On June 7th Blue Lead Mine LLC formally appealed to the Nevada County Board of Supervisors to reverse the Planning Commission’s May 27th decision denying the vested right to mine.

The only reason that this matter dragged on for months before the Planning Commission and is now in consideration on appeal before the Board of Supervisors is that Mr. Chadwick, Blue Lead’s attorney, has a talent for making a very simple matter seem complicated.

The simple fact is that there is no convincing evidence that a lawful viable commercial mining operation was being conducted by the owners of the Blue Lead site in 1954, when Nevada County first required mining permits.

Mr. Chadwick speculates that Mr. Lyle White — who did not own or lease the property — was conducting such an operation in 1954. Mr. Chadwick asks us to accept his speculation as evidence.

However, evidence presented during the public comment on May 27th is fatal to Mr. Chadwick’s argument: Lyle White could not have been conducting a commercial mining operation on the subject site (with or without permission) because he was working full-time at The Union in Grass Valley and according to his own report, spending all his spare time tending to the Red Dog Cemetery.

Blue Lead’s appeal contains some curious and inaccurate statements.

First, as Yubanet reported on June 7th:

In the statement of reason for the appeal, Blue Lead’s attorney incorrectly states the Planning Commission “voted unanimously in favor of affirming Blue Lead’s vested right to mine its Property” at their March 25 meeting. In fact, the commission only voted on a motion of intent on that date.

Notice that the Commission formed that intent before hearing substantial testimony from historian David Comstock and other members of the general public. Based on that testimony and on the Planning Commission staff’s analysis, the Commission ultimately found that Blue Lead had not met it’s burden of proof in establishing evidence of a legitimate mining enterprise on the subject site in October of 1954.

Mr. Chadwick also refers optimistically in his appeal to his previous weak attempts to prove vesting as “settled evidence,” and accuses county staff of attempting “to re-open” it.

Vesting was never settled evidence because Blue Lead failed to meet its burden of proving it.

In his appeal, Mr. Chadwick complains that on May 27th the Commission reversed its “prior decision” without making any “specific findings as to … whether mining operations were on-going on Blue Lead’s Property in 1954, when the right vested.”

As we have already seen, there was no prior decision, only a motion of intent on March 25th to make an affirmative decision in the future. At the next meeting on April 22nd, the decision was delayed until May 27th in order to allow more time for public comment.

But more importantly, the Planning Commission itself had no burden of proof to make specific findings.

Rather, the applicant bore the burden of submitting convincing evidence proving he’s entitled to the vested right. The Commission did all it was required to do. It made a judgement about whether the applicant had met his burden of proof. It found that he had not.

It’s not surprising that nowhere in his formal appeal does Mr. Chadwick refer to the influential public testimony that brought new evidence to light, evidence fatal to his vesting argument.

The evidence most damning to Blue Lead’s application was that which established that Lyle White was employed full-time at The Union in Grass Valley in 1954, and spent most of his spare time caring for the Red Dog Cemetery.

Blue Lead’s attorney Mr. Chadwick, on the other hand, speculated that White was conducting a serious and lawful commercial mining enterprise on the subject property in 1954. He apparently hoped that the Commission would accept this speculation as evidence. In the end, the Commission did not.

Finally, in his appeal Mr. Chadwick promises at some future time (at the next BOS meeting?) to introduce “new evidence” relating to “(1) Lyle White’s permission to mine the Property; and (2) Lyle White’s commercial mining operations.”

Does Mr. Chadwick actually have new evidence, or does he hope that by promising it, the BOS will be more likely to consider his appeal rather than reject it out-of-hand?

Any “new evidence” will have to overcome the already well-established evidence that Lyle White was too busy and too far away to have plausibly been conducting a lawful and viable mining enterprise on the subject property in 1954.

This established evidence  properly persuaded the Nevada County Planning Commission and its staff, and will most likely convince the Board of Supervisors that Blue Lead is not entitled to the vested right to mine.

As many of us reminded the Planning Commission in the public comments leading to their decision on May 27th, denying Blue Lead the vested right to mine is not the same as denying Blue Lead the right to mine. They may still mine so long as they get the appropriate county permits.