An impassioned discussion took place at a Wednesday, Dec. 13 Zoning Administration hearing. Nearly 40 community members turned out in person to share their concerns and ask questions about the contentious case before the panel, with more attending on Zoom.
At issue was an April 23 request by US Copper Corp. for a determination of vested rights to mine at the historic Engels and Superior mines near Greenville. A Planning Department staff report presented Oct. 11 has recommended approval; a final decision is expected in May. The two-hour discussion included county staff and representatives from US Copper, who were present but did not comment.
Establishing scope of discussion
Deputy County Council Josh Brechtel and Interim Zoning Administrator Jim Graham prefaced the public hearing by reminding attendees of the relatively narrow focus of the discussion. The Dec. 13 meeting, a continuation of an Oct. 11 hearing, was only to accept public comment, and only on the matter currently before the Zoning Administrator, they said.
Toronto-based US Copper Corp has described a large-scale project to extract an estimated 1.3-billion pounds of copper over 17 years from several sites spanning 13 square miles on and near Engels. The current application for vested rights involves only two parcels: Engels Mine (APN 007-080-004) and Superior Mine (APN 007-090-003), an area totalling 1.15 square miles (735 acres), Brechtel said.
“Today is not the day” to discuss environmental concerns, housing, or financial assurances, he said: “We absolutely do not want a repeat of what happened at the last meeting.” Brechtel was referring to the Oct. 11 public hearing, where public comment focused on the environment, traffic, housing, and county administrative resources.
Attendees pushed back against that premise. “These people care about the environment. These people care about housing,” said Matt Fogarty, of Crescent Mills, arguing that public concerns should be taken into consideration.
Graham assured the public that he understands the importance of these issues but that the county has limited discretion under the law. He explained that issues with direct bearing on the question of vesting might include the date of vesting, whether the applicant has always had the intention to mine the entire property, or whether the owners have ever abandoned their right to mine.
The implications of vesting
If it is determined that the Engels and Superior sites do qualify for vesting, the proposed mining operation will be exempt from Plumas County’s permitting process. That would include not just the mine, but improvements within the boundaries of the property, such as grading, roads, ponds and culverts. It’s not clear how vesting affects improvements beyond the property, but since the site abuts U.S. Forest Service land, these would most likely need to go through a federal permit process, Graham told The Plumas Sun. If vested, the project would also bypass the California Environmental Quality Act (CEQA) analysis, which is typically part of the permit application.
The applicants would, however, still be required to create a reclamation plan according to detailed standards outlined in the 1976 California Surface Mining and Reclamation Act (SMARA). CEQA would apply to that process. SMARA governs surface mining activities, which include removing overburden and mining directly from the mineral deposits, open-pit mining, mining by auger, dredging and quarrying, or surface work incident to an underground mine.
“One of the things we have to keep in mind about these reclamation plans is that they are really irrelevant.”
Ted Stout, Indian Valley resident
A reclamation plan addresses regrading, revegetation, performance standards, percentage of vegetation cover, and species richness, Graham told The Plumas Sun. Plans are reviewed by the county and the State Office of Mine Reclamation, which provide feedback. Once approved, a total dollar amount is determined and the mine owners must provide a financial assurance mechanism to both the county and the state (usually a bond for large amounts). A mine would also be expected to adhere to federal regulations, and would undergo annual inspections in accordance with SMARA, Graham said. The county administers SMARA under the oversight of the Department of Conservation.
The bureaucratic process of administering SMARA drew criticism from Ted Stout, who lives in Indian Valley. “One of the things we have to keep in mind about these reclamation plans is that they are really irrelevant,” he said after the meeting. Stout is concerned that when the time comes to implement the plan, corporations may declare bankruptcy and default. “There are dozens and dozens of these stories,” he said.
Daniel Kearns, of Taylorsville, noted that applicable regulation does not necessarily equal compliance. No mine he knows of meets all environmental requirements, he said: “Find me the open-pit mine that doesn’t have toxic water downstream.”
Greenville resident C.L. Woods added that in his research he was unable to find any inspection reports for the sites, although annual inspections are required for all working mines. Trina Cunningham, a Mountain Maidu who lives in Genesee Valley, asked whether previous lack of adherence to the law might affect vested rights.
The debate over vesting
Vested rights come into effect when a business activity predates the establishment of governing laws and regulations. There are several key requirements for a mining operation to qualify. Operations must predate either the oldest relevant local regulation or SMARA. The activity must remain essentially similar with “no substantial changes… in the operation” per county code. And the owners must not have “intentionally” waived or abandoned their rights.
The Engels Mine has been worked since the 1880s; it was incorporated in 1901, and has been owned by the California-Engels Mining Company since 1936. The Plumas County Board of Supervisors adopted its first zoning ordinance on July 8, 1958, which has been identified as the date of vesting in the US Copper filing. Engels has been host to a range of different mining and forest activities over the years, before and after 1958.
There is “no question that the mine has been abandoned.”
Carol Viscarra, Indian Valley rancher
Gordon Keller, of Genesee, said the law “appears vague about the change in scope” requirement. Precedent makes clear that simple inactivity does not constitute intentional abandonment; documentation may be used to prove intent, Graham said. US Copper asserts that mining rights at Engels have never been waived or abandoned. Carol Viscarra, of the Defanti Ranch on the North Arm of Indian Valley, said there is “no question that the mine has been abandoned,” noting that some of the cabins were moved from the mine to her ranch at the time.
Water, environment and quality-of-life remain community concerns
Underlying the legal and factual arguments at the meeting were ongoing concerns over the environment, health, and well-being of the community.
Jason Moghaddas, who lives on Diamond Mountain Road near the mine, said that a sand and gravel operation has accelerated recently, increasing traffic on the road. This summer, the bed of Lights Creek changed from rock to sand; there were no fish this year, he said.
A neighbor on Diamond Mountain Road, John Simon, who lives three miles from the mine, spoke about the losses the community has already suffered as a result of the 2021 Dixie fire. “Now we have another potential tragedy,” he said. “I can do without an electric car. I cannot do without fresh water.”
Cunningham said that her parents were in Moonlight Valley, part of the California-Engels Mining Company property, when her mother went into labor with her. She asked whether there is legal standing for tribal water rights in a case like this one.
Viscarra also spoke of the risks to her livestock from mining chemicals such as arsenic and cyanide. “It is my intent to fight this every step of the way,” she said.
Many community members agreed that this should be a state-wide issue. These are the headwaters of the State Water Project, Simon said. Water from Plumas County flows to Lake Oroville, the second largest reservoir in California, and from there to the Sacramento-San Joaquin Delta.
“It’s the most beautiful place in God’s creation and to put an open-pit mine there is just a sin,” Simon said. “We got vested rights too.”
Decision timeline and next steps
Stout raised concerns over the content of a county staff report, presented at the Oct. 11 meeting. The report recommended approval to vest the rights. Stout said it relies heavily on information supplied by US Copper, with “no external sources.” The information provided by the applicant should be verified and validated, Stout said.
“We are so constrained by what facts we can look at when determining vested mining rights…”
Jim Graham, interim zoning administrator
The county is in the process of interviewing mining consultants to aid in annual inspections and new mining applications. Planning Department officials have asked two candidates to provide a bid and scope for assessing the US Copper’s vested rights application. They expect to select a preferred candidate by next week, Planning Director Tracey Ferguson said. County staff will submit their recommended candidate to the Board of Supervisors for approval. At that time, the public will have the opportunity to review and comment on the selection. Once contracted, the consultant will review the entire record and submit a report. Ferguson estimated eight weeks for the legal review. The assessment is expected to be available to the public in early April, with the final decision hearing to follow on May 8.
The Zoning Administration will continue to accept public comments in the interim, as well as at the decision hearing itself. Whatever the outcome, stakeholders have will 10 days after the decision to file an appeal for consideration by the Board of Supervisors.
“We are so constrained by what facts we can look at when determining vested mining rights… It would be a lot easier to make a determination if we could consider impacts,” Graham told The Plumas Sun. “Like the public, we want to retain control, and to be able to say how things are conducted out there—if they even can be conducted safely… It’s frustrating.” Graham added that staff will review this application carefully, and ensure that the consultant team looks into each piece of evidence to determine its merit.
Editor’s note: This story has been edited to correct the amount of copper U.S. Copper expects to extract.