Letter to Planning Commission Re: Blue Lead and Future Guidelines

Dear Commissioners:

Thank you for continuing until your next meeting the consideration of the application of Blue Lead Mine for the vested right to mine, thus allowing further opportunity for public comment. Like most people attending the April 22nd meeting of the Planning Commission, I appreciate and sympathize with the difficult task before you, and the diligence with which you are undertaking that task. I suspect you are all feeling that classic dilemma, “Damned if I do, damned if I don’t.”

I’d like to suggest two useful ideas that could help you resolve that dilemma, if not to everyone’s satisfaction, then at least in such a manner that everyone understands this has been a fair process.

The first idea has to do with facts and the law, the second idea with the precedent you will be setting.

Consideration of the facts must precede consideration of the law.

You concluded your April 22nd meeting with a request to the County Counsel’s office to develop a further clarification of the legal aspects of “abandonment.”  By ending the meeting in this way, you left the impression that the 1954 vesting question has been settled, and that the issue of abandonment can only be resolved by lawyers.

On the contrary, the 1954 vesting claim remains very much in doubt, and therefore the question of abandonment is probably irrelevant.

Much like the work of a jury drawn from a local community, your job is first to be “judges of the facts.” And for that job you don’t need to have a deep understanding of the law. There are good and important reasons why juries and Planning Commissions aren’t composed entirely of attorneys, but rather are drawn from the community at large. It was after all an ordinary child, uncluttered with legal knowledge, and not the King’s attorney, who saw that His Majesty was entirely naked! You can analyze the evidence for vesting in 1954 – or in this case, the lack of it – for yourselves.

As your staff pointed out in its analysis, the evidence is too weak to support a conclusion of an ongoing legal mining operation on the Blue Lead site in 1954. I’d go further. The evidence is absurdly weak, and in at least one instance it actually undermines the applicant’s own case: a photo submitted by the applicant depicts a scene at Missouri Creek, which is not even on the Blue Lead site.

It’s not surprising, considering the weakness of this claim of initial vesting in 1954, that the applicant’s attorney focuses so little attention on it in his summary, and so much more attention on the decades after 1954, where questions of abandonment are obfuscated and surrounded by arcane commentary on the Hansen case, and tortuous legal arguments are advanced to gloss over the long periods of inactivity on the site during those years.

Only after your judgment is rendered on the question of the initial vesting in 1954 should you even hypothetically consider the finer legal nuances of the issue of abandonment in later decades.

If the property wasn’t vested in 1954, then every other consideration, legal or otherwise, is irrelevant.

You have all the facts and all the skills you need, without further legal opinion, to render a correct decision on the issue of initial vesting in 1954.

Your decision in this case will set a precedent, possibly opening a Pandora’s Box of further vested rights applications.

You should be aware that Charles P. Watson, President and Chief Geologist of Advanced Geologic Exploration, one of whose clients is Blue Lead Mine, has been advertising the sale of mining claims in Plumas and Nevada County with the suggestion that the “properties are private lands and may have vested mining rights.”

This, along with the now worldwide news of the nine-pound gold nugget found on Jim Sanders’ property in Nevada County, is sure to keep the gold fever simmering, and your agenda full.

Whether or not Mr. Watson’s parcels each have vested mining rights will, of course, be for you to determine.

Since I’m sure you don’t want Nevada County to get the reputation for being an easy sell, or pushover, when it comes to vested rights applications, I suggest you use the opportunity to learn from this current case and immediately set some strict and explicit Nevada County Planning Department standards and guidelines for the future cases that are surely coming your way.

First, why not define some minimum standards for concrete evidence of a legal mining operation, similar to those prescribed in SMARA (Surface Mining and Reclamation Act), such as business records (examples: production records, receipts, invoices for mining products, mineral leases, etc.), and/or county files (environmental reports, assessor and tax records, etc.), and/or witness testimony (reports, articles, diaries or other contemporary reports by neighbors, colleagues, etc), and/or historical photographs (precisely dated photos which are clearly and unequivocally of the subject site, etc) … all of which could be pre-screened by staff before an application is even considered in front of the full Commission. Authorize staff to reject an application for insufficient evidence, with some procedure for appeal to the full Commission.

Why not require every applicant for vested rights to be current with all fees and penalties in Nevada County and other California counties before even reviewing his application in front of the full Commission?

Why not require the applicant to be free of any unresolved legal judgments in any California county before even reviewing his application in front of the full Commission?

Why not require every applicant to be current and in good standing with the Office of Mine Reclamation and in conformance with all regulations and current with all assessments and penalties under SMARA before even reviewing his application in front of the full Commission?

Such strict regulations and guidelines would serve to support, not inhibit, legitimate mining activity in Nevada County, in a manner consistent with the interests of the whole community.

Such guidelines would also give you, as Commissioners, a good foundation for rationally and impartially evaluating such claims, with maximum community support for your final decisions, and minimal risk of costly protracted appeals.

Don Pelton
Grass Valley

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