Christiana Tiedemann,
Deputy Attorney General, David G. Alderson and Tara L. Mueller, Deputy Attorneys
General, for Defendant and Respondent.
3