California Coastal Commission V. Granite Rock Co.)

California Western Law Review Volume 25 Number 1 Article 8 1988 National Mineral Policy: A Critical Need for Public Awareness (California Coastal Commission v. Granite Rock Co.) Carl D. Savely Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation Savely, Carl D. (1988) "National Mineral Policy: A Critical Need for Public Awareness (California Coastal Commission v. Granite Rock Co.)," California Western Law Review: Vol. 25 : No. 1 , Article 8. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol25/iss1/8 This Comment is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact [email protected]. Savely: National Mineral Policy: A Critical Need for Public Awareness (Ca NOTE National Mineral Policy: A Critical Need for Public Awareness (California Coastal Commission v. Granite Rock Co.) We the willing, led by the unknowing, are doing the impossible for the ungrateful. We have done so much for so long, with so little, we are now qualified to do anything with nothing.' INTRODUCTION The Big Sur region along the central California coast affords the visitor an impressive view of merging natural resources. The Pacific Ocean and shoreline blend with the Coast Ranges and its associated natural resources to create a unique panorama. Pico Blanco is a white peak forming part of the Coast Ranges south of the town of Big Sur. Pico Blanco also contains the largest known deposit of chemically pure high-grade limestone2 west of the Mis- sissippi River.3 The Granite Rock Company4 (Granite Rock) began exploring the Pico Blanco area in 1962 to determine the economic viability 1. This phrase, of unknown origin, has been a motto of the laborer throughout Amer- ican industry. Historically, the American miner used this phrase to represent his attitude toward management. It is suggested that today this phrase reflects the mining industry's view toward much of the American public. 2. Limestone of this quality has over sixty recognized uses and in many cases is an essential element for a completed product. Some of the large volume uses are: (1) water filtration and acid reduction; (2) stack gas control for acid removal on large combustion plants; (3) acid rain controls; (4) acid control of lakes and reservoirs; and (5) neutraliza- tion of chemical toxic waste. Other moderate to large volume uses in which this quality of limestone is an essential element of a completed product are: (1) plastic fillers to replace scarce and expensive petroleum-based products; (2) livestock and poultry feed additives; (3) paint fillers; (4) glass flux for all glass products; and (5) pharmaceutical fillers. Decla- ration of Bruce G. Woolpert, President of Granite Rock Co. at 3, Granite Rock Co. v. California Coastal Comm'n, 590 F. Supp. 1361 (N.D. Cal. 1984) (No. C-83-5137-WWS). 3. The Pico Blanco deposit is estimated by the California Division of Mines and Geology to contain an excess of one billion tons. Id. at 1. 4. The Granite Rock Company is a family owned company which was founded in 1900. Since the 1920s, the company has been a major supplier of rock, sand, ready mixed concrete, and asphaltic concrete in the San Francisco and Monterey Bay areas. The company's discovery and exploration work in the Big Sur area began during the early 1960s. Id. Published by CWSL Scholarly Commons, 2015 1 CALIFORNIACalifornia WesternWESTERN Law Review,LAW REVIEWVol. 25 [2015], No.[Vol. 1, Art. 25 8 of limestone production. The limestone deposit lies partly on pri-" vate land and partly within the Los Padres National Forest.5 In the early 1960s, following discovery of valuable minerals, Granite Rock staked unpatented mining claims6 on lands managed by the Los Padres National Forest." In 1980 Granite Rock was ready to enter the initial development phase of mining, and test the practicality of commercial production. Granite Rock applied to the Los Padres National Forest for approval of its Plan of Operation." The company received approval for its activity and began quarrying" operations in 1981 pursuant to a Revised Plan of Operation'0 issued by the United States Forest Service (Forest Service)." 5. Granite Rock's area of operation is not visible from Highway One, and only slightly visible from the Little Sur Trail (1E03) and the Mt. Manuel Trail (2E06). Los Padres National Forest Environmental Assessment at 10-11, Granite Rock, 590 F. Supp. 1361 (No. C-83-5137-WWS). 6. "Unpatented mining claim" applies to minerals that are locatable under the Mining Act of 1872. It refers to title by possession, in the nature of an easement only, and is the mere right of possession and enjoyment of profits, without purchase, and upon condi- tion; and may be defeated at any time by failure of the party in possession to comply with the conditions of 30 U.S.C. § 28. Benson Mining & Smelting Co. v. Alta Mining & Smelt- ing Co., 145 U.S. 428, 430 (1892). The discovery of valuable mineral (extracted and mar- keted it at a profit) is essential to the validity of an unpatented mining claim. Lombardo Turquoise Milling & Mining Co. v. Hemanes, 430 F. Supp. 429, 433 (D.C. Nev. 1977). Under the law, "mineral" includes metallic and non-metallic minerals. Northern P. R.R. v. Soderberg, 188 U.S. 526, 533 (1903). 7. Los Padres National Forest is the national forest with jurisdiction over Pico Blanco. Los Padres National Forest acts as an agent of the United States Forest Service ("USFS" or "Forest Service") under the jurisdiction of the Department of Agriculture. 8. A "Plan of Operation" (used interchangeably with Operating Plan), is submitted by the operator for approval to the Forest Service pursuant to 36 C.F.R. §§ 228.1-228.15 (1986), which establishes mandatory guidelines for the conduct of operations undertaken on unpatented mining claims. The plan addresses all aspects of the project, from access to the site through final reclamation, with the foremost goal of minimizing adverse environmental impacts. Pico Blanco-Requirements of Plan of Operations, Granite Rock, 590 F. Supp. 1361 (No. C-83-5137-WWS). 9. Quarrying is an open-pit mining method where stone is removed from the earth. THE LIVING WEBSTER ENCYCLOPEDIC DICTIONARY OF THE ENGLISH LANGUAGE 782 (1977). 10. A "Revised Plan of Operation" is the revised operating plan that is done subse- quent to completing the environmental assessment. The environmental assessment is done to reduce the short-term and long-term disturbance to the environment and to provide for reclamation upon completion of the project. Pico Blanco-Revised Plan of Operation, Granite Rock, 590 F. Supp. 1361 (No. C-83-5137-WWS) (based upon a review of the original plan submitted by Granite Rock, it seems this proposal was the least costly envi- ronmentally safe mining method available). The USFS determined that the original plan failed to adequately address public safety during blasting and the reclamation of disturbed lands which would have resulted from the completed mining operation. Environmental As- sessment at 6-7, Granite Rock, 590 F. Supp. 1361 (No. C-83-5137-WWS). 11. 36 C.F.R. § 228.8 (1986) (Forest Service Regulations-Locatable Mineral) pro- vides that the operator shall comply with applicable federal and state air, water, and solid waste disposal standards, expressly including, as amended, the Federal Clean Air Act, 42 U.S.C. §9 7401-42 (1982) and, as amended, the Federal Water Pollution Control Act, 33 U.S.C. §9 1251-1376 (1982). Both statutes mandate cooperation between the operator and https://scholarlycommons.law.cwsl.edu/cwlr/vol25/iss1/8 2 1988] Savely:NATIONAL National Mineral MINERAL Policy: POLICYA Critical Need for Public Awareness (Ca In October 1983, the California Coastal Commission 2 (Coastal Commission) notified Granite Rock that it was violating the Cali- fornia Coastal Act of 19763 (CCA) and the federal Coastal Zone Management Act of 1972's (CZMA). The Coastal Commission demanded that Granite Rock obtain a coastal development permit in addition to the permit it had already obtained from the Forest Service.15 In response, Granite Rock filed suit in a United States district court against the Coastal Commission' 6 requesting the court grant declaratory relief and enjoin the Coastal Commission from compelling a separate permit.17 The dispute focused on who ultimately controlled mining activity on federal forest lands: a state agency or the United States Forest Service. Granite Rock alleged that the CZMA expressly excluded federal lands from the coastal zone and that the application of the CCA to federal mining claims was preempted by the Mining Act and Forest Service Regulations.' The Coastal Commission an- swered that even if Granite Rock's unpatented claims were excluded from the coastal zone, neither the Mining Act nor the CZMA preempted the state's inherent police power to regulate private mining activity on federal lands. 19 Granite Rock filed a motion for summary judgment. However, the district court denied Granite Rock's motion and dismissed the complaint finding Gran- ite Rock was not entitled to the relief requested.20 Granite Rock appealed to the Ninth Circuit Court of Appeals.2' federal, state, and local governments to ensure compliance with all relevant statutes and regulations. (All applicable laws and regulations were complied with prior to the issuance of the "Revised Plan of Operation"). Amended Complaint and Answer to Amended Com- plaint, Granite Rock, 590 F. Supp. 1361 (No. C-83-5137-WWS). 12. The California Coastal Commission is the administrative agency under the Cali- fornia Coastal Act of 1976, CAL.

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